Small Business Bodyguard Inc. v. House of Moxie, Inc. (230 F. Supp. 3d 290, 2017)

DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF AND COUNTERCLAIM DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT

McMahon, C.J.:

Plaintiff/Counterclaim Defendant Small Business Bodyguard Inc. (“SBBI”) brought this action against Defendant/Counterclaim Plaintiff House of Moxie, Inc. (“HOM”), which then brought counterclaims against SBBI, SBBI’s CEO Rachel Rodgers (“Rodgers”), and Rodgers’ law firm, Rachel Rodgers Law Office, PC (“RRLO”).

Before the Court are HOM’s motion for summary judgment (Dkt. No. 110) and SBBI, Rodgers, and RRLO’s cross-motion for summary judgment (Dkt. No. 120).

As discussed below, both motions are GRANTED IN PART and DENIED IN PART.

Factual Background

I. Establishment of the Joint Venture

This case arises from a short-lived joint venture between HOM, owned by Ashley Ambirge (“Ambirge”), and a consulting entity owned by Rodgers, Rachel Rodgers Consulting LLC (“RRC,” now SBBI), to sell an e-book called “Small Business Bodyguard” (the “SBB Product”), along with related instructional videos, audio lessons, and related products and services. (PSUF ¶¶ 8-1)

HOM provides “strategic copyrighting advice and brand development services” and maintains an active online presence and an email list of over 20,000 small business owners. (DSUF ¶¶ 1-3.) Rodgers, in addition to founding the consulting entity RRC that later became SBBI, is an attorney, and practices intellectual property law under the firm name RRLO. (PSUF ¶ 2; PCSUF ¶¶ 5-6.) In February 2013, HOM signed a one-year engagement agreement with RRLO that provided that RRLO would represent HOM as its general business counsel. (DSUF Ex. 8.)

During the one-year term, RRLO performed various legal services for HOM, including the preparation of various corporate documents, tax filings, and trademark applications. (DSUF ¶ 8.) HOM decided not to continue the attorney-client relationship after the expiration of the one-year engagement agreement, which terminated on February 20, 2014. {Id. ¶ 9.)

About three months into the attorney-client relationship, Ambirge and Rodgers decided to form a joint venture to develop a new e-book for small businesses. HOM and RRC entered into a joint venture agreement (the “JVA”) in May 2013 to develop the SBB Product, which was sold online via the website www.smallbusiness bodyguard.com (the “SBB Website”). (PSUF ¶¶ 4-5; Bukher Decl. Ex. B (“JVA”).) The agreement provided that the profits of the joint venture would be divided equally between RRC and HOM, and paid on a monthly basis. (JVA § 4.1.)

II. Dissolution of the Joint Venture

Less than a year after forming the joint venture, the parties began to have difficulties working together and ultimately decided to terminate the JVA.

HOM accused Rodgers of “mishandling” joint venture assets as the parties were discussing dissolution—namely, by withholding two monthly payments from HOM and by compensating RRC for its expenses but failing to do the same for HOM. (See PCSUF ¶¶ 22-23; DSUF ¶¶ 24-26.) However, the JVA did not set any deadline for distribution of the payments and HOM has presented no evidence that it was ever denied reimbursement for any of its expenses. (JVA §§ 4.1, 4.2; PCSUF ¶¶22-26.)

HOM also accused Rodgers of making misrepresentations regarding the joint venture’s intellectual property.

First, when Rodgers sought to register the trademark “Small Business Bodyguard” with the U.S. Patent and Trademark Office (“PTO”) in July 2013, Rodgers represented that the name had been used by the joint venture in commerce since as early as June 21, 2013. (DSUF ¶¶ 27-31.) HOM claims that this representation was false because the SBB Product was not sold to customers until July 24, 2013. (Id. ¶ 32.)

Second, HOM argues that RRC later falsely informed the PTO that a trademark assignment was pending before the parties formally agreed to dissolve the joint venture. (Id. ¶¶ 37-43.)

Third, although the original copyright registration application filed by Rodgers for the Small Business Bodyguard text and radio episodes listed Rodgers and Ambirge as co-authors, the copyright registration that was issued on October 17, 2014, Reg. No. SR 749-243 (the “SR Registration”), listed Rodgers as the sole author. (PSUF ¶¶ 78-81; PCSUF ¶¶ 45-47.) SBBI later filed a supplemental registration in December 2014 to correct this error and has taken other measures to correct it. (PSUF ¶¶ 81-83.) HOM filed a separate copyright registration application for the same Small Business Bodyguard text, again listing Ambirge and Rodgers as co-authors, and later assigned that registration (TX 7-907-164, the “TX Registration”) and related registrations (TXu 190-8051 and TXu 190-8648, the “TXu Registrations”) to SBBI. (PCSUF ¶¶ 55-59; see DSUF Ex. 84.)

The parties signed a joint-venture dissolution agreement (the “JVDA”) on June 7, 2014. (PSUF ¶ 10; see Bukher Deck Ex. A (“JVDA”).) RRC’s successor-in-interest SBBI agreed to purchase HOM’s interest in the joint venture in exchange for (1) granting HOM an irrevocable license to sell the SBB Product (and updated versions of the SBB Product) for three years and (2) $15,000, to be paid in three $5,000 installment payments on June 30, July 30, and August 30, 2Q14. (PSUF ¶¶7, 15; JVDA § 2.1.)

The JVDA provided that the license granted to HOM to sell the SBB Product would be effectuated through a special hyperlink created by SBBI that would track the number of sales generated by HOM for purposes of calculating HOM’s commission. (PSUF ¶¶ 13,15; JVDA § 3.4.) HOM would receive a commission equal to 100% of the Gross Sales Price for the first two years of the license, and then 75% of the Gross Sales Price in the third and final year of the license. (JVDA § 3.7.) “Gross Sales Price” is defined in the JVDA as the “full retail price charged by RRC to consumers.” (Id.) HOM was also granted the right to periodically request from SBBI a “verifiable description of the referral partner settings” used to track HOM’s sales, as well as a report calculating HOM’s commissions. (Id. §§ 3.6, 3.9.)

The JVDA prohibited HOM from distributing or reproducing the SBB Product, from preparing derivative works based on the SBB Product, and from publicly speaking or writing in a manner that would “diminish or tarnish” the SBB Product’s brand. (Id. §§ 3.1.1, 3.1.2.) HOM was also restricted to using only the current versions of SBBI’s promotional materials. (Id. § 3.2.) The parties also mutually agreed “to refrain from making any public defamatory or inflammatory statements or comments regarding the other party, or any of the party’s officers, directors, employees, personnel, agents, policies, services or products.” (Id. § 10.1.)

