Fielding v. GBS Benefits

2026 UT App 138
THE UTAH C OURT OF APPEALS
R ICK F IELDING,
Appellant,
v.
GBS BENEFITS , I NC , LEAVITT GROUP ENTERPRISES , I NC ,
AND ERIC LEAVITT,
Appellees.
Opinion
No. 20250606-CA
Filed September 11, 2026
Third District Court, West Jordan Department
The Honorable Matthew Bates
No. 240907557
Gregory M. Saylin and Tyson C. Horrocks,
Attorneys for Appellant
Matthew N. Evans, Whitney Hulet Krogue, and
Stephen R. Arroyo, Attorneys for Appellees
JUDGE R YAN D. T ENNEY authored this Opinion, in which J UDGES
M ICHELE M. C HRISTIANSEN F ORSTER and A MY J. O LIVER concurred.
TENNEY, Judge:
¶1 	Rick Fielding sued GBS Benefits, Inc. (GBS), Leavitt Group
Enterprises, Inc. (the Leavitt Group), and Eric Leavitt, the CEO of
the Leavitt Group—collectively, the Appellees—for breach of
contract, breach of the implied covenant of good faith and fair
dealing, defamation, and false light invasion of privacy. These
claims were based on statements that Leavitt had made about
Fielding at a company banquet. The Appellees filed a joint motion
to dismiss Fielding’s complaint, which the district court granted.
Fielding 	now 	appeals, 	challenging 	that 	decision 	on 	several
grounds. For the reasons set forth below, we affirm.

Fielding v. GBS Benefits
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BACKGROUND1
Fielding’s Termination from GBS
¶2 	In 1989, Fielding founded GBS, which is an employee
benefits consulting firm. In 2006, the Leavitt Group acquired a
majority interest in GBS. Fielding served as the CEO of GBS until
he stepped down in April 2021, after which Daniel Nelson—
whom Fielding had selected as his successor—took over as CEO.
After stepping down as CEO, Fielding remained at GBS in a
different position (though the record is unclear about the precise
nature of that position).
¶3 	In early 2023, a few employees approached Nelson and
raised some “concerns that Fielding was tough, intense, and
demanding.” GBS hired a law firm to conduct an investigation
regarding the complaints. GBS later “claim[ed]” to “rely on” the
results of that investigation, and it terminated Fielding from GBS
effective June 30, 2023.
The Townhall Meeting and the First Lawsuit
¶4 	Meanwhile, on May 8, 2023, GBS and the Leavitt Group
held a “townhall” meeting (the Townhall Meeting), with about 50
1. Because the district court granted the Appellees’ motion to
dismiss for failure to state a claim, “we accept the factual
allegations in the complaint as true and interpret those facts, and
all 	reasonable 	inferences 	drawn 	therefrom, 	in 	a 	light 	most
favorable to [Fielding] as the nonmoving party and recite the facts
accordingly.” Mathews v. McCown, 2025 UT 34, n.2, 575 P.3d 1114
(quotation simplified). On “the question of whether a statement is
susceptible to a defamatory interpretation,” however, “we do not
interpret inferences that may be reasonably drawn from the
statements 	in 	favor 	of 	a 	defamatory 	meaning,” 	and 	“our
description of the facts also reflects this principle.” Id. (quotation
simplified).

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brokers as well as other participants from outside of GBS in
attendance. At the Townhall Meeting, Leavitt and Nelson made
various statements about Fielding’s impending departure from
GBS. These included a statement from Nelson that Fielding had
committed “infractions,” as well as another in which Nelson said
that “this was a ‘me-too’ moment” for the company.2
¶5 	In August 2023, Fielding filed suit against GBS and the
Leavitt Group, wherein he brought various claims related to his
termination as well as a claim for defamation based on the
statements made at the Townhall Meeting. The parties entered
into 	a 	settlement 	agreement 	(the Settlement 	Agreement) 	on
December 12, 2023, after which they filed a joint stipulation
dismissing Fielding’s suit. Of note, the Settlement Agreement
contained a “Non-Disparagement” provision, wherein GBS and
the Leavitt Group agreed that they, along with “their Executives,
while speaking on behalf of” GBS and the Leavitt Group, would
“not 	make 	any 	maliciously 	untrue 	defamatory, 	libelous, 	or
slanderous statements—meaning that the statement was made
with knowledge of its falsity or with reckless disregard for its
truth or falsity—about [Fielding].” The Settlement Agreement
also contained a “Non-Disclosure” provision, wherein GBS and
the Leavitt Group agreed to not disclose “the financial terms” of
the 	Settlement 	Agreement, 	except 	“for 	business-related
purposes.”
The Closing Banquet
¶6 	On June 14, 2024, the Appellees held the closing banquet of
the Leavitt Group Partners Conference (the Closing Banquet). At
2. The phrase “Me Too” often refers to “a movement calling
attention to the frequency with which primarily women and girls
experience sexual assault and harassment.” Me Too, Merriam-
Webster, 	https://www.merriam-webster.com/dictionary/me-too
[https://perma.cc/83MZ-H2E8].

