From today's Second Circuit opinion in Valley Electronics AG v. Polis, decided by Judges Jose Cabranes, Reena Raggi, and Susan Carney:
Valley Electronics AG [and related companies] … allege[] that Polis, a reproductive health epidemiologist, made defamatory statements regarding the marketing of Valley's product Daysy, which is designed to "identify the fertile and infertile phases of the menstrual cycle" using basal body temperature. The allegedly defamatory statements appear on Polis's blog on her personal website, in a BuzzFeed article quoting her, and in comments she wrote in response to others' Instagram posts.
The statements generally fall into two categories. In her "Science Statements," Polis allegedly misrepresented the soundness of the studies supporting Daysy's efficacy and disparaged Daysy's advertising in reliance on those studies. {See Compl. ¶¶ 18 (Daysy is marketed "without solid evidence"), 19 ("Daysy misrepresented their evidence-base"; Valley provides "[n]o reliable estimate" of Daysy's efficacy; and a retracted favorable study is "junk science"), 21 ("[N]o scientific publications demonstrat[e] how accurately Daysy [tells users when they are fertile]"), 23 (promoting Daysy "put[s] people in harms [sic] way").}
In her "Ethics Statements," Polis allegedly inaccurately impugned Valley's integrity. {See Compl. ¶¶ 18 (Valley is not "interested in providing accurate information to its potential consumer base"), 19 (Valley "made many other outrageous claims[;] … far too many to list"; "has no shame or integrity"; and "recklessly rejected" the retraction of a study), 21 (Valley is "particularly unethical").} …
Context suggests that Polis's statements were opinions [and thus not actionable libel].