An earlier draft of the JVDA apparently included a requirement that SBBI “not discontinue or cease selling” the SBB Product during the three-year term of the agreement, but the parties struck that sentence from the executed version. (Id. § 3.5.) After the end of the JVDA’s three-year term, HOM had the option of signing on as an SBB affiliate if it wished to continue selling the SBB Product. (Id. § 5.3.)

III. The Parties’ Performances Under the JVDA

After execution of the JVDA, accusations of breach came swiftly from both HOM and SBBI.

Almost immediately, HOM asserted that SBBI was in breach of the JVDA because it failed to provide HOM with a working affiliate hyperlink with which to sell the SBB Product. However, whatever problem may have existed with the link was quickly fixed. Ambirge herself testified that the link was functioning within three days (Ambirge Dep. at 161:3-163:16), and the link was apparently working well enough that HOM was able to sell $10,127 worth of the SBB Product during June 2014, the first month of HOM’s license. (See Order Den. Prelim. .Inj. at 12-13, Dkt. No. 99.)

A few weeks after the JVDA was signed, Rodgers changed the licensee link through which HOM’s sales were tracked so that the link “expired” after 30 days (rather than the original 90 days), while other affiliates of SBBI had 60-day tracking periods. (PCSUF ¶ 84.) It is unclear from the record why this change was made, but it apparently had little or no effect on HOM’s ability to generate sales using the link or on SBBI’s ability to calculate HOM’s commission payments in the following months. SBBI also apparently failed to provide HOM with verification of its sales tracking settings in response to HOM requests, as required by the JVDA, although it did give HOM access to a website called the “Affiliate Center” which allowed HOM to see its generated sales in real time. (Id. ¶¶ 85-86; see JVDA § 3.6.)

Next, HOM’s first commission payment, for June 2014 sales, was delayed by approximately one month due to cash-flow issues at SBBI. HOM ultimately accepted the late payment. (PSUF ¶¶ 29, 35-36.)

SBBI then announced a “last chance” promotion of the SBB Product, after which the price would increase from $295 to $495. (PCSUF ¶ 82.) SBBI apparently failed to inform Ambirge or HOM about this planned promotion (either before it was announced or after). Nonetheless, when Ambirge found out about it, she sent an email to her list of potential customers and told them to take advantage of the promotion, and added that Rodgers would be taking over the whole SBB Product business. (Id. ¶¶ 82-83.)

HOM also asserts that SBBI improperly calculated some of the commissions it was owed—specifically, it withheld $470 in “finance fees” collected from customers who sought to pay for the SBBI Product in installments. Under the installment plan, customers would pay for the SBB Product with two $277 payments instead of a single $495 payment, resulting in $59 in additional revenue. SBBI disagrees that this $59 finance fee constitutes part of the “Gross Sales Price” used to calculate HOM’s commissions under the JVDA.

Starting in late September 2014, SBBI began to implement a new marketing strategy that would make the SBB Product available only for limited timeframes, which would be preceded by periods of heavy promotion and followed by periods where the SBB Product would be unavailable for purchase. (PSUF ¶ 122.) On September 26 and October 9, 2014, SBBI issued promotional emails stating that “access” to the SBB Product would soon “close.” (PCSUF ¶¶ 108-109.) Visitors to the SBB Website who attempted to purchase the SBB Product after the limited sales period would be informed that they “missed the opportunity to purchase Small Business Bodyguard,” but that they could join the SBBI mailing list to be informed when the product was next available for purchase. {Id. ¶¶ 110-111.)

In November 2014, SBBI launched an update to the SBB Product, called “Small Business Bodyguard +.” {Id. ¶¶ 115-121.) Ambirge was not listed as a joint author of Small Business Bodyguard+. It appears from the record that Ambirge had asked, through an email from her attorney on June 20, 2014, to have her name removed from SBBI’s promotional emails to customers. {See 2d Koustenis Decl. Ex. 24 at 3.) The email did not specifically request that her name be removed as a co-author of the SBB Product. {Id.) Rodgers testified that Ambirge and her attorneys asked her multiple times over the phone to remove Ambirge’s name from the SBB Product as a co-author, and that Rodgers was initially reluctant to do so but ultimately acceded to Ambirge’s request. {See DSUF Ex. 164 at 163:9-165:16.) HOM has presented no evidence contradicting this testimony.

Based on what it perceived as “material breaches” of the JVDA, HOM attempted to rescind the JVDA and launch its own website to sell the SBB Product. (PCSUF ¶ 96.) On August 19, 2014, HOM launched the sales website http://smallbusiness bodyguardonline.com (the “HOM SBB Website”), which was an exact copy of the then-existing SBB Website, replete with excerpts of the SBB Product and SBBI’s promotional materials. (PCSUF ¶ 96; PSUF ¶ 41.)

Within hours, Rodgers sent a Digital Millennium Copyright Act (“DMCA”) take-down notice to BlueHost, the web hosting provider for the HOM SBB Website. (PCSUF ¶ 99.) On August 21, 2014, Blue-Host informed HOM that its entire account—not just the HOM SBB Website, but also HOM’s other websites—had been deactivated due to a copyright violation. {Id. ¶ 100.) HOM sent counter-notices to BlueHost, and SBBI ultimately filed this lawsuit. {Id. ¶¶ 101-102.) HOM argues that many of the deactivated sites contained no SBB-related content and that it incurred $5,936 in costs to move the unrelated websites to a new hosting vendor. {Id. ¶¶ 103-106.)

SBBI also argues that HOM defamed SBBI and Rodgers in the lead up to this litigation. HOM posted two articles in October 2014 on its website The Middle Finger Project and made one post on Facebook that SBBI asserts are libelous. Ambirge also communicated via email with a third party, Scott Greenfield, to discuss an article Greenfield had published online titled Rachel Rodgers: Anything For A Quick Buck?, which paints an unflattering portrait of Rodgers. {See DSUF Ex. 188; DSUF Ex. 189.)

Finally, in March 2015, after this litigation had - commenced, HOM launched a new website, www.sentencesandmoney. com, to promote its new product, Sentences and Money, a four-week course on business writing. (PSUF ¶¶ 64-65.) SBBI immediately sought to enjoin HOM from offering the course on the grounds that the JVDA prohibited HOM from becoming involved in “a business that provides legal services, or sells products or goods ... that contain legal advice.” (JVDA § 11.1.) This Court permitted HOM to alter the proposed course by removing the components that provided legal advice, and ultimately HOM offered the revised course. (See Dkt. No. 93; see also Order Den. Prelim. Inj. at 5-6.) HOM issued refunds to customers who did not wish to attend the course after the portions providing legal advice were deleted. (See Order Den. Prelim. Inj. at 11, 16; PSUF ¶ 68; DCSUF ¶ 68.)

