                                   ___________

                                   No. 95-2966
                                   No. 95-3100
                                   ___________

Scott Fetzer Company,                  *
Kirby Company Division,                *
                                       *
       Appellant/Cross-Appellee,       *
                                       *   Appeals from the United States
       v.                              *   District Court for the
                                       *   District of Minnesota.
Stan Williamson, doing business        *
as The Vacuum Doctor,                  *
                                       *
       Appellee/Cross-Appellant.       *

                                   ___________

                     Submitted:    June 12, 1996

                          Filed:   November 29, 1996
                                   ___________

Before LOKEN, JOHN R. GIBSON, and HANSEN, Circuit Judges.

                                   ___________

JOHN R. GIBSON, Circuit Judge.


       The Scott Fetzer Company and its Kirby Company Division appeal from
a judgment of the district court1 on Stan Williamson's defamation claim
against Kirby.     Kirby argues that the defamatory statements made by its
attorneys   were   absolutely   privileged,   that   it   cannot   be   liable   for
defamatory statements made by its distributor, that the district court
erred in denying Kirby's motion for a new trial because Kirby had a
qualified privilege to make its statements, and finally that the damage
award was unreasonable and excessive.      Williamson cross-appeals, arguing
that




       1
      The Honorable Paul A. Magnuson, Chief Judge, United States
District Court for the District of Minnesota.
the district court erred in setting aside his award for lost profits and
that it abused its discretion in denying him his attorney's fees.          We
affirm.


     Kirby manufactures vacuum cleaners under its trademark name of Kirby.
Kirby tries to limit the distribution of its vacuum cleaners to sales to
individual consumers through in-home demonstrations by Kirby-authorized
distributors.    Kirby will provide a warranty for a Kirby vacuum cleaner
only when it is sold in this manner.        To activate the factory warranty,
Kirby requires the distributor to fill out a "gold card" in the name of the
buyer.    The gold card has the serial number of the vacuum cleaner and the
name of the buyer.     When the distributor sends the gold card to Kirby,
Kirby registers the factory warranty for that vacuum cleaner in the name
of the buyer on the gold card.


     Stan Williamson does business as The Vacuum Doctor in Austin,
Minnesota.   His work consists of servicing and selling different makes of
vacuum cleaners, including Kirby's.    Williamson advertised new Kirby vacuum
cleaners for sale.


     The Kirby-authorized distributor in Austin, Mark Guentzel, complained
to Kirby that Williamson was advertising new Kirby vacuum cleaners for sale
when he was not a Kirby-authorized distributor.       Kirby asked Guentzel to
buy a new Kirby vacuum cleaner from Williamson, which Guentzel did by
sending an employee, Carol Bakken, to Williamson's store.     After receiving
the vacuum cleaner, Guentzel sent it to Kirby.


     Kirby had a gold card in its records for the Kirby vacuum cleaner
that Williamson sold to Bakken.   This gold card showed that Maria Guadalupe
Estrada of Bell Gardens, California had bought this vacuum cleaner.       The
gold card also showed that a salesman for Mohammed Tai, a Kirby-authorized
distributor in southern California, sold the vacuum cleaner to Estrada.




                                      -2-
      Estrada, however, never bought the Kirby vacuum cleaner covered by
the gold card and sold by Williamson.     A salesman attempted to sell Estrada
a Kirby vacuum cleaner, but she refused because it was too expensive.


      Tai had seven people working for him selling Kirby vacuum cleaners.
To give his sales people an incentive to sell, Tai had sales contests
offering prizes to the person who sold the most Kirby vacuum cleaners.
Even though Tai knew that Kirby required him to sell its vacuum cleaners
to individual consumers through in-home demonstrations, Tai also knew that
his   salespeople   would   sometimes   sell   new   Kirby   vacuum   cleaners   to
wholesalers at low prices just to win his sales contests.         Tai had no way
of knowing who bought the new Kirby vacuum cleaner which Williamson later
sold to Bakken in Minnesota.


