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Company, Inc. v. Thixton

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

September 27, 2019




         Evanger’s Cat and Dog Food Company has sued pet-food blogger Susan Thixton, bringing claims for libel per se, libel per quod, and commercial disparagement.[1] Evanger’s also asserts claims under the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/1 et seq., and the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 et seq. R.1, Compl.[2] Thixton has moved to dismiss the Complaint for failure to adequately state a claim.[3] Fed.R.Civ.P. 12(b)(6). R. 36, Mot. to Dismiss. For the reasons explained below, Thixton’s motion to dismiss is granted in large part and denied in part.

         I. Background

         This dispute is about a series of three articles that Thixton published on her website, “” For purposes of this motion, the Court accepts as true the factual allegations in the 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).

         To provide some background, in early 2017, Evanger’s discovered that one of its dog food lines, Hunk of Beef, had been contaminated with the toxin pentobarbital. Compl. ¶ 8. Several dogs had become sick after eating the product. Id. As a result, Evanger’s alerted the Federal Food and Drug Administration (FDA) and issued a recall on its Hunk of Beef products. Id. According to Evanger’s, Hunk of Beef was not an organic product, and neither the contamination issues nor the product recall affected any Evanger’s organic products. Id.

         A few months later, on June 8, 2017, Thixton published the first article at issue in this case. Compl. ¶ 10. The article was entitled “Waiting on Test Results, Another Possible Pentobarbital Poisoning Incident, ” and featured a pet owner whose cats had gotten sick after eating “Wild Calling” cat food. Id. In the article, Thixton noted that a Virginia state agency was investigating Wild Calling for possible pentobarbital contamination and that the investigators “were well aware of the recent history at Evanger’s Pet Food.” R. 1-1, Compl. Exh. A. When it was first posted online, the article included the statement: “A concerned consumer reports two sick cats to Virginia Department of Agriculture-Wild Calling Pet Food (made at Evanger’s), possible pentobarbital poisoning.” Compl. ¶ 10. Although Evanger’s Hunk of Beef dog food did suffer from the prior pentobarbital contamination, Evanger’s was in fact not the manufacturer of the Wild Calling cat food under investigation. Id. ¶ 11. When this mistake was brought to Thixton’s attention (by the Chief Operating Officer of Wild Calling), she deleted the phrase “made by Evanger’s” from the online post. Compl. Exh. A. Thixton also issued a retraction: “The original post stated Wild Calling was manufactured at Evanger’s Pet Food-this was incorrect. My error. My apologies for the error.” Id. All of this happened within 31 minutes of the initial post.[4]R. 37-1, Def.’s Br., Exh. A. Nonetheless, Evanger’s alleges that Thixton’s initial error had already done its damage. Compl. ¶ 11.

         Around four months later, on October 20, 2017, Thixton posted an article entitled “Evanger’s Pet Food Caught Again.” Compl. ¶ 12. This article asserted that Evanger’s was holding its products out as certified organic by Oregon Tilth (an organic-food advocacy organization), even though Evanger’s had actually “lost” its certification months ago. R. 1-2, Compl. Exh. B. Evanger’s alleges that this statement was false because Evanger’s voluntarily “surrendered”-as supposedly distinct from “lost”-its organic certification. Compl. ¶ 17. According to Evanger’s, the word “lost” falsely conveyed that “Evanger’s certification had been lost by Evanger’s due to its failure to comply with Oregon Tilth’s organic certification standards.” Id. ¶ 18. The article was accompanied by a screenshot from the Evanger’s website showing a can of organic dog food overlaid with a caption reading, “Certified Organic by Oregon Tilth, ” and then the exclamation, “No…no it’s not!” (with an arrow pointing from the caption to the can). Compl. Exh. B. Evanger’s similarly alleges that this statement was false because at the time that the dog food in the photo was manufactured and labeled, Evanger’s still had its organic certification, so there was nothing misleading about the certified organic label on that can. Compl. ¶ 18.