IV. HOM’s Counterclaims

In addition to asserting that SBBI interfered with its ability to sell the SBB Product in violation of the JVDA’s licensing provisions, HOM asserts counterclaims against Rodgers and Rodgers’ law office RRLO for legal malpractice and breach of fiduciary duty.

First, HOM asserts that Rodgers failed to file the proper S-corporation election form with the IRS on HOM’s behalf, making HOM a C-corporation. This resulted in $40,000 in potential additional taxes that HOM was only able to avoid through payment of a $195 late fee to the IRS and additional legal fees. Rodgers disputes these allegations and, after the close of discovery, produced a fax confirmation that shows the S-corporation election form being submitted to the IRS on June 4, 2013. (See Bukher Decl. Ex. S.)

Second, HOM asserts that Rodgers committed malpractice relating to a June 24, 2013 trademark application Rodgers submitted on behalf of another HOM website, The Middle Finger Project. (DSUF ¶ 65.) The PTO issued a substantive office action on December 30, 2013, denying the registration because the mark “consists of or includes immoral or scandalous matter,” in violation of Section 2(a) of the Trademark Act. (Id. ¶ 66.) Rodgers did not inform HOM about the office action until after the attorney-client relationship terminated in February 2014. (PCSUF ¶67; Rodgers Decl. ¶ 80.) HOM did eventually obtain its trademark registration for The Middle Finger Project; the deadline for responding to the office action was not until June 30, 2014 and HOM timely submitted a response to the PTO that ultimately proved persuasive. (PSUF ¶ 116.)

Third, HOM asserts that Rodgers’ previously-discussed “misrepresentations” to the PTO regarding the joint venture’s “Small Business Bodyguard” mark jeopardized the joint venture’s intellectual property rights and separately constitutes malpractice.

Finally, HOM asserts that Rodgers acted improperly by serving as counsel for HOM when the parties signed the JVA. It appears that Rodgers neither encouraged nor discouraged HOM to seek separate counsel when the parties were forming the joint venture, although whether she raised the issue at all is disputed. (Rodgers Decl. ¶ 55; PCSUF ¶ 17; DCSUF ¶ 94.) HOM eventually retained separate counsel when the parties drafted the JVDA. (DCSUF ¶ 95.) HOM does not identify any specific JVA provisions that it asserts were improper due to this apparent conflict of interest, nor does it seek rescission of the JVA. It also appears that a nearly identical agreement drafted by Rodgers for another of HOM’s joint ventures has been satisfactory to HOM. (PSUF ¶ 96-103.)

Procedural History

Rather than recite the full history of this litigation (during which claims and counterclaims have been added, dismissed, and re-addéd), I will focus only on the claims that remain.

SBBI’s amended complaint (Dkt. No. 96) asserts nine counts against HOM: (1) breach of contract for violating the JVDA by establishing the HOM SBB Website; (2) breach of contract for making statements about Rodgers and SBBI in violation of the JVDA; (3) breach of contract for offering the Sentences and Money curriculum in violation of the JVDA; (4) unjust enrichment through sales of the SBB Product (in the event the JVDA is rescinded); (5) infringement of the SR Registration through operation of the HOM SBB Website; (6) infringement of the TX Registration through operation of the HOM SBB Website; (7) common-law defamation against SBBI and Rodgers; (8) seeking declaratory judgment that HOM has no rights in the TXu Registrations previously assigned to SBBI; and (9) common-law unfair competition for HOM’s creation of the HOM SBB Website.

HOM asserted eight counterclaims against SBBI, Rodgers, and RRLO in its answer to the amended complaint (Dkt. No. 106): (1) breach of contract against SBBI for interfering with the licensing provisions of the JVDA; (2) breach of contract against SBBI for failure to turn over revenues as required by the JVDA; (8) breach of contract against SBBI for failing to engage in business discussions with HOM; (4) unjust enrichment against SBBI; (5) breach of fiduciary duty against Rodgers and RRLO regarding formation of the joint venture; (6) breach of fiduciary duty against SBBI, Rodgers, and RRLO for the delayed payments and alleged mishandling of the joint venture’s assets and intellectual property; (7) legal malpractice against Rodgers and RRLO for the services provided to HOM; and (8) legal malpractice against Rodgers and RRLO for the services provided related to the joint venture.

HOM has moved for summary judgment dismissing all of SBBI’s claims and for judgment in its favor on its own first, second, fifth, sixth, seventh, and eighth counterclaims. (Dkt. No. 110.) Rodgers, RRLO, and SBBI have cross-moved for summary judgment in SBBI’s favor all of SBBI’s claims against HOM, and for summary judgment dismissing HOM’s first, second, fifth, sixth, seventh, and eighth counterclaims. (Dkt. No. 120.)

SBBI previously moved for a temporary restraining order (“TRO”) and a preliminary injunction to halt HOM’s offering of the Sentences and Money course. (See Dkt. Nos. 64-66.) The Court granted the TRO (Dkt. No. 67), but later permitted HOM to offer a revised course after the parties agreed that HOM had removed the elements that violated the JVDA (Dkt. No. 93). The Court ultimately denied the motion for a preliminary injunction because (1) SBBI could not show a likelihood of irreparable injury (only damages), and (2) HOM never actually offered the original, offending course. (Dkt. No. 99.)

Applicable Legal Standard

Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party has the initial burden of demonstrating the absence of a disputed issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A dispute concerning material fact is genuine “if evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505). A genuine issue for trial exists if, based on the record as a whole, a reasonable jury could find in favor of the non-movant. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In making its determination, the Court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. See id. at 255, 106 S.Ct. 2505.

To defeat summary judgment, it is not sufficient for the non-moving party to present evidence that is conclusory or speculative, with no basis in fact. See Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. Instead, the non-moving party must go beyond the pleadings and “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the nonmoving party must present “specific facts showing that there is a genuine issue for trial.” Beard v. Banks, 548 U.S. 521, 529, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006). “Summary judgment is designed ... to flush out those cases that are predestined to result in directed verdict.” Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997).

Discussion

1. SBBI’s Claims Arising from the HOM SBB Website (Counts 1, 5, 6, and 9)

A. Count 1: HOM’s Motion for Summary Judgment Dismissing SBBI’s Breach-of-Contract Claim Is Granted; SBBI’s Cross-Motion for Summary Judgment in Its Favor Is Denied

Count 1 asserts that HOM violated the JVDA by launching the HOM SBB Website (which was designed to appear identical to the SBB Website operated by SBBI) and effectuating at least one sale of the SBB Product through that website.

Under New York law, the elements of a breach-of-contraet claim are: (1) the existence of a valid contract between the parties; (2) performance by the party alleging breach; (3) failure of the breaching party to perform; and (4) damages attributable to the breach. Johnson v. Nextel Commc’ns, Inc., 660 F.3d 131, 142 (2d Cir. 2011) (citing Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 177 (2d Cir. 2004)).

