                                                         FILED
FOR PUBLICATION                                        Sep 21 2012, 9:11 am


                                                              CLERK
                                                            of the supreme court,
                                                            court of appeals and
                                                                   tax court



ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

JEFFREY A. MACEY                              LINDSEY A. GROSSNICKLE
Macey Swanson and Allman                      MATTHEW R. SHIPMAN
Indianapolis, Indiana                         Bloom Gates & Whiteleather, LLP
                                              Columbia City, Indiana

                                              MICHAEL A. WILKINS
                                              Broyles Kight & Ricafort, P.C.
                                              Indianapolis, Indiana

                             IN THE
                   COURT OF APPEALS OF INDIANA
JANICE BRANDOM,                               )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )        No. 92A03-1112-PL-542
                                              )
COUPLED PRODUCTS, LLC,                        )
                                              )
      Appellee-Plaintiff.                     )


                   APPEAL FROM THE WHITLEY CIRCUIT COURT
                        The Honorable James R. Heuer, Judge
                           Cause No. 92C01-1010-PL-690

                                  September 21, 2012

                             OPINION – FOR PUBLICATION

MAY, JUDGE
         Janice Brandom’s employer, Coupled Products, LLC, sued her for defamation after

she made comments to a local newspaper about Coupled. Brandom moved to dismiss

pursuant to the “anti-SLAPP” statute, Ind. Code § 34-7-7-5, which is intended to discourage

lawsuits brought primarily to chill free speech about issues of public concern. Her motion

was denied, and we affirm.1

                           FACTS AND PROCEDURAL HISTORY

         Brandom was an employee of Coupled Products. Coupled’s hourly employees are

represented by UAW Local 2049 (“the Local”), and Brandom was chair of the Local’s

bargaining committee. Between August of 2009 and July of 2010, articles appeared in a

Whitley County newspaper about Coupled’s proposed move of equipment from an Ohio

facility to Columbia City, Indiana; a tax abatement Whitley County had promised in

exchange for the move; and jobs the move would bring.

         On September 16, 2009, the newspaper published an article with a number of

statements Coupled contends are false: 1) that Coupled received a tax abatement from

Whitley County after it announced plans to move some of its operations to Columbia City

from Ohio; 2) that Coupled was making automotive components for Ford, General Motors,

and Chrysler; 3) that seven truckloads of equipment were delivered to Coupled but were

removed after the Local voted down certain concessions; 4) that Coupled asked members of

the Local to surrender sickness and accident pay, bereavement pay, dental and life insurance,


1
    We heard oral argument August 6, 2012. We commend counsel on the quality of their advocacy.
                                                   2
and a one dollar per hour raise; and 5) that Coupled raised the deductible on the employees’

health insurance plan without the knowledge or consent of the Local. Coupled believed

Brandom was the source of those statements.

       Coupled sued Brandom for defamation, submitted evidence to contradict the

statements Brandom allegedly gave the newspaper, and submitted evidence there had been a

“noticeable decrease in employee morale and productivity” and “a noticeable increase in

hostility” toward management. (Appellee’s App. at 78.) Brandom moved to dismiss

pursuant to the “Anti-SLAPP” statute on the ground the statements were made in furtherance

of her right to free speech in connection with an issue of public interest. Both parties

designated evidence, and the trial court denied Brandom’s motion to dismiss. It then

certified its order for interlocutory appeal, and we accepted jurisdiction.

                              DISCUSSION AND DECISION

       “SLAPPs,” or Strategic Lawsuits Against Public Participation, are “meritless suits

aimed at silencing a plaintiff’s opponents, or at least at diverting their resources.” Hamilton

v. Prewett, 860 N.E.2d 1234, 1241-42 (Ind. Ct. App. 2007) (quoting John C. Barker,

Common–Law and Statutory Solutions to the Problem of SLAPPS, 26 Loy. L.A. L. Rev. 395,

403 (1993)), trans. denied. The anti-SLAPP statute is intended to reduce the number of

lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of

speech and petition for the redress of grievances. Id. To reduce the number of lawsuits

brought to chill speech, a defendant who prevails on a motion to dismiss under the anti-

                                               3
SLAPP statute is entitled to recover reasonable attorney’s fees and costs. Ind. Code § 34-7-

7-7.

