Board of Forensic Document Exa v. American Bar Association , 922 F.3d 827 ( 2019 )


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  •                                In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 18-2653
    BOARD OF FORENSIC DOCUMENT EXAMINERS, INC., et al.,
    Plaintiffs-Appellants,
    v.
    AMERICAN BAR ASSOCIATION, et al.,
    Defendants-Appellees.
    ____________________
    Appeal from the United States District Court for the
    Northern District of Illinois, Eastern Division.
    No. 1:17-cv-1130 — Edmond E. Chang, Judge.
    ____________________
    ARGUED APRIL 8, 2019 — DECIDED MAY 1, 2019
    ____________________
    Before WOOD, Chief Judge, SCUDDER and ST. EVE, Circuit
    Judges.
    SCUDDER, Circuit Judge. The Board of Forensic Document
    Examiners brought a defamation action alleging reputational
    harm from an article published in an American Bar Associa-
    tion law journal. The district court dismissed the action, con-
    cluding that the article did not sufficiently identify the Board
    or any of its members as the subjects of criticism and, even if
    it had, expressed nothing more than the author’s opinion.
    2                                                 No. 18-2653
    Because we agree that the statements are non-actionable,
    constitutionally protected expressions of opinion, we affirm.
    I
    The Board of Forensic Document Examiners is a non-
    profit organization that administers a certification program
    for forensic document examiners. Certified examiners ana-
    lyze and compare handwriting and provide expert testimo-
    ny in judicial proceedings. The Board has certified about a
    dozen examiners, including each of the individual plaintiffs.
    This dispute centers on an article by Thomas Vastrick, a
    forensic document examiner certified by a different, much
    larger organization: the American Board of Forensic
    Document Examiners, which we will call the American
    Board. Vastrick’s article, Forensic Handwriting Comparison
    Examination in the Courtroom, appeared in The Judges’ Journal,
    a peer-reviewed scholarly journal published by the ABA.
    The summer 2015 edition of the journal in which Vastrick’s
    article was published focused on topics in forensic science
    encountered by judges when qualifying expert witnesses.
    Vastrick’s article spanned four pages and offered guidance
    for judges in evaluating the qualifications and credentials of
    handwriting experts. Vastrick urged judges to look for
    experts certified by the American Board and warned judges
    to “be wary of other certifying bodies.” The article also
    included Vastrick’s photo and a brief biography, which
    identified Vastrick as a “board certified forensic document
    examiner out of Orlando, Florida, with over 37 years of
    experience,” including service as chairman of the
    “Questioned Documents Section of the American Academy
    of Forensic Sciences” and participation in a handwriting
    study funded by the National Institute of Justice.
    No. 18-2653                                                 3
    While the article did not mention the Board of Forensic
    Document Examiners by name, the Board believed that
    Vastrick nonetheless defamed its members by making false
    and misleading statements about how to distinguish
    between “true professionals” and “lesser qualified”
    examiners. The Board initially responded by submitting a
    rebuttal to Vastrick’s article, but frustrated with the ABA’s
    suggested edits, it abandoned the effort and instead filed this
    action. The Board’s complaint asserted claims of defamation
    per se and invasion of privacy on behalf of all of its members
    generally and member Andrew Sulner specifically on the
    basis that he was singled out by Vastrick. The Board also
    asserted claims of civil conspiracy, false advertising under
    the Lanham Act, and violations of state competition laws.
    The Board amended its complaint and focused on four
    specific statements in Vastrick’s article:
    “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 vigi-
    lant 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 require-
    ments concurrent with the published training
    standards. Be wary of other certifying bodies.”
    4                                                No. 18-2653
    The article cautioned judges “to look out for”
    examiners “[c]ertified by [a] board other than
    the American Board of Forensic Document Ex-
    aminers.”
    The article also cautioned against any
    “[m]ember of American Academy of Forensic
    Sciences but not the Questioned Document
    Section.”
