# Webb v. Paine

> District Court, S.D. West Virginia · January 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10729471

## Case

- **Court:** District Court, S.D. West Virginia
- **Decided:** January 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

JASON WEBB,

Plaintiff,

v. Civil Action No. 2:19-cv-00447

STEVEN L. PAINE, State
Superintendent of Schools, in
his individual capacity and
official capacity; and JAN
BARTH, Assistant State
Superintendent of Schools, in
her individual capacity and
official capacity,

Defendants.

MEMORANDUM OPINION AND ORDER

Pending are plaintiff Jason Webb’s motion for summary
judgment, filed August 20, 2020, ECF No. 68, and defendants
Steven L. Paine and Jan Barth’s motion for summary judgment,
filed August 21, 2020. ECF No. 70.
I. Background
Plaintiff is a registered lobbyist in West Virginia
who was hired by the national testing company ACT, Inc. (“ACT”)
to provide lobbying services in West Virginia, with the contract
being entered into on January 25, 2016 for a period of six
months. Webb Dep., ECF No. 68-8 at 196:13-197:13. The contract
between plaintiff and ACT was continually extended until July
2019. Id. at 218:3-10. Defendant Paine was Superintendent of
Schools, from March 27, 2017 until February 21, 2020. Paine
Dep., ECF No. 68-4 at 18:7-14, 202:9-13. Defendant Barth began
work as a special assistant in mid-April 2018, being promoted to

Assistant Superintendent of Schools on July 1, 2018. Barth
Dep., ECF No. 68-1 at 39:10-21.
In 2016, prior to defendants arriving at the West
Virginia Department of Education (“WVDE”), legislation was
introduced in both chambers of the legislature that would have
enshrined ACT as the chosen provider of educational assessments

in West Virginia. Prior to being replaced, the Smarter Balanced
test, an assessment of Common Core standards produced by a
partnership between the Smarter Balanced Assessment Consortium
and the American Institute of Research (“AIR”), was the
statewide assessment for students in West Virginia. ECF No. 68-
8 at 32:9-22; see also AIR, AIR Partners with Smarter Balanced
Assessment Consortium to Create an Online Test Delivery System
for States, https://www.air.org/resource/air-partners-smarter-
balanced-assessment-consortium-create-online-test-delivery-
system (Sep. 6, 2012). Senate Bill 676 would have expressly
made ACT the provider for students in grades 3-8 and the 11th
grade, and House Bill 4024 would have expressly made ACT the
provider for the 11th grade test only. ECF Nos. 70-5, 70-6.
Neither bill advanced from its respective chamber; however, a
similar bill, House Bill 4014, would have required West Virginia
to adopt a test with the exact testing structure of ACT’s
products by requiring that the test assess the five subject

matter areas contained in the ACT exam, consisting of English,
reading, writing, science, and mathematics. ECF No. 70-7. HB
4014 was passed by both chambers and vetoed by Governor Tomblin
in 2016. Id.
On February 27, 2017, a sweeping education bill, House
Bill 2711, was introduced in the House “by request of the

Executive,” i.e., by the request of newly elected Governor
Justice. ECF No. 70-10. The House Education Committee amended
the language of the bill to require the statewide 11th grade
assessment test for the five subject areas contained in the ACT
test. Id.; see also ECF No. 68-8 at 39. Senate Bill 18,
introduced around the same time as HB 2711, originally named ACT
as the assessment provider, but the Senate Educational Committee
determined it would be inappropriate to name a specific provider
and that the assessment should be decided through the normal
bidding process. Stewart Dep., ECF No. 70-11 at 47-48. The
amended language calling for the five components contained in
ACT’s products was removed when HB 2711 arrived in the Senate.
ECF No. 70-10. Plaintiff testified that Senator Kenny Mann, the
Chair of the Senate Education Committee, informed him that while
he wanted the ACT test to be the statewide assessment, Paine had
represented to him that removing the pro-ACT language would not
damage ACT’s chances of being selected. ECF No. 68-8 at 70:20-

71:20. Sarah Stewart, in-house counsel for WVDE, believes that
it was in fact the Governor’s request that the language be
removed that led the Senate to do so. ECF No. 70-11 at 42-44.
Regardless of the hearsay statements attributed to Mann and
Stewart’s belief, it is noted that HB 2711 was enacted into law
on April 26, 2017, opening a selection process for an assessment
for grades 3-8 and the 11th grade, without language that
specifically favored ACT. See 2017 W.V. HB 2711.

Subsequently, WVDE opened a public bidding process for
two statewide assessments: one for students in grades 3-8, and
one for students in the 11th grade. Rhudy Dep., ECF No. 70-17
at 24. ACT placed a bid to provide its “ACT Aspire” exam for
grades 3-8 and its ACT test for 11th grade students. Id. ACT’s
primary competitor, the College Board, submitted the only other
bid for the 11th grade assessment, with its SAT test. Id. at
32. AIR submitted a bid for grades 3-8, with the Smarter
Balanced test. ECF No. 68-8 at 132. After bids were submitted,
a blackout period began, in which communications between vendors
and WVDE were prohibited to maintain integrity in the bidding
process. Id. at 117. Plaintiff testified that despite the
blackout, Paine approached him at an event for school
administrators on June 20, 2017 and told him “we are not going
to use that – that 3-8 [test], that Aspire. That’s junk,” and

then walked away. Id. at 118-19. Paine testified that he did
not recall such an encounter and that he seriously doubted he
would say something to that effect. ECF No. 68-4 at 55-57.
In the late summer of 2017, both the ACT test and the
SAT test were disqualified in their initial bids with the WVDE,
as both vendors’ applications were missing mandatory portions in

order to be considered. ECF No. 70-17 at 31. Accordingly, the
WVDE opened a second bidding process, in which College Board and
ACT submitted applications again for consideration for the 11th
grade exam. Id. The College Board, with its SAT test, was
awarded the contract for the 11th grade assessment in the
rebidding. Id. ACT filed an official protest with the scoring
process, contending that (1) only the ACT adequately addressed
the WVDE’s requirement for a science assessment and (2) certain
points were improperly deducted from ACT and, if those
deductions were applied equally, it would have resulted in the
SAT being disqualified. ACT Protest, ECF No. 70-21. WVDE then
reanalyzed and rescored ACT’s bid, which resulted in ACT being
awarded an additional 15 points but still falling short of the
minimum score of 50 to be considered as an option. Hutchens
Dep., ECF No. 70-14 at 24. ACT did not exercise its right to
appeal this decision to the state circuit court. ECF No. 68-8
at 130. Thus, the College Board remained the winner of the

bidding process for the 11th grade test. ECF No. 70-14 at 24.
ACT lost the bid for the assessment of grades 3-8 to AIR. ECF
No. 68-8 at 132-33. ACT did not formally protest the award of
the bid to AIR. Id.
Even though ACT was not selected as the statewide
provider for either assessment, it still had the opportunity to

be selected as an assessment provider on the county-level under
a policy known as the “local option.” The local option
procedure is provided for under the Every Student Succeeds Act
(ESSA), a federal law passed in 2015. See Pub.L. No. 114–95.
According to Dr. Vaughn Rhudy, Executive Director of the WVDE
Office of Assessment, the procedure provided for under ESSA is
lengthy and complicated, requiring interaction with federal
regulators and federal law, as well as a peer-review process and
required submissions. ECF No. 70-17 at 69-73. Paine testified
that ACT nonetheless expressed interest in pursuing the local
option, through Scott Frein, a national lobbyist for ACT and
Scott Montgomery, a Vice President of ACT. ECF No. 68-4 at 73.
Paine likewise expressed enthusiasm for working with ACT to
provide a local option. Id. A collaborative process between
ACT and WVDE to prepare for the peer-review process required by
ESSA ensued between May 11, 2018 and May 2, 2019. See ECF No.
70-52.

