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Black v. Wrigley

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

June 11, 2019

KATHERINE BLACK, Plaintiff,
v.
CHERIE WRIGLEY, MELISSA COHENSON, BRIAN A. RAPHAN, P.C., and PAMELA KERR, Defendants.

          MEMORANDUM OPINION AND ORDER

          MATTHEW F. KENNELLY, DISTRICT JUDGE

         Katherine Black has sued Cherie Wrigley, Pamela Kerr, and Melissa Cohenson for defamation, false light, and intentional infliction of emotional distress. She has also sued Cohenson's former employer, the law firm Brian A. Raphan, P.C., alleging that the firm is vicariously liable for Cohenson's conduct. The defendants have moved for summary judgment.

         Background

         The allegedly tortious conduct in this case took place during contentious and sprawling litigation involving Katherine Black and her husband, Bernard Black. (The Court will refer to them as Katherine and Bernard, though Katherine also goes by the last name Litvak.) Both Katherine and Bernard are professors at the Northwestern University Pritzker School of Law.

         In 2012, Bernard's mother passed away. He had expected to inherit one-third of her approximately $3 million estate in the form of an issue trust for himself, Katherine, and their two children. Instead, his mother disinherited him by making virtually her entire estate payable on death to Bernard's sister, Joanne, who suffers from mental illness. At the time, Joanne resided in Denver, Colorado.

         Bernard successfully petitioned in the probate court in Denver to become Joanne's conservator. Bernard then exercised his powers as conservator to disclaim their mother's payment to Joanne, effectively undoing her disinheritance of Bernard and Katherine. As a result, the original terms of their mother's estate plan went into effect, such that one third of their mother's assets that had been designated as payable to Joanne instead went to Bernard and Katherine's children.

         Several years later, Joanne moved to New York, and Bernard commenced a second suit in New York state court to be appointed guardian of Joanne's property. Bernard's cousin, Cherie Wrigley, filed a cross-petition to be appointed Joanne's guardian in place of Bernard. Wrigley was represented by attorney Melissa Cohenson, at the time an associate the law firm Brian A. Raphan, P.C. Wrigley also retained a private investigator named Esaun Pinto. Wrigley alleges that she hired Pinto to protect Joanne and supervise her affairs.

         In the Denver probate court case, Joanne's guardian ad litem, Gayle Young, obtained information that Bernard had caused a significant amount of Joanne's inheritance to be diverted to himself or his family. Young sought a forensic accounting of Joanne's accounts. She retained Pamela Kerr, a certified public accountant. Young alleges she hired Kerr for the limited purpose of investigating Bernard's actions. Katherine contends that Kerr was a neutral investigator and that the Denver probate court authorized her to conduct a full accounting of all of Joanne's assets, including investigating concerns that Esaun Pinto had been improperly receiving Joanne's social security payments.

         In April 2015, Katherine and Wrigley attended a contentious court hearing in the Denver probate court case. Katherine testified that before the hearing Wrigley made a remark that Katherine interpreted as a threat. According to Katherine, Wrigley said something like, "[Y]ou continue"-that is, continue to provide evidence against Wrigley-"it will be bad for you, you need a sex change operation, I will arrange one for you, you like it or not."[1] Katherine Dep., Kerr's Ex. 3, dkt. no. 267-3, at 243:4-7. Katherine also testified that after the hearing, Wrigley approached her in the airport and threatened to file a false police report that would cause Katherine to lose custody of her children.

         In September 2015, following an evidentiary hearing, the Denver probate court found that Bernard had "failed to adequately disclose his intent" to use his power as Joanne's conservator to disclaim the inheritance of their mother's entire estate. Black v. Black, 2018 COA 7, ¶ 18, 422 P.3d 592, 598 (summarizing the probate court's ruling). The probate court also concluded that Bernard had acted deceptively and in bad faith, ordered him to reimburse $1.5 million, and imposed treble damages under Colorado's civil theft statute. Id. The Colorado Court of Appeals affirmed the ruling of the probate court. Id. ¶ 131, 422 P.3d at 613.