       The “anti-SLAPP” statute provides:

       It is a defense in a civil action against a person that the act or omission
       complained of is:
       (1) an act or omission of that person in furtherance of the person’s right of
       petition or free speech under the Constitution of the United States or the
       Constitution of the State of Indiana in connection with a public issue; and
       (2) an act or omission taken in good faith and with a reasonable basis in law
       and fact.

Ind. Code § 34-7-7-5. The person who files a motion to dismiss must state with specificity the

public issue or issue of public interest that prompted the act in furtherance of the person’s

constitutional right of petition or free speech. Ind. Code § 34-7-7-9.

       A motion to dismiss brought under this chapter is treated as a motion for summary

judgment. Ind. Code § 34-7-7-9. The motion is to be granted if the court finds the person

filing the motion has proven, by a preponderance of the evidence, that the act on which the

claim is based is a lawful act in furtherance of the person’s constitutional right of petition or

free speech. Id.

       Summary judgment is appropriate only if the pleadings and evidence considered by

the trial court show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law. Hamilton, 860 N.E.2d at 1240. On a motion

for summary judgment, all doubts as to the existence of material issues of fact must be

resolved against Brandom, the moving party. See id. All facts and reasonable inferences

                                               4
from those facts are construed in favor of Coupled, the nonmoving party. See id. If there is

any doubt as to what conclusion a jury could reach, then summary judgment is improper. Id.

The party appealing a summary judgment has the burden of persuading us the grant or denial

of summary judgment was erroneous. Id.

        Brandom spoke on a matter of public interest but there is a genuine issue as to whether

she spoke in good faith and without malice. Her motion to dismiss was therefore properly

denied.

        1.       Issue of Public Interest

        Brandom demonstrated her speech was related to an issue of public interest. The

person who files a motion to dismiss must state with specificity the public issue or issue of

public interest that prompted the act in furtherance of the person’s constitutional right of

petition or free speech. Ind. Code § 34-7-7-9.2

        Coupled alleged Brandom’s defamatory statements were her statements to the

newspaper that: (1) Coupled had received a tax abatement from Whitley County after it


2
   Coupled first asserts Brandom’s statement of the issue of public interest related to her speech was not
sufficiently specific. Coupled offers no authority to explain what level of specificity the statute requires, nor
does it explain why Brandom’s statement was inadequate. Rather, it simply concludes her motion does not
“state with any specificity the public issue or issue of public interest that prompted the act.” (Br. of Appellee at
13.)
  Brandom responds by pointing to language she included in the motion to dismiss, then concludes, also
without citation to authority, she “clearly complied with her obligations under the anti-SLAPP statute.”
(Appellant’s Reply Br. at 3.) In her motion, she did not quote or paraphrase specific statements she made, but
she accurately characterized the statements as made in the context of negotiations between the Local and
Coupled, which negotiations “concerned the move of a significant portion of [Coupled’s] business to the
Columbia City facility whose employees are represented by” the Local. (Appellee’s App. at 93.) The
statements “all concerned either the details of the move or concessions that [Coupled] had asked its employees
to make in anticipation of the move.” (Id.) Brandom’s statement was specific enough.
                                                         5
announced plans to move some operations from Ohio to Columbia City; (2) Coupled was

manufacturing automobile components for General Motors, Ford and Chrysler; (3) seven

truckloads of equipment were delivered to Coupled but were removed after the Local voted

down certain concessions; (4) Coupled asked the union members to surrender their sickness

and accident pay, bereavement pay, their dental and life insurance, and a one dollar per hour

raise; and (5) Coupled raised the health insurance deductible without the knowledge or

consent of the Local.

       Speech is on a matter of public concern if it is addressed to “any matter of political,

social, or other concern to the community,” as determined by its content, form, and context.

