Cousins v. Goodier

• Decision Date: 16 August 2022
• Docket Number: 272, 2021,No. 272, 2021
• Citation: 283 A.3d 1140
• Parties: Scott D. COUSINS, Plaintiff Below, Appellant, v. Rosemary S. GOODIER, Defendant Below, Appellee.
• Court: Supreme Court of Delaware

283 A.3d 1140

Scott D. COUSINS, Plaintiff Below, Appellant,

v.Rosemary S. GOODIER, Defendant Below, Appellee.

No. 272, 2021

Supreme Court of Delaware.

Submitted: May 25, 2022

Decided: August 16, 2022

Stephen J. Neuberger, Esquire (argued), Thomas S. Neuberger Esquire, THE NEUBERGER FIRM, P.A., Wilmington, Delaware, for Plaintiff Below, Appellant Scott D. Cousins.

Rodney A. Smolla, Esquire (argued), Wilmington, Delaware; Douglas D. Herrmann, Esquire, TROUTMAN PEPPER HAMILTON SAUNDERS LLP, Wilmington, Delaware, for Defendant Below, Appellee Rosemary S. Goodier.

Before SEITZ, Chief Justice; VAUGHN, TRAYNOR, MONTGOMERY-REEVES, Justices; and NEWELL, Chief Judge,¹ constituting the Court en banc.

TRAYNOR, Justice:

This appeal presents difficult questions concerning the actionability of speech that is defamatory—that is, injurious to a person's reputation—but that is defended on the ground that it is an expression of opinion and not of fact. We are asked to decide whether the First Amendment bars claims for defamation and tortious interference with contract against a defendant who, in an email to a law firm, described as "shockingly racist" a lawsuit filed by one of the firm's partners in his personal capacity. The suit aimed to preserve a nearby high school's "Indian" mascot.

The partner, who claims to have lost his position with the law firm because of the email, sued his detractor, contending that the characterization of his lawsuit is demonstrably false and pleading four causes of action, including defamation and tortious interference with contract. The partner's detractor, in response, contends that her statements about the partner are opinions protected by the First Amendment's Free Speech Clause. The Superior Court agreed with the detractor and dismissed the partner's tort action.

For the reasons that follow, we affirm the judgment of the Superior Court. The statements at issue do not on their face contain demonstrably false statements of fact, nor do they imply defamatory and provably false facts. As statements concerning an issue of public concern, moreover, they are entitled to heightened First Amendment protection and cannot form the predicate of the plaintiff's tort claims.

I

A

In August 2020, Plaintiff Scott Cousins, a Pennsylvania resident, was a partner in a prominent Delaware law firm.² On August 5, he filed a pro se complaint against the Unionville-Chadds Ford (Pennsylvania) School District in a Pennsylvania state court (the "Unionville Lawsuit"). Before that, Cousins had been an outspoken opponent of the district's efforts to retire the Unionville High School mascot, which took the form of the letter "U" draped by a feather, a vestige of the high school's nickname—the "Indians."³

Less than an hour after Cousins filed the Unionville Lawsuit, Defendant Rosemary Goodier sent the following email to Cousins’ employer, Bayard, P.A., with the subject line "Recently Filed Lawsuit Against Unionville Chadds Ford School District Reflects Poorly on the Bayard Firm":⁴

Members of our community wish to bring to the firm's attention the lawsuit filed by one of your directors, Scott Cousins, against the Unionville Chadds Ford School District. ...

In all likelihood, your Management Committee approved this suit, but in the event that it did not, we would like to bring it to your attention. We hope you can reflect upon how shockingly racist and tone deaf this suit is, particularly in light of the present demands against the school board, who has to deal with getting students back to school safely in the midst of a deadly pandemic. We can't help but wonder why the firm would support an action that would divert precious resources away from the safety of the community's children to perpetuating an offensive and outdated school mascot. This action is even more troubling in light of the fact that Mr[.] Cousins’ child has graduated and no longer attends the school. Our tax dollars and administrative resources will be plunged into countering some shockingly racist statements by Mr[.] Cousins about protecting his white, Christian heritage.

We have no official role, connection, or representation with respect to the school board or the district. We raise these issues solely in our capacity as concerned parents and taxpayers; as such, we are reaching out to you in the hope your firm is better than throwing its support behind this horrific lawsuit.

Rosemary Goodier

Although the entire email is relevant on appeal, the parties focus their arguments on the following two statements found in it:

(1) "We hope you can reflect upon how shockingly racist and tone deaf this suit is, particularly in light of the present demands against the school board [related to COVID-19]."