On February 13, 2018, Senate Bill 532 was introduced,
which would have required WVDE to develop a process for
providing a local option to counties of either the SAT or the
ACT for the 11th grade assessment. ECF No. 70-24. Plaintiff
testified that Chairman Mann informed him that Paine had met
with Chairman Mann and Senator Rucker to advise them that the

WVDE could and would give counties the power to opt for
whichever test they preferred in Spring 2019, and that SB 532
was thus unnecessary. ECF No. 68-8 at 155. Paine testified
that he did not recall this meeting, but if it happened, he
likely would have informed the senators that WVDE was already
seeking approval from the U.S. Department of Education for the
local option. ECF No. 68-4 at 73-74. Regardless of the hearsay
statement attributed by plaintiff to Chairman Mann, it is noted
that Mann pulled the bill and read a statement drafted by WVDE
on the floor of the Senate, stating that counties would have the
choice between the SAT and the ACT starting in 2019. ECF No.
68-4 at 76:15-77:5. In 2019, the legislature passed Senate Bill
624, which would have created a local option. ECF No. 70-41.
WVDE took the position that SB 624, like SB 532, was unnecessary
given the federal process for approving the local option. ECF
No. 70-11 at 89. Governor Justice vetoed the bill on March 27,
2019, reasoning that it conflicted with another statute that

required the statewide assessment selected in the 2017 bidding
process be used for at least four years. ECF No. 70-44.
Throughout the time he was under contract with ACT,
plaintiff utilized the social media platform Twitter to publicly
express his views about the policymaking process outlined above
and about testing policy in West Virginia. He criticized the

selection of the SAT multiple times, calling the SAT a “Common
Core” test1 and noting the fact that the test lacks a science
portion. ECF Nos. 70-27, 70-29, 70-30. He condemned the
College Board as scandal ridden. ECF No. 70-39, 79-40. Several
of his posts criticized WVDE and its members for supporting
Common Core standards, which he contended were failing students
and wasting money. ECF Nos. 70-33, 70-34, 70-35. Other posts
by him blamed low test scores in West Virginia on WVDE. ECF

1 The Common Core State Standards Initiative (CCSSI) is an
educational initiative to modify how English language arts and
mathematics are taught in grade school. See CCSSI, About the
Standards, http://www.corestandards.org/about-the-standards/
(last visited December 30, 2020). The Common Core standards are
controversial and reference to the SAT as a Common Core test was
ostensibly a criticism. See ECF No. 68-1 at 107.
Nos. 70-36, 70-37. These posts were generally satirical or
sarcastic in tone.

According to Barth, several employees within WVDE took
notice of the posts and expressed frustration with them, as they
considered the posts to be inflammatory, misleading, and
unfairly critical. ECF No. 68-1 at 141-42. Defendants
testified that they felt similarly about the posts. Id. at 107;
ECF No. 68-4 at 67. Plaintiff testified that Paine contacted
Scott Frein, ACT’s national lobbyist, in late 2017 to inform him
of plaintiff’s social media posts and to request that ACT “get a
handle on” plaintiff or they will “never get anything in West

Virginia.” ECF No. 68-8 at 99.
Plaintiff testified that Paine called ACT’s Scott
Montgomery on January 28, 2018 to complain about plaintiff’s
criticism of the bidding process. Id. at 150-51. According to
plaintiff, Paine stated that plaintiff was “getting under [his]
skin” and stating that ACT needed to “handle it or else.” Id.

Paine testified that he does not recall that phone call, though
a January 28, 2018 text message from Chris Kratzer, ACT’s Senior
Director of U.S. Government Relations, to plaintiff documents
that “Paine contacted Scott M late last week. You are severely
under his skin and making him nervous.” ECF No. 70-22 at 71,
ECF No. 70-23.
Barth sent an email on December 18, 2018 to ACT
containing another posting by plaintiff, indicating that she
wanted plaintiff “to be more accurate and tell both sides of the
story.” ECF No. 68-1 at 182. In late 2018, Paine directed
Barth to compile plaintiff’s social media posts, and numerous

WVDE personnel were involved in the compiling of the posts. ECF
No. 68-1 at 142. The compilations, running numerous pages, were
sent to ACT representatives. Id. at 160, 164—179. Barth
testified that they did not compile posts by any other lobbyists
or individuals, nor did they criticize any other lobbyists to
their employers. Id. at 127.

In December of 2018, ACT’s Kratzer informed plaintiff
via text message that “Jan and Steve are monitoring your tweets.
Congratulations!” ECF No. 70-25. Plaintiff asked Kratzer,
“Want me to stop? I will,” to which Kratzer replied “No your
views are your views. You bashed the SAT as a common core test.
You didn’t bash WVDOE . . . directly.” Id. Kratzer advised
plaintiff to “Make sure you continue to lay low. The dragon is
awake and he has you on his mind.” ECF No. 70-26. Kratzer also
advised plaintiff to tone down his social media posts,
particularly when posting about WVDE. Kratzer Dep., ECF No. 70-
2 at 41, 154. Kratzer believes he would have made this
suggestion even if he had not received frequent complaints from
defendants. Id. at 154-55.

In March 2019, WVDE’s counsel, Sarah Stewart, informed
Paine that a Delegate had told her that plaintiff had “stated or
implied” to the Delegate that Paine was receiving inappropriate
benefits from the College Board. ECF No. 68-4 at 110. Paine
demanded a call with the CEO of ACT, Marten Roorda, to discuss
plaintiff’s alleged conduct. Id. at 118-19. Paine did not
investigate the accuracy of the hearsay rumor by either
contacting the Delegate or plaintiff. Id. at 112-13. The call
with Roorda took place on or around March 5, 2019. Id. at 121.

