United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
HONORABLE EDMOND E. CHANG UNITED STATES DISTRICT JUDGE.
Cat and Dog Food Company has sued pet-food blogger Susan
Thixton, bringing claims for libel per se, libel
per quod, and commercial
disparagement. 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. Thixton has moved to dismiss the Complaint
for failure to adequately state a claim. 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.
dispute is about a series of three articles that Thixton
published on her website,
“truthaboutpetfood.com.” 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).
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.
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.R. 37-1, Def.’s Br., Exh. A.
Nonetheless, Evanger’s alleges that Thixton’s
initial error had already done its damage. Compl. ¶ 11.
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.
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 “PetFoodIndustry.com, ” 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.
Standard of Review
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
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.
Defamation (Counts 1-2)
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.
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). 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).
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).
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).
“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