Submitted: October 20, 2016
Tannerite Sports, LLC ("Tannerite"), a manufacturer
of exploding rifle targets, brought this action alleging that
it was defamed by a television broadcast and an internet
article, both published by defendant NBCUniversal News Group
("NBC"). Tannerite appeals an October 1, 2015 order
granting NBC's motion to dismiss and denying
Tannerite's motion to amend its complaint, as well as an
October 2, 2015 judgment order. Both orders were entered by
the United States District Court for the Southern District of
New York (Scheindlin, J.).
district court dismissed Tannerite's claim because the
complaint failed to allege that NBC's publications made a
false statement, which is required to state a defamation
claim under New York law. In particular, the district court
ruled that NBC's characterization of the exploding rifle
targets as "bombs" was substantially true. It also
ruled that NBC did not suggest that the targets were
dangerous in retail stores before consumers opened the
targets' packaging and mixed their chemical ingredients
appeal, we similarly hold that New York defamation law and
federal pleading standards require a plaintiff to allege
facts that, if true, demonstrate that the defendant made a
false statement. Applying New York's standard for
falsity, which requires a plaintiff to allege that the
defendant's statements were not substantially true, we
conclude that Tannerite has failed to allege that NBC's
publications contained false statements.
Appearing for Appellant: David L. Cargille, Baer Crossey
McDemus, LLC, Philadelphia, PA.
Jackel, Philadelphia, PA. Appearing for Appellee: Daniel M.
Kummer, Chelley E. Talbert, Andrew D. Jacobs, NBCUniversal
Media, LLC, New York, NY.
Before: JACOBS, POOLER, Circuit Judges, and CRAWFORD,
POOLER, Circuit Judge
Tannerite Sports, LLC ("Tannerite") appeals from an
order of dismissal and a judgment entered by the United
States District Court for the Southern District of New York
(Scheindlin, J.). On appeal, we ask whether federal
pleading standards, when applied to New York law, require a
plaintiff asserting a defamation claim to allege facts
demonstrating that the defendant made a false statement. We
then consider whether Tannerite's defamation complaint
alleged that defendant NBCUniversal News Group
("NBC") made false statements regarding Tannerite
exploding rifle targets ("Tannerite targets" or
we answer the first question in the affirmative and the
second in the negative, we AFFIRM the district court's
dismissal of the complaint and its entry of judgment.
now, I am basically holding a bomb in my hand, "
proclaimed television reporter Jeff Rossen, speaking against
backdrop images of high- powered firearms and flame-engulfed
cars. App'x at 89. "And you'll never believe
where I got this, " he continued. Id. "A
sporting goods store, no questions asked." Id.
As the television camera zoomed in, he added that "the
key ingredient here that causes the explosion has been used
by terrorists to kill Americans." Id. Lifting
two white containers for viewers to see, Rossen declared that
"[t]his morning, you're about to see what happens
when this gets in the wrong hands." Id.
began a report on NBC's Today Show considering the
dangers of Tannerite exploding rifle targets. Tannerite's
"targets" consist of separately packaged
chemicals-ammonium nitrate and pyrotechnic grade aluminum
powder-that detonate when mixed together and then shot with a
high-velocity bullet. The targets enhance long-range
recreational shooting, as the explosion provides an exciting
acknowledgment that the target has been hit. Or, as
Tannerite's 2014 Product Guide states, "[s]trike
your target and the gratification is instant." App'x
but somewhat obviously, the targets pose dangers if misused.
Tannerite's own product guide recommends that the targets
be detonated "away from populated areas, " and
notes that improper use of the targets "may start fires,
may be less safe to handle, and [may cause] erratic
performance." App'x at 25. And, because the targets
contain ingredients that explode, they can be used to do harm
rather than enhance recreation.
Today Show's report emphasized these risks, to put things
mildly. When Rossen's introduction concluded, the scene
changed abruptly to a small building in a country setting.
Following a moment of serenity, the building exploded in a
column of fire. A voice-over noted the presence of
"dangerous and powerful explosives." App'x at
89. Viewers saw a montage of structures and cars bursting
displaying more destruction, Rossen turned his focus to
"[t]he lead manufacturer" of the targets:
Tannerite. Id. He described Tannerite targets'
"key ingredient, " ammonium nitrate, as "a
favorite of terrorists[, ] used in the Oklahoma City bombing,
and to kill U.S. troops in Afghanistan." Id. He
noted that "[t]he FBI even issu[ed] [an] intelligence
bulletin in 2013, " stating that "it has potential
use as [an] explosive in IEDs by criminals and
broadcast emphasized the easy accessibility of Tannerite
targets. It noted their presence at "most sporting goods
stores" and online. Id. Rossen stated that he
"went shopping and bought it by the cartload, " and
his "producer bought forty pounds' worth online,
enough to blow up a house." Id.