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20250606-CA 	4 	2026 UT App 138
the Closing Banquet, which was attended by “somewhere around
eight hundred employees, their family members, and industry
members including clients, competitors, vendors and carriers,”
Leavitt gave a speech while presenting an award to Nelson. This
speech was recorded, and a video of it was later uploaded to the
Leavitt Group’s private YouTube channel.
¶7 	During this speech, Leavitt praised Nelson and the ways in
which Nelson had led GBS since being appointed as its CEO. In
the course of these remarks, Leavitt made several statements
about Fielding. Leavitt noted that “the former GBS CEO” (which,
again, was Fielding) “had tremendous vision and drive and
should 	be 	honored 	for 	building 	a 	high-performance 	and
professionally excellent set of teams.” Continuing, however,
Leavitt then made a number of less flattering statements about
Fielding, 	and 	these 	statements 	formed 	the 	basis 	for 	the
subsequent lawsuit at issue in this appeal.
¶8 	These statements included the following:
[I]n April of last year a series of deeply
unfortunate interactions took place between the
former CEO and a couple of our most key account
service 	teammates. 	It’s 	fair 	to 	say 	that 	the
interactions of this nature had happened routinely
in the past but the individuals who had 	been
negatively 	affected 	by 	these 	interactions 	had
reached the breaking point. Feeling confident that
the new leadership in the organization was serious
in their desire to change the cultural environment in
the office, these individuals courageously came
forward and spoke up about mistreatment they
were experiencing.
As 	[Nelson] 	and 	his 	team 	quickly 	and
thoroughly 	investigated 	these 	events 	more
individuals came forward with reports of similar

Fielding v. GBS Benefits
20250606-CA 	5 	2026 UT App 138
challenging interactions. After a careful process
prescribed by HR policies and in consultation with
our internal legal team and outside counsel, we
determined 	we 	had 	no 	other 	choice 	but 	to
immediately part ways with the former CEO.
Fielding’s Complaint and the Appellees’ Motion to Dismiss
¶9 	In September 2024, Fielding filed a complaint against the
Appellees that asserted claims for (1) breach of contract, (2) breach
of 	the 	implied 	covenant 	of 	good 	faith 	and 	fair 	dealing,
(3) defamation, 	and 	(4) 	false 	light 	invasion 	of 	privacy. 	The
defamation and false light claims were based on the statements
that Leavitt had made about Fielding during the Closing Banquet
that were recited above. The breach of contract and breach of the
implied covenant claims were linked to those statements too, with
Fielding asserting that Leavitt’s statements had violated both the
express terms of the Settlement Agreement and the duties implied
by it.3
3. At the outset of his complaint, Fielding noted that he would
“collectively” refer to the three named defendants—GBS, the
Leavitt Group, and Eric Leavitt—as “the ‘Defendants,’” and he
then asserted all four causes of action against “the Defendants”
without differentiating between the individual defendants with
respect to any individual cause of action. As will be discussed
shortly, these defendants (whom we’ve referred to collectively as
“the Appellees” for purposes of this opinion) later filed a joint
motion to dismiss, and the district court granted that motion
before there was any attempt to litigate whether or how the
various causes of action could be asserted against each defendant.
Given the nature of the issues before us, we likewise have no need
to weigh in on such issues. For clarity here, we’ll again note that
all four causes of action ultimately stem from statements made by
(continued…)

Fielding v. GBS Benefits
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¶10 	On October 16, 2024, the Appellees filed a motion to
dismiss Fielding’s complaint for failure to state a claim upon
which 	relief 	could 	be 	granted. 	The 	Appellees 	argued 	that
Fielding’s defamation claim failed as a matter of law because “the
allegedly 	defamatory 	statements” 	(1) 	were 	“incapable 	of
sustaining a defamatory meaning under Utah common law” and
(2) were also “protected opinion under the Utah Constitution.”
The Appellees then argued that since the breach of contract and
false light claims were based on the same statements, those claims
failed as a matter of law as well. Finally, the Appellees argued that
Fielding’s 	claim 	for 	breach 	of 	the 	implied 	covenant 	failed
“because the implied covenant cannot be read to establish new
rights or duties to which the parties did not agree, especially if
those claimed rights contradict the duties expressly stated in the
contract.” The Appellees observed that “the express terms” of the
Settlement Agreement did not prohibit the parties “from saying
anything that might harm the reputation of the other,” but instead
only prohibited the parties from making “maliciously untrue
defamatory, libelous, or slanderous statement[s]” about each
other. (Emphasis in original.) Because Leavitt had not (in their
view) said anything defamatory, libelous, or slanderous about
Fielding, they asked the court to rule that the implied covenant
claim failed as a matter of law.
¶11 	On November 13, 2024, Fielding filed a written opposition
to the Appellees’ motion to dismiss. There, Fielding made various
substantive arguments in response to the Appellees’ arguments,
and Fielding stated that his “preferred disposition” was for the
court to deny the motion outright. At the close of his opposition
memorandum, Fielding included a brief section in which he
wrote, “If the [c]ourt dismisses any of Mr. Fielding’s claims, it
should also grant him leave to amend.” Fielding noted that rule
15(a) of the Utah Rules of Civil Procedure states that leave to
Eric Leavitt, that Leavitt was the CEO of the Leavitt Group, and
that the Leavitt Group owned a majority share in GBS.

Fielding v. GBS Benefits
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amend should be “freely” given when “justice requires.” Fielding
then 	stated 	that 	he 	had 	“sought 	to 	meet 	notice 	pleading
requirements” but that he had “a great deal more detail he could
add to any of the claims” if the court found them “inadequate,”
and he accordingly “request[ed] leave to amend his complaint
should the [c]ourt dismiss any of the claims asserted.” Fielding
did not file a separate motion for leave to amend, nor did he attach
a proposed amended complaint to his opposition memorandum.
¶12 	The court held a hearing on the motion to dismiss on April
16, 2025, and it issued an oral ruling at a hearing held two days
later. At the outset of its oral ruling, the court observed that the
defamation analysis turned on two questions: (1) whether the
statements at issue were “capable of sustaining a defamatory
meaning” and (2) whether they were statements of “opinion” that
were “protected by the Utah Constitution.”
¶13 	Addressing the first question, the court explained:
Somebody 	who 	had 	heard 	the 	previous
statements from the [Townhall Meeting] would
have understood that [Leavitt] was referring to
those interactions as infractions and that this was a
me-too moment for the company.[4] In other words,
that the mistreatment and the deeply unfortunate
4. Despite this acknowledgment, the court noted at the outset of
its ruling that it was “not considering whether the statements
made” at the Townhall Meeting were defamatory, “because the
statute of limitations [had] run on those statements and because
those statements” were “the subject of a binding settlement
agreement that released [the Appellees] from liability for those
statements.” The court then explained, however, that it would
“look to those statements as context to determine whether the
statements in the [Closing Banquet] were, in fact, defamatory.”