(2) "Our tax dollars and administrative resources will be plunged into countering some shockingly racist statements by Mr. Cousins about protecting his white, Christian heritage."⁵

The email also contained a link to a news article entitled "Lawsuit filed against Unionville over mascot issue."⁶ The morning after Goodier sent the email, Bayard's firm administrator emailed Cousins to inform him of the firm's receipt of Goodier's missive, noting, among other things, that "there are some unhappy individuals over the filing" of the Unionville Lawsuit.⁷ Approximately three hours later, Bayard's president called Cousins to discuss the fallout from the Unionville Lawsuit and Goodier's email.

According to Cousins’ complaint in this case, the firm's president told him that, despite what Goodier had to say, he knew that Cousins was not a racist.⁸ Still, the president explained his view that, given the circumstances around the Unionville Lawsuit, "the firm can't say that."⁹ The president apparently stated further that the Unionville Lawsuit had caused "negative consequences" for the Bayard firm, including the loss of business, that none of the partners agreed with Cousins’ Unionville Lawsuit, and that the partners had lost confidence in Cousins. The president demanded Cousins’ resignation from the firm's executive committee and from the firm. The following day, rather than forcing his partners to vote to expel him from the firm, Cousins resigned.

Following his resignation from the firm, Cousins’ efforts to secure employment met with failure. Each potential employer asked Cousins about "his unannounced and sudden departure from Bayard."¹⁰ Despite inquiries or applications to over 50 potential employers—over 40 in-house counsel opportunities and over 15 law firms, according to the complaint—Cousins was unable to find suitable employment. In October 2020, he started his own law firm.

B

After resigning, Cousins filed a four-count complaint in the Superior Court alleging that Goodier tortiously interfered with his employment agreement with Bayard, defamed him with her email, and conspired with unnamed defendants to injure him. Cousins also claimed that these unnamed defendants aided and abetted Goodier in violating his rights.¹¹

Goodier moved under Superior Court Civil Rule 12(b)(6) to dismiss Cousins’ complaint for failing to state a claim upon which relief could be granted. In her motion, Goodier flipped the order in which Cousins had pleaded his claims and led off with her argument that the statements she included in her email to Bayard were "constitutionally protected opinion"¹² and, as such, were "protected under the common law and the First Amendment."¹³ Goodier followed that with her contention that Cousins’ three other counts were "simply duplicative of his defamation claim. ... [and] [i]f those statements are not actionable as defamation, they are not actionable as tortious interference, conspiracy, or aiding and abetting."¹⁴ After briefing and oral argument, the Superior Court agreed with Goodier and dismissed Cousins’ complaint.¹⁵

The Superior Court based its dismissal of Cousins’ defamation claim on various grounds. First, the court categorized the accusations in Goodier's email to the Bayard firm as " ‘subjective speculation’ or ‘merely rhetorical hyperbole’ " and thus not actionable.¹⁶ The court also applied the four-part test developed by the United States Court of Appeals for the District of Columbia Circuit in Ollman v. Evans¹⁷ and adopted by this Court in Riley v. Moyed .¹⁸ The Superior Court concluded that Goodier's email did not communicate false statements of fact but instead expressed "non-actionable opinion."¹⁹ Finally, the court found that Goodier had "made it clear that she was critiquing [Cousins’] lawsuit, which had been the subject of media coverage and had been reviewed by members of Bayard."²⁰ This, according to the court, represented a disclosure by Goodier of "the underlying non-defamatory factual basis for her email," which thereby undermined Cousins’ defamation claim.²¹

The Superior Court then turned to Cousins’ tortious-interference-with-contract, civil-conspiracy, and aiding-and-abetting claims and dismissed them on two grounds. Noting that these three additional tort claims rested on the same statements that formed the basis of Cousins’ defamation claim, the court held that, "[i]f those statements are not actionable as defamation, they are not actionable as tortious interference with contract, conspiracy, or aiding or abetting."²² The court also determined that Cousins’ tortious interference claim failed in the absence of an allegation that Goodier's sole motivation was to interfere with Cousins’ employment contract with Bayard. According to the court, under our decision in WaveDivision Holdings, LLC v. Highland Capital Mgmt., L.P. ,²³ a claim of improper interference with another's contract lies only if the defendant's sole motive was to interfere.

C

In this appeal, Cousins asks us to reverse the Superior Court's dismissal of his complaint for two reasons. Returning to his preferred order of argument, he argues first that he adequately pleaded a claim for tortious interference and that the Superior Court's conclusion amounts to the mistaken theory that "the federal ...