Neither party disputes that the JVDA is a valid contract, satisfying the first element. HOM disputes the second and third elements: whether SBBI materially performed, and whether it (HOM) breached the JVDA. But the Court need not address those arguments, because SBBI has offered no evidence that HOM’s creation of the HOM SBB Website resulted in any actual damages to SBBI, and thus has failed to raise a genuine issue of material fact on the fourth element of its claim.

The unrebutted evidence shows that the HOM SBB Website was in operation for only a few days, effectuating only one $495 sale of the SBB Product, on August 19, 2014. (DSUF Ex. 138; PCSUF ¶¶ 96-100.) There is no dispute that $495 was the then-current sales price of the SBB Product, and that, under the JVDA, HOM would have been entitled to 100% of that amount as a commission for any sale it generated. (JVDA § 3.7.) SBBI cannot, therefore, establish that it suffered any actual damages as a result of HOM’s brief operation of the HOM SBB Website.

SBBI’s assertion (made for the first time in its reply brief) that it is entitled to additional damages to compensate for “the web traffic and exposure lost by the SBB Website, any loss of potential new subscribers to the SBBI mailing list, and injury to SBBI’s image” is both untimely and unsupported by any evidence. (See Pl.’s Reply Mem. of Law at 1, Dkt. No. 132.) First, the Court is under no obligation to consider arguments raised for the first time in a reply brief. Manon v. Pons, 131 F.Supp.3d 219, 238-39 (S.D.N.Y. 2015). Second, there is no absolutely no evidence in the record that SBBI suffered any such damages. SBBI simply argues that the precise amount of damages should be left for determination at trial (see Am. Compl. Prayer for Relief ¶¶ 3, 5,6, 8), but that does not excuse its failure to demonstrate the existence of any damages at all.

On a motion for summary judgment, SBBI must offer actual evidence that it suffered damages, not mere speculation. In other words, a summary judgment motion is “put up or shut up” time for litigants. HOM is, therefore, entitled to summary judgment dismissing Count 1.

B. Count 5: HOM’s Motion for Summary Judgment Dismissing SBBI’s Copyright Infringement Claim Based on the SR Registration Is Denied; SBBI’s Cross-Motion for Summary Judgment in Its Favor Is Granted

Count 5 seeks statutory damages for the HOM SBB Website’s infringement of the SR Registration, a registered copyright.

There are two elements to a copyright infringement claim: “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Kwan v. Schlein, 634 F.3d 224, 229 (2d Cir. 2011) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)). A certificate of registration is pri-ma facie evidence that a copyright is valid. 17 U.S.C. § 410(c); Rogers v. Koons, 960 F.2d 301, 306 (2d Cir. 1992). The presumption of validity may be rebutted, but an “innocent or inadvertent omission will not invalidate a copyright registration.” Lida, Inc. v. Texollini, Inc., 768 F.Supp. 439, 442 (S.D.N.Y. 1991).

1. SBBI Owns a Valid Copyright in the Small Business Bodyguard Text

On July 25, 2013, Rodgers filed an application for a copyright registration in the SBB Product (the Small Business Bodyguard e-book text), and in four episodes of Small Business Bodyguard Radio, which were companion audio recordings to the SBB Product. The Copyright Office issued the SR Registration on October 17, 2014, covering the SBB Product and the four radio episodes. By operation of the JVDA, HOM assigned any interest it had in this copyright to SBBI. (JVDA § 2.2.) As a duly registered copyright, the copyright covered by the SR Registration is entitled to the presumption of validity.

HOM asserts that the SR Registration is actually invalid, because Rodgers, RRLO, and SBBI made material misrepresentations to the Copyright Office concerning authorship of the SBB Product during the copyright registration process.

The initial application for the SR Registration listed both Ambirge and Rodgers as co-authors of the SBB Product. However, Ambirge’s authorship was listed with a notation that her contribution constituted a work made for hire. (DSUF Ex. 73; see Rodgers Dep. at 134:8-137:25.) On an application for copyright registration, the “work made for hire” designation indicates that the author listed in the application (and the holder of the copyright) was the employer of the person who created the work at issue. See generally 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 1.06[C]. The name of the employee who created the work is generally not listed on the registration.

It appears from the correspondence from the Copyright Office in the record that the Office interpreted the application filed by Rodgers as indicating that Am-birge and Rodgers were co-creators of the work, but that Ambirge was Rodgers’ employee. As such, the certificate of registration issued by the Copyright Office more than a year later listed only Rodgers as an author, with the attribution for “editing” including a work-for-hire notation, to reflect its erroneous understanding that Rodgers was the employer of the person (Ambirge) who edited the work. (See Buk-her Decl. Ex. M.)

Obviously, the SR Registration did not accurately reflect the relationship between Rodgers and Ambirge. Therefore, on or around December 10, 2014, Rodgers filed a supplementary registration form with the Copyright Office to correct the error and add Ambirge back as a co-author. (See Bukher Decl. Ex. P.)

HOM’s assertion that, “At some point” between filing the initial application in July 2013 and the registration’s issuing in October 2014, SBBI, Rodgers, and RRLO “made material misrepresentations to the Copyright Office that led the Office to issue the SR Registration with Rachel Rodgers listed as the sole author” is unsupported- by any evidence. The only evidence of communications from Rodgers to the Copyright Office is the application itself, which lists Ambirge as a co-author, albeit with the confusing (and, according to Rodgers’ unrebutted testimony, unintentional) work-made-for-hire designation. The Copyright Office, not Rodgers, failed to list Ambirge as a co-author on the registration certificate. Rodgers filed a supplementary registration to correct the Copyright Office’s mistake after the registration certificate issued. No evidence in the record contradicts this version of events.

These circumstances do not suggest that Rodgers, SBBI, or RRLO made any attempt to mislead the Copyright Office. The SR Registration is, therefore, a valid copyright registration, making SBBI the owner of a valid copyright.

2. HOM Infringed the SR Registration

On August 19, 2014, HOM launched the HOM SBB Website, which was an exact replica of the then-current version of the SBB Website. (DCSUF ¶ 37.) The SBB Website, at that time, included excerpts from the Small Business Bodyguard e-book covered by the SR Registration. (PSUF ¶ 41; DCSUF ¶ 41.)

Ordinarily, this would end the inquiry, as HOM’s reproduction of portions of the copyrighted work presents an open-and-shut case of infringement. But HOM insists that its license to sell the SBB Product included the right to use and reproduce the SBB Website’s materials, so it could not possibly have infringed SBBI’s copyright. See, e.g., Bourne v. Walt Disney Co., 68 F.3d 621, 631 (2d Cir. 1995).