Fielding v. GBS Benefits
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interactions 	were 	viewed 	by 	the 	company 	as
infractions and as a me-too moment.
The 	[c]ourt 	has 	serious 	questions 	about
whether those statements are, in fact, capable of
sustaining a defamatory meaning. There is no claim
that the defendants have ever publicly repeated the
actual 	substance 	of 	the 	complaints 	against 	Mr.
Fielding. 	Instead, 	[the 	Appellees] 	have 	only
described in very general terms that Mr. Fielding
did something wrong. These very vague allusions to
his conduct do not impeach his honesty, integrity,
or 	virtue, 	and 	do 	not 	expose 	him 	to 	hatred,
contempt, or ridicule. We all make mistakes, and
simply having a public acknowledgment of those
mistakes without any more detail than words such
as infractions or mistreatment is not defamatory.
¶14 	But the court ultimately did not decide the motion on this
basis. Instead, it concluded that whether the statements made at
the Closing Banquet were “capable of carrying a defamatory
meaning need not be answered because the statements are clearly
protected opinion under the Utah Constitution.” Addressing that
question, the court applied the four-factor test set forth by the
Utah Supreme Court to distinguish statements of opinion from
statements of fact. See West v. Thomson Newspapers, 872 P.2d 999,
1018 (Utah 1994). Looking at the statements in question, the court
focused in on Leavitt’s use of the words “unfortunate” and
“mistreatment,” concluding that they are “both hallmarks of
opinion.” The court explained that the word “unfortunate” is
“often used to describe a poor decision or something that we wish
we had not done, and it could be applied to a wide range of both
serious and 	trivial 	things”; 	thus, 	“there 	is no 	standard 	for
determining 	whether 	an 	event 	or 	an 	interaction 	is 	truly
unfortunate.” 	The 	court 	likewise 	observed 	that 	the 	word
“mistreatment” “can mean many things” and “can apply to a

Fielding v. GBS Benefits
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variety of contexts and is not subject to precise definition.” In the
court’s view, these words—which it thought were at the center of
the challenged statements—were inherently subjective, which
meant that the statements in question were “protected opinion.”
¶15 	Because of this, the court ruled that Fielding’s defamation
claim failed as a matter of law. And from there, the court
concluded that Fielding’s breach of contract and false light claims
failed as a matter of law as well.
¶16 	The court then turned to Fielding’s implied covenant
claim, which the court viewed as standing on slightly different
footing. Here, the court concluded that “the mere fact that the
company said something negative about” Fielding would not
constitute 	“a 	breach 	of 	that 	covenant” 	with 	respect 	to 	the
underlying 	Settlement 	Agreement. 	The 	court 	specifically
“disagree[d] 	with” 	Fielding’s 	assertion 	“that 	the 	parties
contracted for peace.” The court instead observed that the “non-
disparagement 	clause 	in 	this 	case 	prohibit[ed] 	only 	the
publication of malicious defamatory falsehoods,” and it observed
that “[i]f the parties truly wanted peace, they should have
contracted for an actual non-disparagement clause,” rather than
“an agreement that allows each side to negligently publish
defamatory statements about the other.” For these reasons, the
court granted the motion to dismiss as to this claim as well.
¶17 	After announcing this ruling, the court asked the attorneys
if they had any questions or needed any clarification about the
ruling. In response, Fielding’s counsel asked the court to now
grant his request to amend the complaint. The court responded,
I would expect to see a motion to amend in response
to the motion to dismiss that would give me and
would give the [the Appellees] in this case some
indication of what the basis was to amend the
information. We’re now at the end of our litigation
on the motion to dismiss. I’ve granted that motion.

Fielding v. GBS Benefits
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I’m not going to entertain a motion to amend at this
point. That’s—I think it’s untimely. That should
have been raised . . . there should have been a
motion to amend filed when the motion to dismiss
was filed. So I’m not going to allow that at this point.
¶18 	The court subsequently entered a written judgment that
granted the motion to dismiss. Fielding now appeals.
ISSUES AND STANDARDS OF REVIEW
¶19 	On appeal, Fielding first argues that the district court
erroneously dismissed his complaint. “A ruling on a motion to
dismiss presents a legal question that we review for correctness,
affording no deference to the district court’s decision.” Turner v.
Staker & Parson Cos., 2012 UT 30, ¶ 7, 284 P.3d 600. “When
reviewing defamation claims dismissed for failure to state a claim,
we 	accept 	as 	true 	all 	material 	allegations contained 	in 	the
complaint.” RainFocus Inc. v. Cvent Inc., 2023 UT App 32, ¶ 6, 528
P.3d 1221 (quotation simplified). “However, we do not indulge
the appellant by interpreting inferences that may be reasonably
drawn from the statements in favor of a defamatory meaning.” Id.
(quotation simplified). “Rather, we look to the context of the
allegedly defamatory statement and then, in a nondeferential
manner, reach an independent conclusion about the statement’s
susceptibility 	to 	a 	defamatory 	interpretation.” 	Id. 	(quotation
simplified). “This determination is a question of law, reviewed for
correctness.” Id. (quotation simplified).
¶20 	Fielding next argues that the district court erred in denying
his request to amend his complaint. “We review a district court’s
denial of leave to amend for an abuse of discretion.” Hudgens v.
Prosper, Inc., 2010 UT 68, ¶ 15, 243 P.3d 1275.