         Evanger’s swiftly responded to the “Caught Again” article by writing a letter to Thixton, claiming that her statements were “false and misleading” and demanding that she take down the post. R. 1-3, Compl. Exh. C. Thixton complied, but just a few days later, on October 23, 2017, she published a new article about Evanger’s. Compl. ¶¶ 20-21. This third article was entitled “Not Defamation, Truth, ” and in it Thixton posted an excerpt of the letter she received from Evanger’s attorneys and then set out her response. Compl. Exh. C. According to Evanger’s, this article “republished, reiterated, and reinforced” the message in the “Caught Again” article. Compl. ¶ 25. In “Not Defamation, ” Thixton cited publicly available sources, including the Oregon Tilth website, an FDA Warning Letter to Evanger’s, a website called “, ” and an FDA Inspection Report. Compl. Exh. C. Thixton challenged Evanger’s characterization of her statements as false and misleading. Id. She stated that Evanger’s organic certification “COULD HAVE been surrendered (lost) due to non-compliance.” Id. Thixton then offered speculation (framed as rhetorical “is it possible” questions) about whether the FDA required Evanger’s to close one of its manufacturing facilities due to conditions like “condensation dripping into open cans, peeling paint and mold, and lack of refrigerated storage facilities.” Id. Thixton wrapped up the article by declaring that her intent was not to malign any particular pet food company, but rather to share the truth about pet food with consumers. Id. For its part, Evanger’s alleges that Thixton “intentionally and maliciously juxtaposed disconnected events to portray melodramatically Evanger’s as complicit in a massive consumer fraud relating to the health and safety of its products.” Compl. ¶ 27.

         II. Standard of Review

         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) (alteration in original) (internal quotation marks and citation omitted). 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. Defamation (Counts 1-2)

         Evanger’s alleges that Thixton’s articles were both defamatory per se and defamatory per quod. Thixton moves to dismiss the defamation claims under both theories of liability because (1) the statements at issue were not made with actual malice; (2) the statements are constitutionally protected opinions, as opposed to actionable facts; (3) the statements are capable of an innocent construction, which negates the defamation per se claim; and (4) Evanger’s failed to adequately plead special damages for purposes of defamation per quod. R. 37, Def.’s Br. at 5-11.

         Some basic principles of the law of defamation are well-established. To state a claim for defamation, “a plaintiff must allege 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.” Bd. of Forensic Document Examiners, Inc. v. Am. Bar Ass’n, 922 F.3d 827, 831 (7th Cir. 2019) (citing Green v. Rogers, 917 N.E.2d 450, 459 (Ill. 2009)) (cleaned up).[5] As a threshold matter, then, there can be no liability for statements that are substantially true. Wynne v. Loyola Univ. of Chicago, 741 N.E.2d 669, 676 (Ill.App.Ct. 2000) (cleaned up).

         There are two avenues to liability for defamation. “If a statement’s defamatory character is obvious and apparent on its face, it is considered defamation per se, with the law then presuming damages.” Bd. of Forensic Document Examiners, 922 F.3d. at 831-32 (citing Tuite v. Corbitt, 866 N.E.2d 114, 121 (Ill. 2006)) (cleaned up). In Illinois, only certain categories of statements are considered defamatory per se, two of which are relevant here: (1) words implying that a person is unable to perform (or lacks integrity in performing) their employment duties; and (2) words imputing that a person lacks the ability to carry out that their trade, profession, or business. Solaia Tech., LLC v. Specialty Pub. Co., 852 N.E.2d 825, 839 (Ill. 2006). Even if a statement falls within a defamatory per se category, the statement still is not actionable “if it is reasonably capable of an innocent construction.” Solaia, 852 N.E.2d at 839. Illinois courts consider “the words as they appeared to have been used and according to the idea they were intended to convey to the reasonable reader.” Tuite, 866 N.E.2d at 127 (cleaned up).

         If a statement does not fall within one of the per se categories, the statement can still be actionable as defamation per quod if the plaintiff can point to extrinsic facts showing that the statement is defamatory. Bryson v. News America Publications, Inc., 672 N.E.2d 1207, 1221 (Ill. 1996). But in order to sustain a defamation per quod claim, the plaintiff must also plead special damages in accordance with the heightened pleading standard of Rule 9(g), which requires that special damages be specifically stated. See Fed. R. Civ. P. 9(g); Muzikowski v. Paramount Pictures Corp., 322 F.3d 918, 927 (7th Cir. 2003).

         Finally, “not all statements that doubt or impugn an individual’s professional abilities are actionable. To the contrary, opinions that do not misstate facts are protected not only by Illinois law but also by the First Amendment.” Bd. of Forensic Document Examiners, 922 F.3d at 832. Of course, “a statement of fact is not shielded from an action for defamation by being prefaced with the words ‘in my opinion, ’ but if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.” Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 17–21 (1990) and Illinois cases). To determine whether a statement is a fact or an opinion, the Illinois Supreme Court examines: (1) whether the statement has a precise and readily understood meaning; (2) whether the statement is verifiable; and (3) whether the statement’s literary or ...

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