Zuckerbrot v. Lande

• Citation: 75 Misc.3d 269,167 N.Y.S.3d 313
• Decision Date: 17 March 2022
• Docket Number: Index No. 655110/2020
• Parties: Tanya ZUCKERBROT MS RD, Tanya Zuckerbrot Nutrition, LLC, d/b/a/ F-Factor, Plaintiffs, v. Emily Gellis LANDE, Defendant.
• Court: United States State Supreme Court (New York)

75 Misc.3d 269

167 N.Y.S.3d 313

Tanya ZUCKERBROT MS RD, Tanya Zuckerbrot Nutrition, LLC, d/b/a/ F-Factor, Plaintiffs,

v.Emily Gellis LANDE, Defendant.

Index No. 655110/2020

Supreme Court, New York County, New York.

Decided on March 17, 2022

Counsel for Plaintiffs: Seth E. Spitzer, WINSTON & STRAWN LLP, 200 Park Avenue, New York, NY 10166-4193, Dan K. Webb, Matthew R. Carter, Elizabeth S. Deshaies, WINSTON & STRAWN LLP, 35 West Wacker Drive, Chicago, Illinois 60601

Counsel for Defendant: Henry R. Kaufman, HENRY R. KAUFMAN, PC, 60 East 42nd Street, 47th Floor, New York, New York 10165

Joel M. Cohen, J.

Over the course of 75 days in 2020, Defendant Emily Gellis Lande ("Gellis"), an Instagram "influencer," published over 4,500 Instagram posts assailing Plaintiffs Tanya Zuckerbrot and Tanya Zuckerbrot Nutrition, LLC, d/b/a/ F-Factor ("F-Factor" and, collectively, "Plaintiffs"). This barrage of posts leveled serious, specific accusations against Plaintiffs, often in intensely personal and vulgar terms. Gellis claimed, among many other things, that F-Factor products contained harmful ingredients, that the diet caused severe health problems, that F-Factor suppressed consumer complaints and engaged in unlawful activity, and that Zuckerbrot personally "sen[t] people" to harm or harass Gellis. The statements were broadcast to Gellis's growing audience of Instagram followers — at least 200,000 of them — and attracted the attention of mainstream media outlets.¹ Plaintiffs allege that Gellis's accusations are simply false.

According to Plaintiffs, Gellis's unfounded attacks caused "enormous financial harm, reputational damage, and devastating emotional distress." F-Factor's monthly revenue plummeted from over $1 million to $90,000. Plaintiffs filed this action asserting claims against Gellis for defamation, product disparagement, deceptive trade practices, intentional infliction of emotional distress, and civil harassment. Gellis filed a counterclaim seeking to recover damages from Plaintiffs for filing this lawsuit as a strategic lawsuit against public participation ("SLAPP") in violation of New York's recently amended anti-SLAPP law.

Gellis moves to dismiss Plaintiffs’ Complaint, and Plaintiffs move to dismiss Gellis's counterclaim. For the reasons set forth below, Defendant's motion to dismiss is granted in part and denied in part , and Plaintiffs’ motion to dismiss Defendant's counterclaim is granted . In summary:

Plaintiffs state viable claims for defamation and product disparagement. They sufficiently allege that Gellis made or republished false statements with actual malice — that is, with knowledge of their falsity or with reckless disregard of whether they were false. Although the First Amendment gives Gellis broad freedom to express her thoughts and opinions, vulgar or otherwise, she does not have legal immunity to publish false factual information about people or products under the gauzy cloak of being "authentic" and "raw." Of course, whether some or all of her statements were indeed false is a fact question that cannot be decided on this motion.

Plaintiff's’ claims asserting that Gellis engaged in deceptive trade practices, intentional infliction of emotional distress, and civil harassment are dismissed, as is Gellis's anti-SLAPP counterclaim.

FACTUAL BACKGROUND²

A. Zuckerbrot, F-Factor, and Gellis

Zuckerbrot is the creator of the "F-Factor Diet," "a groundbreaking dietary program focused on high-fiber foods" (Compl. ¶¶ 3, 35 [NYSCEF 1]). She is an internationally-known dietitian, the author of two bestselling books endorsing the health benefits of fiber, an advisor in private practice to thousands of clients, including celebrities, business, and government leaders, and is also a lecturer, consultant, spokesperson, and national media personality to boot (id. ¶ 3). Zuckerbrot's company, F-Factor, helps support Zuckerbrot's efforts to promote the F-Factor diet (id. ¶ 50). Among other things, the company manufactures high-fiber protein powders and protein bars for customers following the F-Factor diet (id. ¶¶ 52-53). Before the controversy that gave rise to this action, F-Factor was generating over $1 million in revenue per month (id. ¶¶ 4, 58). For purposes of this motion, Plaintiffs assume that they are "public figures," but preserve their right to challenge that classification — which is important to the assessment of defamation claims under the First Amendment — later in the proceedings (see NYSCEF 38 at 18 n.5).

