Food Lion v. Capital Cities, RADIO-TELEVISION

• Citation: 194 F.3d 505
• Decision Date: 04 June 1998
• Docket Number: RADIO-TELEVISION,CA-92-592-6,No. 97-2492,No. 97-2564,97-2492,97-2564
• Parties: (4th Cir. 1999) FOOD LION, INCORPORATED, Plaintiff-Appellee, v. CAPITAL CITIES/ABC, INC.; LYNNE LITT, a/k/a Lynne Neufes; ABC HOLDING COMPANY; AMERICAN BROADCASTING COMPANIES, INCORPORATED; RICHARD N. KAPLAN; IRA ROSEN; SUSAN BARNETT, Defendants-Appellants, ADVANCE PUBLICATIONS, INCORPORATED; ASSOCIATED PRESS; THE ASSOCIATION OF AMERICAN PUBLISHERS; CBS BROADCASTING, INCORPORATED; CABLE NEWS NETWORK, INCORPORATED; GANNETT COMPANY, INCORPORATED; THE HEARST CORPORATION; KING WORLD PRODUCTIONS, INCORPORATED; MCCLATCHY NEWSPAPERS, INCORPORATED; THE NATIONAL ASSOCIATION OF BROADCASTERS; NATIONAL BROADCASTING COMPANY, INCORPORATED; THE NEWSPAPER ASSOCIATION OF AMERICA; NATIONAL PUBLIC RADIO, INCORPORATED; THE NEW YORK TIMES COMPANY; THENEWS DIRECTORS ASSOCIATION; THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; INVESTIGATIVE REPORTERS; EDITORS, INCORPORATED; NATIONAL GROCERS ASSOCIATION; INTERNATIONAL MASS RETAIL ASSOCIATION; WILLIAM E. LEE; JOHN DEMOTT; ROBERT ELLIS SMITH; MIKE ROSEN; ACCURACY IN MEDIA; MEDIA ESEARCH CENTER; ATLANTIC LEGAL FOUNDATION; SOUTHEASTERN LEGAL FOUNDATION, Amici Curiae. FOOD LION, INCORPORATED, Plaintiff-Appellant, v. CAPITAL CITIES/ABC, INC.; LYNNE LITT, a/k/a Lynne Neufes; ABC HOLDING COMPANY; AMERICAN BROADCASTING COMPANIES, INCORPORATED; RICHARD N. KAPLAN; IRA ROSEN; SUSAN BARNETT, Defendants-Appellees, ADVANCE PUBLICATIONS, INCORPORATED; ASSOCIATED PRESS; THE ASSOCIATION OF AMERICAN PUBLISHERS; CBS BROADCASTING, INCORPORATED; CABLE NEWS NETWORK, INCORPORATED; GANNETT COMPANY, INCORPORATED; THE HEARST CORPORATION; KING WORLD PRODUCTIONS, INCORPORATED; MCCLATCHY NEWSPAPERS, INCORPORATED; THE NATIONAL ASSOCIATION OF BROADCASTERS; NATIONAL BROADCASTING COMPANY, INCORPORATED; THE NEWSPAPER ASSOCIATION OF AMERICA; NATIONAL PUBLIC RADIO, INCORPORATED; THE NEW YORK TIMES COMPANY; THENEWS DIRECTORS ASSOCIATION; THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; NATIONAL GROCERS ASSOCIATION; INTERNATIONAL MASS RETAIL ASSOCIATION; WILLIAM E. LEE; JOHN
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 505

194 F.3d 505 (4th Cir. 1999)

FOOD LION, INCORPORATED, Plaintiff-Appellee, v. CAPITAL CITIES/ABC, INC.; LYNNE LITT, a/k/a Lynne Neufes; ABC HOLDING COMPANY; AMERICAN BROADCASTING COMPANIES, INCORPORATED; RICHARD N. KAPLAN; IRA ROSEN; SUSAN BARNETT, Defendants-Appellants, ADVANCE PUBLICATIONS, INCORPORATED; ASSOCIATED PRESS; THE ASSOCIATION OF AMERICAN PUBLISHERS; CBS BROADCASTING, INCORPORATED; CABLE NEWS NETWORK, INCORPORATED; GANNETT COMPANY, INCORPORATED; THE HEARST CORPORATION; KING WORLD PRODUCTIONS, INCORPORATED; MCCLATCHY NEWSPAPERS, INCORPORATED; THE NATIONAL ASSOCIATION OF BROADCASTERS; NATIONAL BROADCASTING COMPANY, INCORPORATED; THE NEWSPAPER ASSOCIATION OF AMERICA; NATIONAL PUBLIC RADIO, INCORPORATED; THE NEW YORK TIMES COMPANY; THE RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION; THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; INVESTIGATIVE REPORTERS; EDITORS, INCORPORATED; NATIONAL GROCERS ASSOCIATION; INTERNATIONAL MASS RETAIL ASSOCIATION; WILLIAM E. LEE; JOHN DEMOTT; ROBERT ELLIS SMITH; MIKE ROSEN; ACCURACY IN MEDIA; MEDIA ESEARCH CENTER; ATLANTIC LEGAL FOUNDATION; SOUTHEASTERN LEGAL FOUNDATION, Amici Curiae.

