Instagram disparagement by alleged competitor isn't commercial speech

Farina v. Omari, No. 24-11098 (SDW) (AME), 2026 WL 1552256 (D.N.J. Jun. 2, 2026)

The court grants a motion to dismiss in this defamation/false advertising claim centered on online videos.

“Farina is a consultant in the aesthetic surgery industry and operates through her business Beauty Brokers. Defendant is also a plastic surgery and aesthetics consultant.” Defendants made several defamatory statements on Instagram questioning plaintiffs’ credentials and alleging that they received kickbacks from surgeons. Omari also streamed live on Instagram, allegedly stating that “Farina is a bad person and bad businesswoman; that she scams a lot of people; and had a surgical procedure but never paid for it.” The complaint asserted (1) defamation; (2) false light; (3) tortious interference with prospective business relations; (4) false advertising/unfair competition; and (5) trade libel.

Defamation: Failed for want of defamatory character/being opinion. The allegedly defamatory claims: 1. “[Farina] is just a dental hygienist.” 2. “[Farina] gets paid on both ends and allegedly gets kickbacks.” 3. “Basically, people now pay $1,000 to have a consult with her so she can suggest one of these surgeons from “Beauty Brokers’ Little Black Book of surgeons.” 4. “Lots of surgeons I know have STORIES, and tons of my followers have sent in stories of [Farina] being super rude, canceling all the time and being late, not helpful, and having a hard time getting their money back if she messes up or doesn’t provide the services promised.” 5. “[Farina] is a bad person/bad businesswoman.” 6. “She scams a lot of people and had a surgical procedure that she owed money for but never paid it.”

Since Farina previously worked as a dental hygienist, “just a dental hygienist” was substantially true, and the complaint didn’t explain why highlighting Farina’s background as a dental hygienist subjects Farina “to contempt or ridicule,” and “harms [her] reputation by lowering the community’s estimation of [her] or by deterring others from wanting to associate or deal with [her].”

“[G]ets paid on both ends” and “allegedly gets kickbacks”: The gist of the first part was substantially true since plaintiffs admitted to a previous membership program where surgeons paid a membership fee to join their referral network, and to experimenting with a fee-splitting arrangement involving surgeons in their referral network and receiving gifts from surgeons. Although “kickbacks” could be read to accuse plaintiffs of a criminal offense or other illicit behavior, in context it referred to payments from surgeons for referrals and not to any criminal or illegal conduct.

The “pay $1,000 to have a consult with her so she can suggest one of these surgeons from Beauty Brokers’ Little Black Book of surgeons” didn’t rise to the level of defamation. And the final statements were opinion, especially given the context: the statements “were delivered by a social media influencer on Instagram,” and Instagram is a place “where a reasonable [viewer] will expect to find many more opinions than facts,” thus “strongly signal[ing] to readers that the posts merely reflect the publisher’s opinions.”

False light failed for failure to plead actual malice. Trade libel failed for the same reasons as defamation did. Tortious interference failed because plaintiffs failed to allege the existence of any lost prospective economic benefit that they would have retained “but for” the alleged interference. Attributing the sixteen customers who cancelled their appointments in the three weeks following the first post to defendant was speculative even though plaintiffs alleged that they normally only get one cancellation per week.  

Lanham Act false advertising: Not commercial speech, even assuming the parties were competitors. “Plaintiffs argue for an overly broad definition of commercial speech, essentially stating that any criticism from a purported competitor must be commercial speech.” But “the alleged misleading statements do not advocate for the reader to purchase a particular product or service over another. In fact, none of the alleged statements explicitly or implicitly refer to the alleged similar service offered by Defendant.” [don’t love this!]

New Jersey’s Uniform Public Expression Protection Act (its anti-SLAPP law) applied in federal court “to the extent that it affords fees, costs, and expenses to a prevailing movant who successfully dismisses a SLAPP suit under Federal Rule 12 or Federal Rule 56.” “For UPEPA to apply, the challenged speech must pertain to an area of public concern.” Farina was a limited purpose public figure, and the challenged statements related to a particular public controversy within the cosmetic surgery industry. UPEPA doesn’t apply to a cause of action asserted “against a person primarily engaged in the business of selling or leasing goods or services if the cause of action arises out of a communication related to the person’s sale or lease of the goods or services.” But the challenged statements weren’t commercial speech and don’t refer to any services offered by defendant. Thus, the defendant could get her fees, costs, and expenses.