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ANALYSIS
I. Defamation
¶21 	Fielding 	first 	argues 	that 	the 	district 	court 	erred 	in
concluding that the statements at issue could not support a claim
for defamation—and then, as a result, dismissing Fielding’s other
claims as well. We see no reversible error on any front.
¶22 	“To state a claim for defamation, one must show that the
other party published the statements, that the statements were
false, defamatory, and not subject to any privilege, that the
statements were published with the requisite degree of fault, and
that their publication resulted in damage.” RainFocus Inc. v. Cvent
Inc., 2023 UT App 32, ¶ 7, 528 P.3d 1221 (quotation simplified).
Because this appeal arises in the context of a motion to dismiss,
“we assume without deciding that the statements were false, that
they were published with the requisite degree of fault, and that
they resulted in damage” to Fielding. Id.
¶23 	In the briefing and analysis below, the parties and the court
focused on two questions: (1) whether the statements at issue
were capable of sustaining a defamatory meaning and (2) whether
the 	statements 	were 	protected 	opinion 	under 	the 	Utah
Constitution. See West v. Thomson Newspapers, 872 P.2d 999, 1008,
1015 (Utah 1994). With respect to these same analytical questions,
our 	supreme 	court 	has 	noted 	that 	they 	present 	“separate
inquiries.” Mathews v. McCown, 2025 UT 34, ¶ 97, 575 P.3d 1114.
Thus, even if a statement is capable of sustaining a defamatory
meaning, it “cannot serve as the basis for defamation liability” if
it is protected opinion. West, 872 P.2d at 1015. Conversely, if a
statement is not capable of sustaining a defamatory meaning, we
think it’s clear enough that a court would have no need to
separately determine whether it is also protected opinion.
¶24 	As 	noted, 	the 	district 	court 	briefly 	opined 	on 	the
defamatory meaning inquiry, but it ultimately based its ruling on

Fielding v. GBS Benefits
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the opinion inquiry. The parties have briefed and argued both
issues on appeal. “It is well settled that an appellate court may
affirm the judgment appealed from if it is sustainable on any legal
ground or theory apparent on the record, even though such
ground or theory differs from that stated by the trial court to be
the basis of its ruling.” Bailey v. Bayles, 2002 UT 58, ¶ 10, 52 P.3d
1158 (quotation simplified). Having considered the record and the
arguments presented to us, we conclude that the statements were
not 	capable 	of 	sustaining 	a 	defamatory 	meaning. 	Before
explaining why, we first provide some brief legal background
about the nature of the defamatory meaning inquiry.
¶25 	A 	court 	assesses 	whether 	a 	statement 	is 	capable 	of
sustaining 	a 	defamatory 	meaning 	“by 	asking 	whether 	a
reasonable reader [or listener] could find the statement to be
defamatory.” Mathews, 2025 UT 34, ¶ 94 n.16.5
Under Utah law, a statement is defamatory if it
impeaches an individual’s honesty, integrity, virtue,
or reputation and thereby exposes the individual to
public hatred, contempt, or ridicule. At its core, an
action for defamation is intended to protect an
individual’s 	interest 	in 	maintaining 	a 	good
reputation. A publication is not defamatory simply
because 	it 	is 	nettlesome 	or 	embarrassing 	to 	a
plaintiff, or even because it makes a false statement
about the plaintiff. A plaintiff must establish that the
5. “Just to be clear, the ultimate question of whether a statement
is 	defamatory 	is 	separate 	from 	the 	question 	of 	whether 	a
statement is capable of defamatory meaning.” Mathews v. McCown,
2025 UT 34, ¶ 97 n.18, 575 P.3d 1114 (emphasis in original). While
“the question of whether the statement is defamatory belongs to
the trier of fact,” the “threshold question” of whether a statement
is capable of defamatory meaning “can be placed before the court
by motion.” Id. ¶ 97 & n.18.

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statement at issue is more than sharp criticism, that
it instead damaged the plaintiff’s reputation in the
eyes 	of 	at 	least 	a 	substantial 	and 	respectable
minority of its audience.
Keisel v. Westbrook, 2023 UT App 163, ¶ 33, 542 P.3d 536 (quotation
simplified). In making this determination, a court “cannot view
individual 	words 	in 	isolation” 	but 	must 	instead 	“carefully
examine 	the 	context 	in 	which 	the 	statement 	was 	made.”
RainFocus, 2023 UT App 32, ¶ 8 (quotation simplified). In doing
so, the court should “giv[e] the words their most common and
accepted 	meaning.” 	Mathews, 	2025 	UT 	34, 	¶ 	64 	(quotation
simplified).
¶26 	In his complaint, Fielding appeared to argue that the
statements at issue constituted both express defamation and
implied defamation. And as discussed below, he has arguably
invoked 	the 	defamation-by-incomplete-disclosure 	doctrine 	as
well. Applying the standards just articulated, we’ll address each
in turn.
A. 	Express defamation
¶27 	An express defamation claim involves a statement that is
“defamatory on its face.” Verity v. USA Today, 436 P.3d 653, 662
(Idaho 2019). Thus, with regard to this type of defamation claim,
a court is concerned with what was directly or expressly said, as
opposed to the implications from those statements. Cf. West, 872
P.2d at 1011.
¶28 	In support of his express defamation claim, Fielding points
us to the statements made by Leavitt at the Closing Banquet that
we recounted in paragraph 8 above. Throughout his opening
brief, Fielding makes it clear that, in his view, the particular
defamatory meaning conveyed by these statements was that he
had engaged in sexual misconduct. The first line of his opening
brief, for example, states that “[t]he key question on appeal is

