LIDOCHEM, INC., a New Jersey Corporation and FRANK DEAN, Plaintiffs-Appellants, v. STOLLER ENTERPRISES, INC., et al., Defendants-Appellees, 500 F. App'x 373

OPINION JANE B. STRANCH, Circuit Judge. LidoChem, Inc., and Frank Dean appeal the district court’s grant of

summary judgment in favor of Stoller Enterprises, Inc., Jerry Stoller, David Alexander, Michael Wright, and McKenzie Wright Laboratories, LLC in this dispute between business competitors in the Michigan farm-chemicals market. The district court ruled that LidoChem and Dean could not prevail on their claims for false or misleading promotion under the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), tortious interference with business interests, injurious falsehood, and civil conspiracy. The court also ruled in favor of Stoller Enterprises and Alexander on the defamation claim.

We AFFIRM in part, REVERSE in part, and REMAND for further proceedings. I. FACTS Don and Lisa Pucillo formed LidoChem as a New Jersey corporation in 1981 to distribute chemical products. LidoChem entered the agricultural chemical business in western Michigan in the late 1990’s. In 1999, LidoChem hired chemist Frank Dean, a Texas resident, and sales representative Gerry Gelder, a Michigan resident, to assist LidoChem with its business expansion. Dean and Gelder worked for Stoller Enterprises before they joined Li-doChem. LidoChem’s products were blended by The Andersons, a large midwestern chemical manufacturer.

LidoChem sold its products to Michigan distributors, including Zeeland Farm Services and Green Valley Agriculture. The distributors then sold the products to farmers. Stoller Enterprises is a Texas corporation engaged in the sale of agricultural chemicals in Michigan and other farm markets. Jerry Stoller owns the company, and David Alexander serves as a Michigan sales representative. Michael Wright, also a Texas resident, is President of McKenzie Wright Laboratories, LLC.

In 2000, the Pueillos joined Valagro, an Italian speciality-fertilizer company, in a business venture to form a new Delaware corporation called Nutrecology, Inc. Nu-trecology employed Dean to develop a liquid fertilizer, Nutrefol, to compete with Stoller Enterprises’ similar product, Foli-Zyme. Nutrecology utilized LidoChem’s distribution network in Michigan to market the product. In March 2001, Gelder and a salesman for Zeeland Farm Services met with the owners of Boersen Farms, a large farming operation in western Michigan and one of Zeeland’s largest customers.

Gelder asked the Boersens to try LidoChem’s and Nutrecology’s products for the 2001 growing season, instead of the Stoller Enterprises products that Boersen used in 2000. Dennis Boersen alleged that Gelder told him that Nutrefol would work like Foli-Zyme to enhance the growth of soybeans, but Gelder denied making any such representation. Boersen agreed to try Nutrefol and purchased the product through Lido-Chem’s distributors, Zeeland Farm Services and Green Valley Agriculture.

In May 2001, Boersen sprayed a mixture of Nutrefol and Roundup on 2500 acres of soybeans, but the plants turned yellow and became stressed. Boersen contacted Wally Gerst, a distributor for Stoller Enterprises, for advice. After examining the soybean fields, Gerst recommended the use of Stoller products to encourage plant recovery. In July 2001, Gerst asked Stoller and Alexander to accompany him to Boersen Farms to discuss the effect of Nutrefol on the soybeans. Stoller assured Boersen that Nutrefol contained a substance that was harmful to soybeans.

Stoller obtained a Nutrefol sample from the farm, and Gerst obtained a copy of Nutrefol’s material safety data sheet (MSDS) from Zee-land Farm Services. LidoChem and Dean alleged that Stoller orchestrated a plan to ruin their reputations within the farm chemicals industry by making misrepresentations that Nutre-fol contained “poison” so that LidoChem could not compete in the marketplace.

They asserted that Stoller’s animosity against them developed for several reasons: LidoChem hired Dean and Gelder away from Stoller Enterprises; Dean applied for a provisional patent shortly after joining LidoChem utilizing research Stol-ler Enterprises claimed to own; and Stol-ler blamed Dean for the death of Stoller’s son. LidoChem and Dean produced proof that Stoller advanced a scheme to represent falsely that Dean added 2-phenylbu-tyric acid (2-PBA) to Nutrefol, a chemical that Stoller claimed was toxic to plants and caused the reduced soybean harvest at Boersen Farms.

As a result of Stoller’s alleged statements, Nutrecology pulled Nutrefol from the market in late 2001. In addition, LidoChem and Dean presented proof that Stoller repeatedly encouraged Boersen Farms and its attorneys to file a lawsuit against LidoChem, Dean, Nutre-cology, The Andersons, Zeeland Farm Services, and Green Valley Agriculture in Michigan state court. LidoChem asserted that, once the lawsuit became public and farmers, distributors, and blenders became aware of the false claim that Nutrefol contained a toxic chemical, LidoChem lost its business relationships and its ability to compete.

