American Bar Association
Forum on Communications Law
Food Lion and Beyond: New Developments in the Law of Hidden Cameras
by JONATHAN D. AVILA
Jonathan D. Avila is Litigation Counsel of CBS Broadcasting Inc. in Los Angeles. The views expressed in this article are those of the author and not necessarily those of CBS Broadcasting, Inc.
The use of hidden cameras by the press-long a contentious issue-recently has been brought to the
forefront of public attention by the widely publicized case of
Food Lion, Inc. v. Capital Cities/ABC, Inc., in which a major supermarket chain brought
suit against the x television network for its PrimeTime Live investigation concerning the
supermarket chain's food-handling practices.1 With well-funded adversaries on both sides of
this dispute, the litigation of Food Lion's claims afforded the parties ample opportunity to
explore and develop many legal issues emerging from media's use of miniature cameras within
offices and other workplaces to capture firsthand unauthorized images for investigative stories.
The resulting reported decisions in Food Lion illustrate both the unsettled state of the law
concerning hidden cameras, and the wide disparity with which the use of hidden cameras is treated
by the laws of the various states. The Food Lion decisions also highlight what may become a
critical distinction between actionable affirmative misrepresentations and nonactionable omissions
in Seeking entry to premises where hidden cameras are to be employed. Moreover, the Food Lion
decisions set forth important principles relating to the issue of what damages, if any, may be
obtained for the broadcast of hidden-camera footage obtained allegedly by improper means.
Finally, the decisions of the court in Food Lion have served, and undoubtedly will continue
to serve, as a springboard for other courts' applications of established legal principles to
the developing field of hidden-camera litigation
The facts underlying the Food Lion decisions were not complicated.
In preparation for its PrimeTime Live report, ABC had two female employees apply for
jobs with Food Lion, in order to gain access to areas of the supermarkets generally
not open to the public.2 Both ABC employees gave Food Lion false employment histories, false job
references, and false addresses in order to obtain their work as a meat wrapper and a deli clerk.3
During their brief employment with Food Lion, each ABC employee wore a hidden camera, secreted
in a wig, into work areas at Food Lion stores and recorded video footage that was ultimately used
in a PrimeTime Live broadcast highly critical of Food Lion.
Do procedural safeguards that traditionally have existed in geographic contexts evaporate when the
bounds of publication no longer respect geographic boundaries? An article by David Tomlin grapples
with the impact of online publishing on personal jurisdiction in general, while Mark Stephens writes
about the chilling prospect that the jurisdictional reach of English courts will be expanded in the
online publishing environment. Last, but not least, Elizabeth McNamara, Jeff Blum, and Denise
Gough focus on the impact of the Digital Millennium Copyright Act for online publishers..
Applying the laws of North Carolina and South Carolina, the district court made a series of
significant pretrial rulings affecting the scope of Food Lion's claims.5 At trial, a North
Carolina jury found ABC, its parent company, Capital Cities/ABC, and several ABC employees
liable for fraud, trespass, and breach of an employee's duty of loyalty6; it returned a verdict
totaling $1,402 in compensatory damages and $5,545,750 in punitive damages.7 The district
court later issued a remittitur reducing the allowable punitive damages to a total of $315,000.8
Both ABC and Food Lion have appealed the resulting judgment to the Fourth Circuit.
A central thrust of Food Lion's attack on ABC's use of hidden cameras was that the
camera-equipped ABC employees committed fraud in falsely describing their qualifications and
experience for their food-handling jobs, and in failing to disclose to Food Lion their true
purpose in Seeking employment with Food Lion. Based upon this purported fraud, Food Lion
alleged that the presence of the ABC employees in employee work areas of the supermarkets
constituted a trespass upon Food Lion's property. The Food Lion court was not unsympathetic
to these claims. In ruling upon ABC's motion for summary judgment on the plaintiff's claim for
fraud, the court noted that ABC's hidden-camerapersons "falsified parts of their employment
applications and omitted any reference to their true reasons for Seeking employment."9 With
this factual predicate, the court rejected ABC's assertion that Food Lion could not maintain
a fraud claim because Food Lion could show no damages proximately resulting from the
misrepresentations made by the ABC camerapersons.