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whether false statements that Appellant Rick Fielding sexually
harassed and assaulted lower-level employees were capable of
defamatory meaning and not mere opinions protected by the
Utah Constitution.” Elsewhere in his brief, Fielding asserts that
Leavitt’s 	statements 	had 	“flatly 	branded 	[him] 	as 	a 	sexual
predator” 	and 	“accus[ed] 	[him] 	of 	sexual 	misconduct,
mistreatment, and harassment.” And the subheading from the
key 	portion 	of 	his 	Argument 	section 	likewise 	asserts 	that
“Allegations of sexual misconduct are defamatory as a matter of
law.” Indeed, the word “sexual” appears 41 times in his opening
brief, 	usually 	in 	the 	context 	of 	phrases 	such 	as 	“sexual
misconduct” (which appears 18 times), “sexual assault” (which
appears 12 times), or “sexual predator” (which appears 5 times).
¶29 	In 	light 	of 	all 	this, 	we’ll 	proceed 	with 	our 	analysis
accordingly—namely, we’ll consider whether the statements at
issue were capable of sustaining the alleged defamatory meaning
of 	communicating 	that 	Fielding 	had 	engaged 	in 	sexual
misconduct.6
6. A few passages from Fielding’s opening brief could arguably
be read a bit more broadly, suggesting at times that Leavitt’s
references 	to 	“unfortunate 	interactions” 	and 	“mistreatment”
could carry a defamatory meaning that was separate from any
connotation 	of 	sexual 	impropriety. 	But 	these 	are 	passing
references, and we don’t think that Fielding adequately briefed a
defamatory meaning claim outside the context of alleged sexual
misconduct. Instead, as explained, Fielding repeatedly anchors
his arguments to his contention that Leavitt had accused him of
sexual misconduct.
This becomes even clearer in Fielding’s reply brief. In their
responsive brief, the Appellees suggested that the statements at
issue could have carried a non-sexual—and, by extension, non-
defamatory—meaning. But in his reply brief, Fielding fights back
(continued…)

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¶30 	Again, when evaluating an express defamation claim,
courts look at what was said, as opposed to what may have been
implied. But we see nothing in the statements at issue in which
Leavitt expressly said anything about Fielding having engaged in
sexual misconduct. The word “sexual” doesn’t appear in any of
those statements, nor do we see anything in them that expressly
refers to an allegation of sexual misconduct. Thus, because
Fielding’s express defamation claim rests on his specific assertion
that Leavitt said that Fielding had engaged in sexual misconduct,
we see no support for it. We accordingly affirm the dismissal of
the express defamation claim on that basis.
B. 	Implied defamation
¶31 	The next question, then, is whether Fielding can proceed
on his implied defamation claim. In such a claim, “it is the
against that suggestion, again asserting Leavitt had accused him
of sexual misconduct. The word “sexual” appears another 26
times in that brief. And more pointedly, Fielding argues that
Leavitt’s statements did “not vaguely suggest that Fielding ‘did
something wrong’” but instead “paint[ed] the picture of a boss
despicably inflicting sexual misconduct on the women working
around him.” Fielding claims that the “implication” of Leavitt’s
statements 	was 	that 	Fielding 	had 	“engaged 	in 	sexual
misconduct.” And he asserts that “anyone familiar” with the
Townhall 	Meeting 	“would 	understand” 	that 	Leavitt 	was
“refer[ring] to ‘sexual assault and harassment’” and that it was
“clear” that Leavitt was accusing him of having “committed
sexual harassment and even non-consensual sexual misconduct.”
What’s more, Fielding clarifies that this was the position he took
in the proceedings below, arguing in his reply brief that his
“[c]omplaint, opposition briefing, and oral argument below ha[d]
consistently maintained that [Leavitt’s] statements both directly
and 	by 	implication 	accused 	him 	of 	sexual 	misconduct.”
(Emphasis in original.)

Fielding v. GBS Benefits
20250606-CA 	16 	2026 UT App 138
implication arising from the statement and the context in which it
was made, not the statement itself, which forms the basis of [the]
claim.” West, 872 P.2d at 1011. As explained by our supreme court:
Words 	that 	appear 	at 	first 	blush 	to 	convey 	a
defamatory meaning may be explained away as
innocuous 	when 	their 	context 	is 	made 	clear.
Conversely, words innocent on their face may,
when explained in context, convey a defamatory
meaning. The classic example is the statement that
John Smith was seen walking into a hotel room with
Mary. 	On 	its 	face, 	the 	statement 	does 	not
communicate 	anything 	intending 	to 	injure
reputation. 	If, 	however, 	there 	is 	added 	to 	the
statement the fact that John Smith is married to
someone other than Mary, the inference that the
ordinary reasonable recipient may draw—that John
is 	involved 	in 	an 	adulterous 	relationship 	with
Mary—becomes defamatory.
Id. at 1011 n.18 (quotation simplified). Thus, in assessing an
implied defamation claim, “the surrounding words must matter.”
Keisel, 2023 UT App 163, ¶ 47. And if no “reasonable fact finder
could 	conclude 	that 	the 	underlying 	statement 	conveys 	the
allegedly defamatory implication,” the implied defamation claim
fails as a matter of law. Id. ¶ 63 (quotation simplified).
¶32 	Here, Fielding asserts that even if Leavitt did not expressly
say that Fielding had engaged in sexual misconduct, Leavitt at
least implied it. Fielding contends that this was so on essentially
two levels. First, Fielding argues that the statements Leavitt made
at the Closing Banquet on their own reasonably implied this. And
second, he argues that even if they did not, this implication would
have been conveyed when these statements were considered
alongside the statements that Nelson had made a year earlier at
the Townhall Meeting. We disagree on both fronts.