      Williamson received the Kirby vacuum cleaner he sold to Bakken from
Robert Katzer.      Katzer is a wholesaler of vacuum cleaners, including
Kirby's, in southern California.    Katzer bought the vacuum cleaner he sold
to Williamson from Rashid Fahimi, another vacuum cleaner wholesaler in
southern California.    When Katzer bought the vacuum cleaner from Fahimi,
it was new and still in its factory packaging.         The Kirby vacuum cleaner
was still in this condition when Katzer sent it to Williamson for sale to
Bakken.


      Besides asking Guentzel to buy a vacuum cleaner from Williamson,
Kirby also had its attorneys send three letters to Williamson.          The third
letter from Kirby's attorneys stated that Williamson had sold as "new" a
used Kirby vacuum cleaner.     One of Kirby's attorneys sent a copy of this
letter to two newspapers in which Williamson advertised.


      After getting no response from Williamson to its letters, Kirby
brought this action to enjoin some aspects of Williamson's advertising of
Kirby vacuum cleaners as violations of the Lanham




                                        -3-
Act, 15 U.S.C. §§ 1051-1127 (1994), and various Minnesota laws.              Williamson
counterclaimed, arguing that Kirby had defamed him and violated the
Minnesota Deceptive Trade Practices Act, Minn. Stat. §§ 325D.43 to 325D.48
(1994), and the Minnesota Consumer Fraud Act, Minn. Stat. §§ 325F.68 to
325F.70   (1994    &   Supp.   1995).     The     district   court   granted   Kirby   a
preliminary injunction against certain aspects of Williamson's advertising
mentioning Kirby.       The district court decided Kirby's equitable claims,
while a jury decided Williamson's claims.


     After trial the district court ruled against Kirby on all of its
claims, while the jury found that Kirby had defamed Williamson and violated
the Minnesota Deceptive Trade Practices Act and the Minnesota Consumer
Fraud Act.   The jury also found that Kirby's defamation of Williamson had
caused    Williamson    $90,000   in    damages    and   that   Kirby's   violation    of
Minnesota law had cost Williamson $5,000 in lost profits.             After trial the
district court set aside the jury's finding that Williamson lost $5,000 in
profits because Williamson failed to present sufficient evidence to support
that finding.     The district court also declined to award Williamson, as the
prevailing party, his attorney's fees under the Lanham Act, the Minnesota
Deceptive Trade Practices Act, and the Minnesota Consumer Fraud Act.             Kirby
appeals the jury's finding that it defamed Williamson, while Williamson
cross-appeals the district court's setting aside of the award of lost
profits and its denial of an award of attorney's fees.


                                           I.


                                           A.


     Kirby argues that the district court should have granted Kirby
judgment as a matter of law on Williamson's defamation claim because all
of Kirby's statements concerning Williamson are




                                          -4-
absolutely privileged.2


     We review de novo a district court's decision on whether to grant a
party's motion for judgment as a matter of law.   Keenan v. Computer Assocs.
Int'l, Inc., 13 F.3d 1266, 1268 (8th Cir. 1994).     In determining whether
a party is entitled to judgment as a matter of law, we view the evidence
in the light most favorable to the jury's verdict and must not engage in
weighing evidence or considering questions of credibility.   Id. at 1268-69.
Judgment as a matter of law is appropriate only when all of the evidence
points one way and is susceptible of no reasonable inference sustaining the
jury's verdict.   Id. at 1269.   If any of Kirby's defamatory statements are
not absolutely privileged, Kirby will not be entitled to judgment as a
matter of law, as there will be evidence to support the jury's verdict that
Kirby defamed Williamson.