Love v. Rehfus, 946 N.E.2d 1, 10 (Ind. 2011) (quoting Connick v. Myers, 461 U.S. 138, 146 -

48 (1983)), reh’g denied. Our courts have not addressed at length when speech is or is not

about a matter of public concern in the anti-SLAPP context, but we find instructive the

analysis in Cross v. Cooper, 127 Cal. Rptr. 3d 903, 912-14 (Cal. Ct. App. 2011), as modified

on denial of reh’g, review denied:

               [The terms “public interest” and “public issue”] are inherently
       amorphous and thus do not lend themselves to a precise, all-encompassing
       definition. Some courts have noted commentary that no standards are
       necessary because courts and attorneys will, or should, know a public concern
       when they see it.
               Nevertheless, courts have discussed how to decide whether a statement
       concerns a matter of public interest. In Nygard, Inc. v. Uusi–Kerttula (2008)
       159 Cal.App.4th 1027, 72 Cal.Rptr.3d 210 (Nygard), the court pointed out that
       although [the California anti-SLAPP statute] does not define “public interest,”
       it does mandate that its provisions “‘be construed broadly’ to safeguard ‘the
       valid exercise of the constitutional rights of freedom of speech and petition for

                                              6
      the redress of grievances.” (Id. at p. 1039, 72 Cal.Rptr.3d 210, quoting §
      425.16, subd. (a).)
                                          *****
              Accordingly, courts have broadly construed “public interest” to include
      not only governmental matters, but also private conduct that impacts a broad
      segment of society and/or that affects a community in a manner similar to that
      of a governmental entity. Indeed, even before the Legislature mandated broad
      construction, the court in [Church of Scientology v. Wollersheim, 42 Cal. App.
      4th 628, 49 Cal. Rptr. 2d 620 (1996), review denied] opined that “[a]lthough
      matters of public interest include legislative and governmental activities, they
      may also include activities that involve private persons and entities, especially
      when a large, powerful organization may impact the lives of many
      individuals.” (Id. at p. 650, 49 Cal.Rptr.2d 620). And in Nygard, supra, 159
      Cal.App.4th at page 1042, 72 Cal.Rptr.3d 210, the court opined that taken
      together, the legislative history of the amendment and the cases that
      precipitated it “suggest that ‘an issue of public interest’ . . . is any issue in
      which the public is interested. In other words, the issue need not be
      ‘significant’ to be protected by the anti-SLAPP statute -- it is enough that it is
      one in which the public takes an interest.”
              In [Rivero v. Am. Fed’n of State, County, & Mun. Employees, AFL-CIO,
      105 Cal. App. 4th 913, 130 Cal. Rptr. 2d 81 (2003), review denied], the court
      reviewed several cases and described three non-exclusive and sometimes
      overlapping categories of statements that have been given anti-SLAPP
      protection. (Id. at pp. 919–924, 130 Cal.Rptr.2d 81.) The first category
      comprises cases where the statement or activity precipitating the underlying
      cause of action was “a person or entity in the public eye.” (Id. at p. 924, 130
      Cal.Rptr.2d 81.) The second category comprises cases where the statement or
      activity precipitating the underlying cause of action “involved conduct that
      could affect large numbers of people beyond the direct participants.” (Ibid.)
      And the third category comprises cases where the statement or activity
      precipitating the claim involved “a topic of widespread, public interest.”
      (Ibid.) Courts have adopted these categories as a useful framework for
      analyzing whether a statement implicates an issue of public interest and thus
      qualifies for anti-SLAPP protection.

      We agree with Brandom that her statements were “undertaken in connection with a

public issue in furtherance of [Brandom’s] right to free speech.” (Appellee’s App. at 91.)

Her statements were made in the context of negotiations between Coupled and the union
                                          7
concerning a move of some of Coupled’s business to Columbia City, and all the statements

“concerned either the details of the move or concessions [Coupled] had asked its employees

to make in anticipation of the move.” (Id. at 93.) The economic impact of the move made

the issue one of public interest and the matter was significant enough to the community that

the local newspaper devoted several articles to it.