Fielding v. GBS Benefits
20250606-CA 	17 	2026 UT App 138
¶33 	First, starting with the statements made at the Closing
Banquet on their own, we see nothing in those statements that
would have conveyed to a reasonable listener that Fielding had
engaged in sexual misconduct.
¶34 	In contending otherwise, Fielding first focuses on Leavitt’s
assertions that there had been “unfortunate interactions” and
“mistreatment” of employees. But as discussed above, these
statements 	didn’t 	expressly 	say 	anything 	about 	any 	sexual
misconduct. And even considered in context, we still don’t see
sufficient support for the suggestion that these statements implied
that Fielding had engaged in sexual misconduct. Again, Fielding
was the former CEO of GBS and had later been terminated from
his ongoing position with the company. But by Fielding’s own
account (which, again, we’re drawing from his complaint), the
investigation into his conduct began in early 2023 after some
employees had approached Nelson and raised “some concerns
that Fielding was tough, intense, and demanding.” Viewed in this
context, Leavitt’s statements about Fielding’s termination could
have been about virtually anything that might have led the
company to part ways with him, whether it be his apparent
toughness and intensity with employees, or perhaps excessive
workload demands, differences in company vision, or anything
else that might cause a company to part ways with a senior
executive.
¶35 	Fielding also points to Leavitt’s statement that “[a]fter a
careful process prescribed by HR policies and in consultation with
our internal legal team and outside counsel, we determined we
had no other choice but to immediately part ways with” Fielding.
But in context, we don’t believe this statement reasonably implied
sexual misconduct either. Leavitt did not say that Fielding had
even violated any particular HR policy or law, much less that
Fielding had violated a policy or law about sexual misconduct.
Rather, what Leavitt said was that when deciding to terminate
Fielding, the company had followed the “process prescribed by

Fielding v. GBS Benefits
20250606-CA 	18 	2026 UT App 138
HR” and had consulted its internal legal team and outside counsel.
One would expect that a company would always follow its HR
policies 	before 	terminating 	an 	employee. 	And 	one 	might
particularly expect that, given the stakes, a company would
consult with HR and legal counsel before terminating a more
senior employee such as the former CEO. So these statements, too,
don’t reasonably imply anything about sexual misconduct. Again,
a company could choose to terminate an employee (even a senior
one) for a whole range of things, whether it be performance issues,
sexual misconduct, non-sexual misconduct, or something else
entirely.
¶36 	We 	do 	acknowledge 	that 	these 	particular 	statements
certainly implied that Fielding had done something negative. But
still, they were unquestionably vague, and vague statements
alone are typically not enough to support a defamation claim. See,
e.g., Hogan v. Winder, 762 F.3d 1096, 1107 (10th Cir. 2014) (holding
that 	the 	statement 	that 	an 	ex-employee 	was 	fired 	for
“performance 	issues” 	was 	not 	defamatory 	because 	“the
characterization” 	was 	“simply 	too 	nonspecific 	to 	sustain 	a
defamatory meaning”); see also DeAngelis v. Hill, 847 A.2d 1261,
1269 (N.J. 2004) (“Only if the statement suggest[s] specific factual
assertions that [can] be proven true or false [can] the statement
qualify as actionable defamation.” (emphasis added, quotation
otherwise simplified)). Further, we reiterate that a statement “is
not defamatory simply because it is nettlesome or embarrassing
to a plaintiff.” Cox v. Hatch, 761 P.2d 556, 561 (Utah 1988); see also
San Antonio Express News v. Dracos, 922 S.W.2d 242, 248 (Tex. App.
1996) (holding that statements “may even be false, abusive,
unpleasant, 	or 	objectionable 	to 	the 	plaintiff 	without 	being
defamatory”).
¶37 	Thus, while most ex-employees would certainly prefer that
there be no negative implication tied to their termination at all,
without a more specific statement giving rise to an ascertainable
defamatory implication, there can be no actionable defamation

Fielding v. GBS Benefits
20250606-CA 	19 	2026 UT App 138
claim. And again, Fielding’s very particular claim is that Leavitt
had reasonably implied that Fielding had engaged in sexual
misconduct. Having carefully evaluated Leavitt’s statements and
the surrounding context, we simply see nothing in them that
would reasonably convey to the listeners that Fielding had
engaged in sexual misconduct.
¶38 	Second, Fielding points to the statements that Nelson had
made a year earlier at the Townhall Meeting. As noted, Nelson
said that Fielding had committed “infractions,” and Nelson then
referred to this as a “‘me-too’ moment” for the company. Given
the well understood meaning of the “me too” phrasing—namely,
that it refers to sexual misconduct—Fielding asserts that Nelson’s
statements at the Townhall Meeting reasonably implied sexual
misconduct. And Fielding then asserts that in light of those past
statements, the audience at the Closing Banquet would likewise
have understood that Leavitt was asserting that Fielding had
committed sexual misconduct.
¶39 	But the problem for Fielding is that, in the challenged
statements at the Closing Banquet, Leavitt did not actually refer
to the statements from the Townhall Meeting. Leavitt never said
anything such as, “As you’ll recall from our Townhall Meeting
last year,” or “As we told you last year,” nor did he ever draw a
link or make a callback to those statements. Nor did Leavitt restate
what Fielding regards as the key substantive point from those
remarks—that the company viewed Fielding’s misconduct as
creating a “me too” moment for the company. Simply put,
nothing Leavitt said at the Closing Banquet referenced the
statements from the Townhall Meeting.
¶40 	Moreover, in his complaint, Fielding did not plead that
there had been any commonalities between the audiences. But it
seems to us that such an allegation would have been necessary to
support this aspect of Fielding’s argument. After all, there had
already been a lawsuit based on the statements made at the

Fielding v. GBS Benefits
20250606-CA 	20 	2026 UT App 138
Townhall Meeting, and that lawsuit was settled. This lawsuit,
however, was based on statements made at the Closing Banquet,
so statements made a year earlier at the Townhall Meeting would
only have mattered if there were people at the Closing Banquet
who had also been at the Townhall Meeting and would therefore
have understood the allegedly veiled reference. But Fielding
never pleaded that this was so. We accordingly see no basis for
concluding that the statements made at the Townhall Meeting
would have influenced how the separate audience at the separate
Closing 	Banquet 	would 	have 	understood 	those 	separate
statements.
¶41 	In light of all this, we see nothing in the statements made
at the Closing Banquet that reasonably implied that Fielding had
engaged in sexual misconduct. Because this was the basis of
Fielding’s implied defamation claim, we conclude that it failed as
a matter of law. We therefore affirm the dismissal of it on this
basis.
C. 	Defamation by incomplete disclosure
¶42 	Fielding 	also 	argues 	that 	he 	can 	prevail 	under 	the
defamation-by-incomplete-disclosure 	doctrine. 	In 	support, 	he
cites the Restatement (Second) of Torts section 566. As set forth
there, “if the expression of an opinion ‘is reasonably understood
as implying the assertion of the existence of undisclosed facts
about the plaintiff that must be defamatory in character in order
to justify the opinion,’ the defendant may be ‘subject to liability’
for failing to disclose those underlying facts.” Keisel, 2023 UT App
163, ¶ 61 (quoting the Restatement (Second) of Torts § 566 cmt. c.
(A.L.I. 1977)). “In this sense, if a speaker’s failure to disclose what
the speaker knows implies the existence of other facts, and those
unspoken facts are defamatory, it’s those unspoken facts (as
opposed to the resultant expression of opinion) that provide the
basis for a defamation suit.” Id.