         On January 7, 2016, Katherine submitted a twenty-page letter to the judge presiding over the New York state court case. Among numerous other allegations, Katherine stated that Wrigley and her brother Anthony Dain had concealed the fact that Esaun Pinto was a convicted felon and had engaged in "illegal coercive tactics to prevent the Black family members" from testifying. Katherine Letter, Ex. H to Kerr Decl., dkt. no. 269-1, at 1. Katherine wrote the letter on letterhead bearing the name and logo of the Northwestern University School of Law.

         The same day Katherine submitted her letter, Cohenson, Wrigley's attorney, called the office of the dean of the law school. Her call was redirected to the law school's director of special projects, Katherine Schulte. According to Cohenson, she informed Schulte that a law professor-whom she did not name-had used Northwestern's name and logo on letterhead in personal litigation, and Cohenson asked whether this violated any university policies. Although Schulte vaguely recalls that this conversation took place, she has no memory of what they discussed.

         On the morning of January 8, 2016, the day after Cohenson spoke with Schulte, Kerr and Wrigley exchanged e-mails about Katherine's letter. Lisa DiPonio, Joanne's attorney, was copied on the e-mails. Kerr wrote that she had just called the office of the dean of the law school and spoke about Katherine. DiPonio responded by suggesting that someone make another call to the law school, stating, "I want them to pay professionally for this as well as monetarily." DiPonio E-mail, Ex. K to Kerr Decl., dkt. no. 269-1, at 3. Kerr then relayed that she had told someone in the dean's office that Katherine had used Northwestern's letterhead to make a false statement to a court. In a subsequent e-mail, Wrigley wrote that she had left messages with the deans of both Northwestern's law school and business school, where Bernard also teaches. She also stated that she planned to submit an ethics report to the university describing Katherine's actions.

         In response, Kerr sent an e-mail to which she attached a letter addressed to the dean of the law school. The letter quoted a passage from Katherine's letter to the New York state court judge in which Katherine stated that the judge in the Colorado case had authorized Kerr to investigate the conduct of Esaun Pinto. Kerr wrote in her letter to the dean that this claim was "100% false" and "completely false." Kerr Letter, Ex. K to Kerr Decl., dkt. no. 269-1, at 7. The letter was written on Kerr's professional letterhead and included her signature.

         Later that day, Wrigley submitted to Northwestern the ethics report she had mentioned in her e-mail and attached Kerr's letter as supporting evidence. The platform for submitting the report allowed Wrigley to write a description of the attached documents. In describing Kerr's letter, Wrigley wrote, "Professor from your school using your letterhead to slander people and fight a personal case." Ethics Report, Kerr's Ex. H, dkt. no. 270-8, at 2.

         In January 2017, Katherine filed the present lawsuit against Wrigley, Kerr, Cohenson, and the Raphan law firm, alleging a range of tortious conduct including defamation, intentional infliction of emotional distress, false light, publication of private facts, intrusion upon seclusion, interference with contractual relations, and civil conspiracy. The defendants moved to dismiss Katherine's claims, and the Court granted the motion in part. See Black v. Wrigley, No. 17 C 101, 2017 WL 8186996 (N.D. Ill.Dec. 8, 2017). The following claims remain against all four defendants: defamation, false light, aiding and abetting defamation, and civil conspiracy. In addition, there remains a claim against Wrigley for intentional infliction of emotional distress and a claim against Raphan, P.C. under a theory of respondeat superior. The defendants have moved for summary judgment.

         Discussion

          Summary judgment is appropriate if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Giles v. Godinez, 914 F.3d 1040, 1048 (7th Cir. 2019). To withstand summary judgment, the non-moving party must "present specific facts establishing a material issue for trial." Id. Although the Court draws all reasonable inferences in favor of the non-moving party, "inferences that are supported by only speculation or conjecture will not defeat a summary judgment motion." Coleman v. City of Peoria, No. 18-1742, 2019 WL 2240575 (7th Cir. May 24, 2019).