At issue are several communications Stoller made to others. On September 18, 2001, Stoller sent a memorandum to Calvin Hartzog, Product Development Manager for Stoller Enterprises, with copies to Alexander and Gerst. Stoller alleged that Nutrefol was toxic and damaged Boersen Farms’ soybeans. He directed Hartzog to send the Nutrefol sample obtained from Boersen Farms to Dr. Benjamin Mosier, a chemist, with instructions to analyze the sample for any toxic ingredients. In a September 14 email to Gerst, Stol-ler reported that Nutrefol’s MSDS sheet was wrong and that the Nutrefol sample was being analyzed for toxins.

Stoller also stated that LidoChem, Dean, Gelder, Zee-land Farm Supply, and Green Valley Agriculture were liable for the Boersens’ 2001 crop damage, but he surmised that they might have little money to pay a judgment, while The Andersons had “deep pockets.” Stoller predicted that The Andersons would refuse to blend products for Lido-Chem if Boersen Farms named The Andersons as a defendant in a lawsuit. Sometime thereafter, Stoller learned that Dr. Mosier did not find any toxic chemicals in Nutrefol.

Not satisfied, Stol-ler instructed Hartzog to arrange for Michael Wright of McKenzie Wright Laboratories to re-test the Nutrefol sample. According to Hartzog, Stoller knew that McKenzie Wright would provide the test result Stoller wanted. In March 2002, Stoller met with Wright, Hartzog, and Mark Wiltse, EPA registration specialist for Stoller Enterprises. Stoller directed Wright to issue a report finding that the Nutrefol sample taken from Boersen Farms contained 2-PBA and that the 2-PBA was masked by long-chain fatty acids. Wright produced the false report for Stoller in June 2002.

Hartzog notified Alexander of the false test result, exclaiming, “We got’ em.” Stoller also informed Alexander about the false test result. Alexander then communicated the results of Wright’s false lab testing directly to Dennis Boersen. Alexander met with Boersen Farms’ attorney three times, and he agreed to serve as a witness in a lawsuit Boersen Farms planned to file against LidoChem, Dean, and others. Between September 2002 and August 2003, Stoller sent six letters to the law firm representing Boersen Farms, encouraging the attorneys to file a lawsuit.

Stol-ler sent copies of some of these letters to Alexander. It was common knowledge in the very small industry for farm chemicals that Stoller pushed the lawsuit against Li-doChem and the other defendants. In the letters to the attorneys, Stoller claimed that Nutrefol’s MSDS was falsified and that Nutrefol was shipped and sold without a proper MSDS. He described The Andersons as a company with “very deep pockets” and disclosed that Alexander had visited The Andersons’ president, Rod Enry, to discuss Nutrefol. Stoller claimed that Gelder falsely represented to Boersen that Nutrefol was the same as Foli-Zyme.

He asserted that Dean had a “history of changing formulations” and using “customers as an experimental laboratory.” He also claimed that Stoller Enterprises had worked for months, employing “numerous lab analyses and specialized equipment,” to isolate the damaging ingredient in Nutre-fol, 2-PBA, which he said had been “cleverly disguised.” He provided Wright’s lab report and Dean’s patent, which he alleged Dean obtained using research taken from Stoller Enterprises.

Stoller suggested the law firm had a “very good case” and requested payment of $20,000 or ten percent of any damages recovery, whichever was greater, to reward Stoller Enterprises for its discovery of the harmful ingredient in Nutrefol. He also agreed to serve as an expert witness. At his expert deposition held in mid-February 2006, Stoller conceded that he was not a chemist, that he spent his own money conducting laboratory analysis of Nutrefol, and that he had a proprietary interest in the lawsuit.

Shortly after the deposition, Stoller sent another letter to the law firm providing suggestions for how to respond to the defense expert’s opinion that Roundup, not Nutrefol, harmed the soybeans. Stoller assured the attorneys that this was “a red herring” and that it would be difficult for the defense to claim that Nutrefol was not tested by a good chemist because “Wright Laboratories is recognized by the federal government.” By May 2006, Stoller became concerned that Gerst had started distributing Lido-Chem products.

In an email dated May 11, 2006, Stoller denied Gerst the right to access research samples of Stoller Enterprises products because Gerst was “doing business with Frank Dean, who stole private information” from Stoller’s company.

When Gerst complained that Stoller had directed Alexander to pursue Gerst’s largest accounts, Stoller sent Gerst another email on May 22 calling Dean “a dishonest person and a thief.” On May 24, Stoller sent another email to Gerst, listing business associates he considered loyal to him, but accusing Gerst of doing business with “a known crook who stole from me.” In late 2006, Stoller withdrew as an expert witness for Boersen Farms.