        Brandom’s statements fit within the second and third Cross categories, i.e., statements

involving conduct that could affect large numbers of people beyond the direct participants

and statements involving a topic of widespread, public interest.

        In Love, a firefighter sent a private e-mail supporting a candidate for trustee and

criticizing the efficiency and financial stability of the township’s fire department. Our

Indiana Supreme Court found the government’s allocation of funds and resources within a

fire department was a matter of public concern, and Love’s email was not “an extension of

any dispute with his superiors. . . . [T]his was a general grievance as to the operation of

government like the letter in Pickering;3 it was not an employment-related grievance.” Id. at

10 (footnote added).


3
  In Pickering v. Board of Education, 391 U.S. 563, 566 (1968), the United States Supreme Court held the
First Amendment protected a public school teacher who wrote a letter to a newspaper in which he criticized the
allocation of school funds and the manner by which the school board raised such funds:
         Pickering and its progeny provide a two-step analysis for determining whether the First
         Amendment protects an employee’s speech. First, the employee must have been speaking as
         a citizen on a matter of public concern. Garcetti [v. Ceballos, 547 U.S. 410, 418 (2006)]. If
         this threshold requirement is not met, then there is no First Amendment retaliation claim. Id.
         If the employee satisfies this threshold, then the Pickering balancing test must be applied to
         determine if the government was justified in “treating the employee differently from any other
         member of the general public.”
                                                      8
        Nor did Brandom’s statements in the case before us reflect a mere “employment-

related grievance.” See id. To the extent the Local’s willingness to accept pay and benefit

concessions might have affected Coupled’s decision whether to move some of its operations

to Columbia City, the outcome of such employment-related grievances had broader

implications that would affect large numbers of people beyond the direct participants. As her

statements dealt with “the role of [Coupled] in the economic development of Columbia City,”

(Appellant’s Br. at 13), and the effect on the community of the tax abatement and the

expansion of jobs and economic activity there, they addressed matters of public interest.

                2.       Good Faith / Malice

        While Brandom’s statements were made “in connection with a public issue,” Ind.

Code § 34-7-7-5, there is a genuine issue of material fact as to whether she made the

statements without malice or “in good faith and with a reasonable basis in law and fact.”4 Id.

If there is any doubt as to what conclusion a jury could reach, then summary judgment is

improper. Hamilton, 860 N.E.2d at 1240. Resolving, as we must, all doubts as to the


Love, 946 N.E.2d at 9 (quoting Garcetti, 547 U.S. at 418). Neither Love nor Pickering addressed an anti-
SLAPP statute. Rather, both involved claims by public employees that they had been fired, not sued, for
statements they made.

4
  Coupled argues, pursuant to that section of the anti-SLAPP statute, Brandom’s statements were not made in
good faith. In her brief, Brandom argues her statements were not made with actual malice. (Appellant’s Br. at
14) (citing Shepard v. Schurz Communications, Inc., 847 N.E.2d 219, 224 (Ind. Ct. App. 2006), which applied
an actual malice standard in an anti-SLAPP case). Brandom does not offer argument about good faith, and
Coupled does not offer argument about malice in its argument the anti-SLAPP statute does not apply. It does
argue, in the alternative, that if this court should “consider matters outside the scope of the Anti-SLAPP
statute,” Brandom’s statements were defamatory because they were made with actual malice. (Br. of Appellee
at 16.) We find there is a genuine issue of fact under either standard.

                                                     9
existence of material issues of fact against Brandom, the moving party, id., and construing all

facts and reasonable inferences from those facts in favor of the nonmoving party, Coupled,

id., we hold the trial court could properly deny Brandom’s motion to dismiss on the ground

there is an issue5 whether her statements were made in good faith or were made with malice.

Id.

        In Nexus Group, Inc. v. Heritage Appraisal Serv., 942 N.E.2d 119, 122 (Ind. Ct. App.