Having established that a triable issue of fact existed with respect to fraud, the Food Lion court then analyzed the company's claim that the ABC camerawomen committed a trespass by entering stores with the undisclosed intention to record hidden-camera videotape.11 The court reasoned that, because Food Lion had granted consent for the ABC camerawomen to enter nonpublic work areas of the supermarkets, their trespass claims would fail "unless there is some reason that the consent to enter was not valid or the scope of the consent was exceeded."12 In first determining whether Food Lion's consent was vitiated by the ABC camerawomen's misrepresentations, the court stated that, although neither North Carolina nor South Carolina courts had directly addressed this issue, the Restatement (Second) of Torts does treat the topic of consent obtained by misrepresentation.13
Under the language of the Restatement, the Food Lion court held that "a reasonable jury could find that the misrepresentations made by [the ABC camerawomen] induced the consent of Food Lion and that Food Lion's mistake concerned the nature of the invasion or the extent of the harm to be expected."14 Turning to the second issue of whether the ABC camerawomen exceeded the scope of any consent given them to enter Food Lion work areas, the court cited the decision in Copeland v. Hubbard Broadcasting, Inc.15 for the notion that consent to enter premises for a disclosed purpose, such as to observe personally an on-premises activity, or to perform an activity for the premises' owner, does not extend to an undisclosed purpose to film or tape such on-premises activity.16 Based upon Copeland, the court held that "[w]hether [the ABC camerawomen] could actually be considered Food Lion employees acting within the scope of the consent given by Food Lion when they actually were working for ABC is a factual question which will preclude summary judgment."17
As other cases regarding the use of hidden cameras demonstrate, the holdings sustaining Food Lion's trespass cause of action were not inevitable. In Desnick v. American Broadcasting Co.,18 the court held, under Wisconsin and Indiana law, that another ABC PrimeTime Live hidden-camera investigation violated neither the rights of the person who owned the premises where the hidden-camera taping occurred, nor the rights of the persons whose voices and images were captured on the hidden-camera tapes. Desnick involved an investigation by ABC of an ophthalmic clinic that purportedly performed unnecessary cataract surgeries. ABC equipped "test patients" with hidden cameras to tape the clinic's premises during examinations by the clinic's doctors.19 Judge Richard Posner, writing for a unanimous panel, held that the test patients' undisclosed videotaping did not constitute a trespass, reasoning that "consent to an entry is often given legal effect even though the entrant has intentions that if known to the owner of the property would cause [the owner]
. . . to revoke his consent."20 Judge Posner supported this result with numerous examples of situations in which an entrant's undisclosed intent was held to be nonactionable, including examples of private "testers" posing as home purchasers to discover housing discrimination, and restaurant critics posing as ordinary diners.21 Future judicial commentary on Desnick, however, may demonstrate that the Desnick opinion's linchpin is Judge Posner's conclusion that "the [test patients'] entry was not invasive in the sense of infringing the kind of interest of the plaintiffs that the law of trespass protects; it was not an interference with the ownership or possession of land."
The Restatement itself supports Judge Posner's conclusion concerning the nature of the interest protected by the tort of trespass, by describing activities that exceed a consent to enter property as ones that, in some way, exceed the scope of the physical impact upon the land or premises to which the property owner conceded entry.23 Moreover, a focus on exceeding the scope of consent as requiring a change in the physical impact of the entrant's undisclosed activities is not inconsistent with the language of Restatement section 892B relied upon by the Food Lion court. This Restatement provision speaks simply of an "invasion of [a property owner's] interests or the extent of the harm to be expected from" such an invasion, without defining the nature of the interests implicated by the tort of trespass or the nature of the activities that may be deemed to harm that interest.24 Finally, the Desnick holding finds support in another media taping case, Baugh v. CBS, Inc.,25 in which the court held that California law "recognize[s] a trespass claim where the defendant exceeds the scope of the consent" only with respect to those "defendants whose intrusion on the land exceeds the scope of the consent given."
