United States District Court, N.D. Illinois, Eastern Division
BOARD OF FORENSIC DOCUMENT DOCUMENT EXAMINERS, INC., and M. PATRICIA FISHER, LYNDA HARTWICK, ANDREW SULNER, J. MICHAEL WELDON, EMILY J. WILL, VICKIE L. WILLARD, and ROBIN D. WILLIAMS, Plaintiffs,
AMERICAN BAR ASSOCIATION, THOMAS VASTRICK, STEPHANIE DOMITROVICH, and THE AMERICAN BOARD OF FORENSIC DOCUMENT EXAMINERS, Defendants.
MEMORANDUM OPINION AND ORDER
Honorable Edmond E. Chang United States District Judge
Board of Forensic Document Examiners, and seven of its
members, allege that Thomas Vastrick defamed them by making
various statements in an article appearing in The
Judges' Journal. The Plaintiffs brought this case
against Vastrick, as well as the publisher (the American Bar
Association) and the article's editor (Stephanie
Domitrovich). Specifically, the Plaintiffs bring claims
for defamation per se, false light invasion of
privacy, false advertising under the Lanham Act, deceptive
advertising under various state consumer protection statutes,
and civil conspiracy. R. 52, Am. Compl. The Defendants move
to dismiss all counts, arguing (among other things) that the
challenged statements do not identify the Plaintiffs as the
target of the criticism, and that the statements are mere
expressions of opinion, rather than assertions of fact. R.
61, Def. Mot. Dismiss; R. 65, Def. Supp. Br. For the reasons
discussed in the Opinion, the motion to dismiss is granted.
purposes of this motion, the Court accepts as true the
allegations in the Amended Complaint. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Documents attached to a
complaint are considered part of the complaint for all
purposes. Fed.R.Civ.P. 10(c).
Board of Forensic Document Examiners, Inc. (the Board)
certifies experts in the forensic specialty of document
examination. Am. Compl. ¶ 2. Specifically, certified
document examiners-“diplomates” as they are
called-examine and compare handwriting, primarily for
purposes of litigation. Id. ¶¶ 3, 30. The
Board currently has twelve certified diplomates, including
each of the individual Plaintiffs: Patricia Fisher, Lynda
Hartwick, Andrew Sulner, J. Michael Weldon, Emily Will,
Vickie Willard, and Robin Williams. Id. ¶¶
American Bar Association (ABA) is a national association of
legal professionals, counting among its members many
attorneys, judges, law students, and other
para-professionals. Am. Compl. ¶¶ 12-13. It
publishes The Judges' Journal, a quarterly
publication distributed nationally both in print and online.
Id. ¶¶ 14-15. Members of the Judicial
Division of the ABA receive a complimentary subscription to
the Journal. Id. ¶ 63.
August 2015, Plaintiff Andrew Sulner received, as a member of
the Judicial Division of the ABA, a pre-publication copy of
the Summer 2015 edition of The Judges' Journal.
Am. Compl. ¶ 73. He later received the print copy in the
mail. Id. The issue, titled Forensic Sciences -
Judges as Gatekeepers, focused on various subjects of
forensic science that judges might encounter when qualifying
experts. Id. ¶ 74; id. Exh. E. It
included an article about handwriting comparisons done by
forensic document examiners, titled Forensic Handwriting
Comparison Examination in the Courtroom, written by
Thomas Vastrick. Id. ¶ 76. Vastrick is a
forensic document examiner certified by a different
board, namely, Defendant American Board of Forensic Document
Examiners (The American Board). Id. ¶ 17.
Vastrick also sits on the board of the American Board and is
one of its past presidents. Id. ¶ 17. The
article was edited by Stephanie Domitrovich, who authored an
introductory foreword to the issue. Id. Exh. E.
article discussed what Vastrick believes are the preferred
qualifications of forensic document examiners. Am. Compl.,
Exh. E. The Plaintiffs point to four statements that they
allege are defamatory to them, based on their certifications
by and affiliations with the Board. Vastrick wrote:
 An appropriately trained forensic document examiner will
have completed a full-time, in-residence training program
lasting a minimum of 24 months per the professional published
standard for training. Judges need to be vigilant of this
issue. There are large numbers of practitioners who do not
meet the training standard.
 The American Board of Forensic Document Examiners
… is the only certification board recognized by the
broader forensic science community, law enforcement, and
courts for maintaining principles and training requirements
concurrent with the published training standards. Be wary of
other certifying bodies.
 In a section captioned, “What to look out for,
” the statement, “Certified by board other than
the American Board of Forensic Document Examiners.”
 In the section captioned, “What to look out for,
” the statement, “Member of American Academy of
Forensic Sciences but not the Questioned Document
Am. Comp. ¶¶ 78-90; id. Exh. E at 33-34.
Plaintiffs claim these statements misled readers-that under
the guise of helping judges objectively evaluate forensic
document examiners, Vastrick made false and misleading
statements about how to differentiate between
“‘true professionals' and
‘unqualified' or ‘lesser qualified
practitioners.'” Am. Compl. ¶ 77. As discussed
more fully later in this Opinion, the Plaintiffs characterize
the statements as false based on the required training
standards for certification, the specific backgrounds of the
Plaintiffs, and the courts' previous acceptance of
practitioners certified by the Board. See, e.g.,
id. Exh. A; id. Exh. B. Both Vastrick and
Domitrovich knew that the statements in the article were
false, because both knew that the Board and the American
Board were each certified by the same accrediting entity, the
Forensic Specialties Accreditation Board, and that the Board
did abide by the published training standards for
certification. Am. Compl. ¶ 91.
reading the pre-publication copy of the article, Sulner
called Domitrovich and Lisa Comforty, the managing editor of
The Judges' Journal, to voice his concerns about
the alleged defamatory content. Am. Compl. ¶ 109.