In January 2007 the Michigan trial court barred Wright from testifying as an expert because he disposed of the Nutrefol samples that Stoller gave him to test and he also claimed that his computer “crashed” so that he no longer possessed the underlying data and testing procedure that formed the basis for his opinion that Nu-trefol contained 2-PBA. Boersen Farms and LidoChem ultimately settled the lawsuit. Lidochem’s evidence indicates that Stol-ler’s numerous statements falsely maligned Nutrefol. Green Valley Agriculture sprayed Nutrefol and Foli-Zyme side-by-side on Michigan crops.

The two products produced virtually no difference in crop production. LidoChem’s insurer, AIG Claim Services, Inc., issued a report on independent laboratory testing of a Nutre-fol sample. Although the sample contained two substances that were not listed on the MSDS, neither substance was a threat to soybeans. Additional expert testing of Nutrefol failed to detect 2-PBA at the part-per-trillion level. LidoChem also produced evidence that it was economically damaged by the false representations.

LidoChem’s contract with The Andersons provided for an initial one-year term with renewal for successive years unless written notice of termination was given. According to Pucillo, Lido-Chem’s relationship with The Andersons ended after Stoller alleged that Nutrefol contained a toxic substance. Gelder explained that he had to work much harder to sell any LidoChem product in western Michigan, and he produced a list of fifteen Michigan customers and prospects of Lido-Chem “tainted” by Stoller’s actions.

After 2001, Zeeland Farm Services purchased farm chemicals for their customers, including Boersen Farms, exclusively from Stoller Enterprises through Alexander. In 2007, two Michigan farmers approached Christians at Green Valley Agriculture to report that either Stoller or Alexander had informed them that Dean assisted in the development of a new LidoChem product (not Nutrefol) and that the new product would damage their crops. LidoChem and Dean filed this lawsuit in 2009.

Based on expert analysis of sales data for the years 2000 to 2009, LidoChem asserted marketplace damages in the range of $4.4 million to $4.8 million due to an event in 2000 through 2002. In addition, LidoChem alleged additional damages for loss of reputation and ability to compete. II. STANDARD OF REVIEW

Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and affidavits show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) & (c). The burden to show that there are no genuine issues of material fact falls on the parties seeking

summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We consider the evidence in the light most favorable to the non-moving parties, drawing all justifiable inferences in their favor. Id.

The ultimate question is whether the evidence presents a sufficient factual disagreement to require submission of the case to the jury, or whether the evidence is so one-sided that the moving parties should prevail as a matter of law. Id. at 251-52, 106 S.Ct. 2505. III. ANALYSIS LidoChem and Dean challenge the district court’s determination that they failed to produce sufficient proof to present their legal claims to a jury. We conclude that there are genuine issues of material fact with respect to some of the claims against some of the defendants, as explained below. A.

Lanham Act claim LidoChem alleged that defendants Stol-ler, Alexander, Stoller Enterprises, Michael Wright, and McKenzie Wright Laboratories violated the Lanham Act.

Section 43(

a) of the Lanham Act precludes any person from making any “false or misleading description of fact, or false or misleading representation of fact, which ... in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities....” 15 U.S.C. § 1125(a)(1)(B). This remedial statute is broadly construed to provide protection against a variety of deceptive commercial practices, including false advertising and promotion. Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1383 (5th Cir.1996).

The Supreme Court has said that commercial speech is “expression related solely to the economic interests of the speaker and [his] audience.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 561, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). “Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information.” Id. at 561-62, 100 S.Ct. 2343.

Yet, the “commercial speech” covered by the Lanham Act extends beyond the classic advertising campaign into other forms of promotion used to influence consumers to purchase goods or services. Semco, Inc. v. Amcast, Inc., 52 F.3d 108, 112 (6th Cir.1995); Seven-Up Co., 86 F.3d at 1384. Speech does not have to resemble a typical advertisement to be commercial. Semco, Inc., 52 F.3d at 112-13 (citing Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 68, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983)).

Thus, to determine what conduct falls within § 1125(a)(1)(B), most courts have held that contested representations must be: (1) commercial speech; (2) by a defendant who is in commercial competition with plaintiff; (3) for the purpose of influencing consumers to buy defendant’s goods or services. While the representations need not be made in a “classical advertising campaign,” but may consist instead of more informal types of “promotion,” the representations (4) must be disseminated sufficiently to the relevant purchasing public to constitute “advertising” or “promotion” within that industry.

Seven-Up Co., 86 F.3d at 1384 (quoting Gordon & Breach Sci. Publishers v. Am. Inst. of Physics, 859 F.Supp. 1521, 1535-36 (S.D.N.Y.1994)); Champion Lab., Inc. v. Parker-Hannifin Corp., 616 F.Supp.2d 684, 694 (E.D.Mich.2009); Int’l Tech. Consultants, Inc. v. Stewart, No. 07-13391, 2008 WL 4378095, at *6 (E.D.Mich. Sept. 23, 2008). At a minimum, commercial speech must “target a class or category of purchasers or potential purchasers, not merely particular individuals.” Podiatrist Ass’n v. La Cruz Azul De Puerto Rico, Inc., 332 F.3d 6, 19 (1st Cir.2003).