     Minnesota law governs Williamson's defamation claim against Kirby.
Whether a statement is absolutely privileged is a question of law which we
review de novo.   Kittler v. Eckberg, Lammers, Briggs, Wolff & Vierling, 535
N.W.2d 653, 655 (Minn. Ct. App. 1995), cert. denied, 116 S. Ct. 1850
(1996).   An attorney is absolutely privileged to make defamatory statements
as long as those statements are a part of the preparation for or the
conduct of a judicial proceeding.   Matthis v. Kennedy, 67 N.W.2d 413, 417-
19 (Minn. 1954); Kittler, 535 N.W.2d at 655.   An attorney is not absolutely
privileged to make defamatory statements to the news media when the news
media is unconnected with a proposed judicial proceeding.    Asay v. Hallmark
Cards, Inc., 594 F.2d 692, 697-98 (8th Cir. 1979) (applying Iowa law);
Kleier Advertising, Inc. v. Premier Pontiac, Inc., 921 F.2d 1036, 1043-44
(10th Cir. 1990) (applying Oklahoma law).




     2
     Kirby does not argue that the jury incorrectly found Kirby's
statements to be defamatory.

                                     -5-
       Kirby argues that its attorneys were absolutely privileged to send
to the newspapers a copy of their third letter to Williamson because the
copy was a communication preliminary to a proposed judicial proceeding.
Kirby contends that it planned to sue Williamson over his advertising in
the    newspapers     and     that   the     newspapers,     as    publishers   of     his
advertisements, were potential defendants in this proposed lawsuit.                  Kirby
concludes that its attorneys sent the copy to the newspapers in an attempt
to    resolve   the   legal   dispute      between   Kirby   and   Williamson   and    the
newspapers.


       The district court rejected Kirby's arguments on absolute privilege
because Kirby did not contend, nor was there any evidence, that the
newspapers were potential parties to Kirby's lawsuit against Williamson.
We affirm the district court's order and reject Kirby's argument because
there is no evidence that Kirby ever intended to sue the newspapers.
Kirby's only contact with the newspapers was mailing them copies of its
letters    to   Williamson.      Those     letters   were    directed   exclusively     at
Williamson and his conduct, and threatened legal action only against
Williamson.     This record is insufficient for us to conclude that Kirby was
considering bringing legal action against the newspapers, and that the
mailing of the copies was part of its preparation for a lawsuit against the
newspapers.     Cf. Kittler, 535 N.W.2d at 656.


       The evidence that Kirby cites to support its argument is: (1) that
the newspapers were potentially liable to Kirby because they published
Williamson's advertisements; (2) that Kirby sent copies only to the two
newspapers which carried Williamson's advertisements; and (3) that Kirby
did not send the copies as part of a request that the newspapers publicize
Kirby's charge of unlawful conduct against Williamson.                   None of this
evidence supports Kirby's argument that the newspapers were potential
parties to Kirby's lawsuit against Williamson.               While the newspapers may
have been liable to Kirby, this is not evidence that Kirby intended to sue
the newspapers.       Likewise, the last two facts




                                            -6-
Kirby raises in no way bear on the issue of whether the newspapers were
potential parties to Kirby's lawsuit against Williamson.


       We conclude that Kirby's attorneys were not absolutely privileged to
send to the newspapers a copy of their third letter to Williamson because
the newspapers were unconnected with Kirby's proposed lawsuit against
Williamson.    See Asay, 594 F.2d at 697-98.    Accordingly, we must reject
Kirby's argument that there was no evidence to support the jury's verdict
that Kirby defamed Williamson.      Kirby's publication to the two local
newspapers of its third letter to Williamson is enough evidence to support
the jury's verdict.   See Keenan, 13 F.3d at 1274-75.


       Because the copy Kirby sent to the newspapers is not absolutely
privileged and is enough evidence to support the jury's verdict, we need
not reach the issues of whether other communications by Kirby's attorneys
are absolutely privileged or whether Kirby is responsible for other
defamatory statements made by Guentzel.


                                     B.


       Kirby argues that the district court should have instructed the jury
that Kirby was liable for its defamatory statements only if Kirby made
those statements with malice.   Kirby asserts that it was entitled to this
instruction because it had a qualified privilege to make all of its
defamatory statements.


