Medical Properties Trust, Inc. v. Viceroy Research, LLC

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MEDICAL PROPERTIES TRUST, INC., }

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Plaintiff, }

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v. } Case No.: 2:23-cv-00408-RDP

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VICEROY RESEARCH, et al., }

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Defendants. }

MEMORANDUM OPINION

I. Introduction

This action is before the court on Defendants Viceroy Research (“Viceroy”) and Fraser

Perring’s 12(b)(2) Motion to Dismiss (Doc. # 16) and Defendant Viceroy’s 12(b)(6) Motion to

Dismiss. (Doc. # 17). Defendants’ Motions have been fully briefed (Docs. # 16, 34, 40 and 17, 33,

39, respectively) and are ripe for review. After careful review, and for the reasons discussed below,

Defendants’ 12(b)(2) Motion (Doc. # 16) is due to be denied, and Viceroy’s 12(b)(6) Motion (Doc.

# 17) is due to be granted in part and denied in part.

II. Background

This case arises out of Defendants Viceroy, Perring, Gabriel Bernarde, and Aidan Lau’s

(collectively “Defendants” or “Individual Defendants” when referencing Perring, Bernarde, and

Lau) alleged efforts to manipulate Plaintiff Medical Properties Trust’s (“Plaintiff” or “MPT”)

stock price in order to profit on its short position. On March 30, 2023, Plaintiff filed this action

alleging defamation and other state law claims

A. MPT’s Business Practices

Plaintiff MPT is a real estate investment trust (“REIT”) that acquires, develops, and invests

in healthcare facilities. (Doc. # 1 ¶ 10). MPT has long been one of Alabama’s largest and most

prominent publicly traded companies, and its largest REIT. (Id. ¶ 1). MPT acquires and develops

healthcare facilities to lease out to operating companies under long-term net leases, which require

tenants to bear most of the costs associated with the properties. (Id. ¶ 20). A typical lease provides

for a term of at least 15 years with a series of short renewal options. (Id. ¶ 22). MPT’s business

model is centered around steady, long-term returns for its investors. (Id. ¶ 24). To that end, MPT

underwrites real estate investments that are attractive to hospital operators, so that if one operator

must break its lease, a replacement operator will soon assume the lease. (Id.).

Among the characteristics MPT looks for in evaluating hospital real estate are: (1)

good physical quality reflecting a history of maintenance and improvements; (2)

location in a strong market, with measurable patient demand growth, sustainable

reimbursement sources, and features that attract a dedicated workforce; (3) a

geographic environment in which the operator is likely to hold a strong competitive

position; and (4) facility-level operations with strong EBITDARM (earnings before

interest, taxes, depreciation, amortization, rent, and management fees) coverage of

lease payments.

(Id.). MPT reasons that a medical facility meeting these criteria is likely to reflect a true

“community need,” meaning its success is not dependent on a given operator. (Id.).

For example, in 2016 and 2018, MPT purchased nine Massachusetts hospitals from

hospital operator Steward Health Care System for approximately $1.3 billion. (Id. ¶ 25). In 2022,

private equity firm Macquarie Asset Management entered into a joint venture with MPT for eight

of those Massachusetts hospitals, which had a total valuation of about $1.7 billion, an increase in

value over the purchase price of some $400 million. In the interim, those hospitals had yielded

about $475 million in income for MPT. (Id.). This is MPT’s bread and butter: invest in an attractive

facility, generate income from that facility, then sell the facility for a profit.

MPT currently has investments in 444 facilities, the vast majority of which are leased to

55 tenants. (Id. ¶ 26). Its revenues exceeded $1.5 billion in 2022, making it “one of the largest

REITS in the healthcare sector and among the largest publicly traded companies in Alabama,

where the majority of its employees are located.” (Id.). MPT has retained PricewaterhouseCoopers

(“PwC”) as its independent auditor since 2008. (Id. ¶ 28). Every year since 2008, “PwC has issued

an unqualified opinion that MPT’s financial statements ‘present fairly, in all material respects, the

financial position of’ the Company and ‘the results of its operations and its cash flows’ for the

relevant periods in conformity with generally accepted accounting principles.” (Id. ¶ 29).

B. Short-Selling and Short-and-Distort Campaigns

Taking a short position involves a bet that a stock’s price will fall. A trader takes a short

position by “sell[ing] a security first with the intention of repurchasing … later at a lower price.”

James Chen, Short Position: Meaning, Overview, and FAQs, Investopedia (Sept. 12, 2022)

https://www.investopedia.com/terms/s/short.asp. Because a stock’s price can never fall below $0,

the short-seller’s potential profit is capped. But, because there is no limit to how high a stock price

may rise, short sellers “face unlimited downside risk.” (See id.).

Because the risk inherent in short selling is so high, some short sellers engage in “short-

and-distort” campaigns. (Doc. # 1 ¶ 31). That is, they “publish[] … or otherwise promoting false

and misleading information about the companies they bet against.” (Id.). Doing so allows short

sellers to “drive down those companies’ stock prices and generate profit for themselves.” (Id.).

The Securities and Exchange Commission has recently proposed a rule designed in part to combat

these illegal short-and-distort campaigns. 87 F.R. 14950, 14991-94 (Mar. 16, 2022) (“[I]f short

and distort type behavior were to be suspected, then the Commission would be more likely to

identify individuals with large short positions and could thus quickly focus any inquiries on entities

in an economic position to potentially profit from manipulation.”).

C. Viceroy and the Individual Defendants’ Accusations Against MPT

Defendant Viceroy is a financial research firm founded by Fraser Perring, a citizen of the

United Kingdom, along with Gabriel Bernarde and Aidan Lau, both Australian citizens. (Id. ¶ 11).

On January 26, 2023, Viceroy published a report titled “Medical Properties (dis)Trust,” in which

it noted that it had a short position in MPT. (Doc. # 1 ¶ 41). That same day, Viceroy and the

Individual Defendants began using their Twitter accounts to promote their report and otherwise

criticize MPT. (Id. ¶ 42). Defendants went on to publish 13 more reports on MPT, purportedly

consisting of research on MPT’s business practices. (Id.). In each of these reports, and in a

February 2, 2023 letter Defendants published to Twitter, Viceroy claims to have analyzed and

found wanting “the accounting treatment MPT has applied in its financial statements.” (Id. ¶ 43).