         A. False light claims

         In her response brief, Katherine has agreed to voluntarily dismiss her false light claims. The Court therefore dismisses count 6 with prejudice.

         B. Claims against Kerr

          In her remaining claims against Kerr, Katherine alleges defamation, aiding and abetting defamation, and civil conspiracy. Because the claims for aiding and abetting defamation, as well as those for civil conspiracy, depend on the tortious conduct of another defendant, the Court will reserve discussion of those claims until the end of this opinion.

         A claim for defamation under Illinois law requires the plaintiff to show "that the defendant made a false statement about the plaintiff, that the defendant made an unprivileged publication of that statement to a third party, and that this publication caused damages." Green v. Rogers, 234 Ill.2d 478, 491, 917 N.E.2d 450, 459 (2009). Among the categories of statements that constitute defamation per se-meaning defamation whose harm is "obvious and apparent on its face"-are "words that impute a person lacks ability or otherwise prejudices that person in her or his profession." Id. at 491-2, 917 N.E.2d at 459. Katherine has not alleged "special damages," i.e. "actual damages of a pecuniary nature." Imperial Apparel, Ltd. v. Cosmo's Designer Direct, Inc., 227 Ill.2d 381, 390, 882 N.E.2d 1011, 1018 (2008)). To withstand summary judgment, therefore, she must point to evidence from which a reasonable jury could find that Kerr's statement was per se defamatory. See Madison v. Frazier, 539 F.3d 646, 653 (7th Cir. 2008).

         Kerr argues that she is entitled to summary judgment because her allegedly defamatory statements are subject to an innocent construction and are substantially true. She also contends that no reasonable jury could find that Katherine was harmed by the alleged defamation and that the statements are protected by the litigation privilege. The Court considers each of these arguments in turn.

         1. Innocent construction

          Under Illinois law, "a statement that is reasonably capable of an innocent construction is not per se defamatory." Lott v. Levitt, 556 F.3d 564, 568 (7th Cir. 2009). This issue is appropriately decided at summary judgment because "the meaning of a statement is not a fact for the jury to find, but a question of law to be resolved by the court." Id. (internal quotation marks omitted). Kerr argues that her statement is capable of an innocent construction-namely, that she said only that Katherine's statement in her letter to the New York court was false, not that it was a lie.

         This distinction is immaterial. Even if it were reasonable to construe Kerr's letter as accusing Katherine of an unintentional or reckless falsehood, a reasonable jury could nonetheless find that this statement amounts to per se defamation. Recall that a statement is defamatory per se if it prejudices the plaintiff in her profession. Green, 234 Ill.2d at 492, 917 N.E.2d at 459. In its ruling on the motions to dismiss, the Court noted that "allegations that a law professor lied to a court could lead to unemployment in a profession whose role includes training future attorneys on proper conduct in court proceedings." Black, 2017 WL 8186996, at *10 (internal quotation marks omitted). A jury could reasonably find that an allegation that a law professor made false statements to a court-whether those statements were intentional or merely reckless or negligent- caused prejudice to the professor's reputation. Indeed, a jury could conclude that Kerr and Wrigley's primary purpose in submitting the ethics complaint was to prejudice Katherine in the eyes of her employer. See, e.g., Kerr E-mail to Wrigley, Katherine's Ex. 28C, dkt. no. 310-28, at 1 ("I think the letter itself will be incriminating enough."); see also Tuite v. Corbitt, 224 Ill.2d 490, 510, 866 N.E.2d 114, 126 (2006) (noting that in applying the innocent construction rule, courts must interpret the terms in the allegedly defamatory statement "according to the idea that they were intended to convey to the reasonable reader."). The Court therefore concludes that Kerr's allegedly defamatory statement cannot reasonably be given an innocent construction that would entitle Kerr to summary judgment.

         2. ...


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