On the morning before the call, Paine sent a series of text
messages to Montgomery and Frein, criticizing ACT for not
holding “Webb in check” and expressing frustration with Webb.
ECF No. 68-3.
Though Paine had insisted that Roorda be alone on the
call, Paine had in-house counsel, Heather Hutchens and Sarah

Stewart, on the call. ECF No. 68-4 at 118, 123-24. On the
call, Paine told Roorda that plaintiff “had a bad reputation”
and that Paine was insulted by plaintiff saying he had received
a kickback. ECF No. 68-6. Roorda indicated that he had not
heard any complaints regarding plaintiff and that Paine should
bring his concerns to the Ethics Board. Id. According to
Roorda, Paine said that “WV may be doing business with ACT in
the future and indicated that the issue with Webb could have
implications.” Id. Hutchens then stated that purchasing
regulations could affect the selection of vendors in future
business with ACT and that Webb’s conduct “may come close to

actual slander.” Id. Roorda interpreted the conversation as “a
sort of a threat” and that he thought such a threat might be
illegal. Id. Heather Hutchens testified that no threat was
made on the call and that the accusation against Paine was the
substance of the call. ECF No. 70-14 at 72, 77-78. She stated
that Paine informed ACT that they would be doing business in the
future and that it would be made “more uncomfortable if there
were someone who was conveying false information about the state
superintendent or the Department of Education.” Id. at 67.
Plaintiff learned of the call through Montgomery sometime after
the call but could not remember when. ECF No. 68-8 at 179-80.

Even after Governor Justice’s veto on March 27, 2019
of SB 624, which would have required a local option, ACT
continued to work into early May of 2019 on a local option with
WVDE. ECF No. 70-52. ACT eventually determined that it would
be unlikely to meet the requirements set out in WVDE’s plan for
federal peer-review and terminated their administrative efforts
to provide a local option, signaling that decision to WVDE on
May 2, 2019 by an email from Gretchen Guffy of ACT to Rhudy.
ECF No. 70-53. ACT stated in the email that (1) a
“comparability study between the ACT Science test and the SAT
science cross-test score is not possible given the two
completely dissimilar constructs” and (2) ACT was “unwilling to

absorb the additional costs of standard setting, achievement
level descriptors and customized score reports,” which was some
of the additional evidence required by the U.S. Department of
Education. Id. The email concluded, “[g]iven this decision, we
don’t believe a call is necessary,” being in response to Rhudy’s
request for a conference call. Id. Rhudy testified that the
peer-review process generally takes “a couple of years.” 70-17
at 73.

Plaintiff filed this action on June 12, 2019. Compl.,
ECF No. 1. Kratzer testified as ACT’s corporate deponent that
ACT decided to terminate its lobbying contract with plaintiff in
the week between June 12 and June 19, 2019. ECF No. 70-2 at 56.
On June 19, 2019, ACT notified plaintiff by letter that it was
exercising its right to terminate the lobbying contract with
plaintiff, effective thirty days thereafter. ECF No. 70-54.
Kratzer stated in his deposition that ACT based its
determination to terminate the contract on three considerations:
the filing of this lawsuit by Webb, the “political landscape”
changing in the West Virginia legislature, and the fact that ACT
was “getting nowhere” with regard to the local option. ECF No.
68-7 at 60-61. Kratzer testified that nothing the defendants
may have communicated to ACT regarding plaintiff had a part in
ACT’s determination to terminate the contract. Id. at 57.

Plaintiff brought three causes of action in his
complaint: Section 1983 – First Amendment Retaliation (Count I),
Tortious Interference with Business Relations (Count II), and
Civil Conspiracy (Count III). ECF No. 1. Both parties move for
summary judgment on all three counts.

II. Standard of Review
Summary judgment is appropriate only “if the movant

shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “Material” facts are those necessary to
establish the elements of a party’s cause of action. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News
& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d
570, 576 (4th Cir. 2010). A “genuine” dispute of material fact
exists if, in viewing the record and all reasonable inferences
drawn therefrom in a light most favorable to the non-moving
party, a reasonable fact-finder could return a verdict for the
non-moving party. Anderson, 477 U.S. at 248.
Inferences that are “drawn from the underlying facts
. . . must be viewed in the light most favorable to the party
opposing the motion.” United States v. Diebold, Inc., 369 U.S.
654, 655 (1962). A party is entitled to summary judgment if the
record, as a whole, could not lead a rational trier of fact to

find for the non-moving party. Williams v. Griffin, 952 F.2d
820, 823 (4th Cir. 1991). Conversely, summary judgment is
inappropriate if the evidence is sufficient for a reasonable
fact-finder to return a verdict in favor of the non-moving
party. Anderson, 477 U.S. at 248.
III. Discussion

A. Count I: Violation of Plaintiff’s First Amendment Rights

1. First Amendment Violation
Plaintiff alleges that defendants engaged in a
continuous retaliatory campaign against plaintiff for exercising
his First Amendment free speech rights on social media. ECF No.
1 at ¶113. He also alleges that defendants threatened to
blackball ACT and to increase scrutiny on any future bids by ACT

if they did not either curtail plaintiff’s speech in relation to
education issues and vendors or terminate him as their lobbyist.
Id. A claim for First Amendment §1983 retaliation requires that
the plaintiff demonstrate: (1) that the speech was protected,
(2) “that the defendant's alleged retaliatory action adversely
affected the plaintiff's constitutionally protected speech,” and
(3) “that a causal relationship exists between [plaintiff’s]
speech and the defendant's retaliatory action.” Suarez Corp.
Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000).

a. Whether Plaintiff’s Speech Was Protected

There is no genuine dispute of material fact that
Webb’s social media posts or his lobbying activities generally
are protected by the First Amendment. While defendants
highlight the derisive tone and allegedly misleading nature of
plaintiff’s social media posts, Defs.’ Mot. Summ. J., ECF No. 71
at 12, they never contest that the posts fall within First
Amendment protection. The posts at issue all involved matters
of public concern, relating to issues of education policy and
policymakers. Such commentary falls squarely within the
protections of the First Amendment. N.Y. Times Co. v. Sullivan,
376 U.S. 254, 270 (1964) (There is “a profound national

commitment to the principle that debate on public issues should
be uninhibited, robust, and wide-open, and that it may well
include vehement, caustic, and sometimes unpleasantly sharp
attacks on government and public officials.”); see Brinkman v.
Budish, 692 F. Supp. 2d 855, 862 (S.D. Ohio 2010) (“Lobbying
the government falls within the gambit of protected First
Amendment activity.”) (citing F.T.C. v. Superior Court Trial
Lawyers Ass'n, 493 U.S. 411, 426 (1990), Roberts v. U.S.
Jaycees, 468 U.S. 609, 622 (1984)). Plaintiff has established
the first element of the claim.

b. Whether Defendants’ Conduct Adversely Affected
Plaintiff’s Right to Free Speech / Standing

Both motions for summary judgment center on the second
element, whether defendants’ conduct “adversely affected”
plaintiff’s First Amendment rights. Defendants cast their
argument for summary judgment in terms of the merits of the
claim, as well as a claimed lack of Article III standing. ECF
No. 71 at 22 (“In short, it is undisputed that there was no
concrete, particular injury-in-fact to Plaintiff’s First
Amendment rights caused by Drs. Paine’s and Barth’s alleged
complaints to ACT.”); see also id. at 20 (“Plaintiff is
attempting to pursue claims for which he has no standing.”).
Defendants appear to both move the court to dismiss the case for

lack of subject matter jurisdiction because plaintiff lacks
standing and to address the merits of the second Suarez element.
As it relates to the merits of the second Suarez
element, the Fourth Circuit has explained that “a plaintiff
suffers adverse action if the defendant's allegedly retaliatory
conduct would likely deter a person of ordinary firmness from
the exercise of First Amendment rights,” an objective test.
Constantine v. Rectors and Visitors of George Mason University,
411 F. 3d 474, 500 (4th Cir. 2005) (citations omitted). A
retaliation “cause of action targets conduct that tends
to chill such activity, not just conduct that freezes it

completely.” Id. (emphasis in original). Still, “[n]ot every
restriction is sufficient to chill the exercise of First
Amendment rights, nor is every restriction actionable, even if
retaliatory.” DiMeglio v. Haines, 45 F.3d 790, 806 (4th Cir.
1995); see also The Baltimore Sun v. Ehrlich, 437 F.3d 410, 416
(4th Cir. 2006) (contrasting actionable adverse impacts with de
minimis inconvenience).