Gellis is an Instagram influencer using the handle @emilygellis (id. ¶¶ 1, 25). An influencer is a social media personality who shares his or her daily life online with their followers (Gellis Decl. ¶ 4 [NYSCEF 21]), and uses that account to promote brands or products in exchange for compensation (Compl. ¶ 25). For Gellis, in other words, this is a business. Being an influencer is "basically [her] full-time profession" (Gellis Decl. ¶¶ 2, 4). She generates income through paid advertisements with brands on her Instagram site, and through sharing fashion "picks" for which affiliate retailers pay her a commission (id. ¶ 4; see Compl. ¶ 25). Gellis says that her account is regularly viewed by more than 200,000 followers, a number she compares to the print circulation of several large daily newspapers (Gellis Decl. ¶ 2 n.1). According to Gellis, her Instagram account is "more and more becoming a source of ‘news’-like information" (id. ¶ 6), served up "authentic, honest, and raw" (id. ¶ 8; see id. ¶ 7 ["Although I do not have formal training in journalism, my entire career on Instagram is based on my followers trusting my recommendations, as well as other information that I provide."]).

B. Gellis's Campaign against F-Factor and Zuckerbrot

Beginning in mid-July 2020, Gellis has made (and, as of the filing of the Complaint, continued to make) numerous social media posts stating, or claiming that she has evidence to show, that the F-Factor diet and associated products are unsafe and that Zuckerbrot and F-Factor concealed safety information from clients and ignored concerns about product safety (id. ¶ 60). "Numerous" may be understating it. In just 75 days, Gellis published over 4,500 posts condemning the F-Factor diet, the F-Factor company, and Zuckerbrot personally (id. ¶ 1). This online onslaught can be divided, broadly, into three kinds of statements.

1. Statements about F-Factor Products

Many of Gellis's Instagram posts attacked F-Factor products, claiming they were harmful and the cause of serious illnesses in women, even death. Plaintiffs allege that all of these statements are false and defamatory (see id. ¶¶ 60-72). For example, on July 22, 2020, Gellis posted that she had evidence that the F-Factor diet caused eating disorders and had "crippling effects" on mental health (id. ¶ 61). She published the following statement, attributed to an anonymous Instagram user:

I did f factor before my wedding and lost 13 lbs in like 7 weeks. I am thankful that I didn't have last damaging effects on my body like some of these women but I had crippling effects on my mental health. I spent my honeymoon in Italy and I cried after eating pasta bc I kept doing this f factor math in my head. I was at my lowest weight and refused to look at myself in the mirror in a bathing suit after a pasta dinner. Think it definitely gave me disordered eating and I am so sad it robbed me of those amazing moments.

(id. ).

Then on August 5, Gellis accused F-Factor of deleting customer complaints and trying to conceal information:

To turn a conversation about people who have been harmed by your products and turn it into a conversation about cyber bullying is a low low I didn't expect to see the f factor team go. You might not have liked how people tried to get your attention creating spam accounts but that's because you kept blocking—deleting—and trying to silence them stop attempting to manipulate the Story.

(id. ¶ 62).

The next day, on August 6, Gellis posted the following from an anonymous Instagram user: "I became very ill in March after following F-Factor for three months (GGs, powders, bars and all). I literally shit myself a few times a day and couldn't keep any food down for two weeks. No lie" (id. ¶ 63).

On August 18, Gellis posted another statement from an anonymous Instagram user:

I miscarried 9 weeks & they said there were high traces of lead in my blood that could have been the reason I miscarried. I never even thought about the powders/bars etc. I hired a specialist to come to my apartment for $10K and run all these crazy tests thinking maybe there was a lead based paint in my apartment as we live in a coop and I'm sure you know the apartments are so old! I am freaking out. I had a miscarriage because of these damn powders. I cried all week reading these as I put 2 and 2 together. I remember the doctor saying after the miscarriage, your blood work came back and there was something very odd. You have high levels of lead. I am beside myself. I never would have known — one of my friends said to me — did you hear what's going on with TZ/FFactor? She knew I went.

(id. ¶ 64 [emphasis added]).

On August 21, Gellis posted the following from someone who identified him- or herself as a Physician Assistant and Registered Dietitian:

Been looking in to the FFactor protein. "Organic Guar Gum" is the second ingredient listed- this has been banned in a lot of countries and at one point was banned in the US. It basically slows down emptying and digestion by the gallbladder and creates "steatosis" and essentially can cause fatty liver disease which would explain the elevated liver enzymes and gallbladder attacks people are having on it[.]

(id. ¶ 65).

On August 26, Gellis herself stated:

We have victims with their colons removed. Victims with rashes + hives. Victims with severe Gastro pain leading to hospital visits. Victims with kidney stones + hernias. What gives? DEMAND JUSTICE NOW DEMAND YOUR $ back. Demand a COA. Enough of the bullying silence culture! I

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