MPT identifies four categories of misrepresentations that it asserts subject Defendants to liability:

(1) false accusations of “round-tripping;” (2) false characterizations of MPT’s executive

compensation formula; (3) false accusations of lying about dealings with operator-tenant Steward;

and (4) false accusations of fraud and criminal activity. (Id. ¶ 45).

1. Round-Tripping

Round-tripping occurs when a party transacts with a counterparty to provide funds with

the understanding that the counterparty will later return those funds in a second transaction. (Id. ¶

46). The original party then records the returned funds as revenue. (Id.). For example, A agrees to

sell B a pencil for $1. At the outset, both parties agree that A will later purchase the same pencil

from B for the same price at which A sold it. When A re-purchases the pencil from B, B records a

$1 revenue infusion despite no additional revenue going into its coffers.

Plaintiff provides several examples of Defendants accusing it of round-tripping. (Id. at ¶¶

47-54). Among these allegedly “false, misleading, and defamatory” statements were accusations

that: (1) MPT’s rent was round tripped by fake purchases of massively inflated assets; (2) MPT

has engaged in billions of dollars of uncommercial sale-leaseback transactions; (3) MPT appeared

to constantly overpay for fire sale assets by as much as 10x, “which in turn allow debt-crippled

tenants to meet their financial rent obligations as and when they fall due in the short term;” and (4)

MPT paid $27.5 million to build a hospital near Houston, Texas despite the total cost of

development and market value being only $9.1 million. (Id.).

2. Executive Compensation

Viceroy also claimed that MPT executives profited under an executive compensation

program that “encourage[d] an aggressive, acquire-at-any-cost policy which ultimately align[ed]

with a revenue round-tripping model.” (Id. ¶ 55). Viceroy further claimed that, because

acquisitions were a factor in its calculation, this compensation structure led MPT management to

“consistently scrape[] the bottom of the barrel in its search for new properties and new tenants.”

(Id.). MPT alleges that these statements are false, misleading, and defamatory because (1) after

total acquisition value reaches a certain threshold (which was well surpassed in 2020 and 2021),

executives receive no credit per new acquisition; and (2) poorly performing acquisitions negatively

affect other compensation inputs. (Id. ¶ 56-57). So, any conceivable advantage an executive might

receive from blindly acquiring unprofitable properties is negated by the harm such a strategy would

do to the executive’s bottom line.

3. Allegations of Concealment

MPT maintains an extensive business relationship with operator-tenant Steward Healthcare

Systems, the largest private physician-led healthcare network in the United States. (Id. ¶ 58). MPT

also has a direct equity stake in Steward of just under 10% and has made loans to Stewart that

MPT deemed beneficial. (Id.). Despite past success in its dealings with Steward, MPT informed

its investors on earnings calls that it has sought to diversify its portfolio and reduce its relative

exposure to Steward. (Id.).

One of Viceroy’s lines of attack on MPT concerned MPT’s relationship with Steward.

Viceroy allegedly released a series of reports claiming that MPT is “deliberately concealing a

secret ownership in certain Steward-connected hospitals in Malta.” (Id. ¶ 59). Specifically, Viceroy

(1) claimed that MPT “paid $205m for 3 hospitals worth $27m in Malta that were purportedly

under investigation for corruption” (Id. ¶ 63) (internal quotations omitted); (2) published an

organizational chart that showed MPT as an owner of “Steward Malta” (Id. ¶ 65); and (3)

repeatedly accused MPT of fraudulently concealing its investment in Maltese hospitals. (Id. ¶¶ 66-

69). MPT denies any direct investment in Maltese hospitals.1

4. Public Accusations of Fraud

In addition to the allegedly defamatory statements included in Viceroy’s reports, Viceroy

and the Individual Defendants have taken to social media to accuse MPT of fraud and other

criminal wrongdoing. For example, throughout February 2023, Defendant Perring tweeted

separately that: (1) MPT “is verging on the largest US #Healthcare #fraud;” (2) MPT and Steward

are “#Fraudulent piece[s] of [expletive];” (3) MPT is a “#ponzi scheme reliant on #RoundTripping,

insane #AFFO, with @Steward & #MPW are part of an international corruption investigation.

#Fraud everywhere…to quote one great man, #ItsAScam;” (4) MPT and Steward are “bad actors,

with fraudulent and deceitful operations.” (Id. ¶ 71). Perring also repeatedly assured his Twitter

1 In its Complaint, MPT outlines its relationship to the hospitals in Malta in detail. (Doc. # 13 ¶¶ 60-62). But,

it is unnecessary for the court to address the description of that relationship here.

followers that MPT executives would soon be criminally charged and imprisoned for their

wrongdoing, and that MPT would soon be mired in class action lawsuits. (Id. ¶ 72).

D. Viceroy’s Disclaimers

In each of its reports on MPT, Viceroy included a blanket disclaimer that the report “has

been prepared for educational purposes only and expresses [Viceroy’s] opinion,” and that no

information in the report should be construed as “an opinion on the merits or otherwise of any

particular investment or investment strategy.”(Id. ¶ 74). For its part, MPT alleges that “the false,

misleading, and defamatory statements identified in [its] Complaint are not ‘opinions’ or ‘beliefs’

but rather statements of purported fact, whose fundamental character cannot be altered by

disclaimers.” (Id. ¶ 76).

E. Other Allegations

1. Conspiracy

In addition to its defamation claims, MPT alleges that Viceroy has conspired with another

financial research firm who shares an interest in driving MPT’s stock price down. That firm,

unnamed in the Complaint, generates revenue from subscriptions and benefits when its predictions

about particular stocks pan out. (Id. ¶ 78). To that end, agents of the conspirator firm have allegedly

amplified Viceroy’s attacks on MPT and engaged in similar attacks on social media in an effort to

harm MPT. (Id. ¶ 79-80).