As Food Lion, Copeland, Desnick, and Baugh demonstrate, the laws of the various states are not in accord as to whether an undisclosed intent to conduct hidden-camera taping may give rise to a claim for trespass, where the landowner has consented to the physical presence of the cameraperson. In like fashion, the courts may find no consensus when faced with employers' claims that persons soliciting employment commit a fraud when they fail to disclose either their association with the media and/or their intended use of a hidden camera on the employers' premises. Although some authority may suggest that an employee has a duty to disclose any association with the media and/or an intent to videotape on the employers' premises,27 the laws of various states appear not to be in accord with this suggestion.
For example, in California, a state often regarded as a trendsetter in the law of employer/employee relationships, the general rule for liability for nondisclosure is that even if material facts are known to one party and not the other, failure to disclose those facts is not actionable fraud unless there is some fiduciary or confidential relationship giving rise to a duty to disclose.28 The California Supreme Court has taken pains in recent years to emphasize that the employer/employee relationship neither gives rise to fiduciary or quasi-fiduciary duties, nor constitutes a "special relationship" justifying tort damages for bad faith breach of the terms of the employment relationship.29 Indeed, the California Supreme Court has held that even affirmative misrepresentations in the employment context are not subject to tort remedies because "the employment relationship [is] fundamentally contractual."30 Under the employment law principles of states such as California, it would Seem that no claim of a tort duty of affirmative disclosure of media relationships or an intent to tape can be sustained. Although it does not appear that any of the nation's appellate courts have yet squarely faced this issue,31 the future may prove that Food Lion is no portent of a general rule penalizing an employee's simple nondisclosure of a relationship with the media.
The facts of Food Lion afford an opportunity for exploration of another issue about which individual states are sure to disagree: whether a plaintiff's "unclean hands" may be the basis for a defendant's complete defense to any improper use of a hidden camera. In Food Lion, ABC asserted this defense in answering Food Lion's complaint.32 The court granted Food Lion's motion for summary judgment on ABC's unclean hands defense, holding that under North Carolina and South Carolina law, the defense of unclean hands is limited to cases in which the plaintiff Seeks an equitable remedy.33 In many states, however, the defense of a plaintiff's unclean hands applies to a plaintiff's legal, as well as equitable, claims.
The doctrine of unclean hands rests on the maxim that "he who comes into equity must come with clean hands."35 In its standard formulation, the doctrine closes the doors of the court to anyone "tainted with inequitableness or bad faith relative to the matter in which he Seeks relief, however improper may have been the behavior of the defendant."36 The defense of unclean hands becomes relevant in a media hidden-camera case where the hidden-camera plaintiff asserts that the taping has invaded a privacy interest in an activity, such as a business practice, that the media defendant can establish is "inequitable," or contrary to the public interest.37 In these instances, the defense of unclean hands gives expression to the fundamental principle of trade secret law, that "[t]here can be no confidence in an iniquitous secret."38 Under this principle, "secrets that are [the product of] wrongful means should not be protected," and "[a]n employer who has obtained secrets in this fashion will not be protected against his own employee's disclosure of such unlawful or wrongful conduct."39 Thus, in states where the defense of unclean hands applies to plaintiffs' legal claims for money damages, the courts will possibly be compelled to adjudicate media claims that plaintiffs should be denied all remedies for hidden-camera taping simply because they have dirtied their hands in acquiring the privacy interest they now Seek to vindicate.
Although Food Lion may appear to have produced a series of unhelpful decisions for the media, the Food Lion court broke new ground in establishing an important damages principle that may severely circumscribe hidden-camera claims, particularly those asserted by business entities. On a Rule 12(b)(6) motion by ABC, the court held that Food Lion could not obtain any "publication damages for injury to its reputation," i.e., damages to its reputation stemming from broadcast of the PrimeTime Live segment incorporating the hidden-camera footage.40 In reaching this conclusion, the court reviewed and reconciled the decisions of the U.S. Supreme Court in Cohen v. Cowles Media Co.41 and Hustler Magazine v. Falwell.