A plaintiff may make out a claim for retaliation based
on the defendant’s speech alone, but he bears a heavy burden in
doing so. See Page v. Lexington, 531 F.3d 275, 287 (4th Cir.
2008) (“The needs of effective governance command that the bar
limiting government speech be high”) (quoting Kidwell v. City of
Union, 462 F.3d 620, 626 (6th Cir. 2006)); see also Int’l Ass’n
of Machinists & Aerospace Workers v. Haley, 482 F. App'x 759,
765 (4th Cir. 2012). Thus,

[w]hen the challenged government action is government speech,
there is no retaliation liability — even if the plaintiff can
demonstrate a substantial adverse impact — unless the
government speech concerns “private information about an
individual” or unless it was “threatening, coercive, or
intimidating so as to intimate that punishment, sanction, or
adverse regulatory action will imminently follow.”
Baltimore Sun, 437 F.3d at 417. Here, the court considers
whether (1) defendants’ communications with ACT officials were
threatening, coercive, or intimidating as to intimate that
punishment, sanction, or adverse regulatory action would
imminently follow and (2) whether such a threat would deter a

person of ordinary firmness from exercising his First Amendment
rights.
Plaintiff contends that the complaints lodged by Paine
and Barth amounted to threats of punishment, sanction, or
adverse regulatory action against ACT, in what he calls a
“pressure campaign against Mr. Webb via his client ACT,

comprised of a series of acts — the admitted calls, the emails,
and the text messages to ACT personnel — all highly critical of
Mr. Webb and constantly implying that ACT (as a prospective WVDE
vendor) needed to take action against him.” Pl.’s Reply, ECF
No. 75 at 5. Paine’s communications with ACT, when taken
together, could be fairly construed as a threat of imminent
punishment, sanction, or coercion against ACT if it failed to
discipline or terminate plaintiff. Paine contacted
representatives of ACT on numerous occasions to complain about
plaintiff, allegedly informing Scott Montgomery on a January 28,
2018 phone call that Webb was “getting under his skin” and that
ACT needed to “handle it or else.” ECF No. 68-8 at 223-225. In
a text message to Montgomery and Scott Frein on the morning of
March 5, 2019, Paine stated that WVDE “have also complied [sic,
compiled] tweets and social media posts where Webb has sought to
discredit the WVDE.” ECF No. 68-3. In that same message, Paine

complained of plaintiff’s personal attacks against him,
describing plaintiff as a “very shady dishonest lobbyist,” and
“as a constitutional officer I take [the personal attacks] very
seriously. I suggest you take them seriously as well.” Id.
Paine testified that these comments were in response both to
plaintiff’s social media posts and to the hearsay rumor that
plaintiff had accused Paine of receiving kickbacks. ECF No. 68-
4 at 158-59. In another message, he said “I asked you on at
least two occasions to work collaboratively with us and to hold
Webb in check. To date that has not happened.” ECF No. 68-3.

Of particular importance is the March 5, 2019 call
between Paine and Marten Roorda, the CEO of ACT, in which
Paine’s comments could reasonably be understood as threats that
ACT’s status as a vendor could be impacted by plaintiff’s social
media posts and comments made while lobbying. In an email sent
by Roorda to Scott Montgomery shortly after the call, Roorda
summarized the conversation as follows:
I had a 20 min call with Mr. Paine, and his general counsel
was also on the call. Which surprised me, but was OK. After
going through some history he came to the issue. He only
addressed the role of Jason Webb, who he said has a bad
reputation and insulted him for receiving a kickback fee from
the CB [College Board]. I said I heard no complaints about
Jason’s behavior and from my position was not able to assess
the situation. I advised him to file a complaint with the
Ethics Board. Mr. Paine said he was still considering what
action to take. He also said that WV may be doing business
with ACT in the future and indicated that the issue with Webb
could have implications. His counsel said that regulations
for purchase practicing could effect the way they chose
vendors and that Jason Webb’s behavior may come close to
actual slander. I thought this was a sort of a threat. And
I don’t like it. I even think such a threat is illegal
practice.
ECF No. 68-6. ACT confirmed through Kratzer in its corporate
deposition that the email was generated shortly after the call
and that it has no reason to doubt the accuracy of the email.
Kratzer Dep., ECF No. 68-7 at 168:1-168:8.
Throughout these communications, Paine appears to
connect his grievances respecting plaintiff’s speech with his
official capacity in selecting vendors. Importantly, these
communications occurred while ACT was engaged in an ongoing and
continuous attempt to have WVDE implement a local option.
Though the threat is not made explicit, a reasonable fact finder
could find that these messages were intended to convey the
message to ACT that if they did not “hold Webb in check,” as
Paine demanded, possibly by pressuring Webb to delete posts or
by terminating their contract with him, then ACT would face
adverse administrative consequences. At the same time, these
communications are such that a reasonable fact finder could find
Paine’s complaints to be mere expressions of frustration, stated
adjacently to statements regarding ACT’s status as vendor and
WVDE’s status as buyer, but nevertheless without the threatening

intent that plaintiff contends they contain. Indeed, Sarah
Stewart testified that Paine was not making a threat on the call
with Roorda, but instead just relating plaintiff’s conduct to
his employer. Whether defendants’ communications were a threat
of imminent harm is disputed and material, precluding summary
judgment. This is the case even if there is no evidence that
ACT yielded to such a threat.

The fact that defendants’ communications, viewed in a
light most favorable to plaintiff, were in the form of a demand
to a third-party does not deprive plaintiff of “standing” to
raise the communications, as defendants argue. ACT kept
plaintiff consistently apprised of these communications and the
reasonable inference drawn by plaintiff was that he might suffer
injury indirectly if he did not modify his speech, either by
being fired or by his client losing its ability to provide
services within the state. See Webb Decl., ECF No. 72-1 at ¶¶
7,8. Thus, while defendants are correct in arguing that
plaintiff could not establish standing based on threats to ACT’s
pecuniary interests alone, he is free to assert his own injuries
that flow from such threats, as he does here.