2. Conduct Directed at Alabama

MPT claims that Viceroy knew MPT was headquartered in Birmingham, Alabama, and

that its executives and employees primarily lived and worked in Birmingham when it began these

allegedly defamatory attacks. (Id. ¶ 81-82). As a result, MPT contends that Viceroy could have

reasonably expected that MPT “would suffer the effects of [Viceroy’s] defamatory falsehoods in

Alabama.” (Id. ¶ 82). Indeed, not only did MPT repeatedly disclose its principal place of business

in public securities filings, but Viceroy acknowledged that it knew MPT was located in

Birmingham. (Id.). In January 2023, Viceroy tweeted: “[i]n 2003 HealthSouth executives admitted

their involvement in similar accounting #fraud to [MPT]. Like [MPT] they were based in

Birmingham, Alabama.” (Id.). Additionally, the February 2, 2023 letter Viceroy posted to Twitter

was addressed to a partner in PwC’s Birmingham office. (Id. ¶ 83). Finally on February 13 and 14,

2023, Plaintiff alleges that a conspirator travelled to Alabama to conduct diligence concerning

MPT. (Id.).

3. Concrete and Ongoing Harm to MPT

In March 2023, Steward sought to broker a deal with a Texas health system involving an

MPT-owned hospital. (Id. ¶ 85). But, the health system backed out of the deal, citing a Viceroy

report and publicly stating that its “mission and values are not aligned with Medical Properties

Trust.” (Id.). Further, S&P Global Ratings downgraded MPT’s issuer credit rating, which raised

MPT’s cost of borrowing money. (Id. ¶ 87). MPT also believes that Viceroy’s actions have strained

its relationship with bondholders. (Id.). MPT points to a report by market research firm Green

Street in which it notes that Viceroy “contributed to the sell-off in [MPT’s] share price.” (Id. ¶ 88)

(alterations in original). Finally, in its pleadings, MPT details the cost it has been forced to incur

to retain employees and increase security at its Birmingham headquarters in response to

Defendants’ attacks on MPT and its executives. (Id. ¶ 89).

III. Legal Standards

A. Rule 12(b)(2) Motion to Dismiss

A Rule 12(b)(2) motion tests the court’s exercise of personal jurisdiction over a defendant.

See Fed. R. Civ. P. 12(b)(2). “A plaintiff seeking the exercise of personal jurisdiction over a

nonresident defendant bears the initial burden of alleging in the complaint sufficient facts to make

out a prima facie case of jurisdiction.” United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th

Cir. 2009); see Posner v. Essex Ins. Co., 178 F.3d 1209, 1214 (11th Cir. 1999) (“A plaintiff seeking

to obtain jurisdiction over a nonresident defendant initially need only allege sufficient facts to

make out a prima facie case of jurisdiction.”).

“A federal district court in [Alabama] may exercise personal jurisdiction over a nonresident

defendant to the same extent that [an Alabama state] court may, so long as the exercise is consistent

with federal due process requirements.” Licciardello v. Lovelady, 544 F.3d 1280, 1283 (11th Cir.

2008); see Ala. R. Civ. P. 4.2. The Supreme Court recognizes two types of personal jurisdiction

that are consistent with these requirements: general jurisdiction and specific jurisdiction. See

Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923-24 (2011). Only the court’s

exercise of specific jurisdiction is at issue here.

The court applies a two-part analysis in determining whether there is specific personal

jurisdiction over a nonresident defendant. See Cable/Home Cmmc’n Corp. v. Network Prods., Inc.,

902 F.2d 829, 855 (11th Cir. 1990); see also Alexander Proudfoot Co. World Headquarters L.P.

v. Thayer, 877 F.2d 912, 919 (11th Cir. 1989). First, the court considers the jurisdictional question

under the state long-arm statute. See Cable/Home Commc’n Corp., 902 F.2d at 855; see also

Alexander Proudfoot Co., 877 F.2d at 919. If there is a basis for asserting personal jurisdiction

under the state statute, the next question is whether sufficient minimum contacts exist to satisfy

the Due Process Clause of the Fourteenth Amendment such that “maintenance of the suit does not

offend ‘traditional notions of fair play and substantial justice.’” Int’l Shoe Co. v. Washington, 326

U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)); Cable/Home

Commc’n Corp., 902 F.2d at 855; Alexander Proudfoot Co., 877 F.2d at 919. A federal court may

exercise personal jurisdiction over a nonresident defendant only if both prongs of the analysis are

satisfied.

Federal courts are required to construe the Alabama long-arm statute the same way the

Supreme Court of Alabama would. See Oriental Imports & Exports, Inc. v. Maduro & Curiel’s

Bank, N.V., 701 F.2d 889, 890-91 (11th Cir. 1983). Alabama’s long-arm statute permits personal

jurisdiction to the extent it “is not inconsistent with the [Alabama Constitution] or the Constitution

of the United States.” Ala. R. Civ. P. 4.2(b). Thus, the question here is whether assertion of

personal jurisdiction over Defendants comports with the Fourteenth Amendment’s Due Process

Clause. See Olivier v. Merritt Dredging Co., 979 F.2d 827 (11th Cir. 1992) (citing Alabama

Waterproofing Co., Inc. v. Hanby, 431 So. 2d 141, 145 (Ala. 1983)).

The requirements of the Fourteenth Amendment’s Due Process Clause are met where (1)

the defendant has minimum contacts with the forum state, and (2) the exercise of personal

jurisdiction does not offend “traditional notions of fair play and substantial justice.” Olivier, 979

F.2d at 830-31; Madara v. Hall, 916 F.2d 1510, 1516 (11th Cir. 1990) (quoting International Shoe,

326 U.S. at 316). A defendant has established minimum contacts with the forum state when he has

“‘purposefully availed’ himself of the benefits of conducting activities in the forum, and the

litigation results from alleged injuries that ‘arise out of or relate to’ those activities.” Burger King

v. Rudzewicz, 471 U.S. 462, 472-73 (1985) (cleaned up); Consol. Dev. Corp. v. Sherritt, Inc., 216

F.3d 1286, 1291 (11th Cir. 2000).

A defendant purposefully avails itself of the privileges of conducting activities in a state

“where the contacts proximately result from actions by the defendant himself that create a

‘substantial connection’ with the forum State.” Burger King, 471 U.S. at 475 (quoting McGee v.

Int’l Life Ins. Co., 355 U.S. 220, 223 (1957)). “Thus[,] where the defendant deliberately has

engaged in significant activities within a State … or has created continuing obligations between

himself and residents of the forum, he manifestly has availed himself of the privilege of conducting

business there.” Id. at 475-76 (quoting Keeton v. Hustler Mag., Inc., 465 U.S. 770, 781 (1984);

Travelers Health Ass’n v. Virginia, 339 U.S. 643, 648 (1950)).