In Cohen, the Supreme Court upheld a jury verdict based upon promissory estoppel in favor of a plaintiff whose promised anonymity had been breached by a media entity.43 The Supreme Court noted a "well-established line of decisions holding that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news."44 Holding that Food Lion's claims of fraud, trespass, and other wrongful acts met the test of being such "laws of general applicability," the Food Lion court refused to dismiss the entirety of Food Lion's claims on First Amendment grounds, as ABC had requested.
The Food Lion court turned to Hustler, however, for its holding that a public figure may not Seek damages for intentional infliction of emotional distress without establishing the elements of a constitutional defamation claim (actual malice and falsity).46 The court derived from the Hustler holding the general principle that, where a plaintiff has not alleged the elements of a defamation claim (including fault and falsity), the plaintiff may not "use a generally applicable law to recover for injury to reputation or state of mind."47 Based upon this pretrial ruling, Food Lion obtained the paltry jury award of $1,402 in compensatory damages, based upon its evidence of costs associated with employee hiring and training for the positions taken by the ABC camerawomen.
Following the jury's verdict, the Food Lion court clarified its constitutional ruling barring Food Lion from recovering "publication damages" and based that ruling also on common law concepts of proximate and intervening cause. Food Lion asserted that its lost profits and sales were properly attributable to the fraud, trespass, and breach of duty of loyalty committed by the defendants.49 The media defendants responded that there was an insufficient causal connection between their acts and Food Lion's purported damages.
In resolving this conflict, the Food Lion court cited authority holding that mere "but for" causation is insufficient to establish legally required proximate cause; and explained that "proximate cause necessarily includes two elements: (1) whether the action of the tort-feasor was the 'cause in fact' of plaintiff's injuries; and (2) whether the tortfeasor's liability should as a matter of public policy extend to those injuries."51 The Food Lion court also took note of the doctrine of "independent cause which dictates that events occurring after the original tortious activity may break the chain of causation and relieve the original wrongdoer of liability for the damages ultimately caused."52 As explained by the Food Lion court, under this doctrine, "if the original wrong only becomes injurious in consequence of the intervention of some distinct wrongful act or omission by another, the injury shall be imputed to the last wrong as the proximate cause, and not to that which was more remote."
Applying these doctrines, the Food Lion court found that, although the defendants' "tortious activities may have enabled access to [Food Lion] store areas in which the public was not allowed and the consequent opportunity to film people, equipment and events from a perspective not available to the ordinary shopper, . . . it was [Food Lion's] food-handling practices themselves-not the method by which they were recorded or published-which caused the loss of consumer confidence" and Food Lion's resulting lost sales and profits.54 Based upon this crucial finding, the court concluded that such "publication damages" could not properly have been sought on any of Food Lion's causes of action.
The Food Lion court's analysis of the common law doctrines of proximate and intervening cause was soon followed in Frome v. Renner.56 In Frome, an individual plaintiff claimed losses purportedly resulting from a television broadcast that included statements by a test patient who had allegedly made false representations to obtain access to the plaintiff's medical office. Relying upon Food Lion, the Frome court held that, although the plaintiff might show that "but for" the patient's misrepresentations, the patient could not have learned firsthand of the plaintiff's medical practices, damage to the plaintiff's business was not proximately caused by the presence of the test patient, but rather by the nature of the plaintiff's medical practices.57 The Frome court went further, however, to hold that the plaintiff could not demonstrate the element of detrimental reliance necessary to sustain any cause of action for fraud; the plaintiff could not show how the test patient's alleged misrepresentations of his identity fundamentally altered the doctor-patient relationship, or affected the intrinsic nature of the medical services transaction.