While a valid license may serve as a defense to infringement, “the fact that a party has licensed certain rights to its copyright to another party does not prohibit the licensor from bringing an infringement action where it believes the license is exceeded or the agreement breached.” Tasini v. N.Y. Times Co., 206 F.3d 161, 170 (2d Cir. 2000), aff'd, 533 U.S. 483, 121 S.Ct. 2381, 150 L.Ed.2d 500 (2001). In this case, the claim survives.

The relevant portion of the JVDA provides that: “HOM may not, within the meaning of the U.S. Copyright Act, distribute or reproduce the SBB Work, nor prepare derivative works based on the SBB Work. HOM agrees to use only the current versions of the Promotional Materials that [SBBI] provides or makes available to HOM under this Agreement.” (JVDA § 3.1.1.) “Promotional Materials” is defined earlier in the agreement to mean “any advertising, marketing or promotional materials used in connection with the SBB Program (including without limitation, banner advertisements, button links, text links, graphic material or textual material).” (Id. § 2.2.)

The JVDA also states that “HOM may not reproduce any verbatim sections of the Work without [SBBI] ’s prior express written approval.” (Id. § 3.1.2.)

HOM’s limited, non-exclusive license to sell the SBB Product and to use certain promotional materials did not give it the authority to reproduce portions of the copyrighted SBB Product on its website. SBBI provided its “Promotional Materials” to its affiliates via a different website called the “Affiliate Center,” which included downloadable materials like banner advertisements and promotional text that affiliates could use on their own websites to promote the SBB Product. (See, e.g., DSUF Ex. 155 at 2.) These types of promotional materials—banner advertisements, button links, and promotional textual material—are explicitly included in the JVDA’s definition of “Promotional Materials.” (JVDA § 2.2.) That definition does not include portions of the copyrighted SBB Product. SBBI did not put portions of the copyrighted text on the Affiliate Center for affiliates to use as promotional material. (See Rodgers Dep. at 63:14-64:12.)

If the parties had intended the JVDA to give HOM the right to reproduce the copyrighted text of the SBB Product, it would make no sense to include multiple different provisions in the same contract that expressly prohibited HOM from reproducing any portion of the SBB Product without SBBI’s prior written permission. (See JVDA §§ 3.1.1, 3.1.2.)

Although HOM had a valid license to sell the SBB Product, HOM “utilize[d] a copyrighted work in a manner or to an extent not authorized by the license agreement,” making its position “no different from that of an infringer having no contractual relationship with the holder of the copyright.” Kanakos v. MX Trading Corp., No. 81 Civ. 4632, 1981 WL 1377, at *2 (S.D.N.Y. Sept. 16, 1981). Therefore, “the resulting cause of action is one for copyright infringement,” not merely breach of contract, “and the claim[ ] ... arise[s] under the copyright statutes.” Id.) see also Marshall v. New Kids On The Block P’ship, 780 F.Supp. 1005, 1009 (S.D.N.Y. 1991).

SBBI is, thus, entitled to statutory damages under the Copyright Act for HOM’s infringement of the SR Registration. 17 U.S.C. § 504(c). The amount of statutory damages will be determined at trial.

C. Count 6: HOM’s Motion for Summary Judgment Dismissing SBBI’s Claim for Infringement of the TX Registration Is Granted; SBBI’s Cross-Motion for Summary Judgment in Its Favor Is Denied

Count 6 asserts that HOM infringed the TX Registration by briefly operating the HOM SBB Website.

The TX Registration was filed by HOM as an “adverse” registration on August 28, 2014, and covers only the SBB Product (the Small Business Bodyguard e-book), not the four audio recordings. (See DSUF Ex. 81.) In September 2015, Ambirge recorded with the Copyright Office the assignment of the TX Registration to SBBI through operation of the JVDA.

There is no dispute about the validity of the TX Registration or the assignment of the registration to SBBI, and the registration protects the same content that HOM duplicated by creating the HOM SBB Website. However (and apparently unbeknownst to the parties), the Copyright Act provides that “no award of statutory damages or of attorney’s fees,” shall be made for “any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.” 17 U.S.C. § 412(2). The TX Registration was not made within three months after the first publication of the SBB Product, so statutory damages are not available for any infringement that commenced between July 24, 2013 (the date the SBB Product was first published) and August 28, 2014 (the effective date of the TX Registration). (See DSUF Ex. 81 at 1.)

This rule compels dismissal of Count 6. The HOM SBB Website was only in operation for a few days between August 19 and August 21, 2014. It was no longer operational by the time the TX Registration became effective on August 28, 2014. Therefore, as a matter of law, SBBI cannot be awarded statutory damages—the only damages here sought—for HOM’s infringement of the TX Registration. HOM is, therefore, entitled to summary judgment dismissing this claim.

D. Count 9: HOM’s Motion for Summary Judgment Dismissing SBBI’s Claim for Unfair Competition Is Granted; SBBI’s Cross-Motion for Summary Judgment in Its Favor Is Denied

Count 9 asserts that HOM’s creation of the HOM SBB Website constituted unfair competition under New York law.

Unfair competition under New York law generally mirrors liability under § 43(a) of the Lanham Act. SBBI’s parallel Lanham Act claim was previously dismissed by the Court for failure to allege any potential consumer confusion, as the product sold by HOM on its website was genuine and not marketed under another trademark. (See Dkt. No. 34 at 7-10.)

However, under New York law, unfair competition is a “broad and flexible doctrine” that is more fact-dependent than most causes of action. Roy Exp. Co. Estab. v. Columbia Broad. Sys., Inc., 672 F.2d 1095, 1105 (2d Cir. 1982) (quoting Metro. Opera Ass’n v. Wagner-Nichols Recorder Corp., 199 Misc. 786, 792, 101 N.Y.S.2d 483 (N.Y. Cty. Sup. Ct. 1950), aff'd, 279 A.D. 632, 107 N.Y.S.2d 795 (1st Dep’t 1951)). For that reason, the unfair competition claim survived the motion to dismiss. It does not, however, survive the motion for summary judgment.

New York recognizes two species of common-law unfair competition: “palming off’ (also called “passing off’) and misappropriation. See ITC Ltd. v. Punchgini, Inc., 9 N.Y.3d 467, 476, 850 N.Y.S.2d 366, 880 N.E.2d 852 (2007). Palming off is the sale of goods created by one manufacturer as one of another, even if the parties are not in competition, while misappropriation is the misuse of the “results of the skill, expenditures and labors of a competitor.” See Electrolux Corp. v. Val-Worth, Inc., 6 N.Y.2d 556, 567-68, 190 N.Y.S.2d 977, 161 N.E.2d 197 (1959). The essence of a misappropriation unfair competition claim under New York law “is that the defendant misappropriated the fruit of plaintiffs labors and expenditures by obtaining access to plaintiffs business idea either through fraud or deception, or an abuse of a fiduciary or confidential relationship.” Katz Dochrermann & Epstein, Inc. v. Home Box Office, No. 97 Civ. 7763, 1999 WL 179603, at *4 (S.D.N.Y. Mar. 31, 1999).