Whether defendants’ conduct would have chilled a
person of ordinary firmness in exercising their First Amendment
rights is necessarily a fact-intensive inquiry, as the court
must analyze “the status of the speaker, the status of the
retaliator, the relationship between the speaker and the
retaliator, and the nature of the retaliatory acts.” Suarez,
202 F.3d at 686. The person we consider for the purposes of
this analysis is a lobbyist of ordinary firmness whose client
relies heavily on the contracting and regulatory decisions of a

government agency. See Blankenship v. Manchin, 471 F.3d 523
(4th Cir. 2006) (considering a “president of a company in a
highly regulated industry” of ordinary firmness); Baltimore Sun,
437 F.3d at 419 (considering “reporters of ordinary firmness”).
Defendants point the court to Baltimore Sun, in which
the Fourth Circuit found that that the Governor of Maryland's

directive ordering his employees not to speak to two reporters
was a de minimis injury to the reporters’ First Amendment
rights. 437 F.3d at 420. The court reasoned that because of
the “rough and tumble” nature of the political arena, a reporter
of ordinary firmness would not be chilled by a politician's
decision to “den[y] the reporter access to discretionary
information.” Id. at 419-20. In reaching this conclusion, the
court observed that reporters are generally used to currying
favor with sources and that officials frequently seek out
reporters who they believe will effectively deliver their
messages to the public. Id. at 417-18. The court noted the

plaintiffs’ concession that the “daily successes and failures in
obtaining [journalistic] access have an insignificant effect on
reporting,” and that the Governor’s directive had not “created a
chilling effect any different from or greater than that
experienced by The [Baltimore] Sun and by all reporters in their
everyday journalistic activities.” Id. at 419-20. The court
also observed that the plaintiffs had not presented evidence
that they had themselves been chilled from exercising their
rights. Id. at 419.

The present case is somewhat more analogous to
Blankenship v. Manchin, which the Fourth Circuit handed down the
year after Baltimore Sun. 471 F.3d 523. The Fourth Circuit
found, in affirming the district court, that a governor’s threat
to exercise greater administrative scrutiny over the plaintiff’s
coal company in retaliation for his public criticism of the
governor’s bond proposal amounted to an actionable chilling of
free speech. Id. at 525-27. The Fourth Circuit emphasized that
the governor’s statements implied that plaintiff’s company would
be treated differently from similarly situated companies despite
the “presumption of regularity [that] attaches to administrative
actions.” Id. at 530. Distinguishing the case from a Tenth
Circuit opinion, the court observed that the plaintiff “remained
free” to criticize the governor, “but that would do little to

minimize the damage from any actual adverse action taken
against” his company. Id. at 532 (distinguishing Eaton v.
Meneley, 379 F.3d 949, 956 (10th Cir. 2004)). The court also
distinguished the case from Baltimore Sun, inasmuch as the
plaintiff Blankenship had alleged that he had actually curtailed
his speech in response to the threat, a relevant but non-
dispositive factor in the objective analysis. Id. at 532.

If defendants’ communications in this case presented
ACT with the ultimatum of silencing plaintiff’s criticism or
losing future opportunities as a vendor with the WVDE, then that
would rise above a de minimis injury to plaintiff’s free speech
rights. While it is expected that a lobbyist be tougher than an
ordinary citizen in relation to the “rough and tumble” nature of
politics, the threat of unfavorable treatment to a client in
providing services within the state would chill a lobbyist of
ordinary firmness. The WVDE, as a potential buyer of ACT’s
services on the statewide level and as regulator of ACT as a
county-level service provider, had a great deal of power over
ACT directly and, consequently, plaintiff, indirectly. A
presumption of regularity attached to WVDE’s decisions in
exercising that power and that regularity is disturbed if an
official utilized that power to punish a lobbyist for his speech
or to get him to modify his commentary. Paine, as a

decisionmaker within the WVDE, invoked his status as
“constitutional officer” and “customer” in communications with
ACT’s leadership about plaintiff’s social media activity. Given
the substantial but indirect power defendants exercised over
plaintiff, as well as the potential severity of the alleged
threat to ACT, the adverse effect on plaintiff’s First Amendment
rights is not de minimis as a matter of law.

While the actions of plaintiff and of ACT after the
allegedly threatening communications are relevant to the
analysis, they are not dispositive of the ordinary firmness
inquiry. Constantine, 411 F.3d at 500; Blankenship, 471 F.3d at
532 (“A chilling effect need not result in a total freeze of the
targeted party's speech.”). Plaintiff concedes that nobody from
ACT asked him to limit his Twitter posts on topics about
“education policy or education issues.” ECF No. 72-1 at ¶7.
However, plaintiff avers that in a phone conversation with
Kratzer, he was instructed to not specifically identify the WVDE
or its officials, including defendants, in those posts. Id. at
¶6. He indicates that out of fear for how ACT would be treated
as a vendor, he agreed to not identify or mention the WVDE or
its officials in social media posts on Twitter and deleted
certain posts that he believed had upset defendants. Id. at ¶¶
7, 8. Plaintiff indicates that he took Kratzer’s entreaties to

limit his social media posts as solely professional in nature
rather than personal. Id. at ¶¶ 9-11.
In sum, the challenged conduct here — the
communications made by Paine to officials at ACT — could amount
to a retaliatory action that adversely affected the plaintiff's
constitutionally protected speech. Whether that conduct

amounted to a threat of unfair treatment to ACT as a vendor
(and, in turn, the plaintiff), thereby making the conduct
actionable, depends on the interpretation of those
communications, which must be resolved by the trier of fact,
rather than the court on summary judgment. Moreover, whether
the harm to plaintiff’s free speech rights was more than de
minimis similarly hinges on whether those communications
amounted to a threat.

Standing
For reasons largely overlapping with the analysis of
the second Suarez element, plaintiff has sufficiently
demonstrated that he has standing. To meet the Article III
standing requirement, “the party invoking federal court
jurisdiction must show that (1) it has suffered an injury in
fact, (2) the injury is fairly traceable to the defendants'
actions, and (3) it is likely, and not merely speculative, that
the injury will be redressed by a favorable decision.” Long

Term Care Partners, LLC v. United States, 516 F.3d 225, 230–31
(4th Cir. 2008) (citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 560–61, (1992)); see also Friends of the Earth, Inc. v.
Gaston Copper Recycling Corp., 204 F.3d 149, 154 (4th Cir. 2000)
(en banc). The rigid Article III standing requirements are
“somewhat relaxed in First Amendment cases” and “[t]he leniency
of First Amendment standing manifests itself most commonly in
the doctrine's first element: injury-in-fact.” Cooksey v.
Futrell, 721 F.3d 226, 235 (4th Cir. 2013).