As Frome shows, the damages analysis first suggested by Food Lion may become a powerful weapon in the media's efforts to defeat suits based upon entry to premises allegedly gained by misrepresentations of the entrant's identity or affiliation with the media. Indeed, if taken at face value, the constitutional bar established by Food Lion against damages for "injury to . . . state of mind" may come to preclude even the emotional distress damages of an individual plaintiff.59 This outgrowth of Food Lion is, however, by no means certain, as demonstrated by the recent ruling of the Minnesota Court of Appeals in Special Forces Ministries v. WCCO Television. In that case, the plaintiffs based a cause of action for fraud on allegations that a television station employed a hidden camerawoman who made false statements in order to obtain a volunteer position with plaintiffs' facility for the mentally retarded, and then videotaped activities at the facility.60 Without citation to Food Lion, the Minnesota appellate court upheld a denial of the media defendant's motion for summary judgment, which was based on the defendant's contention that the plaintiffs had no damages properly attributable to the purportedly false representations.61 In so doing, the Minnesota appellate court relied upon the very sort of "but for" analysis of proximate cause that Frome explicitly rejected.62
The phenomenon of courts' reaching diametrically opposed positions on common legal issues is not a novelty. Nor is fear of a powerful and potentially intrusive press a new force in the development of defamation and privacy law. In the years to come, the relatively new field of hidden-camera litigation will See a great deal of controversy and conflict before the law in this area is fully formed and firmly established. The direction in which this body of law develops surely will say a great deal, however, about how we as a nation view private vice and social accountability-and the media's proper role in bringing to light what would otherwise be concealed from public view. It is within this framework that legal issues such as affirmative misrepresentation versus nondisclosure, the effect of a plaintiff's unclean hands, and the proximate cause of a plaintiff's loss of the public's confidence, will be resolved. As old legal forms are recast to fit new technological realities, there is one thing of which we may be certain: Neither Food Lion nor its recent progeny will settle this aspect of an enduring controversy.
Endnotes
1. For a full discussion of the legal history of the media's use of hidden cameras, See Hidden Cameras, New Technology, and the Law, 14 COMMUNICATIONS LAWYER 3, at p. 1 et seq. (Fall 1996).
2. See Food Lion, Inc. v. Capital Cities/ABC, Inc., 887 F. Supp. 811, 813-16 (M.D.N.C. 1995) (Food Lion I); Food Lion, Inc. v. Capital Cities/ABC, Inc., 951 F. Supp. 1217, 1218 (M.D.N.C. 1996) (Food Lion II); Food Lion, Inc. v. Capital Cities/ABC, Inc., 951 F. Supp. 1224, 1226 (M.D.N.C. 1996) (Food Lion III).
3. See Food Lion II, 951 F. Supp. at 1218; Food Lion III, 951 F. Supp at 1227.
4. See Food Lion III, 951 F. Supp. at 1227.
5. See Food Lion I, 887 F. Supp. at 817-20, 824 (dismissing Food Lion's civil RICO and federal wiretapping claims); Food Lion II, 951 F. Supp. at 1219-24 (denying defendants' motion for summary judgment on fraud and trespass claims); Food Lion III, 951 F. Supp. at 1228-33 (denying defendants' motion to dismiss duty of loyalty and unfair trade practice claims); Food Lion, Inc. v. Capital Cities/ABC, Inc., 951 F. Supp. 1233, 1234-35 (M.D.N.C. 1996) (Food Lion IV) (granting motion for summary judgment of affirmative defense of unclean hands); also Food Lion, Inc. v. Capital Cities/ABC, Inc., 946 F. Supp. 420, 421-22 (M.D.N.C. 1996) (dismissing copyright infringement claims brought by Food Lion in separate action, in which Food Lion alleged that hidden-camera videos were "works made for hire" for Food Lion), aff'd, 116 F.3d 472 (4th Cir. 1997).
6. See Food Lion, Inc. v. Capital Cities/ABC, Inc., 964 F. Supp. 956, 958 (M.D.N.C. 1997) (Food Lion V); Food Lion, Inc. v. Capital Cities/ABC, Inc., 984 F. Supp. 923, 927, 937-39 (M.D.N.C. 1997) (Food Lion VI).