A disparaging statement about another’s product must be published and must identify some “means through which the defendant disseminated information to a particular class of consumers.” Id. (citing 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 27.102 (4th ed.2003), and Ultra-Temp Corp. v. Advanced Vacuum Sys., Inc., 27 F.Supp.2d 86, 91 (D.Mass.1998)). The required level of dissemination to the relevant purchasing public “will vary according to the specifics of the industry.” Seven-Up Co., 86 F.3d at 1385-86.

The “touchstone” is whether the “contested representations are part of an organized campaign to penetrate the relevant market.” Fashion Boutique of Short Hills, Inc. v. Fendi USA, Inc., 314 F.3d 48, 57 (2d Cir.2002). Where the market is small and the potential purchasers limited in number, “even a single promotional presentation to an individual purchaser may be enough to trigger the protections” of the Lanham Act. Seven-Up Co., 86 F.3d at 1386; Mobius Mgt. Sys., Inc. v. Fourth Dimension Software, Inc., 880 F.Supp. 1005, 1019-21 (S.D.N.Y.1994). To state a cause of action under § 1125(a)(1)(

B) in this Circuit, LidoChem must show: 1) the defendant has made false or misleading statements of fact concerning his own product or another’s; 2) the statement actually or tends to deceive a substantial portion of the intended audience; 8) the statement is material in that it will likely influence the deceived consumer’s purchasing decisions; 4) the advertisements were introduced into interstate commerce; and 5) there is some causal link between the challenged statements and harm to the plaintiff. Am. Council of Certified Podiatric Physicians and Surgeons v. Am.

Bd. of Podiatric Surgery, Inc., 185 F.3d 606, 613 (6th Cir.1999). The second element allows a plaintiff to establish a Lanham Act violation “without proving actual confusion or a lost sale; that is, a communication that has a ‘tendency to deceive’ ” is enough if all the other elements are met. Balance Dynamics Corp. v. Schmitt Indus., 204 F.3d 683, 689 (6th Cir.2000). The third element, requiring proof of deception, and the fifth element, requiring proof of injury, are components of causation generally. Am.

Council of Certified Podiatric Physicians and Surgeons, 185 F.3d at 613. “The deception element asks whether the defendant’s misstatements caused the consumer to be deceived.” Id. This element requires a showing of actual deception or, at the least, a tendency to deceive a substantial portion of the intended audience. Id. at 616. A plaintiff may show either that the defendants’ statements were literally false or that the statements were true but misleading or confusing. Id. at 614.

If the plaintiff proves that the statements were literally false, the plaintiff may prevail without evidence that the false statements actually misled consumers because actual deception is presumed. Id.; Porous Media Corp. v. Pall Corp., 110 F.3d 1329, 1335-36 (8th Cir.1997). “The injury element asks whether the defendant’s deception of the consumer caused harm to the plaintiff.” Am. Council of Certified Podiatric Physicians and Surgeons, 185 F.3d at 613-14.

The “literal falsity” rule may allow a plaintiff to obtain injunctive relief, but it does not assist the plaintiff in recovering “marketplace damages without other proof that such damages occurred.” Balance Dynamics Corp., 204 F.3d at 693-94. Applying these principles, we conclude that Michael Wright and McKenzie Wright Laboratories did not engage in commercial speech by providing Stoller with a false laboratory report because Wright was not engaged in promotion to influence consumers to purchase goods or services from McKenzie Wright Laboratories. See Semco, Inc., 52 F.3d at 112.

Similarly, Wright did not engage in commercial speech when he participated as an expert witness in Boersen Farms’ lawsuit against LidoChem and others. See Seven-Up Co., 86 F.3d at 1384; Podiatrist Ass’n, 332 F.3d at 19; Fashion Boutique of Short Hills, Inc., 314 F.3d at 57. Therefore, Wright and McKenzie Wright Laboratories are entitled to

summary judgment on the Lanham Act claim. Turning to the Lanham Act claim against Stoller Enterprises, we note the parties do not dispute that LidoChem and Stoller Enterprises were commercial competitors during the relevant time frame. Further, Stoller Enterprises may be held vicariously liable for the conduct of its owner, Stoller, and its employee, Alexander. See Proctor & Gamble Co. v.

Hau gen, 222 F.3d 1262, 1277 (10th Cir.2000) (“Vicarious liability may arise either from an employment or agency relationship”) Therefore, we consider whether LidoChem produced sufficient evidence to proceed to trial on the Lanham Act claim against Stoller Enterprises.