The injury-in-fact prong is met by the showing of “an
invasion of a legally protected interest which is (a) concrete
and particularized and (b) actual or imminent, not conjectural
or hypothetical.” Lujan, 504 U.S. at 560. “In First Amendment
cases, the injury-in-fact element is commonly satisfied by a
sufficient showing of self-censorship, which occurs when a
claimant is chilled from exercising h[is] right to free
expression.” Cooksey, 721 F.3d at 235 (internal quotation marks
omitted). Plaintiff has demonstrated sufficiently at the
summary judgment stage that his speech was chilled and thus has
suffered an injury-in-fact. He avers that conduct attributable
to defendants caused him to fear how his client would be treated
by WVDE and because of that concern, he decided to not identify
or mention the WVDE or its officials in social media posts on

Twitter and deleted certain posts that he believed had upset
defendants. ECF No. 72-1 at ¶¶ 7,8. This kind of chilling, for
which plaintiff has shown a triable issue, represents an actual,
particularized, and concrete invasion into his First Amendment
rights. The injury is fairly traceable to the allegedly
retaliatory threats made by defendants and is likely to be
redressed by a favorable decision of the court.

c. Whether Plaintiff’s Speech Caused Defendants’
Allegedly Retaliatory Conduct
Finally, the third element of the claim is whether
there was a causal connection between plaintiff’s First
Amendment activity and the defendants’ conduct. To demonstrate

the causal connection, a plaintiff “must show, at the very
least, that the defendant was aware of [plaintiff’s] engaging in
protected activity.” Constantine, 411 F.3d at 501 (citing Dowe
v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653,
657 (4th Cir. 1998). Additionally, ”[t]here must also be some
degree of temporal proximity to suggest a causal connection.”
Id.

The causal connection here, that is, whether
defendants’ communications with ACT officials were caused by
plaintiff’s protected activity, is plain and uncontroverted in
the evidence. Defendants collected plaintiff’s social media
posts and sent those posts to ACT with the apparent purpose of
having ACT do something about it. Defendants also directly
contacted agents of ACT on other occasions to complain of
plaintiff’s comments. Moreover, the actions were close in time
to the protected activity. Defendants have not raised an

argument that there is not a causal connection between
plaintiff’s speech and defendants’ conduct. Therefore, summary
judgment in favor of plaintiff is appropriate with regard to the
third element.
2. Qualified Immunity

Defendants argue that they are entitled to dismissal
of plaintiff’s claim of First Amendment retaliation based on
qualified immunity. Given that the facts viewed in a light most
favorable to plaintiff establish the violation of a
constitutional right for purposes of defendants’ motion for
summary judgment, the court now addresses whether that right was
clearly established at the time defendants allegedly violated
it. The Supreme Court has instructed that “[t]he relevant,
dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer
that his conduct was unlawful in the situation he confronted.”
Saucier v. Katz, 533 U.S. 194, 201 (2001). “[I]n determining

whether a right has been specifically adjudicated or is
manifestly apparent from broader applications of the
constitutional premise in question, we may consider decisions of
the Supreme Court, this Court, and the Supreme Court of Appeals
of West Virginia.” Blankenship, 471 F.3d at 533 (citation
omitted). “The burden of proof and persuasion with respect to a
defense of qualified immunity rests on the official asserting
that defense.” Meyers v. Baltimore County, Md., 713 F.3d 723,
731 (4th Cir. 2013).

Defendants argue that they are entitled to summary
judgment as “it was entirely reasonable for Drs. Paine and Barth
to believe it necessary to advise ACT of Plaintiff’s conduct as
it was misinformative and potentially detrimental to West
Virginia students, teachers, and the WVDE’s relationship with
the state legislators, where schools receive their funding.”
ECF No. 71 at 29. They support this position solely with
Barth’s testimony that she subjectively believed she had an
“obligation” and “responsibility” to inform plaintiff’s
supervisor of what she considered to be misleading posts. Id.
(citing ECF No. 70-4 at 224:19-225:1). They do not cite
supporting testimony by Paine.

Defendants have not met their burden in showing that
plaintiff’s rights were not clearly established at the time of
injury. The relevant inquiry on the “clearly established” prong
is an objective one, whether plaintiff’s right, found to have
been violated, was clearly established based on applicable,
binding precedent. Defendants do not explain how their supposed
responsibility to correct these social media posts might
overcome plaintiff’s First Amendment rights and they present no

argument as to why it can be said that those First Amendment
rights were not clearly established at the time of the injury.
The Fourth Circuit has held that “[i]t is well
established that a public official may not misuse his power to
retaliate against an individual for the exercise of a valid
constitutional right.” Blankenship, 471 F.3d at 533 (quoting

Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001) (citing
Suarez, 202 F.3d at 685)). The court in Blankenship found that
a plaintiff’s First Amendment right to be free from adverse
regulatory action in retaliation for speech is violated by a
threat, coercion, or intimidation, intimating that punishment,
sanction, or adverse regulatory action will imminently follow.
Id. “The specific right at issue here, the right to be free of
threats of imminent, adverse regulatory action due to the
exercise of the right to free speech, was clearly established by
this Court in Suarez.” Id. Defendants are not entitled to
summary judgment based on qualified immunity.

B. Count II: Tortious Interference with Business Relations

Plaintiff alleges in Count II that defendants
tortiously interfered with his business relations with ACT. ECF
No. 1, ¶¶ 120-129. To establish tortious interference with a
contract or business relationship, a plaintiff must show (1) the
existence of a contractual or business relationship or
expectancy; (2) an intentional act of interference by a party
outside that relationship or expectancy; (3) proof that the
interference caused the harm sustained; and (4) damages. Syl
Pt. 5, Hatfield v. Health Mgmt. Assocs. of W. Va., 672 S.E.2d
395, 403 (W.Va. 2008) (quoting Syl. Pt. 2, Torbett v. Wheeling
Dollar Sav. & Trust Co., 314 S.E.2d 166 (W.Va. 1983)). As the

Supreme Court of Appeals of West Virginia has explained:
If a plaintiff makes a prima facie case, a defendant may prove
justification or privilege, affirmative defenses. Defendants
are not liable for interference that is negligent rather than
intentional, or if they show defenses of legitimate
competition between plaintiff and themselves, their financial
interest in the induced party's business, their
responsibility for another's welfare, their intention to
influence another's business policies in which they have an
interest, their giving of honest, truthful requested advice,
or other factors that show the interference was proper.
Id. (quoting Syl. Pt. 2, Torbett, 314 S.E.2d 166).
Defendants argue principally that they are entitled to
summary judgment because there is no evidence of a causal
connection between defendants’ conduct and plaintiff’s loss of a
business relationship or expectancy. Defendants emphasize the
portion of ACT’s corporate testimony in which it testified
through Kratzer that Paine never requested that plaintiff be
disciplined. See Kratzer Dep., ECF No. 70-2 at 142:6-12.
Defendants also contend that the communications that defendants
had with ACT played no part in ACT’s decision to terminate the
consulting agreement or to terminate its activities within West

Virginia. See id. at 57:14-23.
Plaintiff, in his own summary judgment motion and in
his response to defendants’ motion, advances two arguments in
relation to the third prong, that defendants’ interference
caused his loss. First, he argues that ACT’s testimony is not
conclusive of causation and that there is “circumstantial

evidence” that defendants’ conduct caused his loss of business
with ACT.2 Plaintiff points to the conduct considered above in

2 The court notes that, though not argued by defendants, the
operative complaint, ECF No. 1, does not plead plaintiff’s loss
resulting from ACT’s decision to terminate the contract, which
occurred after the filing of the complaint.
relation to the second element of Count I, including Paine’s
text messages to ACT’s leadership criticizing their failure “to
hold Webb in check,” Paine’s call to the CEO of ACT, and Barth’s
email to ACT disparaging Webb. Second, plaintiff argues that
defendants’ “pressure campaign” burdened his ability to perform

on the contract, so that even if ACT’s declination to continue
the contractual relationship was unrelated to the pressure
campaign, Paine and Barth still successfully impaired his
contractual relationship. In relation to this argument, he
claims that he suffered added day-to-day burdens on his
contractual performance prior to termination, damage to his
reputation, and emotional distress and mental anguish because of
defendants’ allegedly tortious interference.

