United States District Court, District of Columbia
D. BATES UNITED STATES DISTRICT JUDGE
the Court is  defendants' motion to dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6). Plaintiff MiMedx
Group, Inc. (“MiMedx”) brought claims for libel,
slander, defamation, false light invasion of privacy,
tortious interference with business relations, and false
advertising under the Lanham Act after defendants published
articles that questioned MiMedx's sales practices.
Defendants move the Court to dismiss each claim for failure
to state a claim upon which relief can be granted. For the
reasons that follow, defendants' motion will be granted
in part and denied in part.
is a publicly traded medical-products corporation organized
under Florida law and headquartered in Georgia. Compl. for
Damages & Injunctive Relief (“Compl.”) [ECF No.
1] ¶ 6. Id. Defendant DBW Partners LLC d/b/a
The Capitol Forum (“The Capitol Forum”) is a firm
based in the District of Columbia that offers business and
regulatory analysis to paid subscribers. Id. ¶
7. This lawsuit arises from articles that The Capitol Forum
published about MiMedx and communications related to those
August 21, 2017, The Capitol Forum “published an
article entitled ‘MiMedx: Channel Stuffing Accusations
Resurface in Recent Counterclaim; Former Employees
Corroborate Allegations; A Close Look at Potential
Risk'” [hereinafter “the August 21
article”]. Id. ¶ 23. The August 21
article outlined allegations MiMedx's former employees
made in court filings against MiMedx claiming that the
company had engaged in “channel stuffing”-a
practice by which a company artificially inflates its sales
and revenue figures by distributing more products to
retailers than the retailers can sell. Id.
same day, The Capitol Forum distributed this article to at
least some MiMedx shareholders via email [hereinafter
“the August 21 email”]. Id. ¶ 24.
The email included a description of the August 21 article,
which stated: “In the article, we detail channel
stuffing allegations and recent counterclaims which may pose
as a regulatory risk for the company. The article examines
the allegations made by customers & former
employees, the company's response to these claims, and
the potential legal risks for MiMedx.” Id.
¶ 25 (emphasis added). The August 21 email concluded
with an invitation to “schedule a call” with The
Capitol Forum for more information. Id. The Capitol
Forum now acknowledges that the “reference to
‘customers' in the August 21 email was a mistake:
as the underlying report . . . indicated, the allegations of
channel stuffing were contained in claims and counterclaims
filed by former MiMedx employees, ” not by customers.
Mem. P. & A. Supp. Defs.' Mot. to Dismiss
(“Defs.' Mot.”) [ECF No. 18-1] at 3.
of its “ongoing examination of allegations of channel
stuffing made by former MiMedx employees, ” The Capitol
Forum also submitted a Freedom of Information Act
(“FOIA”) request to the Department of Veterans
Affairs, Office of the Inspector General (“OIG”).
Compl. ¶ 28. The Capitol Forum determined from the
OIG's denial of its FOIA request that an OIG
investigation “involve[d] documents related to
MiMedx.” Id. Meanwhile, MiMedx informed The
Capitol Forum “off-the-record that MiMedx had initiated
contact with the OIG, that MiMedx was voluntarily working
with the OIG, and that MiMedx was specifically not a target
of the investigation.” Id. ¶ 30. On
September 7, 2017, The Capitol Forum published another
article titled “VA Office of Inspector General Confirms
Investigation Involving MiMedx Documents” [hereinafter
“the September 7 article”]. Id. ¶
27. The article “omitted positive information”
that MiMedx had provided The Capitol Forum and instead
relayed only “that the OIG's inquiry involved
‘documents related to MiMedx.'” Id.
¶¶ 29-30. As it had done with the August 21
article, the Capitol Forum promoted the September 7 article
in an email, invited readers to schedule a call for more
information, and directed the email to at least some MiMedx
shareholders. Id. ¶¶ 27-28.
alleges that The Capitol Forum's publications served as
part of a “conspir[acy] to adversely manipulate the
stock price of MiMedx via false and/or misleading statements
to MiMedx's shareholders, which were intended to cause
those shareholders to sell their stock.” Id.
