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Huon v. Breaking Media, LLC

United States District Court, N.D. Illinois, Eastern Division

December 4, 2014

MEANITH HUON, Plaintiff,
v.
BREAKING MEDIA, LLC a/k/a BREAKING MEDIA; BREAKING MEDIA, INC. a/k/a BREAKING MEDIA; DAVID LAT; ELIE MYSTAL; JOHN LERNER; DAVID MINKIN; GAWKER MEDIA, LLC a/k/a GAWKER MEDIA; BLOGWIRE HUNGARY SZELLEMI ALKOTAST HASZNOSITO KFT; GAWKER MEDIA GROUP, INC. a/k/a GAWKER MEDIA; GAWKER ENTERTAINMENT, LLC; GAWKER TECHNOLOGY, LLC; GAWKER SALES, LLC; NICK DENTON; IRIN CARMON; and GABY DARBYSHIRE, Defendants

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For Meanith Huon, Plaintiff: Meanith Huon, Huon Law Firm, Chicago, IL USA.

For Breaking Media, Elie Mystal, David Lat, John Lerner, David Minkin, Defendants: Steven P. Mandell, LEAD ATTORNEY, Steven L Baron, Mandell Menkes LLC, Chicago, IL USA.

For Gawker Media, also known as Gawker.com, Nick Denton, Irin Carmon, Gabby Darbyshire, Defendants: Oren S. Giskan, LEAD ATTORNEY, Giskan Solotaroff & Anderson, LLP, New York, N.Y. USA; Amanda Szuch Mlinarcik, Daniel Francis Lynch, Lynch & Stern LLP, Chicago, IL USA; Amy J. Hansen, Lynch and Stern, Chicago, IL USA; David L. Feige, PRO HAC VICE, Giskan, Solotartoff Anderson & Stewart, New York, N.Y. USA.

For Breaking Media, LLC, Breaking Media, Inc., Defendants: Steven P. Mandell, Mandell Menkes LLC, Chicago, IL USA.

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MEMORANDUM OPINION AND ORDER

John J. Tharp, Jr., United States District Judge.

The plaintiff, Meanith Huon (" Huon" ), brings state law claims for defamation and related torts against two groups of defendants: the Above the Law (" ATL" ) defendants and the Gawker defendants.[1] Huon initially sued the ATL defendants for publishing an allegedly defamatory article on AboveTheLaw.com that discussed his criminal trial for sexual assault charges. He subsequently amended his complaint to include claims against the Gawker defendants for publishing an allegedly defamatory article on Jezebel.com about the filing of this lawsuit against the ATL defendants. The current Fourth Amended Complaint (the " Complaint" ) seeks relief against all the defendants for defamation per se (Count I), defamation per quod (Count II), false light invasion of privacy (Count III), intrusion upon seclusion (Count IV), intentional infliction of emotion distress (Count V), conspiracy to defame (Count VI), conspiracy to invade privacy (Count VII), tortious interference with prospective economic advantage (Count VIII), and cyberstalking and cyberbullying (Count IX). The ATL defendants have moved to dismiss all the claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6). Several of the Gawker defendants have likewise moved to dismiss all the claims against them. For the reasons stated below, the Gawker defendants' motion to dismiss [174] is granted and the ATL defendants' motion to dismiss [178] is granted in part and denied in part.

BACKGROUND

Meanith Huon is an attorney licensed to practice law in Illinois.[2] On July 2, 2008, Huon was charged with two counts of criminal sexual assault, two counts of criminal sexual abuse, and one count of unlawful restraint. The charges arose out of his alleged interactions with " Jane Doe" on June 29, 2008, in Madison County, Illinois. See Gawker Motion to Dismiss, Dkt.

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191, at 25 (Exhibit A). Approximately one year later, on July 17, 2009, Huon was charged with cyberstalking and witness harassment based on allegations involving the same Jane Doe. See id. at 29 (Exhibit C). Huon was tried on the 2008 sexual assault charges in May 2010 in Madison County. The trial began on May 4 and ended on May 6 with his acquittal on both charges. See Exhibit A to ATL Motion to Dismiss, Dkt. 190-1, at 2-4; Exhibit B to ATL Motion to Dismiss, Dkt. 190-2, at 2. The 2009 cyberstalking and witness harassment charges were ultimately dismissed in December 2011.