Fielding v. GBS Benefits
20250606-CA 	21 	2026 UT App 138
¶43 	We’ve recently noted that Utah’s appellate courts have not
definitively adopted this doctrine. See id. ¶ 62. And in their brief,
the Appellees contend that Fielding never actually pleaded or
preserved such a claim below anyway. Assuming for argument
only that it is available in Utah and that Fielding pleaded it in his
complaint, we see no basis for concluding that this claim should
have survived the motion to dismiss.
¶44 	By his own telling, Fielding’s defamation-by-incomplete-
disclosure claim is something of an offshoot of his implied
defamation claim—namely, he focuses on Leavitt’s statements
that the company had “investigated” him and that it had then
“determined” that it “had no other choice but to immediately part
ways” with him. In Fielding’s view, because Leavitt referred to
this “investigation” but then failed to disclose the full results of it,
Leavitt 	had 	implied 	that 	the 	investigation 	had 	turned 	up
additional defamatory facts.
¶45 	As with his other claims, Fielding again grounds this claim
in his assertion that Leavitt was suggesting that Fielding had
engaged in sexual misconduct. Early in the portion of his brief
devoted to this claim, Fielding asserts that Leavitt told the
audience 	that 	Fielding 	“had 	driven” 	employees 	“to 	their
‘breaking point’ by his sexual misconduct,” after which the
company “conducted an investigation that prompted still more
reports.”7 	And 	he 	further 	asserts 	that 	Leavitt 	had 	“again
invok[ed] the ‘me too’ context to underscore the gravity of the
claimed sexual assault and harassment.” Later, Fielding similarly
claims that Leavitt’s statements had “inform[ed]” the audience
that “Fielding had committed sexual misconduct, and after a
7. As indicated in the full quote provided in paragraph 8, while
Leavitt did say that certain “individuals” had reached their
“breaking point,” he did not say, as Fielding suggested in his
brief, that the individuals had been driven to their breaking point
“by his sexual misconduct.”

Fielding v. GBS Benefits
20250606-CA 	22 	2026 UT App 138
purportedly valid investigation, the company made the decision
to terminate him.”
¶46 	As discussed above, however, we see no support for the
conclusion that, in the Closing Banquet, Leavitt either expressly
or impliedly said anything about sexual misconduct. So we
likewise conclude that Leavitt did not reasonably imply that the
company had investigated alleged sexual misconduct and had
learned of undisclosed evidence regarding such misconduct. For
these reasons, we conclude that, even if this doctrine is available
in Utah, Fielding has not shown that he was entitled to proceed
on such a theory. We accordingly affirm the dismissal of this
alleged portion of Fielding’s complaint.
II. Fielding’s Other Claims
¶47 	In his complaint, Fielding also asserted claims for breach of
contract, breach of the implied covenant, and false light invasion
of privacy. In his opening brief, Fielding expressly acknowledges
that the breach of contract and false light claims are dependent on
the viability of his defamation claim. Because we have affirmed
the dismissal of the defamation claim, we affirm the dismissal of
those claims as well.
¶48 	This leaves the claim for breach of the implied covenant.
Here, Fielding argues that, separate from the breach of contract
claim, 	the 	implied 	covenant 	claim 	was 	viable 	because 	the
“purpose of the [Settlement Agreement] was to put to rest the
events that precipitated the claims . . . brought in the original
lawsuit.” According to Fielding, the Appellees therefore breached
the implied covenant by speaking of the “circumstances that
caused Fielding to sue them for defamation in the first place.” We
disagree.
¶49 	“Inherent in every contract is an implied covenant of good
faith and fair dealing.” Far West Bank v. Robertson, 2017 UT App
213, ¶ 29, 406 P.3d 1134 (quotation simplified). Under this

Fielding v. GBS Benefits
20250606-CA 	23 	2026 UT App 138
covenant, “both parties to a contract impliedly promise not to
intentionally do anything to injure the other party’s right to
receive the benefits of the contract.” Id. (quotation simplified). But
this covenant “is subject to several well-established limiting
principles.” Id. ¶ 30. First, “the covenant cannot be read to
establish new, independent rights or duties to which the parties
did not agree ex ante.” Id. (quotation simplified). Second, “the
covenant cannot create rights and duties inconsistent with express
contractual terms.” Id. (quotation simplified). And third, “courts
will not use the covenant to achieve an outcome in harmony with
the court’s sense of justice but inconsistent with the express terms
of the applicable contract.” Id. (quotation simplified). In other
words, “the covenant is not a license for the judiciary to codify
standards of altruism,” Young Living Essential Oils, LC v. Marin,
2011 UT 64, ¶ 15, 266 P.3d 814, and courts “will not interpret the
implied covenant of good faith and fair dealing to make a better
contract for the parties than they made for themselves,” Far West
Bank, 2017 UT App 213, ¶ 29 (quotation simplified).
¶50 	Here, the Settlement Agreement contained both a “Non-
Disclosure” provision and a “Non-Disparagement” provision,
and 	Fielding’s 	claim 	focuses 	on 	the 	Non-Disparagement
provision. But that provision was not as broad as Fielding now
suggests. As noted, that provision prohibited the Appellees from
making “maliciously untrue defamatory, libelous, or slanderous
statements” about Fielding. It said nothing about prohibiting
them from publicly saying anything at all about the circumstances
that led to his termination. Because of this, Fielding’s proposed re-
interpretation of that provision would, if accepted, essentially
create new contractual obligations that are broader than those that
were established by the Settlement Agreement itself. Like the
district court, we conclude that Fielding cannot proceed on this
basis. We accordingly affirm the district court’s decision to
dismiss this claim.