7. See Food Lion VI, 984 F. Supp. at 927.
8. See Id. at 937-39.
9. See Food Lion II, 951 F. Supp. at 1218.
10. See Id. at 1219-20 (rejecting ABC's assertion that, because camerapersons functioned as at-will employees of Food Lion, Food Lion could not recover any costs associated with employing and training the camerapersons for their Food Lion jobs).
11. See Id. at 1221-24.
12. Id. at 1221.
13. See Id. (citing RESTATEMENT § 173 (consent to enter land induced by misrepresentation or mistake is governed by RESTATEMENT § 892B)); Id. (quoting Restatement, supra § 892B ("If the person consenting to the conduct of another is induced to consent by a substantial mistake concerning the nature of the invasion of his interests or the extent of the harm to be expected from it and the mistake is known to the other or is induced by the other's misrepresentations, the consent is not effective for the unexpected invasion or harm.")).
14. Id. at 1222.
15. 526 N.W.2d 402 (Minn. Ct. App. 1995).
16. See Id. at 1223-24 (citing Copeland, 526 N.W.2d at 403, 405); See also Special Forces Ministries v. WCCO Television, 584 N.W.2d 789 (Minn. Ct. App. 1998) (reaffirming holding of Copeland).
17. See Id. at 1224.
18. 526 N.W.2d 402 (Minn. Ct. App. 1995).
19. See 44 F.3d at 1347-48, 1351-53.
20. See 44 F.3d at 1351, 1353.
21. See 44 F.3d at 1353, (citing, inter alia, Northside Realty Associates, Inc. v. United States, 605 F.2d 1348, 1355 (5th Cir. 1979) (housing discrimination testers)).
22. See 44 F. 3d at 1353. Although the Food Lion II opinion takes note of Desnick, it fails to grapple with this central proposition of Desnick. See Food Lion II, 951 F. Supp. at 1222-23. Instead, Food Lion II purports principally to distinguish Desnick on the grounds that the Desnick testers were customers of the Desnick clinic who entered only areas of the clinic open to the "public." See 951 F. Supp. at 1223.
23. See RESTATEMENT (SECOND) OF THE LAW OF TORTS, § 168, cmt. b, d and illus. thereto (1965) (examples of entrant's exceeding the scope of landlord's "conditional or restricted consent."
24. See Id. § 892B.
25. 828 F. Supp. 745 (N.D. Cal. 1993).
26. See Baugh, 828 F. Supp. at 756 (emphasis in original). Baugh also directly contradicts another tenet of the Food Lion II opinion-that consent to entry may be vitiated by a fraudulent representation employed to induce such consent. See Id. at 757 ("In a case where consent was fraudulently induced, but consent was nonetheless given, plaintiff has no claim for trespass.").
27. See, e.g., Food Lion III, 951 F. Supp. at 1229-30 (stating that "potential violation" of duty of loyalty to Food Lion might consist in camerawomen's "being employed by Food Lion and ABC at the same time," but noting also that triable issue of fact existed as to camerawoman's affirmative misconduct in disobeying the store's instructions and failing adequately to perform Food Lion duties).
28. See La Jolla Village Homeowners' Ass'n v. Superior Court, 212 Cal. App. 3d 1131, 1151, 261 Cal. Rptr. 146 (1989).
29. See Foley v. Interactive Data Corp., 47 Cal. 3d 654, 692, 254 Cal. Rptr. 211, 765 P.2d 373 (1988).
30. See Hunter v. Up-Right, Inc., 6 Cal. 4th 1174, 1180-82, 26 Cal. Rptr. 2d 8, 864 P.2d 88 (1993) (employer allegedly "employed a falsehood" to effect employee's termination).
31. Cf. Special Forces Ministries, 584 N.W.2d at 793 (hidden camerawoman "affirmatively misrepresented that she was unemployed").