When asked why ACT exercised its contractual
termination option, Kratzer, as ACT’s corporate representative,
testified, as earlier noted, that ACT decided to not continue
its engagement in West Virginia for three reasons: the filing of
this lawsuit by Webb, the “political landscape” changing in the
West Virginia legislature, and the fact that ACT was “getting
nowhere with the [WVDE] with regard to District Choice.” ECF
No. 68-7 at 61:1-6. Kratzer added, “[s]o when you take all
those three things together, the decision was made not to move
forward with our engagement in West Virginia.” Id. at 61:7-9.
Kratzer specifically testified that nothing Paine or Barth may
have communicated with ACT regarding plaintiff had any part in
ACT’s decision to terminate the contract. ECF No. 70-2 at 57.
The evidence plaintiff presents, viewed in a light most
favorable to him, does not show that defendants caused ACT to

end the business relationship with plaintiff, even if it be
found that defendants’ communications were a threat of imminent
harm. Rather, it simply shows that defendants were frustrated
with plaintiff’s social media activity and repeatedly shared
that fact in discussions with ACT representatives, with the aim
of having ACT caution or temper plaintiff, or perhaps even
terminate its contract with plaintiff. While this may be
evidence of an intentional act of interference by defendants, it
is not evidence that such interference caused the termination of
plaintiff’s contract.

Plaintiff’s claim that ACT’s difficulty in getting the
local option approved by WVDE, a stated reason for ACT’s
termination of the contract, may have been based on defendants’
disapproval of his social media posts is not substantiated by
any evidence presented. Moreover, defendants have produced
uncontroverted evidence that WVDE was engaged in a cooperative
process with ACT to achieve local choice and that the process
was voluntarily terminated by ACT through its email notice on
May 2, 2019, after running into obstacles in meeting U.S.
Department of Education requirements. ECF Nos. 70-17 at 69-73,
70-53. ACT’s decision to withdraw came just five weeks after
Governor Justice’s March 27, 2019 veto of SB 624, the local
option bill, and its decision to terminate its lobbying contract

with plaintiff came within one week of plaintiff’s filing of
this action. Indeed, Kratzer testified that ACT has not
employed an outside lobbyist in West Virginia since terminating
plaintiff. ECF No. 70-2 at 70. Thus, plaintiff has not shown a
material issue of fact supporting his claim that defendants
caused the termination of his relationship with ACT. Rather,
ACT, having chosen to withdraw, had no further need for
plaintiff’s lobbying services.

Plaintiff’s second argument, that defendants caused
not just the termination of the contract but also smaller,
continual injuries, is premised on §766A of the Restatement
(Second) of Torts, which has not been adopted by the West
Virginia Supreme Court of Appeals. A number of courts, citing
to §766A, have recognized recovery of damages against a
defendant who makes plaintiff’s performance of the contract more
burdensome or expensive. Section 766A provides:
One who intentionally and improperly interferes with the
performance of a contract (except a contract to marry) between
another and a third person, by preventing the other from
performing the contract or causing his performance to be more
expensive or burdensome, is subject to liability to the other
for the pecuniary loss resulting to him.
Comment g of §766A explains that interference can be effected in
numerous ways, including performance being “made more expensive
to [the plaintiff], so that he loses all or part of the profits
that he would otherwise have obtained, or is subjected to a
financial loss.” This is in contrast with §766 of the
Restatement (Second), which requires that the improper
interference induce or cause the third party to not perform or
to breach the contract with plaintiff. As the Third Circuit has
characterized it, §766 claims are “inducement torts,” in that
the defendant induces a third party to act in a manner

detrimental to the plaintiff. Windsor Securities, Inc. v.
Hartford Life Ins. Co., 986 F.2d 655, 660 (3d Cir. 1993).
Claims based on §766A are “hinder[ance] torts,” meaning the
defendant hinders the plaintiff’s performance of its obligations
to the third party. Id. The Windsor court explained that the
two Restatement sections embody “different effects and
justifications.” Id. at 661.

The West Virginia Supreme Court of Appeals has not had
occasion to address whether a tortious interference claim may be
based on a theory of hinderance, rather than a theory of
inducement. The Supreme Court of Appeals has “relied upon the
Restatement for guidance in outlining elements of and defenses
to improper interference but, of course, [is] not tied to its
categories and definitions.” Torbett, 314 S.E.2d at 172-73
(referencing Restatement (Second) §§766B, 766C, 767-772). The
Supreme Court of Appeals has also selectively relied on §766.
See Tiernan v. Charleston Area Medical Center, Inc., 506 S.E.2d

578, 591 n.20 (W.Va. 1998); but see Ferrell v. Rose, 2011 WL
13364564 at *2 (W.Va. May 27, 2011) (declining to adopt
Restatement (Second) §766 cmt. j).
Liability based on a hinderance theory has been
recognized by a number of courts. E.g., Herman v. Endriss, 446
A.2d 9, 10 (Conn. 1982); Shafir v. Steele, 727 N.E.2d 1140,

1143-44 (Mass. 2000); Wilspec Technologies, Inc. v. Dunan
Holding Group, Ltd., 204 P.3d 69, 70 (Okla. 2009); Magnum Radio,
Inc. v. Brieske, 577 N.W.2d 377, 379 (Wis. 1998). Still,
several courts and commentators have expressed skepticism about
such liability. Price v. Sorell, 784 P.2d 614, 616 (Wy. 1989);
Koehler v. County Grand Forks, 658 N.W.2d 741, 748 (N.D. 2003);
White v. Ransmeier & Spellman, 950 F.Supp. 39, 41 n.2 (D.N.H.
1996); CMI, Inc. v. Intoximeters, Inc., 918 F.Supp. 1068, 1079–
80 (W.D.Ky.1995); 2 Dan B. Dobbs, Law of Torts § 448 (2001). In
Price, the Wyoming Supreme Court declined to extend liability to
hinderance torts as provided for in §766A, even though the court
had previously relied on §§ 766 and 766B, finding that the mere
requirement to show performance became more “expensive or
burdensome” would allow a plaintiff to recover where proof of
damages is “too speculative and subject to abuse to provide a
meaningful basis for a cause of action.” 784 P.2d at 616. The
court contrasted §766A with §§ 766 and 766B, in which “breach or

non-performance of a contract, or the loss of a prospective
contractual relation, is a reasonably bright line that reduces
the potential for abuse of the causes of action.” Id.
The Third Circuit, interpreting Pennsylvania law,
predicted, without holding, that the Pennsylvania Supreme Court
would likely decline to adopt §766A, characterizing it as an