SBBI has not offered any evidence that would support a claim under either theory. HOM did not “palm off’ anything; the SBB Product it sold via the HOM SBB Website was the genuine article. There is also no viable claim of “reverse” palming off, as HOM did not attempt to sell the SBB Product under its own trademark. SBBI does not even attempt to articulate a misappropriation claim in its briefs, nor does it point to any evidence that could support such a claim.

HOM is, therefore, entitled to summary judgment dismissing this count.

II. SBBI’s Claims Arising from HOM’s Statements (Counts 2 and 7)

After this litigation commenced, HOM made several public statements that, according to SBBI, both breached the JVDA (Count 2) and constituted common-law defamation (Count 7).

A. Count 2: HOM’s Motion for Summary Judgment Dismissing SBBI’s Breach-of-Contract Claim Is Granted; SBBI’s Cross-Motion for Summary Judgment in Its Favor Is Denied

The JVDA provides that, during the three-year term of the agreement, the parties “agree to refrain from making any public defamatory or inflammatory statements or comments regarding the other party, or any of the other party’s officers, directors, employees, personnel, agents, policies, services or products.” (JVDA § 10.1.)

The JVDA’s prohibition on making “defamatory” statements is judged under the same standards as common-law defamation. The New York Court of Appeals has defined defamation as “the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of [her] in the minds of right-thinking persons, and to deprive [her] of their friendly intercourse in society.” Foster v. Churchill, 87 N.Y.2d 744, 751, 642 N.Y.S.2d 583, 665 N.E.2d 153 (1996) (internal quotation marks omitted) (quoting Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 379, 397 N.Y.S.2d 943, 366 N.E.2d 1299 (1977)). There are seven elements of defamation under New York law: (1) a defamatory statement of fact; (2) that is false; (3) published to a third party; (4) “of and concerning” the plaintiff; (5) made with the applicable level of fault on the part of the speaker; (6) either causing harm or constituting slander per se; and (7) not protected by privilege. Albert v. Loksen, 239 F.3d 256, 265-66 (2d Cir. 2001). Because of the language of JVDA § 10.1, the “plaintiff’ for the “of and concerning” element includes SBBI’s “officers, directors, employees, personnel, agents, policies, services or products” for purposes of this breach-of-contract claim.

The JVDA’s separate prohibition on “inflammatory” statements does not have a common-law parallel. While the Court is unaware of any other breach-of-contract case based on a similar contract provision, I must nonetheless ascribe the “fair and reasonable meaning” to each contract term, and avoid interpretations that result in surplusage. JA Apparel Corp. v. Abboud, 568 F.3d 390, 405 (2d Cir. 2009). Therefore, the Court must assume that the parties included the term “inflammatory” to mean something distinct from the separate prohibition on making defamatory statements.

SBBI argues that “inflammatory” is a “common, plain English word,” and urges the Court to adopt the definition used by the Black’s Law Dictionary: “Tending to cause strong feelings of anger, indignation, or other type of upset; tending to stir the passions.” Black’s Law Dictionary (10th ed. 2014). HOM counters that SBBI is attempting to establish a “self-proclaimed lower standard” than that used for defamation suits, but does not posit an alternative definition, so the Court applies the definition supplied by SBBI, which appears to be a fair and reasonable definition of “inflammatory.”

There are three types of communications that SBBI argues violated the JVDA: (1) a single post on the social media platform Facebook; (2) Ambirge’s two posts on her blog The Middle Finger Project, and (3) Ambirge’s email exchange regarding this litigation with Scott Greenfield, author of his own online article about Rodgers.

1. HOM’s Facebook Post Did Not Breach the JVDA

On October 24, 2014, HOM published a Facebook post that read: “UPDATE: ALL CLAIMS AGAINST HOUSE OF MOXIE OFFICIALLY DISMISSED!!!!!!!!!! .... and now we march forward with the claims of our own.” (Buk-her Decl. Ex. G.)

SBBI argues that, through this Facebook post, HOM “directed its users to its counterclaims, and engaged in public degradation of SBBI and Rachel Rodgers.” (Pl.’s Mem. of Law at 8.) This argument only concerns the latter half of HOM’s statement: “and now we march forward with the claims of our own.” That statement is true, and therefore not defamatory. To the extent that this language “directed” readers to HOM’s counterclaims (which it does not), that is not an assertion of fact capable of being proven true or false. The counterclaims themselves are absolutely privileged from defamation liability under New York law. Lacher v. Engel, 33 A.D.3d 10, 17, 817 N.Y.S.2d 37 (1st Dep’t 2006).

The Facebook post’s reference to HOM’s counterclaims is also not “inflammatory.” There is no conceivable way that a comment directing people to publicly filed claims that are themselves privileged would be likely to make a reader (other than Rodgers herself) angry or upset, let alone strongly or passionately so.

To the extent that SBBI argues that the first half of the post—that “all claims” against HOM had been dismissed—is defamatory, that claim also fails. While HOM’s statement is in fact false (not all of SBBI’s claims were dismissed), the statement is not defamatory. It does not expose SBBI “to public contempt, ridicule, aversion or disgrace.” Foster, 87 N.Y.2d at 751, 642 N.Y.S.2d 583, 665 N.E.2d 153. Likewise, no reasonable reader would become “inflamed” by reading this statement.

In short, this Facebook post did not breach the JVDA.

Even assuming that this Facebook post were “defamatory” or “inflammatory,” SBBI has not offered any evidence that it suffered any damages as a result. As discussed above in the context of Count 1, damages is an element of any breach-of-contract claim, see Johnson, 660 F.3d at 142, so in order to survive a motion for summary judgment, a non-movant must submit evidence that at least raises a genuine issue of fact regarding damages. SBBI does not do so.

SBBI asserts that it suffered “damage to its goodwill and reputation and through immediate loss of subscribers to the Brand and Product, in an amount to be determined at trial, and in no event less than $75,000.00” as a result of HOM’s Facebook post and other statements. (Am. Compl. ¶ 68). To support this claim, it has produced three annual profit and loss statements from 2013, 2014, and 2015. These show that revenues from the SBB Product decreased in 2015 as compared to earlier years (but increased from 2013 to 2014, during the time that the statements at issue were made). (See Bukher Decl. Ex. K)

But for this to fly, SBBI must link the decline in revenue to HOM’s post. To do so, SBBI has produced four emails from disgruntled customers. (See Bukher Decl. Ex. L.) The first three emails were sent on October 17 and 18, before HOM’s Face-book post on October 24, so obviously they prove nothing of the sort. (See id. at 1, 2, and 4.)