As the Supreme Court has consistently held, the mere foreseeability of causing injury in

another state is not a “sufficient benchmark” for exercising personal jurisdiction. Burger King, 471

U.S. at 474 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980)).

Rather, to be subject to the court’s in personam jurisdiction, a defendants’ “conduct and connection

with the forum state are such that he should reasonably anticipate being haled into court there.” Id.

(quoting Volkswagen, 444 U.S. at 297). In determining whether a defendant should have

reasonably anticipated litigation in the forum, the Court has held that it is “essential in each case

that there be some act by which the defendant purposefully avails itself of the privilege of

conducting activities within the forum State, thus invoking the benefits and protections of its laws.”

Hanson v. Denckla, 357 U.S. 235, 253 (1958) (emphasis added).

Alternatively, a plaintiff harmed by an intentional tort may be afforded the opportunity to

seek redress where the harm was felt even if the defendant has not otherwise purposefully availed

itself of that forum. Calder v. Jones, 465 U.S. 783, 790 (1984) (“[a]n individual injured in

California need not go to Florida to seek redress from persons who, though remaining in Florida,

knowingly cause the injury in California.”). The Calder effects test requires a showing that the

defendant (1) committed an intentional tort, (2) that was directly aimed at the forum, and (3) caused

an injury within the forum that the defendant should have reasonably anticipated. Oldfield, 558

F.3d at 1220 n.28 (citing Calder, 465 U.S. at 789-90) (outlining the prongs of the “effects” test).

In assessing whether litigation “arises out of” the activities in the forum state, the Eleventh

Circuit does not use “mechanical or quantitative” tests. See Oldfield v. Pueblo De Bahia Lora,

S.A., 558 F.3d 1210, 1222 (11th Cir. 2009). However, it is “not enough that there be some

similarity between the activities that connect the defendant to the forum and the plaintiff’s claim.”

Licciardello, 544 F.3d at 1285 n.3. A defendant’s contacts with the forum must be related to the

“operative facts of the controversy.” Id.

Finally, if a plaintiff can show that (1) a defendant purposefully availed itself of the laws

of the forum state; or (2) the Calder “effects” test is satisfied; and (3) its claims arise out of the

defendant’s activities in the forum state, then the burden shifts to the defendant to show that

exercising jurisdiction would offend traditional notions of fair play and substantial justice.

Volkswagen, 444 U.S. at 292. This requires the court to consider: (1) the burden that would be

placed on the defendant if jurisdiction is asserted; (2) the forum state’s interest in adjudicating the

dispute; (3) the plaintiff’s interest in obtaining “convenient and effective relief” in the forum; (4)

the interests of the “interstate judicial system” in obtaining the most efficient resolution of

controversies; and (5) the shared interests of the several states in furthering “fundamental

substantive social policies.” Id. (internal citations omitted).

B. Rule 12(b)(6)

The Federal Rules of Civil Procedure require that a complaint provide “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

However, the complaint must include enough facts “to raise a right to relief above the speculative

level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Pleadings that contain nothing more

than “a formulaic recitation of the elements of a cause of action” do not meet Rule 8 standards,

nor do pleadings suffice that are based merely upon “labels and conclusions” or “naked

assertion[s]” without supporting factual allegations. Id. at 555, 557. In deciding a Rule 12(b)(6)

motion to dismiss, courts view the allegations in the complaint in the light most favorable to the

non-moving party. Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007).

To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible

on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although “[t]he

plausibility standard is not akin to a ‘probability requirement,’” the complaint must demonstrate

“more than a sheer possibility that a defendant has acted unlawfully.” Id. A plausible claim for

relief requires “enough fact[s] to raise a reasonable expectation that discovery will reveal

evidence” to support the claim. Twombly, 550 U.S. at 556.

In considering a motion to dismiss, a court should “1) eliminate any allegations in the

complaint that are merely legal conclusions; and 2) where there are well-pleaded factual

allegations, ‘assume their veracity and then determine whether they plausibly give rise to an

entitlement to relief.’” Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App’x 136, 138

(11th Cir. 2011) (quoting Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010))

(emphasis added). That task is context specific and, to survive the motion, the allegations must

permit the court based on its “judicial experience and common sense . . . to infer more than the

mere possibility of misconduct.” Iqbal, 556 U.S. at 679. If the court determines that well-pleaded

facts, accepted as true, do not state a claim that is plausible, the claims are due to be dismissed.

Twombly, 550 U.S. at 570.

IV. Discussion

Plaintiff has asserted the following Counts under Alabama law: (1) libel per se; (2) civil

conspiracy; (3) tortious interference with contractual or business relations; (4) private nuisance;

and (5) unjust enrichment. (Doc. # 1 at 38-43). On April 21, 2023, Viceroy filed a 12(b)(2) Motion

to Dismiss this case for lack of personal jurisdiction, which Defendant Perring later joined. (Doc.

# 16). Also on April 21, 2023, Viceroy filed a 12(b)(6) Motion to Dismiss for failure to state a

claim. The court addresses each, in turn.

A. Viceroy and Perring’s 12(b)(2) Motion

Viceroy argues that (1) it has no presence or operations in Alabama; (2) the allegedly

defamatory statements were published globally on its website without special focus on Alabama

readers; (3) the reports at issue focused on MPT’s global operations, rather than any conduct

specific to Alabama; and (4) the effects of Viceroy’s alleged harm were not “isolated to Alabama;

rather the alleged effects were felt by MPT’s global shareholders.” (Id. at 1-2). As a result, Viceroy

contends that this court lacks jurisdiction over it, so this case must be dismissed in its entirety.

Plaintiff counters that (1) the sole focus of Viceroy’s defamatory publications was an

Alabama-based corporation and its Alabama-based operations and employees; and (2) the sole

purpose of Viceroy’s conduct was to injure MPT, an Alabama-based corporation. (Doc. # 34 at 6).

Therefore, Plaintiff asserts, “Viceroy’s actions were more than enough to provide it with ‘fair

warning that it may be subject to suit in Alabama.’” (Id.) (quoting Del Valle v. Trivago GMBH, 56

F.4th 1265, 1275 (11th Cir. 2022)). Accordingly, MPT argues that Defendants’ Motion to Dismiss

should be denied. In the alternative, MPT requests a limited discovery period focused on gathering

evidence to demonstrate personal jurisdiction. (Doc. # 35).