came an interview with Travis Bond, a firearms expert. Bond
stated that Tannerite is "extremely dangerous" and
the "equivalent of buying explosives off the
shelf." Id. A voice-over relayed Bond's
view that "Tannerite is getting around the law on a
technicality, separating the two [chemical] ingredients, even
though they're sold together." Id. The
video showed Bond cutting open separately-wrapped packets of
chemicals contained within a package of Tannerite and mixing
them together in a single container. After Bond mixed the
chemicals, he stated, "[t]his is now classified by ATF
as an explosive." Id.
report bemoaned the product's minimal regulatory
supervision. Rossen interviewed Senator Richard Blumenthal,
who argued that the products should be regulated more
rigorously. Rossen then read Tannerite's response: that
the product is safe when used properly and that "[o]nly
girly-men want to regulate Tannerite rifle targets."
App'x at 89.
the studio, Rossen, holding two cartons of Tannerite targets,
turned to the Today Show anchors and noted that, "after
buying all of these products, we are handing it over to
experts, " but assured them that it is "not
dangerous being in the studio right now. Of course, I
wouldn't do that to you." Id. He added,
"[a]nd you need the catalyst. But it is incredibly
dangerous when you think about it . . . and how this is used
overseas by terrorists." Id. An anchor added,
"[a]nd in some cases here as well, by the way."
internet article called "Bombs for sale: Targets
containing dangerous explosive being sold legally"
provided a similar account. App'x at 37. The article
discussed injuries caused by the "exploding
targets." Id. It stated that the "key
ingredient" of the targets "is ammonium nitrate,
the same substance used in the Oklahoma City bombing . . .
and in IEDs . . . used against U.S. troops in
Afghanistan." App'x at 38. It noted that "[g]un
enthusiasts buy it for target practice because it explodes
when you shoot it, letting you know you've made the
article again noted Bond's view that "Tannerite is
getting around the law on a technicality by separating the
two ingredients in its explosive- ammonium nitrate and
aluminum powder-even though the two are sold together, "
and quoted Bond as saying that "once itʹs mixed,
itʹs classified as an explosive." Id. Like
the video report, the article discussed Senator
Blumenthal's views embracing greater regulation, and
printed Tannerite's response that additional regulation
would be inappropriate.
sued NBC for defamation. The complaint alleged that NBC defamed
Tannerite in both the article and video by stating or
suggesting, among other things, that the "targets are
dangerous bombs as sold on store shelves, " which was
false because "[p]laintiff's rifle targets are not
bombs, " and, in any case, "are inert as sold in
stores" and therefore not dangerous in that setting.
App'x at 17-19.
moved to dismiss, and the district court granted the motion.
Tannerite Sports, LLC v. NBCUniversal Media LLC, 135
F.Supp.3d 219, 236 (S.D.N.Y. 2015). The district court stated
that a plaintiff wishing to recover under New York defamation
law must allege, among other things, that the defendant made
"a false statement about the plaintiff."
Id. at 232. The court explained that "[t]ruth
or falsity is determined by the common law standard of
substantial truth, " and that "[a] statement is
substantially true and not actionable if the published
statement could have produced no worse an effect on the mind
of a reader than the truth pertinent to the allegation."
Id. at 233 (internal quotation marks and citations
district court ruled that Tannerite had not alleged that NBC
made false statements. The court stated that "[t]here is
no question that 'Tannerite-brand binary
exploding rifle targets' explode. That is their
purpose." Id. at 235 (emphasis in original).
Consequently, even if NBC's "uses of the word
'bomb' [did not] me[et] the precise definition of the
word . . . . the gist or substance . . . [was] true in light
of the many meanings that reasonable audiences associate with
the word." Id. (internal quotation marks and
citations omitted). The court also wrote that neither
publication "suggested that Tanneriteʹs exploding
rifle targets are dangerous before the component ingredients
are mixed, or that proper use of the products causes
destruction or injury." Id. at 236. The court
noted that the video demonstrated how the product's
ingredients must be mixed, and both the video and article
stated that the product does not become an explosive until
its ingredients are mixed together. Id. The court
also concluded that NBC's reports clearly described
dangers from misuse, as opposed to proper use, of the
same order, the court also denied Tannerite's motion for
leave to amend. Id.
appealed the district court's order granting NBC's
motion to dismiss and denying the motion to amend, as well as
the judgment order that followed soon after.
review de novo a district court's order granting a motion
to dismiss. Williams v. Priatno, 829 F.3d 118, 121
(2d Cir. 2016).
Consideration of Substantial Truth at the ...