Fielding v. GBS Benefits
20250606-CA 	24 	2026 UT App 138
III. Motion to Amend
¶51 	Finally, Fielding argues that the district court erred by
rejecting his request for leave to amend his complaint. In support,
he points to rule 15(a) of the Utah Rules of Civil Procedure, which
provides that “a party may amend its pleading only with the
court’s permission or the opposing party’s written consent,” and
he stresses that under its terms, a “court should freely give
permission when justice requires.” Utah R. Civ. P. 15(a)(2). But
even so, we see no reversible error here.
¶52 	Fielding’s purported motion was non-compliant with two
rules of procedure. First, rule 7(n) of the Utah Rules of Civil
Procedure states that a “party may not make a motion in a
memorandum opposing a motion.” But this is precisely what
Fielding attempted to do here. As discussed, Fielding never filed
a separate motion for leave to amend but instead simply included
what was essentially a request to do so in his memorandum
opposing the Appellees’ motion to dismiss. Second, rule 15(a)
states that when a party does file a motion for leave to amend, the
“party must attach its proposed amended pleading to the motion
to permit an amended pleading.” Id. R. 15(a)(2). As noted,
Fielding did not attach a proposed amended complaint to his
opposition memorandum.
¶53 	In our view, there are good reasons for these rules. Rule
7(n) promotes regularity of process. In the ordinary course of
things, a properly filed motion of any kind prompts a response
which then prompts a reply, so if a party ignores rule 7(n) and
purports to file a motion as part of an opposition memorandum,
this process is not properly initiated and is in some sense distorted
(particularly in the sense of how the moving party would go about
filing 	what 	should 	be 	the 	reply). 	In 	this 	sense, 	a 	party’s
compliance with this rule helps to ensure that both the opposing
party and the court are given clear notice that this party has now
made an independent, affirmative request for relief, thereby

Fielding v. GBS Benefits
20250606-CA 	25 	2026 UT App 138
triggering the appropriate responses. See Holmes Dev., LLC v. Cook,
2002 UT 38, ¶ 58, 48 P.3d 895. For its part, rule 15(a)(2)’s
requirement 	that 	the 	plaintiff 	submit 	a 	proposed 	amended
complaint along with a motion for leave to amend has its own
particular value. This provision ensures that both the defendant
and the district court have a clear understanding of what it is
exactly 	that 	the 	plaintiff 	is 	seeking 	to 	add 	to 	the 	original
complaint. See id. And these details may become particularly
critical if the defendant files or has already filed a motion to
dismiss, insofar as the proposed additions may or may not solve
any alleged legal infirmities in the original complaint.
¶54 	But we don’t ultimately decide this issue based on the
perceived purposes. The rules are the rules, the terms of these
rules are clear and direct enough, and Fielding has given us no
reason to conclude that the district court erred by not allowing
him to disregard them. And again, as indicated, Fielding did not
comply with these rules by filing a separate motion for leave to
amend that was accompanied by a proposed amended complaint.
As a result, the district court did not abuse its discretion by
declining to grant his improper request. See id. ¶ 59 (holding that
“[b]y relegating its motion to the end of the memoranda opposing
[a motion] to dismiss,” the appellant’s motion “did not comply
with Utah’s formal motion practice rules” and the district court
“did not abuse its discretion in denying” the motion); Coroles v.
Sabey, 2003 UT App 339, ¶ 47, 79 P.3d 974 (holding that “the court
did not have before it a proper motion to amend, so it could not
have granted the request for leave to amend”); see also Newton v.
State, 2025 UT 50, ¶ 94, 585 P.3d 1159 (holding that the court
“properly struck” a cross-motion for summary judgment made in
a response memorandum because it “was an improper vehicle for
[the] cross-motion”); Compagni v. Klemesrud, 2025 UT App 71, ¶ 16
n.6, 571 P.3d 803 (holding that because the appellant “made a
motion for sanctions in her opposition to summary judgment,”

Fielding v. GBS Benefits
20250606-CA 	26 	2026 UT App 138
the district court “properly declined to address the . . . motion and
supporting arguments”).8
CONCLUSION
¶55 	For the foregoing reasons, we conclude that the district
court did not err in granting Appellees’ motion to dismiss, nor did
it abuse its discretion by declining to grant Fielding’s request to
amend his complaint. We therefore affirm.
8. Even if we didn’t find the rule violations alone to be dispositive,
we would still affirm for lack of prejudice. “Under well-accepted
harmless error standards, we don’t reverse rulings unless there is
a reasonable likelihood that the error affected the outcome of the
proceedings.” Schmidt v. Petersen, 2025 UT App 12, ¶ 37, 564 P.3d
526 	(quotation 	simplified). 	And 	prejudice 	cannot 	be 	shown
through speculation. See, e.g., Jones v. Cyprus Plateau Mining Corp.,
944 P.2d 357, 360–61 (Utah 1997). Here, although the Appellees’
motion to dismiss put Fielding on notice of the alleged legal
defects with his complaint, Fielding never filed a proposed
amended complaint. Because he failed to do so, Fielding did not
create a record of what an amended complaint would have added,
so we have no basis for concluding that his amended complaint
would 	have 	alleged 	anything 	that 	would 	have 	caused 	his
complaint to survive the motion to dismiss that we have now
affirmed.