The Volokh Conspiracy
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Calling Someone an "Amateur" May Sometimes Be Defamatory
“This Court rejects Defendants’ argument an ordinary person could find ‘amateur,’ in this circumstance, to refer to ‘one who engages in a pursuit, study, science, or sport as a pastime rather than a profession’ or a ‘devotee, [or] admirer,’ given the surrounding context and circumstance.”
From yesterday's decision by Judge Frank Whitney (W.D.N.C.) in McBride v. Sacks:
Plaintiff Ty McBride … is the manager of [co-plaintiff] Mason Lane Entertainment LLC …. Sacks is an employee or agent of [the companies] Partisan … [and] Selmona ….
McBride has, for years, "operated music concerts" in the Charlotte area, responsible for attracting talent and scheduling events for venues around the city. McBride performs these services through Mason Lane. Prior to the initiation of this litigation, Plaintiffs were approached by representatives of then-unopened outdoor amphitheater AMP Ballantyne ("AMP"), its management company NOW Amphitheater Management LLC ("NOW"), and its primary investor … seeking McBride's expertise in venue management.
The five parties entered into a partnership wherein Plaintiffs "expended considerable time and provided extensive services" to prepare AMP Ballantyne for its launch. According to McBride, services rendered were uncompensated, and performed under the partnership agreement in expectation of future gain. Around June 2023, NOW entered into an Amphitheater Event Management Agreement ("AEMA") with Mason Lane under which Plaintiffs would provide various specialized services, including "securing entertainment for AMP Ballantyne events and setting up and running the food and beverage program for AMP Ballantyne events," in return for a portion of revenue generated through ticket, food and drink, merchandise, and parking sales.
In July 2023, McBride initiated discussions with Sacks to secure a Big Head Todd and the Monsters ("Big Head") concert at AMP. McBride and Sacks failed to agree on terms, after which Sacks reportedly "became angry and called McBride an amateur." Sacks then cancelled a band previously scheduled to perform at AMP, which McBride concludes occurred "because [Sacks] was angry with McBride about the Big Head Todd situation." McBride alleges Sacks, during a phone conversation with AMP promoter Bobby Hendrix ("Hendrix"), stated he did not trust AMP to schedule shows with Partisan because of McBride, telling Hendrix "AMP Ballantyne was not vetting its promotors or working with seasoned people," purportedly in reference to McBride. Sacks also stated to Hendrix, among other unspecified accusations, "McBride did not know what he was doing and was an amateur," and "Partisan Arts would not schedule further concerts for Partisan Arts's artists at the AMP Ballantyne if McBride continued to be associated with the venue."
Plaintiffs contend NOW opted to terminate the AEMA and inform McBride it could not move forward with any future commercial partnerships because of Sacks' threat to sever ties with the AMP parties if they continued to associate with McBride….
The court allowed plaintiffs' defamation claim to go forward for various reasons, including:
As alleged, Sacks stated he "didn't trust AMP Ballantyne to schedule shows with Partisan Arts's artists because of McBride," "AMP Ballantyne was not vetting its promoters or working with seasoned people," and "McBride did not know what he was doing and was an amateur." This Court rejects Defendants' argument an ordinary person could find "amateur," in this circumstance, to refer to "one who engages in a pursuit, study, science, or sport as a pastime rather than a profession" or a "devotee, [or] admirer," given the surrounding context and circumstance. {"[A]mateur," in this context, could only be interpreted by the reasonable person to mean "one lacking in experience and competence in an art or science."} While true "amateur" is not universally synonymous with "incompetent," it would be unreasonable to interpret it in any other manner. Because these statements, uttered in connection with a business relation, "touch Plaintiff[s] in [their] profession and would be injurious to Plaintiff[s]' business," Plaintiffs have sufficiently alleged facts that give rise to a claim for defamation per se.
Defendants also maintain Sacks' statements were "opinion rather than provable fact," and are therefore not actionable as defamatory. This Court finds, however, that whether an individual is "seasoned," may "not know what he [is] doing," or whether one is an "amateur," in the context given, represent statements of mixed opinion and fact. The facts underlying the claim McBride was an "amateur" or "did not know" what he was doing are (1) McBride has a lack of experience or competence in his position, and, as a result, (2) McBride cannot perform his duties at the level expected of an individual in his position. Accusations of a lack of experience, competence, or capacity are not mere insults or opinions, but assertions one is factually unfit for his duties, and are actionable as defamatory statements….
As to the interference with contract claim, the court ruled:
Defendants contend Sacks never intentionally induced the AMP parties to terminate their agreement with Plaintiffs, and that the Amended Complaint offers no allegations Sacks made any purposeful request the AEMA be terminated…. Defendants correctly … underscore North Carolina courts interpret "induce" as "to move by persuasion or influence[;]" (2) "to call forth or bring about by influence or stimulation [;]" and (3) "to cause the formation of … [t]he act or process of enticing or persuading another person to take a certain course of action … active persuasion, request, or petition." Here, Plaintiffs allege Sacks contacted AMP agents and informed them "Partisan Arts would not schedule further concerts for Partisan Arts's artists at the AMP Ballantyne if McBride continued to be associated with the venue." While thin, these allegations are sufficient to infer intent in inducing termination of the agreement….
While this Court recognizes "competition in business constitutes justifiable interference with another's business relations and is not actionable if carried out in one's own interests and by means that are lawful," that does not suggest one may engage in conduct that seeks to destroy the interests of another party…. "[T]he privilege [to interfere] is conditional; that is, it is lost if exercised for a wrong purpose. In general, a wrong purpose exists where the act is done other than as a reasonable and bonafide attempt to protect the interest of the defendant which is involved."
The Amended Complaint plausibly alleges Defendants' actions were not merely an attempt to protect their own interests; rather, Plaintiffs sufficiently allege Defendant Sacks actively sought to sabotage the agreement and destroy Plaintiffs' relationship with the AMP parties….