FOOD LION, INCORPORATED, Plaintiff-Appellant, v. CAPITAL CITIES/ABC, INC.; LYNNE LITT, a/k/a Lynne Neufes; ABC HOLDING COMPANY; AMERICAN BROADCASTING COMPANIES, INCORPORATED; RICHARD N. KAPLAN; IRA ROSEN; SUSAN BARNETT, Defendants-Appellees, ADVANCE PUBLICATIONS, INCORPORATED; ASSOCIATED PRESS; THE ASSOCIATION OF AMERICAN PUBLISHERS; CBS BROADCASTING, INCORPORATED; CABLE NEWS NETWORK, INCORPORATED; GANNETT COMPANY, INCORPORATED; THE HEARST CORPORATION; KING WORLD PRODUCTIONS, INCORPORATED; MCCLATCHY NEWSPAPERS, INCORPORATED; THE NATIONAL ASSOCIATION OF BROADCASTERS; NATIONAL BROADCASTING COMPANY, INCORPORATED; THE NEWSPAPER ASSOCIATION OF AMERICA; NATIONAL PUBLIC RADIO, INCORPORATED; THE NEW YORK TIMES COMPANY; THE RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION; THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; NATIONAL GROCERS ASSOCIATION; INTERNATIONAL MASS RETAIL ASSOCIATION; WILLIAM E. LEE; JOHN DEMOTT; ROBERT ELLIS SMITH; MIKE ROSEN; ACCURACY IN MEDIA; MEDIA RESEARCH CENTER; ATLANTIC LEGAL FOUNDATION; SOUTHEASTERN LEGAL FOUNDATION, Amici Curiae.

No. 97-2492 No. 97-2564 (CA-92-592-6).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: June 4, 1998.

Decided: October 20, 1999.

Appeals from the United States District Court for the Middle District of North Carolina, at Winston-Salem.

N. Carlton Tilley, Jr., Chief District Judge.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] COUNSEL ARGUED: Bruce J. Ennis, Jr., JENNER & BLOCK, Washington, D.C., for Appellants. Richard L. Wyatt, Jr., AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P., Washington, D.C., for Appellee. ON BRIEF: Paul M. Smith, Mark D. Schneider, Deanne E. Maynard, Michelle B. Goodman, Christopher A. Bracey, JENNER & BLOCK, Washington, D.C.; William H. Jeffress, Jr., Randall J. Turk, MILLER, CASSIDY, LARROCA & LEWIN, Washington, D.C.; Alan N. Braverman, Nathan Siegel, ABC, INCORPORATED, New York, New York; Kathleen M. Sullivan, STANFORD LAW SCHOOL, Stanford, California; Hugh Stevens, EVERETT, GAS-INS, HANCOCK & STEVENS, Raleigh, North Carolina, for Appellants. Michael J. Mueller, Thomas P. McLish, AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P., Washington, D.C.; W. Andrew Copenhaver, Timothy G. Barber, WOMBLE, CARLYLE, SAND-RIDGE & RICE, P.L.L.C., Winston-Salem, North Carolina, for Appellee. Floyd Abrams, Gail Johnston, CAHILL, GORDON & REINDEL, P.C., New York, New York, for Amici Curiae Advance Publications, et al. David B. Smallman, SIMPSON, THACHER & BARTLETT, New York, New York, for Amicus Curiae Investigative Reporters. Thomas F. Wenning, Ronald A. Bloch, NATIONAL GROCERS ASSOCIATION, Reston, Virginia; Christopher A. Weals, Donald L. Rosenthal, SEYFARTH, SHAW, FAIR WEATHER & GERALDSON, Washington, D.C., for Amicus Curiae Grocers. Neal Goldfarb, TIGHE, PATTON, TABACKMAN & BABBIN, L.L.C., Washington, D.C., for Amici Curiae Lee, et al. Martin S. Kaufman, Edwin L. Lewis, Douglas Foster, ATLANTIC LEGAL FOUNDATION, INC., New York, New York, for Amicus Curiae Foundation. Valle Simms Dutcher, SOUTHEASTERN LEGAL FOUNDATION, Atlanta, Georgia; Charles J. Cooper, Michael W. Kirk, COOPER, CARVIN & ROSENTHAL, P.L.L.C., Washington, D.C., for Amicus Curiae Southeastern Legal.