Taking the evidence in a light most favorable to LidoChem, we conclude that a reasonable factfinder could determine that Stoller engaged in commercial speech for the purpose of influencing consumers — not just the end-use farmer, but also the farm-chemical distributor — to buy Stoller Enterprises products and that Stoller’s statements were disseminated widely enough to the relevant purchasing public to constitute promotion within the relatively small western-Michigan farm-chemical industry.

See, e.g., Seven-Up Co., 86 F.3d at 1384; Porous Media Corp., 173 F.3d at 1121; Champion Lab., Inc., 616 F.Supp.2d at 694; Int’l Tech. Consultants, Inc., 2008 WL 4378095, at *6. LidoChem produced ample evidence that Stoller repeatedly made false statements of fact about the toxicity of Nutrefol directly to western Michigan farmer Dennis Boersen, as well as to a farm-chemical distributor in western Michigan, Wally Gerst of Advanced Ag Services.

Because Stoller’s claim that Nu-trefol contained a toxin was demonstrably false, actual deception is presumed and LidoChem is not required to produce proof that Stoller’s false statements actually misled consumers. See Am. Council of Certified Podiatric Physicians and Surgeons, 185 F.3d at 613; Porous Media Corp., 110 F.3d at 1335-36. Further, Stoller disparaged LidoChem in another way by casting doubt on Dean’s honesty and on the validity of his patents. See Int’l Tech.

Consultants, Inc., 554 F.Supp.2d at 757-58 (holding letter to competitor’s customer questioning ownership of certain technology was meant to convey that letter writer owned the technology and was more competent and trustworthy to handle a project than the competitor). LidoChem produced sufficient evidence that Stoller’s false statements were material, in that they influenced purchasing decisions by farmers and distributors. After Stoller first alleged in 2001 that Nutre-fol contained a substance harmful to plants, LidoChem’s Michigan salesman, Gerry Gelder, had difficulty selling the product to distributors.

At least one Michigan distributor, Zeeland Farm Services, stopped selling LidoChem’s products altogether and instead sold only Stoller Enterprises’ products after 2001. Pucillo and Gelder identified a list of customers whose purchasing decisions were influenced by Stoller’s false statements. In addition, Stoller knowingly placed his false statements about LidoChem and Nu-trefol into the stream of interstate commerce, and LidoChem produced expert evidence of a causal link between the challenged disparagement and more than four million dollars in damages to LidoChem.

Whether the causation analysis is affected by the fact that Nutrecology pulled Nutre-fol from the market in late 2001 is a factual question for the jury to decide. We conclude that LidoChem presented sufficient proof on the elements of a Lanham Act claim to warrant a jury trial. See Am. Council of Certified Podiatric Physicians and Surgeons, 185 F.3d at 613. The defendants contend that many of Stoller’s comments were directed to the attorney for Boersen Farms and, as such, they were not commercial speech. We disagree. The attorney acted as the agent of Boersen Farms in dealing with Stoller, see Uniprop, Inc. v.

Morganroth, 260 Mich.App. 442, 678 N.W.2d 638, 640-41 (2004), and the evidence suggests that Stoller fully expected his statements to the attorney to reach farmer Dennis Boersen and the farm-chemical industry in western Michigan. A reasonable jury, in examining Stoller’s motive for disparaging Lido-Chem and Nutrefol to Boersen’s attorney, could believe Stoller’s own words — that he intended to instigate litigation to inflict severe competitive injury on LidoChem and disrupt its business relationships.

Stoller even admitted during his deposition in the Boersen Farms lawsuit that he possessed a financial interest in the success of the litigation. The district court’s belief that Stoller made the false statements to the attorney simply to promote himself as a consultant and expert may be one reasonable

interpretation of the evidence, but it is not the only one, and it is the jury’s role to decide which reasonable factual inferences should be drawn from the evidence as a whole. LidoChem also produced evidence that Alexander directly communicated false information about Nutrefol to Dennis Boer-sen and other Michigan growers. After McKenzie Wright Laboratory provided Stoller Enterprises with a false report that Nutrefol contained 2-PBA, the substance allegedly toxic to the Boersens’ soybean plants, Calvin Hartzog called Alexander and told him, “we got’ em,” referring to LidoChem and Dean.

Stoller also explained the results of the false lab report to Alexander, who then communicated the results of Wright’s lab testing directly to Dennis Boersen. Further, Alexander agreed to be a fact witness for the Boer-sens and met with their attorney to prepare for the lawsuit Boersen Farms filed against LidoChem, Dean and others. In addition, Alexander agreed to serve as an expert witness for the Boersens on the topic of the investigation into Nutrefol. At the time of the deposition, Boersen Farms was Alexander’s largest customer and accounted for twenty-five to thirty percent of his sales of Stoller products.