The only email that was sent after the post, sent on December 4, 2014 (seven weeks after the post), also does not support SBBI’s argument:

Rachel,

I’d like a refund. I’m really disgusted by this entire transaction. Many number of things irk me about the money I’ve spent, the first of the long list being your advertising directly to me using a brand/name that I associate with trust. Ms. Ambirge worked very hard to earn my trust over the months prior to my purchase on or about 9/26 of this year— and I’ve spent a good deal of money on her content. It was worth it and it was marketed in black and white. It’s my understanding from the public court records I’ve recently read relating to your venture with her that she wasn’t at all in control of where her name was being pushed and used to gain my trust and therefore my MONEY at the time I was finally convinced by your inbox solicitations (which I subscribed to) that I should just go ahead and press that buy-it button. Since gaining access to the member site, you have reduced the content and. stripped it down to near nothing (nothing but the bare bones basics, living in the grey area that is “can’t pin you down” land) while selling and promoting SBBG+ which boasts oh, so much more. I’ve also read the opinions and reviews about SBBG written by attorneys from a variety of states ... and I’m grossed out.

This is slimy and I’ve lost all confidence in this product. CMA? I’m doubting I’ve even begun to cover my rear and what’s more, I feel baited & switched, punked and fooled by this whole product because of my belief that you are violating ethics in spades at many proverbial card tables. That’s my belief.

I really don’t want to believe that all lawyers are slimy. I have a fine [one] on retainer right now to me CMA the good old fashioned way—with honesty and straight up, no smartypants, smartass, 80 shades of shady grey results.

So, really, I’d like a lull refund, if you please. And if I’m asked about this whole thing, I’d like to be able to say I felt you did the right thing in the end where I’m personally concerned.

I look forward to hearing from you.

[...]

(Id. at 7.)

This email from a disgruntled client does not make any reference to HOM’s Facebook post, let alone identify the post as the source of its author’s discontent. For all we know, the sender never read the Facebook post. The sender apparently has read publicly-available court filings, which are absolutely privileged and so cannot be defamatory. Lacher, 33 A.D.3d at 17, 817 N.Y.S.2d 37. Moreover, the customer’s displeasure clearly stems (at least in part) from dissatisfaction with the SBB Product itself, which she describes as “stripped ... down to near nothing.” She also refers to the opinions of lawyers “from a variety of states” as contributing to her demand for a refund. There is, therefore, nothing in the record to support a conclusion that HOM’s Face-book post resulted in any damages to SBBI.

SBBI argues that its failure to demonstrate the existence of damages should not result in dismissal, citing Lexington Prod. Ltd. v. B.D. Commc’ns, Inc., 677 F.2d 251, 253 (2d Cir. 1982), and Randall-Smith, Inc. v. 43rd St. Estates Corp., 17 N.Y.2d 99, 106, 268 N.Y.S.2d 306, 215 N.E.2d 494 (1966). But its argument fails. Lexington and Randall-Smith stand for the principle that, where the plaintiff has established, with certainty, the fact that some damages were suffered as a result of the defendant’s breach of contract, the court should not fail to award damages merely because the amount of those damages is uncertain. In Lexington, for example, the plaintiff provided two alternative methods of calculating damages, each of which the court deemed sufficient and not “speculative,” making the district court’s award of nominal damages of one dollar inappropriate. Lexington, 677 F.2d at 253.

Here, however, SBBI has not offered evidence that it suffered any damages as a result of HOM’s erroneous Facebook post. It has produced no evidence tying any supposed drop-off in revenues to this post from HOM about this litigation. SBBI has failed to demonstrate the existence of damages, so the fact that they have not been quantified is of no moment.

Because SBBI cannot show that this Facebook post was either “defamatory” or “inflammatory,” or that it resulted in any damages, SBBI cannot establish that HOM breached the JVDA by publishing this post.

2. The Blog Posts on The Middle Finger Project Did Not Breach the JVDA

Statements in two of Ambirge’s blog posts on The Middle Finger Project also do not breach the JVDA.

The two posts in question appear to have been published around October 20, 2014. (See Ambirge Dep. at 235:25-236:12.) SBBI identifies only three statements from the much longer posts that it argues are either defamatory or inflammatory.

The first statement reads: “I’m not sure how many times you’ve been involved in a federal litigation & lawsuit, but a few things are bound to happen,” followed by a list of various effects, including, “Your eyebrows will instantly start sprouting (cruel) white hairs (not grey, not silver, stark white),” and ‘You’11 have regular and recurring dreams about Judge Judy.” (Buk-her Deck Ex. E at 1).

This statement is not defamatory. It is a hyperbolic description of the nasty and undesirable impact that federal litigation has on many people. It does not mention SBBI or Rodgers, or imply anything negative about them.

The second statement at issue states: “The common thread is that people with larger than life egos often have themselves on a pedestal—and they tend to make decisions from that mindset.... This is a problematic mindset, and for a couple of reasons: ... It’s reckless.... It hurts other people.... If you’re professionally obligated to that person, you may hurt their business, too.... And most of all, you end up hurting yourself.... Because there are people out there like me who won’t accept this kind of toxic attitude, and more importantly, won’t be willing to simply shrug off the harmful consequences that arise as a result.” (Id. at 2).

This second statement is also not defamatory as it is not “of and concerning” SBBI or Rodgers. It is about no one in particular—-just “people with larger than life egos.” And “an impersonal reproach of an indeterminate class is not actionable” for defamation. Brady v. Ottaway Newspapers, Inc., 84 A.D.2d 226, 228,, 445 N.Y.S.2d 786 (2d Dep’t 1981). Furthermore, the statement’s description of such people is nothing more than opinion.

Ambirge’s third statement' reads: “There are things I’ve been prohibited from sharing with you—things that have been happening to me in the background for the entirety of 2014—that have included varying degrees of what many people might view as extortion, manipulation, fraud, and deceit ... by someone I know. And someone you know, too.” (Bukher Decl. Ex. F at 1 (emphasis original).)

For several reasons, this statement is not defamatory.

First, this statement is not '“of and concerning” Rodgers or anyone else affiliated with SBBI. Whether a statement reasonably can be understood as “of and concerning” a plaintiff is ordinarily a question of law for the Court to determine. Gilman v. Spitzer, 902 F.Supp.2d 389, 394 (S.D.N.Y. 2012), aff'd, 538 Fed.Appx. 45 (2d Cir. 2013).

Although Ambirge admitted at deposition that “someone I know” was Rodgers, (Ambirge Dep. at 236:18-20), neither Rodgers nor SBBI is actually named anywhere in the blog post. The only portion of the post that gives any context is one mention of an ongoing legal proceeding:

I have kept my silence in an effort to resolve these issues in the only way I know how—ethically, and fairly—as ironic as that seems. I’ve spent far over $100,000+ to date—•$ 100,000 that has been comprised of your money as customers and clients, money from our company savings, and money from my personal retirement savings—to hire some of the world’s greatest attorneys to help me. To help us.