¶ 33. The Capitol Forum allegedly served “as a
‘shill' for bearish traders in MiMedx stock”
based upon “a nefarious motive to benefit the interests
of bearish traders in MiMedx stock at the expense of the
company, because those bearish traders included . . .
friends, family, affiliates, and/or even . . .
themselves.” Id. ¶¶ 33-34. MiMedx
states that its “stock price dropped” on both
September 7 and September 8, 2017, and that its stock price
declined by more than 20% overall between August 21 and
September 21, 2017. Id. ¶ 32.
September 21, 2017, MiMedx filed this action against The
Capitol Forum and individuals who are principals or employees
of The Capitol Forum: Trevor Baine, Teddy Downey, Jake
Williams, Miles Pulsford, Matt Treacy, and fictitiously named
defendants Does 1-100. Id. ¶¶ 7-10. MiMedx
alleges that The Capitol Forum's description in its
August 21 email of allegations by “customers”
constitutes libel (Count 1) and defamation (Count 3).
Id. ¶¶ 36-41, 47-51. MiMedx further
alleges that The Capitol Forum's invitation to
shareholders to “schedule a call” for more
information about these customer allegations is evidence that
The Capitol Forum “repeated the false and malicious
statement(s), ” constituting slander (Count 2).
Id. ¶¶ 42-46. MiMedx also asserts that the
false and misleading content in The Capitol Forum's
articles and emails violated MiMedx's right to privacy by
placing it in a false light in the public eye (Count 4),
id. ¶¶ 52-56; tortiously interfered with
its business relations (Count 5), id. ¶¶
57-61; and violated the Lanham Act's false advertising
provision (Count 6), id. ¶¶ 62-68.
now move to dismiss each claim for failure to state a claim
upon which relief may be granted pursuant to Federal Rule of
Civil Procedure 12(b)(6).
12(b)(6) provides for dismissal of a claim where the
proponent has failed to state a claim upon which relief can
be granted. Fed.R.Civ.P. 12(b)(6). A complaint must
“give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation
omitted). To survive a motion to dismiss, “a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570).
“While a complaint attacked by a Rule 12(b)(6) motion
to dismiss does not need detailed factual allegations . . . a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (citation omitted). In
short, “[f]actual allegations must be enough to raise a
right to relief above the speculative level.”
Choice of Law
diversity case, this Court generally employs the
choice-of-law analysis of the District of Columbia. See
Mastro v. Potomac Elec. Power Co., 447 F.3d 843, 857
(D.C. Cir. 2006); Mar-Jac Poultry, Inc. v. Katz, 773
F.Supp.2d 103, 111 (D.D.C. 2011). “Under District of
Columbia law, the court must first determine if there is a
conflict between the laws of the relevant
jurisdictions” and “[o]nly if such a conflict
exists must the court then determine, pursuant to District of
Columbia choice of law rules, which jurisdiction has the
‘more substantial interest' in the resolution of
the issues.” Young Women's Christian Ass'n
of the Nat'l Capital Area, Inc. v. Allstate Ins. Co. of
Canada, 275 F.3d 1145, 1150 (D.C. Cir. 2002). Factors
relevant to this substantial-interest determination include:
“(a) the place where the injury occurred; (b) the place
where the conduct causing the injury occurred; (c) the
domicile, residence, nationality, place of incorporation and
place of business of the parties; and (d) the place where the
relationship is centered.” District of Columbia v.
Coleman, 667 A.2d 811, 816 (D.C. 1995).
asserts that Georgia law applies to all claims except for its
federal Lanham Act claim because “MiMedx is
headquartered in Georgia and stands to suffer injury
there.” Compl. ¶ 35; Pl.'s Mem. P. & A.
Opp'n Defs.' Mot. to Dismiss (“Pl.'s
Opp'n”) [ECF No. 20] at 9 n.3. Defendants note that
District of Columbia law could also apply because it is where
“[T]he Capitol Forum is incorporated and domiciled,
where it publishes its newsletter, where most of the
individual defendants live and work, and where the bulk of
the reporting concerning MiMedx was performed.”
Defs.' Mot. at 6 n.3. However, defendants maintain that
“there is no need to resolve any choice of law
issue” because the laws of Georgia and the District of
Columbia are virtually ...