2011), we stated the definition of “good faith” in the context of defamation law: “a state of

mind indicating honesty and lawfulness of purpose; belief in one’s legal right; and a belief

that one’s conduct is not unconscionable.” Id. (quoting Owens v. Schoenberger, 681 N.E.2d

760, 764 (Ind. Ct. App. 1997), reh’g denied). We addressed whether the various statements

Heritage made were in good faith. The first was: “I have seen massive over assessments

especially in the industrial sector in Michigan City and even Nexus, the out of town firm

hired without a bid contract says they have no support for the number they chose to value this

acreage.” Id. at 122-23. We noted the research Heritage did and the data it collected to

support that statement, then said:

                Putting aside whether this statement was actually true or false, we note
        that Nexus has offered no evidence establishing that Heritage knew it was false
        or entertained serious doubts as to its truth. As a general matter, Nexus directs
        our attention to evidence that Heritage is a business competitor of Nexus, that

5
  Judge Barnes’s well-supported dissent appears to be based on the premise he “cannot conclude that this
evidence establishes that Brandom acted in bad faith or without a reasonable basis in law or fact.” Brandom v.
Coupled Products, LLC, No. 92A03-1112-PL-542, slip op. at 17 (Ind. Ct. App. 2012). Nor can we, and we do
not reach any such conclusion. Rather, we hold only that the designated evidence gives rise to a genuine issue
of fact as to whether Brandom’s statements were in good faith.
                                                     10
       Landing considered himself to be an “adversary” of Nexus, appellant’s app. p.
       175, and that Landing allegedly harbored resentments stemming from Nexus’s
       failure to retain his services in the past. Nexus argues that this evidence
       establishes Heritage’s bad faith.
               While this evidence, if true, tends to show that Heritage may not have
       been acting solely out of concern for the well-being of the community by
       sending the letter to the newspaper, we cannot conclude that it establishes that
       Heritage was not acting in good faith. To the contrary, the record reveals that
       [Heritage’s owner] was genuinely concerned about the quality of the work
       being performed by Nexus and the fact that the county was footing the bill.
       That he also may have been motivated by self-interest makes him human, but
       does not necessarily mean that he acted in bad faith. With respect to each of
       these statements, the record shows that Landing genuinely believed that he was
       being factual and also believed that it would be best for his community to sever
       ties with Nexus. Consequently, we do not find that this evidence establishes
       that Landing acted in bad faith or without a reasonable basis in law and fact.

Id. at 123.

       Bad faith, then, appears to require, regardless of truth or falsity, a statement the

speaker “knew . . . was false or entertained serious doubts as to its truth”; even if the speaker

is “motivated by self-interest,” a statement might not be in bad faith if the speaker “genuinely

believed that he was being factual and also believed that it would be best for his community”

to pursue the subject matter of the statement. Id. at 123.

       As for malice, we said in Shepard that

       [s]ubstantively, [the anti-SLAPP statute] does not supplant the Indiana
       common law of defamation, but provides that the movant must establish that
       his or her speech was “lawful.” Ind. Code § 34-7-7-9(d). To establish a claim
       of defamation, a plaintiff must prove the existence of “‘a communication with
       defamatory imputation, malice, publication, and damages.’”
                                          *****
       Actual malice exists when the defendant publishes a defamatory statement
       “‘with knowledge that it was false or with reckless disregard of whether it was
       false or not.’”
                                             11
847 N.E.2d at 224-25 (footnote and internal citations omitted).

       Brandom relies on Shepard as the basis for her argument Coupled was obliged to

prove she acted with actual malice, and not just that her speech was not in good faith. There

is malice when a defendant publishes a defamatory statement with knowledge it is false or

with reckless disregard of whether it was false. Id. at 225.

       Actual malice is not an objective standard of reasonableness; rather, it is a subjective

standard that requires one challenging the speech, here Coupled, to prove by clear and

convincing evidence that the speaker “‘in fact entertained serious doubts as to the truth of his

publication,’ or acted with a ‘high degree of awareness of . . . probable falsity.’” Love, 946

N.E.2d at 14-15 (quoting Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510 (1991)).

