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Anthony Pitale v. Dan Holestine

February 27, 2012


The opinion of the court was delivered by: Judge Edmond E. Chang


Plaintiff Anthony Pitale, former Chief Operating Officer of American Career College and West Coast University, brings this suit against Defendant Dan Holestine, former Vice President of Marketing at the same institutions, alleging that Holestine made statements about him that are actionable as defamation per se and false light invasion of privacy under Illinois law.*fn1 R. 5. Before the Court is Holestine's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). R. 15. As explained below, the motion is granted in part and denied in part.


At this stage in the litigation, the Court accepts Pitale's allegations as true and draws reasonable inferences in his favor. Ashcroft v. al-Kidd, -- U.S. --, 131 S. Ct. 2074, 2079 (2011). Pitale was the COO of American Career College from June 2008 through July 2010. R. 5 ¶ 6. Holestine reported to Pitale from June 2008 until Holestine resigned in June 2010. Id. ¶¶ 7-8. Pitale remained COO until July 2010. Id. ¶ 6. After Holestine's resignation, Pitale alleges that Holestine made false statements in the Wikipedia entries for Eldorado College (a college that Pitale owned some time before working at American Career College) and American Career College, as well as in a post on Holestine's "friendofthestudent" blog titled "American Career College Executive Wall of Shame No. 1." Id. ¶¶ 9-27.*fn2

Pitale alleges that several statements made by Holestine were defamatory. First, in the Eldorado College Wikipedia entry, Holestine stated that "a financial scandal led to the revocation of [Eldorado College's] accreditation, as well as its eligibility to receive funds from its alumni and various charities." R. 15-2, Exh. B. Next, in the American Career College Wikipedia entry, Holestine said, "[t]he schools were closed by the Department of Education due to high default rates after a battle with regulators over questionable refund policies from 1990-1994." R. 15, Exh. C. These statements have been removed from the respective entries. R. 5 ¶¶ 14, 18.

As for the blog post, Pitale points to Holestine's statements that Pitale "le[]d schools amid a scandal around short changing the students and state government on student refunds . . . ," id. ¶ 24, that Eldorado was "closed by the Department of Education for student default rate violations that exceeded 25% for three consecutive years," id. ¶ 25, and that Pitale engaged in "unsavory actions" and "inappropriate education management practices," id. ¶ 23. Pitale also alleges that the blog "implies [he] was banned from a school because he committed a crime," but does he does not identify specific statements that he believes imply that fact. Id. ¶ 22. The blog post also features a picture of Pitale, id. ¶ 21, and includes links to archived versions of the Eldorado College and American Career College Wikipedia entries,*fn3 which Pitale contends republishes the Wikipedia statements, id. ¶¶ 19-20.

Pitale's complaint sets out five counts of defamation per se and two counts of false light invasion of privacy. R. 5. Counts 1 and 2 allege defamation per se based on the two Wikipedia entries because the statements impute that Pitale lacked integrity in performing his duties, id. ¶¶ 29-30 (Count 1), and prejudice him in his profession, id. ¶ 33 (Count 2). Count 6 alleges a false light invasion of privacy claim based on the Wikipedia entries. Id. ¶¶ 44-50. For the blog statements, Count 3 alleges a defamation per se claim that alleges that the blog statements impute that Pitale committed a crime, id. ¶ 36, and Counts 4 and 5 allege defamation per se claims for imputing a lack of integrity in performing duties and prejudicing Pitale in his profession, respectively, id. ¶¶ 39, 42. Count 7 alleges a false light claim based on the blog statements. Id. ¶¶ 51-57.


Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This short and plain statement must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007).

"A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). "[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007). A "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). These allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. And the allegations that are entitled to the assumption of truth are those that are factual, rather than mere legal conclusions. Iqbal, 129 S. Ct. at 1950.


Holestine argues that the statements-those in the Eldorado College entry on Wikipedia, the American Career College entry on Wikipedia, and the blog post -cannot serve as the basis for either a defamation or a false-light claim. He relies on various protections that are built into the law of defamation. The First Amendment does place a high value on the freedom of speech, and that value takes concrete form in the law's refusal to impose liability for speech unless certain hurdles are overcome. The speech must state a false fact, not merely an opinion. Madison v. Frazier, 539 F.3d 646, 653 (7th Cir. 2008). There is no claim if the statement is "capable of innocent, nondefamatory construction." Id.; Solaia Tech., LLC v. Specialty Pub. Co., 852 N.E.2d 825, 839 (Ill. 2006). The plaintiff must show that the statement is "concerning the plaintiff," Madison, 539 F.3d at 653; if the statement can be interpreted as referring to someone else, there is no liability, see Solaia, 852 N.E.2d at 839. There must be some requisite state of mind, and various privileges protect certain types of statements. Lewis v. School District No. 70, 523 F.3d 730, 745 (7th Cir. 2008). And only certain types of defamatory statements may subject the speaker to presumed (rather than actual) damages, specifically, those statements that are defamatory per se, where the "harm is obvious and apparent on its face." Solaia, 852 N.E.2d at 839.

Even if a speaker is liable for presumed damages,*fn4 juries and judges do not have free rein to impose presumed damages without limit. There are some established factors to take into account: the number of times the statement is published, the number of readers (or listeners) of the statement, the source of the speech (the more authoritative the speaker, the greater the damage from the false statement because of the audience's receptiveness to the statement), the severity of the derogatory statement, and the medium by which the statement is delivered. Brown & Williamson Tobacco v. Jacobson, 827 F.2d ...

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