A South Dakota court has determined that most of the claims filed by the makers of lean finely textured beef (LFTB) against ABC News, certain news correspondents, including Diane Sawyer, and former U.S. Department of Agriculture (USDA) employees may proceed. Beef Prods., Inc. v. Am. Broadcasting Cos., Inc., No. 12-292 (Union Cnty. Cir. Ct., S.D., order entered March 28, 2014). Information  about the lawsuit appears in Issue 453 of this Update.

While the court found the plaintiffs’ claims for common law disparagement preempted by a state  statute addressing the elements of a disparagement cause of action, available relief and statute of  limitations, it limited its  dismissal with prejudice to those alleged tortious statements  expressly stating or implying that the product is not safe for human consumption.

As to the defamation claims, the court found that the three plaintiffs were appropriate parties  because the complaint sufficiently alleged that people who heard the allegedly defamatory and  disparaging statements “would understand that all three of the Plaintiffs were the persons being  referred to  by the Defendant’s alleged tortious statements regarding LFTB.”The court also rejected  the defendants’ claims that their statements were not statements of fact and thus were not  actionable, finding that most of the statements were “objective facts capable of being proven true  or false,” rather than “unrealistic exaggeration,” hyperbolic statements, epithets, or “expressions  of disapproval.” The court further stated in this regard, “the news reports were touted as being  investigative reports based upon information from usDA scientists, Zirnstein and Custer, and a  former employee of [plaintiff ] BPI, Foshee.”

The court rejected the defendants’ claims that various statements made  during the national TV  broadcasts were true, stating “Defendants are not insulated from liability by the fact that the  Defendant ABC News reports may have also stated in some form during the news reports that LFTB is  beef, LFTB is safe, and/or LFTB is nutritious. . . . [A] reasonable factfinder could find that the  statements are defamatory and/or disparaging despite any accompanying qualifying or non-tortious  statements.”The court also allowed tortious inter- ference with business relationship claims to  proceed, finding the elements sufficiently pleaded.

Finally, the court addressed the motions to dismiss for lack of personal jurisdiction as to former  usDA employees Gerald Zirnstein and Carl Custer who claimed limited contacts with the state and a  single ABC on-camera interview to negate the element of activities purposefully directed at the  forum state or its residents. The court found that the exercise of personal jurisdiction comports  with due process because they knew their statements would affect south Dakota businesses, Zirnstein  coined the derogatory term “pink slime” and both not only made statements that would be broadcast  nationally but commented extensively about LFTB online—via Webpage comments, Facebook posts and  posts on meatingplace.com, Google Group Foodsafe, and foodpolitics.com. The court also found the  exercise of personal jurisdiction to be reasonable given likely jurisdiction in any number of  states where the plaintiffs do business and the efficiencies of bringing one lawsuit in one jurisdiction.