32. See Food Lion IV, 951 F. Supp. at 1233-1234.
33. See Id. at 1234-35.
34. See, e.g., Camp v. Jeffer, Mangels, Butler & Marmaro, 35 Cal. App. 4th 620, 638, 41 Cal. Rptr. 2d 329 (1995) (unclean hands defense applies to both legal and equitable claims); See also Poulos v. Cimini, 135 A.2d 618, 619 (R.I. 1957) (common law rule barring equitable defenses to trespass actions abrogated by statute); Grigg v. Robinson Furniture Co., 260 N.W.2d 898, 903 (Mich. App. 1977) (equitable defenses can defeat legal claims); Kerin v. Udolf, 334 A.2d 434, 437 (Conn. 1973) (equitable defenses may be raised in actions at law); School Dist. No. 46 v. DelBianco, 215 N.E.2d 25, 29 (Ill. App. 1966) (same).
35. See Ellenburg v. Brockaway, Inc., 763 F.2d 1091, 1097 (9th Cir. 1985); See generally 30A C.J.S. Equity § 102 at p. 304 et seq. (West 1992).
36. See Ellenburg, 763 F.2d at 1097 (quoting Precision Instrument Mfg. Co. v. Automotive Maintenance Mach. Co., 324 U.S. 806, 814 (1945)).
37. 30A C.J.S. § 108 at 613 ("relief is sometimes refused where a stranger is the sufferer from the misconduct"; "[t]he clean hands doctrine assumes even wide and more significant proportions where a suit . . . concerns the public interest as well as the private interests of the litigants, and relief may be denied for conduct which is contract to the public interest.").
38. See 2 R. CALLMAN, THE LAW OF UNFAIR COMPETITION, TRADEMARKS AND MONOPOLIES, § 14.20 (4th ed. 1996).
39. Id.; See also ACI Chemicals, Inc. v. Metaplex, Inc., 615 So.2d 1192, 1197 (Miss. 1993) (quoting CALLMAN text).
40. See Food Lion I, 887 F. Supp. at 820-24.
41. 501 U.S. 663 (1991).
42. 485 U.S. 46 (1988).
43. See Food Lion I, 887 F. Supp. at 821 (citing Cohen, 501 U.S. at 669-70).
44. See Id. (quoting Cohen, 501 U.S. at 669).
45. Id. at 822.
46. See Id. at 823 (citing Hustler, 485 U.S. at 47-48, 50-56).
47. See Id.
48. See Food Lion VI, 984 F. Supp. at 927, 928.
49. See Food Lion V, 956 F. Supp. at 959.
50. Id.
50. Id. at 960 (quoting Johnson v. Ruark Obstetrics and Gynecology Assocs, P.A., 365 S.E.2d 909, 915 (N.C. App. 1988), aff'd, 395 S.E.2d 85 (N.C. 1990)); See also Id., 984 F. Supp. at 961 (quoting Whitlaw v. Kroger Co., 410 S.E.2d 251, 253 (S.C. 1991)).
52. Id. at 961, 962.
53. Id. at 961 (quoting Presnell v. Payne, 272 N.C. 11, 157 S.E.2d 601, 602 (1967)); See also Id. at 962 (quoting Stone v. Bethea, 161 S.E.2d 171, 173 (S.C. 1968)).
54. See Id. at 963.
55. See Id. at 963-66.
56. 26 Media L. Rep. (BNA) 1956 (C.D. Cal. 1997).
57. See Id. at 1958.
58. See Id. (quoting Hill v. Wrather, 158 Cal. App. 2d 818, 824, 323 P.2d 567 (1958) ("A false representation which cannot possibly affect the intrinsic merits of a business transaction must necessarily be immaterial because reliance upon it could not produce injury in a legal sense.").
59. See Food Lion I, 887 F. Supp. at 823.
60. See 584 N.W.2d at 791, 793-94.
61. See Id.
62. Compare Fromm, 26 Media Law Rep. at 1958, with Special Forces Ministries, 584 N.W. 2d at 794.
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