Several days later, the ABA's general counsel, Jarisse
Sanborn, called on Sulner to explain in writing what he
believed was defamatory. Id. ¶ 110. What
followed was an extended letter and e-mail exchange among
Sulner, Sanborn, Comforty, and Jessica Perez Simmons, who was
an assistant general counsel of the ABA. During the
discussions, Sulner demanded changes to the article, but the
ABA refused, offering only to publish a rebuttal.
Id. ¶¶ 110-118. Sulner did write a
rebuttal article, but the ABA declined to publish it, instead
returning a severely edited and diluted version to Sulner,
who rejected it out of hand. Id. Finally, the ABA
published the print-side Vastrick article with no changes and
without a rebuttal. Id. In February 2016, the ABA
published the electronic version of the article to its
website with a couple of revisions to the alleged defamatory
statements. Id. ¶ 120. It then emailed Sulner
and the Board's attorney about the revisions-which it did
not concede were necessary-and alerted them that the article
was now posted online. Id.; id. Exh. M. The
ABA did not publish any other clarifications or retractions
regarding the article. Id. ¶¶ 123, 125.
The Plaintiffs also contend that, sometime in Fall 2015, both
Domitrovich and Vastrick separately circulated the article to
members of the American Academy of Forensic Sciences, even
though they knew that the ABA had promised to put a temporary
“hold” on the publication in August 2015.
Id. ¶¶ 109, 149-53.
Plaintiffs also allege that there was a relevant
behind-the-scenes dispute between Domitrovich and the Board.
Specifically, Domitrovich was a Director on the Forensic
Specialties Accreditation Board, which had accredited both
the Board and the American Board in the past. Am. Compl.
¶ 21. The Board was up for reaccreditation in 2015, and
Domitrovich served as one of three members on the Forensic
Specialties Accreditation Board's annual review
committee. Id. ¶ 22. The committee recommended
that the Forensic Specialties Accreditation Board
deny the Board's reaccreditation application.
Id. ¶¶ 22, 225. According to the
Plaintiffs, the ABA, Domitrovich, and Vastrick were
emboldened to publish the Vastrick article as written-despite
Sulner's vocal objections-because they believed that
de-accreditation was imminent and would render Sulner's
complaints toothless. Id. ¶ 226.
basis of those allegations, the complaint sets out ten
counts. Counts 1 and 3 assert claims for defamation per se
and false light invasion of privacy on behalf of all
Plaintiffs against all Defendants (Count 1) and on behalf of
Sulner against all Defendants (Count 3). Am. Compl.
¶¶ 166, 190. In Counts 2 and 4, all Plaintiffs
allege a false advertising claim, under the Lanham Act,
against all Defendants (Count 2), and Sulner separately
alleges the same type of claim against all Defendants (Count
4). Id. ¶¶ 182, 200. In Count 5, Fisher
alleges violations of California's Unfair Competition
Law, Cal. Bus. & Prof. Code § 17200 et
seq., and its False Advertising Law, Cal. Bus. &
Prof. Code § 17500 et seq. Id. ¶
209. In Count 6, Sulner alleges a violation of New York's
Consumer Protection from Deceptive Trade and Practices Act,
N.Y. Gen. Bus. Law § 349 et seq. Id. ¶
212. In Count 7, Will alleges a violation of North
Carolina's statute against deceptive business practices,
N.C. Gen. Stat. § 75-1.1. Id. ¶ 215. In
Count 8, Willard alleges a violation of Ohio's Deceptive
Trade Practices law, Ohio Rev. Code § 4165.01 et
seq. Id. ¶ 218. In Count 9, Williams
alleges violations of Illinois's Deceptive Trade
Practices Act, 815 ILCS 510/1 et seq., and its
Consumer Fraud Act, 815 ILCS 505/1 et seq.
Id. ¶ 221. Finally, in Count 10, all Plaintiffs
allege civil conspiracy to defame the Board against all
Defendants. Id. ¶ 228.
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. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (cleaned up). The Seventh Circuit has
explained that this rule “reflects a liberal notice
pleading regime, which is intended to ‘focus litigation
on the merits of a claim' rather than on technicalities
that might keep plaintiffs out of court.” Brooks v.
Ross, 578 F.3d 574, 580 (7th Cir. 2009) (quoting
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514
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 of
Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009).
“[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, 678 (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.
The allegations that are entitled to the assumption of truth
are those that are factual, rather than mere legal
conclusions. Iqbal, 556 U.S. at 678-79.
Choice of Law
threshold question is to figure out which state's law
applies to which claim, and indeed, which issue. But this
case was transferred from the Western District of Tennessee,
R. 30, 02/09/17 Order on Mot. to Transfer, so there is a step
even before that threshold: which forum's choice-of-law
rules apply, Tennessee or Illinois? The transfer order in
this case explains that Tennessee's choice of law rules
might apply, because the transferee court (Illinois in this
case) generally applies the choice of law rules of the
transferor jurisdiction (Tennessee) if the case had proper
venue there to start with. Id. at 35; see Dobbs
v. DePuy Orthopedics, Inc.,842 F.3d 1045, 1048 (7th
Cir. 2016). But if venue was improper in the
transferor district, then it makes sense to apply the
transferee forum's choice-of-law rules, because the case
should not have started out in the transferor district in the