See id. The Supreme Court and our sister circuits have not hesitated to apply the actual-malice standard to tort claims that are based on the same conduct or statements that underlie a pendant defamation claim. See, e.g., Falwell, 485 U.S. at 56, 108 S.Ct. 876; Beverly Hills Foodland, 39 F.3d at 196; Unelko Corp., 912 F.2d at 1057-58; Med. Lab. Mgmt. Consultants v. Am. Broad. Co., Inc., 306 F.3d 806, 821 (9th Cir.2002). We see no ’ material difference between this claim — which, although labeled one for breach of contract, essentially asserts that Moody’s acted incompetently (i.e., negligently) in compiling and evaluating its publication of protected expression — and a tort claim based on conduct that might support a pendant defamation claim. See County of Orange, 245 B.R. at 156 (<HOLDING>). Third, the injury of which Compuware
recognizing that a construction contract implicitly imposes a duty on contractors to perform work according to the standard of due care holding that the duty of good faith and fair dealing is a contractual duty recognizing implied duty to market recognizing that a plaintiff cannot avoid the actualmalice standard by asserting an implied contractual duty to perform the rating function competently recognizing implied duty to produce and market