The court first considers whether Viceroy “purposely availed” itself of Alabama as a

forum. Next, the court examines whether MPT’s claims arise out of or relate to Defendants’ alleged

contacts with Alabama. Then, the court addresses whether exercising jurisdiction over Defendants

would offend traditional notions of fair play and substantial justice. Finally, the court takes up the

conspiracy theory of jurisdiction.

1. Purposeful Availment

In assessing purposeful availment, there are “two applicable tests: the effects test and the

minimum contacts test.” Del Valle, 56 F.4th at 1275-76 (citing Calder, 465 U.S. at 790; Keeton

465 U.S. at 776). Here, Plaintiff contends that the court may exercise personal jurisdiction over

Defendants due to their intentionally tortious conduct. (Doc. # 34 at 10-17). Therefore, the court

analyzes the question of purposeful availment under the effects test. See Oldfield, 558 F.3d at 1220

n. 28 (holding that the applicable test in cases involving intentional torts is the Calder “effects”

test).

Under the effects test, a court may exercise jurisdiction over a defendant if the defendant

committed a tort that was “(1) intentional; (2) aimed at the forum state; and (3) caused harm that

the defendant should have anticipated would be suffered in the forum state.” Licciardello, 544

F.3d at 1286 (citing Ziegler v. Indian River Cty., 64 F.3d 470, 474 (9th Cir. 1995)). Here, MPT

has clearly alleged that Defendants acted intentionally by repeatedly defaming MPT in order to

drive its stock price down and reap the spoils of its short position. Thus, the court considers

whether the alleged conduct was aimed at Alabama, and whether that conduct caused harm that

Defendants should have anticipated would be suffered in Alabama.

i. Plaintiff has adequately alleged that Defendants’ allegedly

defamatory conduct was aimed at Alabama.

A defendant’s tortious act is aimed at the forum state if it is directed “at a forum resident

and injures him there.” Licciardello, 544 F.3d at 1287. It is undisputed that MPT is a resident of

Alabama. It is further undisputed that MPT has alleged a concrete injury. So, the court must

determine whether Plaintiff has adequately alleged that (1) the alleged harm was directed at MPT;

and (2) MPT felt the effects of the alleged harm in Alabama.

First, the alleged harm was clearly directed at MPT. Defendants allegedly engaged in a

months-long campaign accusing MPT of fraud, deceptive accounting practices, self-serving

executive compensation structures that hurt the shareholders’ bottom line, and a general lack of

candor with its shareholders as to its business practices. (Doc. # 31 at 17-31). Each of these

accusations was directly targeted at MPT. See Gubarev v. Buzzfeed, 253 F. Supp. 3d 1149, 1160

(S.D. Fla. 2017) (holding that a defendant who published a defamatory article on a website the

defendant operates and maintains engaged in conduct aimed at the plaintiff).

Further, MPT has alleged it felt the effects of Defendants’ alleged harm in Alabama.

Licciardello concerned an out-of-state defendant’s misappropriation of the plaintiff’s trademarked

name and picture. 544 F.3d 1280 (11th Cir. 2008). In Licciardello, the Eleventh Circuit held that

the intentional misappropriation of plaintiff’s trademarks for commercial gain was conduct “aimed

at a specific individual in the forum whose effects were suffered in the forum.” 544 F.3d at 1288

(emphasis added). Here, the harms allegedly suffered by MPT as a result of Defendants’

defamatory conduct -- particularly the lost business opportunity with University Health System

and the drop in stock price -- are, if anything, more direct than those alleged in Licciardello.

Therefore, as the court held in Licciardello, the effects of the harm alleged here were felt in the

forum state, Alabama.

ii. Defendants anticipated or should have anticipated that the

harm would be suffered in Alabama.

Because Defendants intentionally aimed their defamatory conduct at MPT in Alabama,

they anticipated or “reasonably should have anticipated the harm [from their defamatory

statements] would be felt by [Plaintiff] in Alabama.” (Doc. # 34 at 14-15) (quoting AFC

Franchising, LLC v. Practice Velocity, LLC, No. 15-cv-02150, 2016 WL 6024438, at *2 (N.D.

Ala. Oct. 14, 2016)) (alterations in original). Moreover, as noted above, Defendants did not shy

away from noting that MPT was a Birmingham-based company in the midst of their allegedly

defamatory campaign. Indeed, on January 27, 2023, Viceroy tweeted that “[i]n 2003, HealthSouth

executives admitted their involvement in similar accounting #fraud to [MPT]. Like [MPT,] they

were based in Birmingham Alabama. It ended badly with prison time.” (Doc. # 1 ¶ 82) (emphasis

added).

Defendants cannot now claim ignorance as to whether the brunt of the alleged harm would

be felt in Alabama when they made MPT’s presence in Alabama a focal point of their attacks.

Accordingly, because Plaintiff has alleged that Defendants committed an intentional tort that was

aimed at Alabama and that Defendants should have anticipated the harm being felt in Alabama,

Plaintiff has established purposeful availment under the effects test.

2. Relatedness

The Eleventh Circuit has not “developed a specific approach to determining whether a

defendant’s contacts ‘relate to’ the plaintiff’s claims.” Fraser v. Smith, 594 F.3d 842, 850 (11th

Cir. 2010). But, courts understand that, at a minimum, “the contact must be a ‘but-for’ cause of

the tort.” Id. (quoting Oldfield, 558 F.3d at 1222-23). Here, Plaintiff’s claims of defamatory

conduct clearly arise out of and relate to Defendants’ contact with Alabama because Defendants’

only contact with Alabama was that defamatory conduct. The point is as tautological as it is true:

when defamation is the intentional tort establishing contact with the forum state under the effects

test, the relatedness element of the personal jurisdiction test will always be satisfied because the

defamatory conduct itself establishes both the contact with the forum state and the basis for the

plaintiff’s claims.

3. Fair Play and Substantial Justice

Because Plaintiff has established purposeful availment and relatedness, the burden shifts

to Defendants to show that exercising jurisdiction over it would offend traditional notions of fair

play and substantial justice. See Volkswagen, 444 U.S. at 292; Burger King, 471 U.S. at 477.

Defendants argue that “Viceroy has no operations in Alabama and its members are foreign

nationals.” (Doc. # 16 at 9). In analyzing the Volkswagen factors, the court concludes that

Defendants have not “presented the requisite ‘compelling case’ that exercising jurisdiction would

be unconstitutionally unfair.” Diamond Crystal Brands, Inc. v. Food Movers Intern., Inc, 593 F.3d

1249, 1274 (11th Cir. 2010) (citing Volkswagen, 444 U.S. at 292; Burger King, 471 U.S. at 477).