The charges against Huon and his criminal trial received publicity in local media and legal news sources; several of the resultant articles are relevant to the instigation of this case. On July 2, 2008, the day the sexual assault and related charges were filed, an article about those charges appeared in the Madison County Record (the " Madison County Article" ). See Exhibit C to Response to ATL Motion to Dismiss, Dkt. 194-8. The following day, July 3, 2008, the legal blog AboveTheLaw.com published a post by defendant Lat (the " 2008 ATL Post" ) that included the one-line statement " Lawyer of the Day: Meanith Huon" along with a link to the Madison County Article. Next, on August 24, 2009, a post discussing both the 2008 and 2009 charges appeared on the blog LawyerGossip.com (the " Lawyer Gossip Post" ). See Exhibit F to Response to ATL Motion to Dismiss, Dkt. 194-13. Finally, on May 6, 2010, AboveTheLaw.com published an article by defendant Mystal titled " Rape Potpourri" (the " ATL Article" ).

The ATL Article provided information and commentary on two " rape stories" : (1) the arrest of former New York Giants linebacker Lawrence Taylor based on a rape allegation, and (2) the allegations at issue in Huon's criminal trial and the opening statement made by Huon's defense lawyer at trial. The section of the ATL Article on Huon purported to link to and quote, inter alia, the Lawyer Gossip Post, the Madison County Article (which was also linked to in the 2008 ATL Post), and an article in the Belleville News Democrat titled " Testimony: Woman says she was raped by attorney posing as scout for models" (the " BND Article" ).[3] At some point following the ATL Article's initial publication, an update was added toward the end of the piece indicating that Huon had been acquitted of the charges discussed.[4] AboveTheLaw.com allows readers to post comments on its articles (subject to certain terms of use), and the ATL Article eventually generated over 107 comments or replies from users.[5]

On May 6, 2011, one year after publication of the ATL Article, Huon sued the ATL defendants and the John Does who

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posted comments on the ATL Article for defamation, intentional infliction of emotional distress, and false light invasion of privacy.[6] See Initial Complaint, Dkt. 1. The filing of this suit, like the criminal charges against Huon, generated its share of publicity. On May 11, 2011, an article by defendant Carmon entitled " Acquitted Rapist Sues Blogger for Calling Him Serial Rapist" appeared on the women's interest blog Jezebel.com (the " Jezebel Article" ).[7] The Jezebel Article discussed Huon's criminal trial for sexual assault, his lawsuit against local law enforcement authorities for prosecutorial misconduct, and his initial complaint against the ATL defendants in the instant suit. The Jezebel Article mentioned the title of the ATL Article and included links to the ATL Article and other relevant sources. The Jezebel Article also included an image containing Huon's arrest photograph superimposed over a screenshot of the start of the ATL Article. Users who are invited by Gawker Media editors or by previously invited users may post comments on Jezebel.com articles (subject to certain terms of use), and the Jezebel Article eventually generated over 80 comments or replies from such users. According to Huon, some of the user comments were written by employees of the Gawker defendants, posting under aliases.

On July 11, 2011, two months after publication of the Jezebel Article, Huon filed a First Amended Complaint which added new allegations and defendants related to, inter alia, the Jezebel Article and associated comments. The three individual Gawker defendants and " Gawker Media" were among the defendants added to the suit in the First Amended Complaint. Huon soon filed a Second Amended Complaint which removed certain of the other recently added defendants. Gawker Media and the individual Gawker defendants were subsequently served on August 24, 2011. See Waiver of Service of Summons, Dkt. 167; Waiver of Service of Summons, Dkt. 167-1.

On September 21, 2011, the ATL defendants moved to dismiss the Second Amended Complaint. Shortly thereafter, Gawker Media, the individual Gawker defendants, and Jezebel.com (which has since been dropped from the suit) likewise filed a motion to dismiss. The two motions to dismiss were fully briefed at the time the case was transferred to this Court's docket on August 3, 2012. Upon reviewing the case, the Court dismissed the Second Amended Complaint without prejudice due to deficiencies in the allegations respecting diversity jurisdiction. The Court denied the two motions to dismiss as moot in light of that ruling. Huon then filed a Third Amended Complaint which contained updated jurisdictional allegations, added new claims and defendants,[8] and removed some

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defendants. Since the jurisdictional allegations in the Third Amended Complaint were still insufficient, the Court again dismissed the complaint without prejudice.[9] On November 15, 2012, Huon filed the current Complaint with further updated jurisdictional information. The ATL defendants and certain of the Gawker defendants subsequently filed their respective motions to dismiss which are now under consideration. [10]

