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National College of Kentucky, Inc. v. Wave Holdings, LLC

Court of Appeals of Kentucky

December 15, 2017

NATIONAL COLLEGE OF KENTUCKY, INC. APPELLANT
v.
WAVE HOLDINGS, LLC; ERIC FLACK; MICHELE MOFFITT; COMMONWEALTH OF KENTUCKY, EX REL. ANDY BESHEAR, [1] ATTORNEY GENERAL APPELLEES

         APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE MITCHELL PERRY, JUDGE ACTION NO. 14-CI-002942

          MARK T. HURST MATTHEW F. KUHN LOUISVILLE, KENTUCKY BRIEFS FOR APPELLANT

          GRIFFIN TERRY SUMNER LOUISVILLE, KENTUCKY SUSAN GROGAN FALLER CINCINNATI, OHIO BRIEF FOR APPELLEES WAVE HOLDINGS, LLC AND ERIC FLACK

          ANNE MARIE REGAN KENTUCKY EQUAL JUSTICE CENTER LOUISVILLE, KENTUCKY JONATHAN FARMER ASSISTANT ATTORNEY GENERAL FRANKFORT, KENTUCKY BRIEF FOR APPELLEES MICHELE MOFFITT AND OFFICE OF THE ATTORNEY GENERAL

          BEFORE: CLAYTON, STUMBO AND THOMPSON, JUDGES.

          OPINION

          STUMBO, JUDGE

         National College appeals from a grant of summary judgment in favor of WAVE Holdings, Erick Flack, and Michele Moffitt. Appellant argues that there are still genuine issues of material fact regarding whether or not five published statements are actionable as defamation. Appellant also argues that it was not allowed to conduct sufficient discovery before summary judgment was granted and that the trial court erred in allowing the Attorney General to intervene. For the following reasons, we affirm.

         The statements Appellant alleged were defamatory were made by reporter Eric Flack and former student Michele Moffitt over two days in August of 2013. WAVE, a Louisville television station, published the statements both during news broadcasts and via articles written online. The five statements at issue are as follows:

1. Statement by Flack: "But the Attorney General says National mislead [sic] potential students about graduation and job placement rates, financial aid and other financial incentives for students. Conway said it was a way to bring in revenue from federal student loans, loans Conway said the students have a tough time re-paying because he claims those National degrees don't always lead to the better jobs the school promises."
2. Statement by Flack: "Now, a group of schools known as 'for profit colleges' have come under fire for lying to students to get them in the door then sending them into the working world with what some call a worthless degree in addition to tens of thousands of dollars in debt."
3. Statement by Flack: "There are 141 for profit colleges in Kentucky. Even critics will say there's a place for that type of school, a handful in Kentucky are now facing lawsuits, for deceiving students to cash in."
4. Statement by Moffitt as reported by Flack: "Graduation day was a proud day for Michelle [sic] Moffitt. Seven years later, she is unemployed and saddled with debt."
5. Statement by Moffitt as reported by Flack: "'We just basically learned the same things we learned in high school, ' Moffitt said. 'The classes had nothing to do with the technology world. It's supposed to be business classes to train you to work in those fields. And that's not what National was about.'"

         Appellant filed the underlying suit on June 3, 2014. Appellant originally complained of 9 allegedly defamatory statements; however, only five are before us on appeal. On September 12, 2014, the Attorney General moved to intervene in the case because he believed the issue was of public importance and because he believed National College filed the suit in order to silence its detractors. The trial court ultimately allowed the Attorney General to intervene.

         Over the next year, discovery progressed in the form of written interrogatories, production of documents, and the deposition of Ms. Moffitt. In September of 2015, all Appellees filed motions for summary judgment. The trial court granted the motions in November of the same year. In granting summary judgment, the trial court stated:

Here, the Court finds that National College cannot establish a defamation claim against any defendant. All of the nine statements that National College alleges to be defamatory are either true or substantially true when read within the context of the articles, they are non-actionable opinion, rhetoric, epithet or hyperbole, they are ...

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