       A party has a qualified privilege to make a defamatory statement when
he makes that statement on a proper occasion, with a proper motive, and
based on reasonable or probable cause.    Lewis v. Equitable Life Assurance
Soc'y, 389 N.W.2d 876, 889 (Minn. 1986).       Whether a party has probable
cause to believe that his defamatory statement is true is a question of law
unless the evidence as to the existence of probable cause leads to more
than




                                    -7-
one conclusion.       Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 380-81 & n.4
(Minn. 1990); Brooks v. Doherty, Rumble & Butler, 481 N.W.2d 120, 125
(Minn. Ct. App. 1992).        When a party making a defamatory statement takes
no   steps    to      investigate   but   relies      entirely    on     hearsay   without
verification, he has not acted as a reasonably prudent person and lacks
probable or reasonable grounds for making a defamatory statement.                  Wirig,
461 N.W.2d at 380-81.


      We     reject    Kirby's    argument    that     all   of   its    statements    were
qualifiedly privileged.          We will assume without deciding that all of its
statements were made on a proper occasion and with a proper motive.                   Kirby,
however, did not have reasonable grounds for its accusation that Williamson
had sold a used Kirby vacuum cleaner as a new one.                     Bakken, at Kirby's
request, bought a new Kirby vacuum cleaner from Williamson.                   Kirby had a
gold card stating that a Kirby-authorized salesman had previously sold this
vacuum cleaner to Estrada in California.             Relying solely on this gold card,
without inspecting the vacuum cleaner for use or verifying the accuracy of
the gold card, Kirby published its charge that Williamson had sold a used
vacuum cleaner as new.        We conclude as a matter of law that Kirby failed
to   conduct a reasonable investigation before making this defamatory
statement, and, therefore, Kirby did not have a qualified privilege to make
this statement.        See Wirig, 461 N.W.2d at 380-81.


      Kirby argues that it is entitled to an instruction on malice because
all of its defamatory statements are qualifiedly privileged.                  As at least
one of its statements is not qualifiedly privileged, we find no error in
the district court's denial of Kirby's requested instruction.


                                             II.


      Kirby argues that the jury's award of damages to Williamson for
Kirby's defamation is unreasonable and excessive.                 In




                                          -8-
Minnesota, defamatory statements about a person's business reputation
constitute defamation per se and give rise to a presumption of general
damages.   Keenan, 13 F.3d at 1273.        In such cases we tend to leave the
amount of damages to the jury's discretion.        Id.   We will require a new
trial because of an award of unreasonable damages only when the jury's
award is so exorbitant as to shock the sense of the court.     Id. at 1273-74.
The jury's award in this case is not so exorbitant as to shock the sense
of the court.


                                    III.


     On cross-appeal Williamson argues that the district court should have
awarded him his attorney's fees.   Williamson argues that he is entitled to
attorney's fees under the Lanham Act, the Minnesota Deceptive Trade
Practices Act, and the Minnesota Consumer Fraud Act.


                                      A.


     The Lanham Act permits the district court to award attorney's fees
to the prevailing party in exceptional cases.       15 U.S.C. § 1117.     When a
plaintiff's case is groundless, unreasonable, vexatious, or pursued in bad
faith, it is exceptional, and the district court may award attorney's fees
to the defendant.   Hartman v. Hallmark Cards, Inc., 833 F.2d 117, 123 (8th
Cir. 1987).   Under the Lanham Act we review the district court's decision
on whether to award attorney's fees for abuse of discretion.        Id.    Even
though Kirby lost on its Lanham Act claims against Williamson, there is
some evidence in the record to support Kirby's claims.      Therefore, Kirby's
case is not exceptional, and the district court correctly refused to award
Williamson his attorney's fees under the Lanham Act.




                                    -9-
                                            B.


        The Minnesota Deceptive Trade Practices Act permits the district
court to award attorney's fees to the prevailing party if: (1) the party
complaining of a deceptive trade practice has brought a lawsuit knowing it
to be groundless; or (2) the party charged with a deceptive trade practice
has willfully engaged in the trade practice knowing it to be deceptive.
Minn. Stat. § 325D.45, subd. 2 (1994).            Under the Minnesota Deceptive Trade
Practices Act, we review the district court's decision on whether to award
attorney's fees for abuse of discretion.              Cf. Hartman, 833 F.2d at 123;
Becker v. Alloy Hardfacing & Engineering Co., 401 N.W.2d 655, 661 (Minn.
1987).


