Sunshine Sportswear & Electronics v. WSOC TELE.
| Decision Date | 27 July 1989 |
| Docket Number | Civ. A. No. 86-3207-0. |
| Citation | 738 F. Supp. 1499 |
| Court | U.S. District Court — District of South Carolina |
| Parties | SUNSHINE SPORTSWEAR & ELECTRONICS, INC., and Albert Mosseri, Plaintiffs, v. WSOC TELEVISION, INC.; Camera World, Inc.; Better Business Bureau of Southern Piedmont, Inc.; Theodore G. Law, Jr.; and Jack King, Defendants. |
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John M. Leiter, Myrtle Beach, S.C., for plaintiffs.
Thomas S. Tisdale, Jr., Charleston, S.C., for Better Business & Theodore Law, Jr.
Robert T. Strickland, Columbia, S.C., for Camera World and Jack King.
Hardwick Stuart, Jr., Columbia, S.C., John H. Hasty, Charlotte, N.C., for WSOC Television, Inc.
This matter is before the court upon the motions of the several defendants to dismiss the action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and in the alternative for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, defendants' motions for summary judgment are granted.
Plaintiffs are Sunshine Sportswear and Electronics, Inc. (a South Carolina Corporation) and Albert Mosseri, the President and part owner of Sunshine. Defendants are WSOC-Television, Inc. (a Delaware corporation), (WSOC-TV), Better Business Bureau of Southern Piedmont and Theodore G. Law, Jr. (a North Carolina corporation and its former principal), Camera World, Inc. (a North Carolina corporation), and Jack King (a North Carolina camera merchant).
Sunshine is located in Myrtle Beach, South Carolina and is in the business of selling both retail and mail-order camera and electronic equipment. Its market area includes retail sales from locations within South Carolina and mail order sales from throughout the United States. To assist in promoting sales, Sunshine expended significant funds in advertising its merchandise on radio, on television, on billboards, in newspapers, and in national magazines.
On November 16, 1984, defendant WSOC-TV published a consumer affairs story on its 6:00 p.m. nightly television news concerning reports of alleged deceptive merchandising practices by Sunshine. These practices allegedly included advertising low prices but adding extra charges when the equipment was ordered by telephone; crediting charge cards before delivery; and using bait-and-switch tactics. The broadcast included portions of taped interviews with defendant Law who was then the President of the Better Business Bureau and with King who was a camera merchant in Charlotte, North Carolina.
Don Griffin was the reporter who appeared on the broadcast in his position as a consumer affairs reporter for WSOC-TV. Prior to the broadcast Griffin had worked as a journalist for sixteen years, as a consumer affairs reporter for ten and a half years and had been employed by WSOC-TV for five and a half years. During his career as a journalist, Griffin has prepared more than 3500 stories for broadcast or publication and approximately 2000 of these have involved matter of consumer interest. Griffin stated in his affidavit that he has relied on the Better Business Bureau and Law as sources for some of his prior consumer interest stories.1
Griffin learned of Sunshine's alleged deceptive advertising practices from Law who provided Griffin with information about Sunshine on more than one occasion. During mid-November, Griffin investigated Law's allegations to determine whether a story was warranted.
Griffin interviewed Law to acquire information Law had regarding Sunshine's alleged deceptive merchandising practices. Law informed Griffin that complaints received by the Better Business Bureau indicated that Sunshine was not selling items at the prices it had advertised, was inflating the actual sales prices of advertised items by imposing additional charges for parts and accessories normally supplied by manufacturers as standard equipment, was debiting customer credit cards without shipping the requested merchandise, and was involved in bait and switch sales tactics. Law also informed Griffin that the Better Business Bureau had received complaints regarding Sunshine's deceptive merchandising practices and that they kept a file on these complaints. Additionally, Law informed Griffin that the North Carolina Attorney General's Office was investigating Sunshine. Law suggested Griffin contact King and other camera merchants to inquire as to their knowledge regarding Sunshine's merchandising practices.
Subsequently, Griffin interviewed King regarding his knowledge of Sunshine's business practices. King cited instances where customers were overcharged for items they received from Sunshine and where customers failed to receive merchandise ordered from Sunshine even after their credit cards had been debited for the purchase price. The information provided by King was consistent with the information Griffin had obtained from Law.