Based on the information in the Complaint and the notifications of affiliates filed pursuant to Federal Rule of Civil Procedure 7.1 and Local Rule 3.2, this matter is properly before the Court under diversity jurisdiction in accordance with 28 U.S.C. § 1332. Huon, a citizen of Illinois, is seeking compensatory damages in an amount well in excess of $75,000 and punitive damages of $100,000,000. The corporate ATL defendants are: (1) Breaking Media, Inc., a New York corporation that owns and operates AboveTheLaw.com and has its principal place of business in New York, and (2) Breaking Media, LLC, an inactive limited liability company that has merged into Breaking Media, Inc. The corporate Gawker defendants, which own and/or operate Jezebel.com, are: (1) Gawker Media Group, Inc., a Cayman Islands corporation that has its principal place of business in New York, (2) Gawker Media, LLC, a limited liability company whose only member is Gawker Media Group, Inc., (3) Gawker Entertainment, a limited liability company whose only member is Gawker Media, LLC, (4) Gawker Sales, a limited liability company whose only member is Gawker Media, LLC, (5) Gawker Technology, a limited liability company whose only member is Gawker Media, LLC, and (6) Blogwire Hungary, a Hungarian entity that is similar to a U.S. limited liability company.[11] The individual ATL defendants--John Lerner, the Chief Executive Officer of Breaking Media; David Lat, the founding and managing editor of AboveTheLaw.com; David Minkin, the publisher of AboveTheLaw.com; and Elie Mystal, a writer and editor for AboveTheLaw.com--are all citizens of New York. Two of the individual Gawker defendants--Gaby Darbyshire, the Chief Operating Officer of Gawker Media; and Irin Carmon, a reporter for Jezebel.com--are also citizens of New York. Nick Denton, the founder and owner of Gawker

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Media, is a citizen of Hungary and the United Kingdom.

DISCUSSION

" To survive a motion to dismiss under Rule 12(b)(6), a complaint must 'state a claim to relief that is plausible on its face.'" Adams v. City of Indianapolis, 742 F.3d 720, 728 (7th Cir. 2014) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). " 'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). Although a court must accept all of the plaintiff's factual allegations as true when reviewing the complaint, conclusory allegations merely restating the elements of a cause of action do not receive this presumption. Id. " Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

A. Liability for Publishing User Comments

All of Huon's claims other than his intrusion upon seclusion claim seek to hold the defendants liable for publishing " the actionable and offensive statements," a phrase Huon uses to refer collectively to the statements he challenges in the ATL Article, the Jezebel Article, and the reader comments associated with each of those articles. The defendants argue that Section 230(c)(1) of the Communications Decency Act (the " CDA" ), 47 U.S.C. § 230(c)(1), bars Huon's claims against them based on reader comments.[12] Section 230(c)(1) states: " No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Id. The CDA explicitly preempts liability under any inconsistent state or local laws. Id. § 230(e)(3). For purposes of the CDA, an interactive computer service is " any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." Id. § 230(f)(2). An information content provider is " any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." Id. § 230(f)(3). In essence, the CDA says that " an online information system must not 'be treated as the publisher or speaker of any information provided by' someone else." Chi. Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir. 2008).

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Huon argues that the reader comments do not constitute information provided by " someone else," and that the defendants therefore are not protected by the CDA.[13] In support of this argument, he relies on the following allegations in the Complaint: (1) that the ATL Article and the Jezebel Article were designed to incite users to post defamatory comments in order to generate advertising revenue, (2) that the defendants encouraged users to post defamatory comments in response to the articles and subsequently edited those comments, (3) that the Gawker defendants intentionally placed defamatory comments about Huon in a prominent location, which encouraged other users to post defamatory comments, and (4) that some of the allegedly defamatory comments posted in response to the Jezebel Article were written by employees of the Gawker defendants, posting under aliases. None of these allegations takes the reader comments at issue outside the protection provided by the CDA.

First, a website does not incite the posting of unlawful content merely by providing a forum for that content. See Chicago Lawyers' Comm., 519 F.3d at 671-72 (" Nothing in the service craigslist offers induces anyone to post any particular listing or express a preference for discrimination . . . ." ). This approach has been applied even where the forum is likely to or frequently does contain postings of an unlawful nature. See, e.g., Dart v. Craigslist, Inc., 665 F.Supp.2d 961, 968-69 (N.D. Ill. 2009) (citing Chicago Lawyers' Comm., 519 F.3d at 671) (rejecting the plaintiff's argument that Craigslist induced users to post unlawful ads by having an " adult services" category and granting judgment on the pleadings for the defendant). Huon's argument that the defendants incited defamatory comments is further undercut by the ATL defendants' and Gawker defendants' written policies, which Huon sets forth in the Complaint, that prohibit the posting of defamatory or otherwise illegal material. See Dart, 665 F.Supp.2d at 969 (" Plaintiff's argument that Craigslist causes or induces illegal content is further undercut by the fact that Craigslist repeatedly warns users not to post such content." ); see also Fair ...


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