(Bukher Decl. Ex. F at 1.)

A plaintiffs burden of showing that the allegedly defamatory statement is “of and concerning” her is “not a light one.” Handelman v. Hustler Magazine, Inc., 469 F.Supp. 1048, 1050 (S.D.N.Y. 1978). A plaintiff “must be clearly identifiable” from the statement in order for the statement to be defamatory. Abramson v. Pataki, 278 F.3d 93, 102 (2d Cir. 2002). When, as here, a plaintiff is not named in the publication itself, the plaintiff must show through extrinsic facts that an “average reader” would understand the statement, when read in context, refers to the plaintiff. See Handelman, 469 F.Supp. at 1051. “But where extrinsic facts are relied on to prove the reference to a plaintiff, he must show that the conclusion that the publication refers to him is reasonable and that the extrinsic facts upon which that conclusion is based were known to those who read or heard the publication.” Bee Publications, Inc. v. Cheektowaga Times, Inc., 107 A.D.2d 382, 385, 485 N.Y.S.2d 885 (4th Dep’t 1985).

SBBI has provided no evidence to support the conclusion that an average reader would understand that this statement was a reference to Rodgers. SBBI argues that this conclusion could be inferred because HOM was, at the time, only involved in one legal proceeding with a former partner. However, SBBI has presented no evidence showing that this extrinsic fact was known to any readers of HOM’s blog. None of the emails from disgruntled customers in the record makes any reference to HOM’s blog.

One commenter on Scott Greenfield’s blog—that is, a different blog than the one run by Ambirge—commented on October 24, 2014:

I recently subscribed to [Ambirge’s] newsletter because I find her writing style entertaining. Over the past few weeks she’s been teasing some year long ethical/legal battle she’s been waging. ...

Until I found [Greenfield’s] blog I was under the impression she was fighting the likes of Amazon or Google.

(Bukher Decl. Ex. H at 6.) This comment supports the conclusion that an average reader would not be able to identify from the blog itself that SBBI was the other party to the legal proceeding with HOM or that Rodgers was the “someone I know” that Ambirge referenced. “Where, as here, the statement does not name the plaintiff!] at all and contains nothing that would cause a reader to think defendant was referring to [her], the statement is not “of and concerning” the plaintiff! ].” Three Amigos SJL Rest., Inc. v. CBS News Inc., 132 A.D.3d 82, 88, 15 N.Y.S.3d 36 (1st Dep’t 2015), aff'd, 28 N.Y.3d 82, 65 N.E.3d 35 (2016).

Second, even assuming that a reasonable reader could draw the connection between “someone I know” and Rodgers, the statement is still not defamatory because it cannot be proven false. This statement asserts that “many people might view” certain unspecified actions as “extortion, manipulation, fraud, and deceit.” There is no way to verify the truth of Ambirge’s statement that “many people” “might” characterize what we know to be an ongoing dispute between business partners in criminal terms.

Third, even if Ambirge’s statement could be viewed as a direct allegation that Rodgers engaged in “extortion, manipulation, fraud, and deceit,” this vague statement is of the “loose, figurative, or hyperbolic” sort that is not actionable for defamation. Polish Am. Immigration Relief Comm., Inc. v. Relax, 189 A.D.2d 370, 373, 596 N.Y.S.2d 756 (1st Dep’t 1993); see also Old Dominion Branch No. 496 v. Austin, 418 U.S. 264, 284, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974) (“The ... use of words like ‘traitor’ cannot be construed as [a] representation!] of fact.”); Adelson v. Harris, 774 F.3d 803, 807 (2d Cir. 2014) (concluding that description of money as “dirty” and “tainted” is “the sort of rhetorical hyperbole and unfalsifiable opinion protected by the First Amendment”); Chau v. Lewis, 771 F.3d 118, 129 (2d Cir. 2014) (“[T]he epithets ... ‘sucker,’ ‘fool,’ ‘frontman,’ ‘industrial waste,’ ... and ‘crooks or morons’ ... are hyperbole and therefore not actionable opinion.”).

In order to determine whether a statement is defamatory rather than merely hyperbole, courts must look “at the content of the whole communication, its tone and apparent purpose.” Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 254, 566 N.Y.S.2d 906, 567 N.E.2d 1270 (1991).

In Greenbelt Co-op. Pub. Ass’n v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970), the Supreme Court addressed statements that are similar to the one at issue here. The case involved a local real estate developer who was seeking to obtain certain zoning ordinances for a tract of land that he wished to turn into a housing development. Id. at 7, 90 S.Ct. 1537. At the same time, the developer owned another tract of land that the town wished to acquire in order to build a school. Id. Various individuals at a local city council meeting had accused the developer of engaging in “blackmail” for using the school site as leverage to acquire the zoning ordinances. Id. The developer sued a local paper for reprinting the word “blackmail,” arguing it was libel. Id. at 8, 90 S.Ct. 1537.

The Supreme Court held that the use of the word “blackmail” in that context was not a provable assertion of fact, and was therefore not defamatory. “It is simply impossible to believe that a reader who reached the word ‘blackmail’ in either article ... could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging [plaintiff] with the commission of a criminal offense.” Id. at 14, 90 S.Ct. 1537. “On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developer’s] negotiating position extremely unreasonable.” Id.

Obviously, an accusation of blackmail could be defamatory in another context. So too could an accusation that an individual engaged in “fraud” or “extortion.” However, the “tone and apparent purpose” of Ambirge’s blog post makes it clear that this is not an accusation of a criminal offense, but the use of colorful language to describe her high level of frustration. Mann v. Abel, 10 N.Y.3d 271, 276, 856 N.Y.S.2d 31, 885 N.E.2d 884 (2008). Similar embellishments appear throughout the blog post. For example, in the post’s first paragraph, just before the “someone I know” line, Ambirge wrote:

My fingers are constantly in motion, as I pick and pull and peel from the anxiety. When someone I love grabs my fingers and holds them down against my will, my body automatically defaults to using my teeth to skin my own lips, shred by shred, before moving on to force my tongue along my bottom row of teeth, catching on the crooked parts, over and over and over and over, to the point of madness.

(Bukher Decl. Ex. F at 1.) No reasonable reader would read this language and understand it to mean that Ambirge was truly going insane. It is hyperbole, just like her exaggerated statement that she was suffering from “varying degrees of what many people might view as extortion, manipulation, fraud, and deceit.” And hyperbole is “simply not actionable” for defamation. Gross v. N.Y. Times Co., 82 N.Y.2d 146, 152, 603 NY.S.2d 813, 623 N.E.2d 1163 (1993).

Similarly, Ambirge’s use of the qualifying language “varying degrees of what many people might view” rebuts the conclusio