Alexander also admitted that he discussed the facts underlying the Boersens’ lawsuit with Michigan growers to whom he sold Stoller products, including the managers of Sack-ett Ranch and Blue Sky. According to Alexander, the Sacketts were aware that LidoChem and Dean had allegedly added a toxic compound to Nutrefol. A reasonable jury hearing this evidence could find that Alexander communicated false statements about Nutrefol and convinced Michigan farmers to purchase Stoller Enterprises’ products instead of LidoChem’s.

Finally, LidoChem presented proof that Stoller’s and Alexander’s statements were material, in that the statements likely influenced the business decisions of The Andersons, LidoChem’s distributors, and Michigan farmers with respect to Lido-Chem products. The statements were made in interstate commerce and not solely to lawyers for Boersen Farms. Lido-Chem also produced expert evidence to draw a causal link between the challenged conduct in 2001 and damage to LidoChem.

Because there are genuine issues of material fact on LidoChem’s Lanham Act claim against Stoller, Alexander, and Stol-ler Enterprises, we reverse the grant of

summary judgment on this claim. We affirm

summary judgment in favor of Wright and McKenzie Wright Laboratories on the Lanham Act claim. The dissent criticizes our decision to reverse the grant of

summary judgment in favor of Alexander, asserting that we have no authority to consider facts in the

summary judgment record that counsel did not mention specifically to the district court. To the contrary, our power to consider the entire

summary judgment record springs from two sources: the Federal Rules of Civil Procedure and Supreme Court case law. First, Federal Rule of Civil Procedure 56(c)(3) provides: “The court need consider only the cited materials, but it may consider other materials in the record.” Thus, while the litigant must cite “particular parts of materials in the record,” Fed. R.Civ.P. 56(c)(1)(A), courts are not precluded from exercising the discretion granted to them in Rule 56(c)(3) to review other materials in the record. In accordance with the discretion granted by this rule, we reviewed the entirety of defendant Alexander’s deposition, which is included in the

summary judgment record. The dissent asserts that appellate courts cannot or should not rely on Rule 56(c)(3) because that rule is to be applied only by district courts. Fed.R.Civ.P. 1. However, our cases are replete with statements that we apply the same Rule 56 standard that was applied by the district court. See e.g., Alexander v. CareSource, 576 F.3d 551, 557 (6th Cir.2009); Tucker v. Tennessee, 539 F.3d 526, 531 (6th Cir.2008); Sutherland v. Mich. Dep’t of Treasury, 344 F.3d 603, 613 (6th Cir.2003); E.I. Du Pont de Nemours & Co. v. Okuley, 344 F.3d 578, 584 (6th Cir.2003); Hunley v.

DuPont Auto., 341 F.3d 491, 495 (6th Cir.2003); Dotson v. Wilkinson, 329 F.3d 463, 466 (6th Cir.2003); Thacker v. City of Columbus, 328 F.3d 244, 251-52 (6th Cir.2003); Perry v. McGinnis, 209 F.3d 597, 600 (6th Cir.2000). The dissent worries, moreover, that if a plaintiff files a motion to reconsider under Rule 59(e), this court could consider evidence that Rule 59(

e) bars the district court from considering. But we have already made clear that we review a Rule 59(

e) motion to alter or amend the judgment de novo, using the same standard that was applied by the district court, just as we do in the Rule 56 context. See Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 289 (6th Cir.1999). And there is no reason to fear, as the dissent does, that if a party produces no evidence in response to the

summary judgment motion, this court will nonetheless scour the moving party’s evidence to find a genuine issue of material fact. We apply the well-settled principle that the non-moving party may not rest on his pleadings, but must produce evidence to show that there is a genuine issue of material fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Havensure, L.L.C. v. Prudential Ins. Co., 595 F.3d 312, 315 (6th Cir.2010). In any event, this case does not involve a non-moving party’s failure to produce evidence in opposition to a

summary judgment motion. LidoChem produced Alexander’s entire deposition when it filed its

summary judgment response. Further, it is beyond dispute that our examination of a

summary judgment ruling is de novo. Branham v. Gannett Satellite Info. Network, Inc., 619 F.3d 563, 568 (6th Cir.2010). In conducting such review, the Supreme Court counsels us to review the

summary judgment “record taken as a whole.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In accordance with the Supreme Court’s guidance, we have conducted “independent review” of the factual record to decide that

summary judgment was properly granted, see e.g., Coffman v. Ford Motor Co., 447 Fed.Appx. 691, 697 (6th Cir.2011); Betkerur v. Aultman Hosp. Ass’n, 78 F.3d 1079, 1097 (6th Cir.1996), or to decide that reversal of

summary judgment was required. See e.g., Toledo Elec. Joint Apprenticeship v. Patchen, 14 F.App’x 601, 603-04 (6th Cir.2001); Ferby v. Runyon, No. 92-5662, 1993 WL 309716, at *6 (6th Cir. Aug. 13, 1993). Finally, the rule proposed by the dissent is impractical to apply and contrary to the purposes of appellate review. It would bar this court from considering evidence— either contradictory or supportive — found in reviewing the record on points raised and argued by the parties.