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

Affirmed in part and reversed in part by published opinion. Judge Michael wrote the opinion, in which Judge Motz joined. Judge Niemeyer wrote a separate opinion, concurring in part and dissenting in part.

OPINION

MICHAEL, Circuit Judge:

Two ABC television reporters, after using false resumes to get jobs at Food Lion, Inc. supermarkets, secretly videotaped what appeared to be unwholesome food handling practices. Some of the video footage was used by ABC in a PrimeTime Live broadcast that was sharply critical of Food Lion. The grocery chain sued Capital Cities/ABC, Inc., American Broadcasting Companies, Inc., Richard Kaplan and Ira Rosen, producers of PrimeTime Live, and Lynne Dale and Susan Barnett, two reporters for the program (collectively,"ABC" or the "ABC defendants"). Food Lion did not sue for defamation, but focused on how ABC gathered its information through claims for fraud, breach of duty of loyalty, trespass, and unfair trade practices. Food Lion won at trial, and judgment for compensatory damages of $1,402 was entered on the various claims. Following a substantial (over $5 million) remittitur, the judgment provided for $315,000 in punitive damages. The ABC defendants appeal the district court's denial of their motion for judgment as a matter of law, and Food Lion appeals the court's ruling that prevented it from proving publication damages. Having considered the case, we (1) reverse the judgment that the ABC defendants committed fraud and unfair trade practices, (2) affirm the judgment that Dale and Barnett breached their duty of loyalty and committed a trespass, and (3) affirm, on First Amendment grounds, the district court's refusal to allow Food Lion to prove publication damages.

I.

In early 1992 producers of ABC's PrimeTime Live program received a report alleging that Food Lion stores were engaging in unsanitary meat-handling practices. The allegations were that Food Lion employees ground out-of-date beef together with new beef, bleached rank meat to remove its odor, and re-dated (and offered for sale) products not sold before their printed expiration date. The producers recognized that these allegations presented the potential for a powerful news story, and they decided to conduct an undercover investigation of Food Lion. ABC reporters Lynne Dale (Lynne Litt at the time) and Susan Barnett concluded that they would have a better chance of investigating the allegations if they could become Food Lion employees. With the approval of their superiors, they proceeded to apply for jobs with the grocery chain, submitting applications with false identities and references and fictitious local addresses. Notably, the applications failed to mention the reporters' concurrent employment with ABC and otherwise misrepresented their educational and employment experiences. Based on these applications, a South Carolina Food Lion store hired Barnett as a deli clerk in April 1992, and a North Carolina Food Lion store hired Dale as a meat wrapper trainee in May 1992.

Barnett worked for Food Lion for two weeks, and Dale for only one week. As they went about their assigned tasks for Food Lion, Dale and Barnett used tiny cameras ("lipstick" cameras, for example) and microphones concealed on their bodies to secretly record Food Lion employees treating, wrapping and labeling meat, cleaning machinery, and discussing the practices of the meat department. They gathered footage from the meat cutting room, the deli counter, the employee break room and a manager's office. All told, in their three collective weeks as Food Lion employees, Dale and Barnett recorded approximately 45 hours of concealed camera footage.

Some of the videotape was eventually used in a November 5, 1992, broadcast of PrimeTime Live. ABC contends the footage confirmed many of the allegations initially leveled against Food Lion. The broadcast included, for example, videotape that appeared to show Food Lion employees repackaging and redating fish that had passed the expiration date, grinding expired beef with fresh beef, and applying barbeque sauce to chicken past its expiration date in order to mask the smell and sell it as fresh in the gourmet food section. The program included statements by former Food Lion employees alleging even more serious mishandling of meat at Food Lion stores across several states. The truth of the PrimeTime Live broadcast was not an issue in the litigation we now describe.

Food Lion sued ABC and the PrimeTime Live producers and reporters. Food Lion's suit focused not on the broadcast, as a defamation suit would, but on the methods ABC used to obtain the video footage. The grocery chain asserted claims of fraud, breach of the duty of loyalty, trespass, and unfair trade practices, seeking millions 6 in compensatory damages. Specifically, Food Lion sought to recover (1) administrative costs and wages paid in connection with the employment of Dale and Barnett and (2) broadcast (publication) damages for matters such as loss of good will, lost sales and profits, and diminished stock value. Punitive damages were also requested by Food Lion.

The district court, in a remarkably efficient effort, tried the case with a jury in three phases. At the liability phase, the jury found all of the ABC defendants liable to Food Lion for fraud and two of them, Dale and Barnett, additionally liable for breach of the duty of loyalty and trespass. Based on the jury's fraud verdict and its special interrogatory findings that the ABC defendants had engaged in deceptive acts, the district...