        Williamson argues that Kirby willfully engaged in deceptive trade
practices by accusing him of selling used Kirby vacuum cleaners as new when
Kirby knew or should have known that this was false.            Williamson concludes
that the district court abused its discretion in denying him attorney's
fees because of Kirby's willful misconduct.3


        Kirby attempts to prevent unauthorized distributors from receiving
new Kirby vacuum cleaners.            Under this system Kirby only distributes new
Kirby        vacuum   cleaners   to    Kirby-authorized    distributors    whom   Kirby
contractually obligates to sell to individual consumers.                  Assuming all
authorized distributors live up to their obligations, no unauthorized
dealer should be able to sell a new Kirby vacuum cleaner.                 Additionally,
Kirby had a gold card showing that the new Kirby vacuum cleaner Williamson
sold to Bakken had been previously sold to Estrada in California.                  This
evidence supports the honest belief of everyone associated with Kirby that




         3
      Williamson also argues that the district court should have
awarded him attorney's fees because Kirby brought a groundless
lawsuit against him. As we stated above, Kirby's lawsuit is not
groundless, as there is some evidence in the record to support it.

                                           -10-
Williamson could not get new Kirby vacuum cleaners and that he had sold a
used one as new.


     Williamson points to evidence which shows that Kirby should have
known that it was falsely accusing Williamson of selling a used Kirby
vacuum cleaner as new.     The record shows that Kirby knew that some of its
authorized distributors sold new Kirby vacuum cleaners to wholesalers, and
that it was possible for Williamson to obtain a new Kirby vacuum cleaner.
It also shows that Kirby failed to verify the accuracy of its gold card
when it easily could have done so by calling Estrada or inspecting the
vacuum cleaner Williamson sold to Bakken.       This evidence shows that Kirby
was negligent in accusing Williamson, see Wirig, 461 N.W.2d at 380-81, but
it does not force us to conclude that Kirby willfully engaged in a trade
practice it knew to be deceptive.      On this record the district court did
not abuse its discretion in refusing to grant Williamson his attorney's
fees under the Minnesota Deceptive Trade Practices Act.


                                       C.


     A   plaintiff   may   recover   his    attorney's   fees   resulting   from   a
successful lawsuit for a violation of the Minnesota Consumer Fraud Act.
Minn. Stat. § 8.31, subd. 1, subd. 3a (1994).      Under the Minnesota Consumer
Fraud Act, we review the district court's decision on whether to award
attorney's fees for abuse of discretion.           Hutchinson Utils. Comm'n v.
Curtiss-Wright Corp., 775 F.2d 231, 243 (8th Cir. 1985).          For the reasons
we have already set out above, the district court did not abuse its
discretion in denying Williamson an award of his attorney's fees under the
Minnesota Consumer Fraud Act.


                                       IV.


     Finally, Williamson argues that the district court erred in




                                      -11-
setting aside the jury's award of damages for his lost profits.    We must
reinstate the jury's award if the evidence at trial is susceptible to any
reasonable inferences sustaining the award.      Cashman v. Allied Prods.
Corp., 761 F.2d 1250, 1253 (8th Cir. 1985).   To receive an award for lost
profits, Williamson must have shown that he lost profits due to Kirby's
wrongful conduct.    Polaris Indus. v. Plastics, Inc., 299 N.W.2d 414, 419
(Minn. 1980); Cashman, 761 F.2d at 1252-53.   Williamson provided evidence
that his sales of vacuum cleaners declined during the time of Kirby's
wrongful conduct.    Williamson failed, however, to provide any evidence
linking his decline in sales to Kirby's wrongful conduct.    Without such
evidence, we cannot reinstate the jury's award for lost profits.       See
Polaris, 299 N.W.2d at 419.


     We affirm the district court's judgment in all respects.


     A true copy.


           Attest:


                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                   -12-