While our rules and cases may not require us to consider that evidence, there is nothing in them that supports the notion that an appellate court must blind itself to germane evidence. Under de novo review, we must apply the law to the facts in the record, and the dissent’s proposal would necessarily hamstring fulfillment of that duty. The case law cited and many similar cases we have decided, along with Rule 56(c)(8), supports our determination that the district court’s grant of

summary judgment to Alexander must be reversed based on Alexander’s own deposition testimony. To the extent the dissent relies on cases from other circuits, we are not persuaded to deviate from our own established law. B. Tortious-interference claim LidoChem and Dean also alleged in their complaint that all defendants tor-tiously interfered with plaintiffs’ business interests.

To prevail on a claim of tortious interference with a business relationship under Michigan law, a plaintiff must prove: “the existence of a valid business relationship or expectancy, knowledge of the relationship or expectancy on the part of the defendant, an intentional interference by the defendant inducing or causing a breach or termination of the relationship or expectancy, and resultant damage to the plaintiff.” BPS Clinical Labs. v. Blue Cross and Blue Shield of Michigan, 217 Mich.

App. 687, 552 N.W.2d 919, 925 (1996). “One is liable for commission of this tort who interferes with business relations of another, both existing and prospective, by inducing a third person not to enter into or continue a business relation with another or by preventing a third person from continuing a business relation with another.” Northern Plumbing & Heating, Inc. v. Henderson Bros., Inc., 88 Mich.App. 84, 268 N.W.2d 296, 299 (1978) (emphasis omitted).

A plaintiff “must allege the intentional doing of a per se wrongful act or the intentional doing of a lawful act with malice and unjustified in law for the purpose of invading plaintiff’s ... business relationship.” Feldman v. Green, 138 Mich.App. 360, 360 N.W.2d 881, 886 (1984). Tortious interference may be caused by defamatory statements. Lakeshore Cmty. Hosp., Inc. v. Perry, 212 Mich.App. 396, 538 N.W.2d 24, 27 (1995). The district court determined that the gravamen of the tortious-interference claim was false statements, but ruled that LidoChem failed to present sufficient proof to warrant a jury trial.

We disagree. In light of the evidence summarized above, a jury could reasonably determine that Stoller, Alexander, Stoller Enterprises, Wright, and McKenzie Wright Laboratories tortiously interfered in LidoChem’s business relationships with Boersen Farms, Zeeland Farm Services, Gerst, and The Andersons by falsely stating that Nutrefol contained a toxic chemical. The defendants knew of LidoChem’s business relationships with these entities. A reasonable jury could find intentional interference by inducing or causing a breach or termination of those business relationships, and LidoChem presented proof of damages.

Whether LidoChem had a valid business relationship or a future expectancy of a business relationship with Boersen Farms or The Andersons are factual questions for the jury. We do not see sufficient evidence in the record to warrant trial on any separate claim for tortious interference that Dean may have against the defendants. Therefore, we reverse the grant of

summary judgment to the defendants on the tor-tious-interference claim as to LidoChem, but affirm as to Dean. C. Civil conspiracy LidoChem claims that Stoller, Alexander, Stoller Enterprises, Wright, and McKenzie Wright Laboratories conspired to create a false lab report and then destroyed relevant evidence. “A civil conspiracy is a combination of two or more persons, by some concerted action, to accomplish a criminal or unlawful purpose, or to accomplish a lawful purpose by criminal or unlawful means.” Admiral Ins. Co. v. Columbia Cas. Ins. Co., 194 Mich.App. 300, 486 N.W.2d 351, 358 (1992).

A jury could rationally find that Stoller, his company, Wright, and McKenzie Wright Laboratories conspired to create the false lab report that became the central evidence that Boersen Farms used to support the lawsuit against LidoChem and its associates. A jury might also determine that Alexander was a co-conspirator because Hartzog notified Alexander of the results of the false lab report and Alexander then communicated the results directly to Dennis Boersen. Alexander also agreed to serve as a fact witness, and perhaps an expert witness, in the Boersen Farms’ lawsuit against LidoChem, Dean and others.

From all the evidence LidoChem produced, a jury could rationally determine that two or more persons, by concerted action, combined to accomplish the unlawful purpose of engaging in unfair competition under the Lanham Act and other violations of state tort law. We reverse the grant of

summary judgment on this claim and remand it for trial. D. Injurious falsehood LidoChem and Dean allege that all of the defendants are liable for injurious falsehood.

Under Michigan law, a person “who publishes a false statement harmful to the interests of another is subject to liability for pecuniary loss resulting to the other if ... he intends for publication of the statement to result in harm to interests of the other having a pecuniary value, or either recognizes or should recognize that it is likely to do so, and ... he knows that the statement is false or acts in reckless disregard of its truth or falsity.” Kollenberg v.

