A Better Way Wholesale Autos, Inc. v. Better Bus. Bureau of Conn.
| Docket Number | AC 45180 |
| Decision Date | 08 August 2023 |
| Parties | A BETTER WAY WHOLESALE AUTOS, INC. v. BETTER BUSINESS BUREAU OF CONNECTICUT ET AL. |
| Court | Connecticut Court of Appeals |
Argued April 4, 2023.
Procedural History
Action to recover damages for the defendants' alleged defamation, and for other relief, brought to the Superior Court in the judicial district of Waterbury, where the court Roraback, J., granted the defendants' motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this court.
Affirmed.
Kenneth A. Voire, for the appellant (plaintiff).
Barbara M. Schellenberg, with whom, on the brief, was Dennis J. Kokenos, for the appellees (defendants).
OPINION
The plaintiff, A Better Way Wholesale Autos, Inc., appeals from the summary judgment rendered by the trial court in favor of the defendants, the Better Business Bureau of Connecticut (BBB) and the Council of Better Business Bureaus (CBBB). On appeal, the plaintiff claims that the court improperly (1) failed to consider each defamatory statement contained in the plaintiffs complaint, and (2) determined that the rating issued by BBB to the plaintiff, in the form of a letter grade, was a nonactionable expression of an opinion, not a statement of fact. We disagree and, accordingly, affirm the judgment of the trial court.
The record before the court reveals the following facts, viewed in the light most favorable to the plaintiff as the nonmoving party, and procedural history. The plaintiff operates a used car dealership in Naugatuck. BBB is a nonprofit corporation with a mission to provide consumers with honest and accurate information about businesses in Connecticut. To accomplish this mission, BBB compiles consumer reviews about businesses, rates businesses based on various criteria, and publishes that information to consumers through BBB's website. CBBB is a nonprofit corporation that operates as an "umbrella organization" for the local Better Business Bureaus in each state and Canada. CBBB directs and supervises the activities of BBB, including BBB's compliance with CBBB's rules and regulations.
More specifically, CBBB developed a computer software "formula" that BBB uses to compose its ratings of Connecticut businesses. BBB's rating process begins with its establishment of a business profile on its website, detailing the basic background information about a business, including its name, address, telephone number, fax number, email address, and principals' names and titles, as well as the nature of the business. On the basis of the facts available to them, BBB employees utilize their discretion, experience, and judgment to input into the software "rating points" for many "rating elements" within the specific, allowable range set by the software. Each rating element has a different set range of allowable rating points that can be earned or deducted. These rating elements generally include consumer complaint volume, unanswered complaints, unresolved complaints, delayed resolution of complaints, failure to address complaint pattern, serious complaints, complaint analysis, type of business, time in business, transparent business practices, failure to honor BBB mediation or arbitration, competency licensing, governmental action against the business, advertising review, BBB trademark infringement, and clear understanding of business.[1] The software then calculates the total rating points for the business, and BBB correspondingly assigns the business a rating in the form of a letter grade, with A+ being the highest grade of 100 rating points to F being the lowest grade of 59.99 rating points or fewer. In some cases, BBB will not rate the business if there is insufficient information or an ongoing review of the business' file.
BBB updates the rating points as it gathers more information about the business, which primarily derives from consumer reports or complaints to BBB and the business' responses, if any, to those complaints. When BBB receives a complaint or report about a business from a consumer, BBB contacts the business for more information about the consumer's complaint or report. If the business fails to comply with BBB's request for information, or if, in the opinion of BBB, the business fails to make a good faith effort to resolve the complaint or fails to timely respond to a consumer complaint, those failures would have an impact on the grade published by BBB, as reflected in the rating elements relating to consumer complaints.