Indeed, as in Diamond Crystal Brands, Defendants here do not “even attempt to explain

why litigating in [Alabama] would be especially onerous, much less how any such inconvenience

achieves a ‘constitutional magnitude.’” Id. (citing Burger King, 471 U.S. at 484). Instead,

Defendants offer only the conclusory assertion that “[f]orcing Viceroy to defend a case in Alabama

will work a substantial hardship on the company and its members.” (Doc. # 16 at 9). But, even if

the court accepted as true that litigating in Alabama would prove hard on Viceroy and its members,

a forum state’s interest in exercising jurisdiction often justifies “serious burdens” on a nonresident

defendant. Diamond Crystal Brands, 593 F.3d at 1274 (citing S & Davis Intern., Inc., v. Republic

of Yemen, 218 F.3d 1292, 1305 (11th Cir. 2000)). Accordingly, Defendants have not met their

burden to show that exercising jurisdiction over them would offend traditional notions of fair play

and substantial justice.

4. Conspiracy Theory of Jurisdiction

“The Alabama Supreme Court has recognized and adopted the conspiracy theory of

jurisdiction.” In re Blue Cross Blue Shield Antitrust Litigation, 225 F. Supp. 3d 1269, 1302 (N.D.

Ala. 2016) (citing Ex parte United Ins. Cos., 936 So. 2d 1049, 1055 (Ala. 2006); Ex parte McInnis,

820 So. 2d 795, 806–07 (Ala. 2001)). “Under a conspiracy theory, a defendant who otherwise may

not be subject to personal jurisdiction might be [haled] into court if the plaintiff ‘plead[s] with

particularity the conspiracy as well at the overt acts within the forum taken in furtherance of the

conspiracy.’” Id. Under Alabama law, a plaintiff seeking to establish civil conspiracy must

plausibly allege “(1) concerted action between two or more persons to (2) achieve an unlawful

purpose or a lawful purpose by unlawful means.” Id. at 1302 n. 30 (citing J&M Assocs., Inc. v.

Romero, 488 F. App’x 373, 375 (11th Cir. 2012)).

Here, even if Plaintiff could not establish jurisdiction under the effects test (and, to be clear,

it can), it could do so under the conspiracy theory of jurisdiction. Plaintiff alleges that Defendants

“engaged in concerted action with one another and … an[other] investment research firm and its

agents to promote and amplify false and defamatory statements about MPT.” (Doc. # 1 ¶ 101).

Plaintiff contends that Defendants did so “for the purposes of imputing dishonesty or corruption

to MPT and of prejudicing MPT in its trade or business.” (Id. ¶ 102). So, Plaintiff has plainly

alleged a civil conspiracy claim under Alabama law. Plaintiff further maintains that “on February

13 and 14, 2023, a co-conspirator traveled to Alabama for an in person ‘diligence’ trip concerning

MPT.” (Id. ¶ 83). Thus, Plaintiff has alleged the overt acts within Alabama in furtherance of the

conspiracy. Accordingly, Plaintiff has also established personal jurisdiction over Defendants under

the conspiracy theory.

B. Defendant Viceroy’s 12(b)(6) Motion

Viceroy argues that Plaintiff failed to state a defamation claim because (1) the allegedly

defamatory statements listed in Plaintiff’s Complaint are non-actionable statements of opinion;

and (2) Plaintiff failed to plausibly allege actual malice. (Doc. # 17). Moreover, Viceroy maintains

that, because Plaintiff’s defamation claim fails, the remaining claims must also fail because they

are predicated entirely on the same statements as the defamation claim. (Id. at 20). The court first

examines whether Plaintiff has properly alleged a defamation claim under general Alabama

defamation principles. Then, the court considers whether Plaintiff’s claim should be analyzed

under the traditional negligence standard or a more demanding “actual malice” standard. Finally,

the court addresses Plaintiff’s non-defamation claims.

1. Plaintiff has sufficiently alleged every element of a defamation

claim under Alabama law.

To state a claim of defamation under Alabama law, a plaintiff must plausibly allege:

(1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged

communication of that statement to a third party; (3) fault amounting at least to

negligence on the part of the defendant; and (4) either actionability of the statement

irrespective of special harm or the existence of special harm caused by the

publication of the statement.”

Wal-Mart Stores, Inc., v. Smitherman, 872 So. 2d 833, 840 (Ala. 2003) (quoting McCaig v.

Talladega Publ’g Co., 544 So. 2d 875, 877 (Ala. 1989)) (emphasis in original).

i. False and Defamatory Statements

A statement must be false before it may be actionable at all. Kelly v. Arrington, 644 So. 2d

546, 550 (Ala. 1993) (citing Deutsch v. Birmingham Post Co., 603 So. 2d 910 (Ala. 1992) (“[i]f

the published statements are true, there is no actionable cause for libel”). The Alabama Supreme

Court further held that a “statement of opinion relating to matters of public concern which does

not contain a provably false factual connotation will receive full constitutional protection” and

thus is not actionable. Id. (citing Milkovich v. Lorain Journal Co., 496 U.S. 1 (1990) (emphasis

added). A statement is defamatory if it “tends to harm the reputation of another as to lower him in

the estimation of the community or to deter third persons from associating with him.” Restatement

(Second) of Torts § 559 (1977). “A decision whether a statement is reasonably capable of a

defamatory meaning is a question of law.” Bell v. Smith, 281 So. 3d 1247, 1254 (Ala. 2019)

(quoting Cottrell v. National Collegiate Athletic Ass’n, 975 So. 2d 306, 346 (Ala. 2007)). So, at

the pleading stage, a statement will only satisfy the first prong of the defamation test if it is (1)

capable of being proven true or false; and (2) potentially damaging to the plaintiff’s reputation.

