## Facts

- Claudia DiFolco, a television reporter and anchor, entered a two-year written employment agreement with MSNBC beginning January 17, 2005.
- The agreement split the term into two consecutive 52-week cycles and permitted MSNBC to terminate at the end of the first cycle with at least 60 days’ written notice.
- DiFolco alleged workplace mistreatment and intolerable working conditions involving her executive producer and a producer.
- During efforts to address these issues, DiFolco sent emails discussing changes to her role, including discussion of an “exit” from certain shows; she later attempted to clarify she had not resigned from MSNBC.
- MSNBC treated the emails as a resignation/repudiation and ended the relationship; DiFolco claimed this was a wrongful termination and sued for breach of contract (and related wage/labor claims).
- DiFolco also alleged defamatory statements about her departure and professional conduct and claimed those statements interfered with future business opportunities.

## Issues

1. Whether DiFolco’s emails constituted an anticipatory repudiation—i.e., a clear and unequivocal refusal to perform—such that dismissal of her breach-of-contract claims was proper under Rule 12(b)(6).
2. Whether the defamation claims were properly dismissed at the pleading stage on the grounds of truth and non-actionable opinion.
3. Whether the complaint stated a claim for tortious interference with prospective business relations by pleading specific prospective relationships and independently wrongful conduct.

## Decision

- The Second Circuit affirmed in part, vacated in part, and remanded.
- It vacated dismissal of the breach-of-contract claim because the emails were not, as a matter of law on the pleadings, an unambiguous repudiation.
- It vacated dismissal of the defamation claims because the truth/opinion determinations depended on contested facts tied to whether DiFolco resigned.
- It affirmed dismissal of the tortious-interference claim for insufficiently specific allegations of prospective business relations and lack of adequately pleaded wrongful conduct supporting that tort.

## Legal Principles

- On a Rule 12(b)(6) motion, courts accept well-pleaded factual allegations as true and draw reasonable inferences in the plaintiff’s favor; ambiguities in documents considered at the pleading stage may not be resolved against the nonmovant.
- A court may consider documents incorporated by reference or integral to the complaint if relied upon in pleading and their authenticity is not disputed.
- Under New York law, anticipatory repudiation requires a clear and unequivocal communication of intent not to perform; ambiguous communications generally cannot establish repudiation as a matter of law at the pleading stage.
- Defamation claims should not be dismissed based on truth or opinion defenses where those determinations depend on disputed facts that cannot be resolved from the pleadings alone.
- A New York claim for tortious interference with prospective business relations requires identification of specific, non-speculative prospective relationships and sufficiently pleaded wrongful conduct directed at those relationships.

## Conclusion

The Second Circuit held that DiFolco’s emails could plausibly be read as attempts to address working conditions rather than a resignation, making dismissal of her contract claim improper, and it reinstated her defamation claims because the asserted defenses depended on unresolved factual questions; however, it upheld dismissal of her tortious-interference claim for lack of specificity and independently pleaded wrongful conduct.


DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104 (2d Cir. 2010)