BBB publishes on its website a business profile for each business that includes, inter alia, (1) the grade issued to the business, including the identification of the rating factors that lowered and/or raised the business' grade; (2) the consumer complaints regarding the business, the initial and final responses of the business to those complaints, as well as a consumer complaint summary detailing the statistics as to the type and number of complaints; and (3) any additional complaint information summarizing the content of complaints made by consumers. BBB also publishes on its website a rating system overview that details the manner in which BBB assigns grades to a business and the rating elements that it uses to calculate the grade, as well as an express qualification that the grades reflect BBB's opinion of a business.
In September, 2014, the plaintiff commenced the present action against the defendants, principally claiming that BBB unfairly issued the plaintiff biased and inaccurate letter grades on the basis of the formula developed by CBBB, which caused harm to the plaintiffs business. On January 21, 2021, the plaintiff filed the operative "amended, fifth revised complaint," which contained the two defamation counts at issue in this appeal, one count against each defendant.[2] Therein, the plaintiff alleged that BBB "currently" issued the plaintiff a B grade, "[i]n the recent past" issued the plaintiff a C-grade, and published these ratings on BBB's website for the public to view. In its defamation count against BBB (count one), the plaintiff alleged that BBB had made false, "defamatory statements regarding the plaintiff, in particular, the defamatory statements consist of statements by . . . BBB, including, but not limited to, the size of the plaintiffs business, information about and the number of ongoing complaints, information about and the number of unresolved complaints, information about and the number of complaints responded to, and that the plaintiff failed to resolve underlying causes of customer complaints." In its defamation count against CBBB (count eight), the plaintiff incorporated the allegations it made in count one against BBB, and further alleged that BBB was acting as an agent of CBBB and that CBBB's rating system is maintained with no regard for accuracy. The plaintiff alleged that, as a result of these false statements and inaccurate letter grades, it has suffered reputational harm and has lost prospective and existing customers.
The defendants moved for summary judgment as to all fourteen counts of the plaintiffs complaint.[3] See footnote 2 of this opinion. In their memorandum of law in support, the defendants contended, inter alia, that they were entitled to summary judgment on the defamation counts against them on two principal grounds. First, the defendants argued that the plaintiff had failed to plead its defamation claims with the requisite specificity in accordance with Stevens v. Helming, 163 Conn.App. 241, 247 n.3, 135 A.3d 728 (2016). Second, the defendants argued that they cannot be held liable for defamation, as a matter of law, because the grade BBB issued to the plaintiff pursuant to the formula implemented by CBBB was an expression of opinion, not a statement of fact. In support of their motion for summary judgment, the defendants attached several hundred pages of exhibits, generally consisting of excerpts of the depositions of the plaintiffs corporate representatives, documents evincing CBBB's publicly available rating criteria, affidavits from BBB's corporate representatives, and more than 100 complaints filed by consumers regarding the plaintiff between 2012 and 2014 as well as the plaintiffs responses thereto, if any.
In its amended memorandum of law in opposition, the plaintiff contended that genuine issues of material fact existed as to its claims. With respect to the defamation counts, the plaintiff contended that it had "appropriately plead[ed] the purportedly defamatory statements with the requisite specificity required by law . . . ." The plaintiff further argued that "the defamatory statements made by the various defendants were mixed statements of opinion and fact and the defendants are liable as a matter of law [for] defamation." In support of its opposition, the plaintiff submitted, inter alia, affidavits by its corporate representatives, the full deposition transcripts of the defendants' corporate representatives, documents evincing its rating history on BBB's website, and screenshots from BBB's website.
On January 21, 2021, the court heard oral argument on the defendants' motion for summary judgment. The defendants argued that our Supreme Court's recent decision in NetScout Systems, Inc. v. Gartner, Inc., 334 Conn 396, 223 A.3d 37 (2020) (NetScout), which dealt with whether a rating of one company by another was an opinion or fact for purposes of a defamation claim, was directly on point and mandated that summary judgment be rendered in their favor. The plaintiff responded that NetScout was not applicable because the ratings in that case were pure opinions, whereas the opinions issued by BBB were partially fact dependent. The parties otherwise reiterated the arguments...
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