“amorphous” expansion of liability that is “ill-conceived,
threatening both fairness and efficiency.” Windsor, 986 F.2d at
663 (citing numerous commentators); see also CMI, Inc., 918
F.Supp. at 1079 (“The actual language of §766A is so all
encompassing and vague that to adopt it directly would cause
tremendous confusion without creating a clear societal
benefit.”). The Third Circuit subsequently affirmed a trial
court’s dismissal of a §766A claim, reasoning that it is “too
speculative and subject to abuse to provide a meaningful basis
for a cause of action.” Gemini Phys. Therapy & Rehab., Inc. v.
State Farm Mut. Auto. Ins. Co., 40 F.3d 63, 66 (3d Cir.1994).3

This court can only speculate as to whether the West
Virginia Supreme Court of Appeals would follow the tort theory
embodied in §766A of the Restatement (Second). “A federal court
acting under its diversity jurisdiction should respond
conservatively when asked to discern governing principles of
state law.” Rhodes v. E.I. du Pont de Nemours & Co., 636 F.3d
88 (4th Cir. 2011) (declining to predict whether the West
Virginia Court of Appeals would adopt certain Restatement
(Second) provisions); see Time Warner Entertainment v. Cavaret–

Craven Elec. Membership Corp., 506 F.3d 304, 315 (4th Cir. 2007)
(“[A]s a court sitting in diversity, we should not create or
extend [state] common law.”); see also Anderson v. Marathon
Petroleum Co., 801 F.2d 936, 942 (7th Cir.1986) (“[F]ederal
court is not the place to press innovative theories of state
law.”). When federal courts are “faced with opposing plausible
interpretations of state law, we generally choose the narrower
interpretation which restricts liability, rather than the more

3 The lower state courts of Pennsylvania have not uniformly
followed the Third Circuit’s reasoning. Compare Biofeedback
Grp., Inc. v. State Farm Mut. Auto. Ins. Co., 1996 WL 1358442
(Pa.Ct.Com.Pl. 1996) (agreeing with the Third Circuit’s
rationale) with P.V.C. Realty ex rel. Zamias v. Weis Markets,
2000 WL 33406981, at *16–17 (Pa.Ct.Com.Pl. Dec. 19, 2000)
(recognizing a claim under §766A).
expansive interpretation which creates substantially more
liability.” Birchler v. Gehl Co., 88 F.3d 518, 522 (7th Cir.
1996). Plaintiff’s second argument for surviving summary
judgment is predicated on a broad expansion of liability under
West Virginia state law and there are few, if any, indications

given by the Supreme Court of Appeals that it would take that
path if presented with the question. Consequently, plaintiff’s
second argument fails, and summary judgment should be granted as
to Count II – Tortious Interference with Contract.4
C. Count III: Civil Conspiracy

In Count III, plaintiff claims that defendants were
engaged in a conspiracy to violate his First Amendment rights
and tortiously interfere with his business relationship with
ACT. ECF No. 1 at ¶¶ 130-36. “A civil conspiracy is a
combination of two or more persons by concerted action to
accomplish an unlawful purpose or to accomplish some purpose,
not in itself unlawful, by unlawful means.” Syl. Pt. 3, Jane

Doe-1 v. Corp. of President of The Church of Jesus Christ of
Latter-day Saints, 801 S.E.2d 443 (W. Va. 2017) (quoting Syl.

4 Defendants also argue that they are entitled to summary
judgment on Count II based on the affirmative defenses that
their conduct was legally justified or privileged, as well as
the application of state qualified immunity. The court need not
reach these arguments.
Pt. 8, Dunn v. Rockwell, 689 S.E.2d 255 (2009)). Civil
conspiracy is not an independent basis for recovery but instead
a doctrine for assigning liability to “people who did not
actually commit a tort themselves but who shared a common plan
for its commission with the actual perpetrator(s).” Syl. Pt. 4,

Id. (quoting Syl. Pt. 9, in part, Dunn, 689 S.E.2d 255).
Because the right to recover for civil conspiracy is
derivative of the underlying claim, summary judgment in favor of
defendants is warranted insofar as it relates to civil
conspiracy to tortiously interfere with plaintiff’s business
relations. See Bennett v. Skyline Corp., 52 F.Supp.3d 796, 814

(N.D. W.Va. 2014) (“Courts have granted summary judgment or
dismissal as to claims of civil conspiracy when there is no
underlying tort to support the claim.”). Similarly, as it
relates to civil conspiracy to violate plaintiff’s First
Amendment rights, there remains a genuine issue of material fact
regarding the underlying First Amendment retaliation claim, and
thus neither party is entitled to summary judgment on the issue
of whether the underlying conduct was unlawful.

Thus, the sole remaining inquiry is whether there is a
genuine issue of material fact as to whether defendants’
underlying conduct giving rise to the First Amendment claim was
concerted. Plaintiff argues that Barth was a “partner and
conduit through which Paine directed and implemented the
campaign of retaliation and interference against Webb.”
Communications between Paine and Barth show that they discussed
their mutual feeling that plaintiff’s posts were frustrating and
duplicitous, and that he was undermining their work at WVDE.

Paine testified that he met with Barth to discuss Webb’s “tweets
and posts” and he directed her to have someone compile those
posts. Those posts were discussed in Paine’s communications
with ACT representatives and the CEO of ACT.
Defendants do not contest the above evidence or
present an argument for why it would not amount to concerted

action, except to deem these facts “mere speculation,
relationship, or association.” ECF No. 74 at 15 (quoting Brown
v. Kerkhoff, 504 F.Supp.2d 464, 526 (S.D. Ia. 2007)) (internal
modifications omitted). A reasonable trier of fact which found
that defendants’ conduct amounted to First Amendment retaliation
could also find that defendants’ conduct was done in concert.
The evidence demonstrates that Paine and Barth felt similarly
about the social media posts and Barth’s acts of collecting
social media posts and contacting ACT officials furthered the
alleged retaliation against Webb. Therefore, neither party is
entitled to summary judgment as to whether the defendants acted
in concert as charged in Count III insofar as it relates to the
First Amendment retaliation claim.

IV. Conclusion
It is accordingly ORDERED that:

1. Plaintiff’s motion for summary judgment be, and it
hereby is, granted as to the first and third
elements of Count I.

2. Plaintiff’s motion for summary judgment, be and it
hereby is, denied as to Counts II and III, as well
as the second element of Count I.
3. Defendants’ motion for summary judgment be, and it
hereby is, granted as to Count II, and to Count III

to the extent Count III is based on civil conspiracy
to tortiously interfere with plaintiff’s business
relationship.
4. Defendants’ motion for summary judgment be, and it
hereby is, denied as to Count I, and Count III to
the extent Count III is based on civil conspiracy to

violate plaintiff’s First Amendment rights.
The Clerk is directed to transmit this memorandum
opinion and order to all counsel of record.

ENTER: January 26, 2021

De,
Jo . Copenhaver, Jr.
Senior United States District Judge

46

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10729471. Public record. Not legal advice.