While in King's place of business, Griffin called Sunshine and attempted to purchase a camera that was shown in one of Sunshine's newspaper advertisements. A Sunshine employee advised Griffin that the camera was unavailable and suggested Griffin purchase a more expensive camera.
Thereafter, Griffin returned to WSOC-TV's studio and called Sunshine to obtain their comments concerning the allegations of the Better Business Bureau. Griffin spoke with Albert Mosseri, Sunshine's President and part owner. Griffin explained that allegations of deceptive merchandising tactics had been lodged against Sunshine and requested Mosseri to respond to these allegations. Mosseri denied Sunshine was guilty of any type of deceptive merchandising practices and asserted any such accusations came from other camera dealers who were upset because they could not match Sunshine's prices.
In his affidavit, Griffin states that, following his conversation with Mosseri, he telephoned the North Carolina Attorney General's Office to ascertain whether that office was investigating Sunshine. Griffin claims he spoke with Billie Miller, a consumer specialist, who informed Griffin that her office was investigating allegations regarding Sunshine's deceptive merchandising practices.
In preparing his consumer interest story on Sunshine, Griffin reviewed several of Sunshine's newspaper advertisements. He also acquired copies of a Better Business Bureau Report on Sunshine Cameras dated April 25, 1983 and a Better Business Bureau Alert dated November 15, 1984.2 The Report explained some of the consumer complaints received by the Better Business Bureau and indicated that it had turned its files over to the North Carolina Attorney General's Office and had contacted the South Carolina Consumer Affairs Office. The Report also cautioned consumers that the "firm does not meet the business standards of the Bureau due to questionable advertising practices and the lack of remedial action to correct the problem both in the advertisements as well as in the salespeople's sales tactics." The Consumer Alert, like the Report, detailed complaints that had been lodged against Sunshine and warned consumers that Sunshine's "advertising and marketing efforts did not meet the Bureau's standards since the firm had not corrected the pattern of using misleading advertising to lure the public into sales transactions based on deception."
Griffin testified that he proceeded with preparations to present a story on Sunshine's alleged deceptive merchandising practices only after he was convinced that the information he had obtained was true and accurate. WSOC-TV's Executive Producer Nancy McKenzie reviewed Griffin's story prior to its airing and approved the broadcast.
Griffin's story regarding Sunshine's alleged deceptive merchandising practices was broadcast by WSOC-TV during its regular 6:00 o'clock evening news telecast of November 16, 1984. The broadcast began with an introduction that Griffin went on to say, among other things, that "Sunshine ... claims to save you lots of money, but.... according to the Better Business Bureau, it's been ripping people off." Next, Griffin discussed an advertisement Sunshine had placed in a newspaper which listed a 35 mm camera at $100 less than was the current selling price in local camera stores. A bit further in the telecast Griffin states, "... Jack King, who owns Camera World in Charlotte, says Sunshine is running a scam on consumers." King was quoted as stating that, ... "No one sells a camera a hundred dollars less than cost ..." Griffin then asked, ... "Is this a rip-off of some kind?" King replied, "No question about it." Griffin then stated that one of King's employees had purchased a camera advertised by Sunshine for $99 but "ended up paying a lot more". Next a taped conversation between Griffin and a Sunshine employee was presented in which Griffin called Sunshine to purchase advertised items. The Sunshine employee informed Griffin that Sunshine had sold "completely out" of the advertised items but that they did have some other items available. The broadcast then switched to Law who said "we understood that on Sunday, the day the ad broke, these items were unavailable." Griffin stated, "according to the Better Business Bureau Sunshine is deceiving customers.... it's an old technique known as ... bait and switch." Griffin noted during the broadcast that he had talked to Sunshine's owner, Albert Mosseri, and that he denied that Sunshine was involved in any type of bait and switch activities. Griffin also informed viewers that Mosseri claimed that Sunshine would sell merchandise at the advertised prices and that if the item was not in stock customers could obtain rainchecks.3
Almost two years after the broadcast, Sunshine and Mosseri filed this action. In their complaint, the...
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