A speaker is not required to verify facts before speaking unless she has some reason to doubt

the veracity of those facts. Id. at 15. The actual malice standard protects those negligent or

careless false statements of fact that are inevitable in free debate. Id.

       There is a genuine issue of fact as to whether Brandom knew her statements were

false, entertained serious doubts as to their truth, or made the statements with reckless

disregard of whether they were false. Coupled addresses only one of Brandom’s statements

in support of its argument she did not act in good faith: “[at] the very least, Brandom cannot

show good faith on the issue of whether Coupled sought additional concessions from UAW

Local 2049 including company provided bereavement pay, sickness and accident pay, dental

insurance, life insurance, and a One Dollar ($1) an hour raise.” (Br. of Appellee at 14.)
                                           12
There was evidence before the trial court that could permit a jury to infer Brandom might not

have “genuinely believed [she] was being factual” in her statements that Coupled demanded

additional concessions or that she entertained serious doubts,” id., as to the truth of the

statements.

       Coupled points to evidence Brandom “clearly knew,” (Br. of Appellee at 5), that the

only concessions Coupled had asked for were the surrender of the employer portion of the

dental and life insurance premiums, but despite that knowledge, Brandom told the newspaper

Coupled sought additional concessions -- specifically bereavement pay, sickness and accident

pay, dental insurance, life insurance, and a one dollar per hour raise.

       Brandom admitted she told the newspaper that Coupled raised the deductible on the

company’s health insurance plan without the knowledge or consent of the Local officials,

which statement was inconsistent with statements made during negotiations between Coupled

and the Local. Coupled then asserts “Brandom admitted she conveyed to [the newspaper]

that Coupled sought additional concessions from UAW Local 2049 including company

provided bereavement pay, sickness and accident pay, dental; insurance, life insurance, and a

One Dollar ($1) an hour raise.” (Id.) In the interrogatory response to which Coupled directs

us, Brandom said “[t]he fact that these possible concessions were discussed is true.” (Id. at

32) (emphasis added). Coupled directs us to evidence Coupled “never formally asked the

Local 2049 to surrender anything but the employer portion of the life and dental insurance,”

(Br. of Appellee at 5), and never “asked the bargaining committee for a concession that

                                             13
involved forfeiting union employees’ sickness, accident, or bereavement pay.” (Id.)

       We acknowledge Brandom’s argument she did not speak with malice because her

statements had “a substantial basis in the truth” which is enough to defeat defamation. See

Love, 946 N.E.2d at 15 n.13 (“Minor inaccuracies do not amount to falsity so long as ‘the

substance, the gist, the sting, of the libelous charge be justified.’”) (quoting Masson v. New

Yorker Magazine, Inc., 501 U.S. 496, 510 (1991)). Brandom notes evidence a union

representative who met with Coupled testified that, while Coupled did not “formally

propose” the union members give up the additional concessions, they were all “on the table.”

(Appellant’s App. at 124.)

       As there was a genuine issue of fact as to whether Brandom genuinely believed she

was being factual in her statements that Coupled demanded additional concessions or that she

entertained serious doubts as to the truth of the statements, her motion to dismiss was

properly denied. We accordingly affirm.

       Affirmed.

FRIEDLANDER, J., concurs.

BARNES, J., dissents with separate opinion.




                                             14
                              IN THE
                   COURT OF APPEALS OF INDIANA

JANICE BRANDOM,                                   )
                                                  )
      Appellant-Defendant,                        )
                                                  )
             vs.                                  )     No. 92A03-1112-PL-542
                                                  )
COUPLED PRODUCTS, LLC,                            )
                                                  )
      Appellee-Plaintiff.                         )


BARNES, Judge, dissenting with opinion

      I agree that Brandom’s statements related to an issue of public interest. I dissent,

however, from the majority’s holding that genuine issues of material fact exist regarding

Brandom’s good faith. As a result, I conclude that the trial court’s denial of Brandom’s

motion to dismiss should be reversed.