Ramirez, 127 Mich.App. 345, 339 N.W.2d 176, 179 (1983) (quotation omitted). “The communication of such an injurious statement to a third party must play a ‘material and substantial

part in inducing others not to deal with the plaintiff, with the result that the plaintiff suffers special damage, in the form of loss of trade or other dealings.’” Neshewat v. Salem, 173 F.3d 357, 363 (6th Cir.1999) (quoting Kollenberg). The plaintiff must prove that the injurious statement is actually false. Id. The district court ruled that Lido-Chem’s injurious-falsehood claim failed because LidoChem did not prove causation, i.e., that the injurious statements played a material and substantial

part in inducing others not to deal with LidoChem. We think this analysis overlooks the evidence that the defendants’ concocted falsehood about Nutrefol did play a material and substantial

part in inducing Boersen Farms, Zeeland Farm Services, and The Andersons to refrain from doing further business with LidoChem. Again, viewing the record in a light favorable to Lido-Chem, we determine that this claim must also be presented to a jury for resolution. Because we uncovered no evidence in the record to show that Dean suffered any damages, we agree that

summary judgment was proper as to his claim. To the extent LidoChem alleges that Stoller and Wright committed penury during their depositions, however, its claims must fail because witnesses are immune from causes of action based on testimony given during a legal proceeding. See Briscoe v. LaHue, 460 U.S. 325, 331-32, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). We reverse the grant of

summary judgment on the claim of injurious falsehood brought by LidoChem, but affirm on the claim brought by Dean. E. Defamation The last claim before us is defamation, the elements of which are: (1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged publication to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication (defamation per quod). Sawabini v.

Desenberg, 143 Mich.App. 373, 372 N.W.2d 559, 563 (1985). Dean alleged that Alexander defamed him during a 2008 luncheon meeting with Gelder. During the meeting, Alexander allegedly “bashed” Dean and Gerst. Also, at that time, Gelder knew the Boer-sen Farms litigation had settled. Alexander allegedly told Gelder that, if he would work for Alexander, then Alexander would reveal to him what “really” happened in the Boersen Farms litigation and Gelder would be shocked. Gelder did not go to work for Alexander, so he did not learn what “really” happened in the litigation.

This evidence is insufficient to meet the first element of defamation, proof of a false and defamatory statement concerning the plaintiff. Moreover, as previously stated, Dean did not produce any evidence of his damages. We conclude that the district court properly granted

summary judgment on Dean’s defamation claim. In this appeal, Dean points to Gelder’s testimony that Alexander said: “Frank Dean knowingly put materials in fertilizer.” Appellants’ Br. at 39. Any defamation claim relating to this statement is not properly preserved for our review. In addition, to the extent Gelder did initially so testify, he subsequently retracted the statement and testified that Alexander did not make any such comment to him at the lunch meeting. Therefore, the claim lacks merit and should not proceed.

Finally, a one-year statute of limitations applies to defamation, and any such claim accrues when the defamatory statement is made. Mitan v. Campbell, 474 Mich. 21, 706 N.W.2d 420, 422 (2005). Neither Lido-Chem nor Dean has pointed to any defamatory statement made by Stoller within the one-year limitations period. Therefore,

summary judgment on the defamation cause of action was appropriate. IV. CONCLUSION For all of the reasons stated, we AFFIRM in part, REVERSE in part, and REMAND for trial. We affirm the grant of

summary judgment on all claims brought by Dean individually. We also affirm the grant of

summary judgment on LidoChem’s Lanham Act claim against Wright and McKenzie Wright Laboratories, as well as LidoChem’s defamation claim. We reverse the grant of

summary judgment on LidoChem’s claim under the Lanham Act against Stoller, Alexander, and Stoller Enterprises, and we reverse the grant of

summary judgment on Lido-Chem’s claims against Stoller, Alexander, Stoller Enterprises, Wright, and McKenzie Wright Laboratories for tortious interference, injurious falsehood, and civil conspiracy. . A material safety data sheet details the health effects of a hazardous chemical, provides the signs and symptoms of exposure, and lists any medical conditions generally known to be aggravated by exposure to the chemical. See Gass v. Marriott Hotel Servs., Inc., 558 F.3d 419, 430 (6th Cir.2009). .

According to Hartzog, McKenzie Wright provided a favorable test report in early 2001 when Stoller Enterprises added thiourea, a banned Class 3 carcinogen, to a new farm-chemical product. When Dr. Mosier reported that cotton plants grown with the product tested positive for thiourea in the leaves, Stol-ler instructed Hartzog to find a different laboratory, and Hartzog located McKenzie Wright. . Although Christians' testimony on this point is hearsay, LidoChem may be able to present admissible evidence on the subject at trial.