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Board of Forensic Document Examiners, Inc. v. American Bar Association

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

February 22, 2018



          Honorable Edmond E. Chang United States District Judge

         The 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).[1] 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.

         I. Background

         For 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).

         The 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. ¶¶ 3-10.

         The 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.

         In 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.

         The 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:

[1] 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.
[2] 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.
[3] In a section captioned, “What to look out for, ” the statement, “Certified by board other than the American Board of Forensic Document Examiners.”
[4] In the section captioned, “What to look out for, ” the statement, “Member of American Academy of Forensic Sciences but not the Questioned Document Section.”

Am. Comp. ¶¶ 78-90; id. Exh. E at 33-34.

         The 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.

         After 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.

         The 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.

         On the 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.

         II. Legal Standard

         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. 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 (2002)).

         “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 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.

         III. Analysis

         A. Choice of Law

         The 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 first ...

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