## Facts

- Brunson Communications, Inc. owned WGTW, a small, independently owned television station serving the Philadelphia market.
- Arbitron, Inc. sold audience-measurement and ratings reports for radio and television that advertisers, agencies, and broadcasters used in making advertising and business decisions.
- Brunson alleged that Arbitron represented that its Philadelphia market television ratings measured viewership for all stations in the market area.
- Brunson further alleged that, despite those representations, Arbitron did not measure viewership for WGTW and nevertheless distributed ratings information to advertisers and others as complete and accurate.
- According to Brunson, Arbitron’s publications communicated (explicitly or by implication) that WGTW’s audience was too small to justify inclusion, which discouraged advertisers from buying time on WGTW.
- Brunson claimed the publications caused it substantial financial loss tied to reduced advertising interest and revenue.
- Brunson’s initial pleading asserted multiple causes of action; after prior dismissals, Brunson filed a Second Amended Complaint limited to two Pennsylvania-law theories: commercial disparagement (injurious falsehood) and negligence.
- Arbitron moved to dismiss the Second Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.

## Issues

1. Whether Brunson’s Second Amended Complaint stated a claim for commercial disparagement (injurious falsehood) under Pennsylvania law based on Arbitron’s ratings publications that did not measure WGTW.
2. Whether Brunson adequately pleaded the special-damages/pecuniary-loss requirement for commercial disparagement.
3. Whether Brunson stated a negligence claim by plausibly alleging a duty owed by Arbitron to Brunson in compiling and publishing ratings data, along with breach, causation, and damages.

## Decision

- The court granted Arbitron’s Rule 12(b)(6) motion to dismiss Brunson’s Second Amended Complaint.
- The commercial-disparagement claim was dismissed because the complaint did not plead the required elements with sufficient factual detail, including a concrete showing of pecuniary loss (special damages) caused by the challenged publication.
- The negligence claim was also dismissed because Brunson did not plead an adequate duty-and-damages theory independent of the alleged reputational/economic harm addressed by the disparagement claim and did not otherwise allege negligence with sufficient supporting facts.
- As a result, Brunson’s remaining claims in the case were dismissed at the pleading stage.

## Legal Principles

- On a Rule 12(b)(6) motion, the court accepts well-pleaded factual allegations as true and dismisses claims that lack enough factual matter to state a legally viable claim.
- Under Pennsylvania law, commercial disparagement (injurious falsehood) requires allegations that: (1) the defendant made a false statement that caused pecuniary loss; (2) the defendant intended the publication to cause harm to the plaintiff’s financial interests, or knew or should have known harm was likely; and (3) the defendant knew the statement was false or acted with reckless disregard for its truth or falsity.
- A commercial-disparagement plaintiff must plead special damages with specificity; generalized assertions of harm to business or lost opportunities, without identifying concrete losses or a fact-based general decline tied to the publication, are insufficient.
- Negligence requires facts showing duty, breach, causation, and damages; where the claimed injury is the same economic harm tied to an allegedly false publication, a plaintiff cannot proceed on negligence allegations that are conclusory and do not supply a workable duty-and-damages theory.

## Conclusion

Brunson alleged that Arbitron’s Philadelphia television ratings were presented as comprehensive even though they did not measure WGTW, leading advertisers to discount WGTW and causing financial harm, but the court dismissed the Second Amended Complaint because Brunson did not plead commercial disparagement with the required specificity—especially as to special damages—and did not state an independent, adequately supported negligence claim.


Brunson Communications, Inc. v. Arbitron, Inc., 266 F. Supp. 2d 377 (2003)