Here, each of the four categories of defamatory statements MPT identified in its Complaint

(round-tripping, concealment of its dealings with Steward, fraud, and self-dealing executive

compensation structure) may be proven true or false with the benefit of discovery, and the

Complaint plausibly alleges that the statements damaged MPT’s reputation. A close reading of the

statements identified in its Complaint supports Plaintiff’s contention that “MPT either engages in

‘round-tripping’ or it does not.” (Doc. # 33 at 14) (citing Farmland Partners, Inc. v. Rota Fortunae,

No. 18-cv-02351, 2020 WL 12574993, at *15-16 (D. Colo. May 15, 2020)).2 Similarly, MPT either

“paid $205m for hospitals worth $27m in Malta” or it did not. (Doc. # 1 ¶ 63). Such a claim is,

again, capable of being proven true or false with the benefit of discovery.

2 The court notes that Plaintiff’s explanatory hypothetical as to Farmland Partners overstates the holding in

that case. The court in Farmland Partners did not broadly rule that round-tripping claims are provable. Instead, the

court engaged in a fact-specific inquiry and determined that the statements made by the defendant -- among which

were detailed allegations of round-tripping similar to those made here -- were contextually “capable of being proved

true or false.” Farmland Partners, 2020 WL 12574993, at *16. Here, a fact-specific inquiry would indicate the same

finding. But, such a finding does not suggest that all revenue round-tripping claims fall into the same category.

Further, Viceroy’s several accusations of fraud are capable of being proven true or false

because the “ordinary and commonly understood meaning” of fraud “implies some type of illegal

or criminal act,” which can be proven true or false according to the statute. Ponder v. Lake Forest

Prop. Owners Ass’n, 214 So. 3d 339, 351 (Ala. Civ. App. 2015) (“The undisputed evidence before

the trial court was that [the defendant] knowingly published false and defamatory statements about

[the plaintiff] and its Board that imputed criminal acts to [the plaintiff]”). Finally, Plaintiff’s claims

relating to Viceroy’s statements on MPT’s executive compensation structure, while perhaps less

clearly capable of being proven true or false, are sufficient to survive a 12(b)(6) challenge. (Doc.

# 1 ¶ 55). Any of these statements have been plausibly alleged to have damaged MPT’s reputation

and its bottom line. (Doc. # 1 ¶¶ 84-89). So, Plaintiff has plausibly alleged that Viceroy’s

statements were false and defamatory.

ii. Communication of False and Defamatory Statements to a Third

Party

To state a defamation claim, a “plaintiff must show that the alleged defamatory matter was

published by proof of communication of the defamatory matter to someone other than himself.”

Nelson v. Lapeyrouse Grain Corp., 534 So. 2d 1085, 1093 (Ala. 1988) (citing § 6-5-182, Ala.

Code 1975; K-Mart Corp. v. Pendergrass, 494 So. 2d 600 (Ala. 1986)) (internal citations and

quotations omitted). “In other words, there must be a communication of a defamatory matter to a

third person.” Id. Here, at least on the pleadings, the publication issue is cut and dry. MPT alleges

that Viceroy disseminated defamatory statements through its published reports and its social media

account. (Doc. # 1 at 16-37). These allegations are, on their face, sufficient to satisfy the second

prong of the defamation standard.

iii. Fault Amounting at Least to Negligence

In the defamation context, negligence can be understood as “the publication of false and

defamatory statements without reasonable care to determine their falsity.” Anderson v. Smith, No.

19-cv-222, 2020 WL 10058207, at *1 n.2 (M.D. Fla. March 24, 2020) (quoting Boyles v. Mid-Fla.

Television Corp., 431 So. 2d 627 (Fla. 1985); Turner v. Wells, 879 F.3d 1254, 1262 (11th Cir.

2018)). Here, Plaintiff alleges that Viceroy either knew or should have known that the allegedly

defamatory statements were false because they were contradicted by publicly available

information regarding MPT’s business and accounting practices. Accordingly, Plaintiff has

plausibly alleged that Viceroy was, at a minimum, negligent in publishing the false and defamatory

statements.

iv. Actionability Regardless of Special Harm

If the allegedly defamatory statements “impute dishonesty or corruption to an individual,

they are actionable.” Kelly v. Arrington, 624 So. 2d 546, 549 (Ala. 1980) (citing Gray v. WALA-

TV, 384 So. 2d 1062, 1065 (Ala. 1980) (overturned on other grounds by Nelson, 534 So. 2d at

1091 n.3)). Further, statements “are defamatory per se if they directly tend to prejudice anyone in

his office, profession, trade, or business, or in any lawful employment by which he may gain his

livelihood.”3 Id.

Here, it is alleged that (1) Viceroy made a number of published reports and social media

posts (2) that imputed dishonesty to MPT. (E.g., Doc. # 1 ¶ 71). Moreover, MPT clearly claims

that it has been prejudiced in its trade or business. Indeed, Plaintiff alleges that Viceroy’s reports

and social media posts led directly to (1) the dissolution of its deal with University Health System;

(2) S&P Global Ratings downgrading its issuer credit rating; (3) a “sell-off” in MPT’s share price;

3 While the weight of authority pertains to individual plaintiffs asserting defamation per se claims, the court

notes that corporations may also assert such claims. See Ponder, 214 So. 3d at 350-52.

and (4) additional costs incurred to increase security at its Birmingham Headquarters. (Doc. # 1 ¶¶

85, 87, 88, 89). Accordingly, the allegedly defamatory statements are actionable per se. Because

Plaintiff satisfied each prong of the defamation test, Plaintiff has sufficiently alleged every element

of a basic defamation claim under Alabama law.

2. Actual Malice Versus Negligence

As outlined above, to allege a defamation claim, a plaintiff must allege that the defendant

was at least negligent in the publication of false and defamatory statements. Wal-Mart Stores, 872

So. 2d at 840. But, “[i]f a plaintiff is … a public official, public figure, or limited-purpose public

figure, then the plaintiff has the burden of establishing by clear and convincing evidence that the

defamatory statement was made with actual malice.” Cottrell, 975 So. 2d at 333 (citing New York

Times Co. v. Sullivan, 376 U.S. 254, 280 (1964)) (emphasis added). Whether a plaintiff is a private,

public, or limited-purpose public figure is a matter of law for a court to decide. Id. (citing White v.

Mobile Press Register, Inc., 514 So. 2d 902 (Ala. 1987)) (“A court must determine as a matter of

law a plaintiff's classification in the context of a defamation claim.”).