      A defendant is entitled to dismissal of a lawsuit under the anti-SLAPP statute if the act

or omission complained of is, in part, “an act or omission taken in good faith and with a

reasonable basis in law and fact.” Ind. Code § 34-7-7-5(2). Coupled contends that Brandom

cannot show good faith regarding the following statement from the newspaper article:

             Initially, the company asked the workers to surrender their
             sickness and accident pay, their bereavement pay, and a $1 an
             hour raise as well as dental and life insurance. When union
                                             15
             leaders balked, the company scaled back its request to just the
             dental and life insurance, but when that was submitted to the
             rank and file for a vote, they turned it down by a 92-4 margin.

Appellant’s App. p. 16. However, in support of her motion to dismiss, Brandom designated

her affidavit, which provided:

             13.    The meeting continued and Tina [Johnson] talked about
                    the need for us to make concessions. She told us that our
                    benefits were better than those paid to the workers at the
                    Upper Sandusky plant. She spelled out the difference in
                    the cost of our Sickness and Accident Pay Benefit, the
                    Bereavement Pay Benefit, the Dental Insurance Benefit,
                    and the Life Insurance Benefit, as well as the dollar-an-
                    hour raise we had gotten when the contract was ratified.
                    I understood that Tina Johnson wanted concessions from
                    us concerning these benefits to cover the cost of the
                    move.

             14.    The next day, September 1, 2009, Tina Johnson sent a
                    letter to our UAW International Representative, Jeff
                    Shrock and the union, specifically asking us to give up
                    our dental and life insurance benefits. . . .

                                            *****

             21.    The statement in the article regarding concessions sought
                    by Coupled Products was not attributed to me. The exact
                    phrasing of the statement was the reporter’s own. I did
                    communicate to the reporter that Coupled Products
                    sought additional concessions in return for the move of
                    work to Columbia City. Possible concessions that were
                    discussed included the company-provided bereavement
                    pay, sickness and accident pay, dental insurance, life
                    insurance, and a $1 an hour raise. The fact that these
                    possible concessions were discussed is true.            I
                    communicated the discussions to the reporter in good
                    faith and without malice.

                                            16
Id. at 19, 21.

       According to Coupled, Brandom’s state of mind “could not have indicated honesty

and lawfulness of purpose” because, when she talked to the reporter, she knew that Coupled

was asking for concessions only regarding the employer portion of the dental and life

insurance benefits. Appellee’s Br. p. 14. Coupled designated evidence that, although

differences between the benefits received by employees at the Coupled’s union and non-

union facilities were discussed during negotiations, it formally requested concessions only on

the employer contribution to the life and dental insurance.

       I cannot conclude that this evidence establishes that Brandom acted in bad faith or

without a reasonable basis in law and fact. The “actual malice standard . . . protects those

negligent or careless false statements of fact that are inevitable in free debate, as is required

by the Constitution.” Love v. Rehfus, 946 N.E.2d 1, 15 (Ind. 2011). “Minor inaccuracies do

not amount to falsity so long as ʻthe substance, the gist, the sting, of the libelous charge be

justified.’” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517, 111 S. Ct. 2419, 2433

(1991) (quoting Heuer v. Kee, 15 Cal.App.2d 710, 714, 59 P.2d 1063, 1064 (1936)).

       The difference between “discussing” concessions and “asking” for concessions is a

mere matter of semantics that should not be used to chill free speech. The same can be said

about the difference between surrendering life and dental insurance versus surrendering the

employer contribution to the life and dental insurance. We are viewing here an important

economic issue not only to the actual workers at the plant in question, but also to the entire

                                               17
citizenry of Whitley County. The good faith requirement should and must be present, but in

this context, with collective bargaining in play, I believe Brandom’s conversation with the

reporter was had in good faith. Remember, too, there is no direct quote in the article in

question, and the reporter was free to, and undoubtedly did, capsulize, summarize, and

characterize the conversation. In my view, the anti-SLAPP statute provides protection in

such instances. I believe Brandom was entitled to her dismissal and protection under the

statute.




                                            18