“A public figure is one who either has gained notoriety from his achievements or seeks

public attention through vigor and success.” Cottrell, 975 So. 2d at 333. In Gertz v. Welch, the

Supreme Court expanded on New York Times v. Sullivan by recognizing the existence of a

“limited-purpose” public figure, to which the actual malice standard also applies. 418 U.S. 323

(1974). A limited purpose public figure is “an individual [who] voluntarily injects himself or is

drawn into a particular public controversy.” Cottrell, 975 So. 2d at 333 (citing Gertz, 418 U.S. at

351) (alteration in original).

i. There is insufficient information to determine whether MPT is

a general-purpose public figure.

Viceroy argues that MPT is a public figure by virtue of its status as a publicly traded

corporation. (Doc. # 17 at 8, 16). Viceroy principally relies on two unpublished decisions to

support this proposition: MiMedx v. Sparrow Fund Management and Borislow v. Canaccord

Genuity. (Doc. # 17 at 16) (citing No. 17-cv-07568, 2018 WL 847014, at *8 (S.D.N.Y. January

12, 2018); and No. 14-cv-80134, 2014 WL 12580259, at *2 (S.D. Fla. June 27, 2014),

respectively). Neither case persuades the court that a publicly traded corporation is automatically

a general-purpose public figure.

As a primary matter, neither MiMedx nor Borislow are binding on this court. In MiMedx,

the Southern District of New York held that “[w]hen the plaintiff is a public figure, such as a

public company, the plaintiff must demonstrate that the defendant acted with ‘actual malice’ in

connection with the defamatory statements.” MiMedx, 2018 WL 847014, at *6 (emphasis added)

(citing Reliance Ins. Co. v. Barron’s, 442 F. Supp. 1341, 1346 (S.D.N.Y 1977) (holding that “a

large corporation with more than a billion dollars in assets … whose shares are traded on the New

York Stock Exchange is a public figure)). The MiMedx court further explained that actual malice

was the relevant standard because “MiMedx is a public company and the subject matter of the

discussion was a matter of public interest.” Id., at *8 (emphasis added).

Meanwhile, in Borislow, the Southern District of Florida held that the complaint itself

demonstrated that a CEO was a public figure because “it stated that [the CEO] took a company

through a public offering to a valuation of $2 billion, and allegedly ‘revolutionized’ long-distance

service for ‘millions of American Online customers.’” Borislow, 2014 WL 12580259, at *2. Citing

the complaint, the court also noted that the CEO “had a prominent role in the business community

… and there has been extensive media coverage of his business ventures.” Id.

Here, both MiMedx and Borislow are unpersuasive. First, the MiMedx court’s suggestion

that all publicly traded corporations are public figures for defamation purposes runs counter to

New York precedent, let alone any precedent that would be binding on this court. In Computer

Aid, Inc. v. Hewlett-Packard, for example, a Pennsylvania federal court applying New York law

held that Hewlett-Packard, one of the “largest and most influential corporations in the world with

one of the most actively traded stocks on the New York Stock Exchange,” was not a public figure.

56 F. Supp. 2d 526, 535 (E.D. Pa. 1999). The court reasoned that Hewlett-Packard did not have

“such pervasive fame or notoriety to be deemed a general purpose public figure.” Id. Moreover,

Defendants have failed to identify anything in the Complaint or elsewhere that resembles the

factors that lead the Borislow court to conclude that the CEO was a public figure. That he was the

CEO of a large corporation did not alone establish that he was a public figure, as Viceroy suggests.

Ultimately, the court cannot determine from the allegations of the Complaint alone whether MPT

is a general-purpose public figure. Thus is an issue best addressed after discovery and with

reference to a Rule 56 record.

ii. Limited Purpose Public Figure

In its reply brief, Viceroy asserts that “even non-publicly traded corporations are public

figures where they voluntarily submit themselves to public regulation.” (Doc. # 39 at 3) (citing

Am. Benefit Life Ins. Co. v. McIntyre, 375 So. 2d 239, 242 (Ala. 1979); Green Grp. Holdings, LLC

v. Schaeffer, No. 16-cv-00145, 2016 WL 6023841, at *15-17 (S.D. Ala. October 13, 2016)

(“Alabama courts have … held that a plaintiff's participation in a heavily regulated industry favors

a determination that the plaintiff is a limited purpose public figure.”)).

At the outset, the court notes that Schaeffer is not a district court opinion. Rather, it is a

Magistrate Judge’s Report and Recommendation. The case settled before the district court had the

opportunity to adopt it. (See Case No. 16-cv-00145, ECF No. 52, 53). Still, the court largely agrees

with the interpretation of McIntyre laid out in Schaeffer. The court in McIntyre held, and the

Magistrate in Schaeffer recommended, that certain corporations in certain industries are limited

purpose public figures by virtue of their participation in those industries. McIntyre, 375 So. 2d at

242; Schaeffer, 2016 WL 6023841, at *15-17.

Here, the court cannot find as a matter of Alabama law that MPT is such a company and

the real estate investment industry is such an industry. To make such a finding at the motion to

dismiss stage, the court would require either (1) a clear holding by the Alabama appellate courts

that companies like MPT are limited purpose public figures; or (2) a complaint making clear that

MPT has voluntarily injected itself or been drawn into a particular public controversy. Here,

because the court does not have the benefit of either, this is an issue better evaluated with a more

fully developed record, and the case should be allowed to proceed to discovery. Accordingly, at

this stage, the court cannot hold that actual malice is the appropriate standard to apply. Therefore,

Viceroy’s Motion to Dismiss Plaintiff’s defamation claim is due to be denied.

3. Plaintiff’s Remaining Claims

Viceroy argues that because its “alleged defamatory statements are constitutionally

protected opinions and MPT has not plausibly alleged actual malice, its claims for conspiracy,

tortious interference…, private nuisance, and unjust enrichment must also fail.” (Doc. # 17 at 18).

But, there is nothing in the pleadings that would indicate that the alleged defamatory statements

are constitutionally protected opinions. So, the issue of whether MPT must allege actual malice is

premature. Therefore, Viceroy’s Motion to Dismiss is due to be denied in its entirety.

IV. Conclusion

For the reasons outlined above, Defendants’ 12(b)(2) Motion to Dismiss (Doc. # 16) and

Viceroy’s 12(b)(6) Motion to Dismiss are due to be denied. An order consistent with this

memorandum opinion will be entered separately.

DONE and ORDERED this June 29, 2023.

R! DAVID Z 24 2

UNITED STATES DISTRICT JUDGE

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