    The Board alleged that these statements misled readers
    about the qualifications of Board-certified examiners. As to
    the first statement, the Board asserted that Vastrick falsely
    suggested that to satisfy “the professional standards for
    training,” a forensic document examiner must complete a 24-
    month “full-time, in-residence training program,” whereas
    the professional standards require only the equivalent of a
    24-month full-time training program. The Board also alleged
    that the second and third statements, which identified the
    American Board of Forensic Document Examiners as the on-
    ly reputable certifying body, falsely implied that its mem-
    bers were unqualified, even though, like the American
    Board, the Board is accredited by the Forensic Specialties
    Accreditation Board. As to the fourth statement, the Board
    contended that Vastrick harmed Andrew Sulner’s reputation
    by warning judges about forensic examiners who are mem-
    bers of the American Academy of Forensic Sciences general-
    ly but not the American Academy’s Questioned Document
    Section specifically, as Sulner apparently is the only examin-
    er who fits this description.
    The ABA and other defendants moved to dismiss the
    complaint, arguing that the challenged statements did not
    identify the Board (or any of its members) as the target of
    No. 18-2653                                                       5
    criticism and, regardless, reflected only Vastrick’s opinion,
    not verifiable facts. The district court agreed and dismissed
    each of the Board’s claims. The court also denied the Board’s
    motion for reconsideration and request to file a second
    amended complaint, concluding that any amendment would
    be futile in light of the ruling that the article contained only
    non-actionable opinion.
    II
    On appeal the Board challenges the district court’s
    decision to grant the defendants’ motion to dismiss and,
    separately, to deny leave to file a second amended
    complaint. The Board also argues that the court erred by
    applying Illinois law to each claim (except for the claim
    specific to plaintiff Andrew Sulner, to which the district
    court properly applied New York law). We review a
    dismissal for failure to state a claim de novo, Santana v. Cook
    County Bd. of Review, 
    679 F.3d 614
    , 620 (7th Cir. 2012), and a
    denial of leave to amend for abuse of discretion, Dubicz v.
    Commonwealth Edison Co., 
    377 F.3d 787
    , 792 (7th Cir. 2004).
    A
    Beginning with the choice of law issue, we turn to the
    law of the forum state, Illinois. See West Side Salvage, Inc. v.
    RSUI Indemnity Co., 
    878 F.3d 219
    , 223 (7th Cir. 2017). Illinois
    law tells us that the law of the state with the “most signifi-
    cant relationship to the occurrence and the parties” applies
    in the event of a conflict. Barbara's Sales, Inc. v. Intel Corp., 
    227 Ill. 2d 45
    , 61 (2007). In defamation cases, the plaintiff’s home
    state often has the “most significant relationship” because
    that location is where the plaintiff suffers the most reputa-
    6                                                    No. 18-2653
    tional harm. See Kamelgard v. Macura, 
    585 F.3d 334
    , 341 (7th
    Cir. 2009).
    Each individual plaintiff lives in a different state, and the
    district court agreed with the Board that, in the event of a
    conflict of laws, the law of the affected plaintiff’s home state
    would apply to the claim in question. From there, however,
    the district court identified only one conflict with Illinois
    law: for the defamation per se claim brought by Andrew
    Sulner, New York law (unlike Illinois) permits a plaintiff to
    rely on extrinsic evidence to establish that he is the target of
    a challenged statement. Compare Bryson v. News America
    Publications, Inc., 
    174 Ill. 2d 77
    , 118–19 (1996) (explaining that
    statements are not defamatory per se if “additional facts are
    required to show the identity of the allegedly defamed
    person”) with Hinsdale v. Orange County Publications, Inc., 
    17 N.Y.2d 284
    , 290 (1966) (holding that extrinsic facts may be
    considered in determining whether a written statement is
    libelous per se if the extrinsic facts are “presumably known to
    [the] readers” of the challenged statement). As a result, the
    district court applied New York law to Sulner’s claim, but
    seeing no other conflicts, applied Illinois law to the Board’s
    remaining claims.
    The Board now argues that the district court should have
    applied the law of each plaintiff’s home state in assessing
    their defamation claims. We disagree. A district court is re-
    quired to engage in a choice of law analysis only “if there is
    a conflict between Illinois law and the law of another state
    such that ‘a difference in law will make a difference in the
    outcome.’” West Side 
    Salvage, 878 F.3d at 223
    (citing Townsend
    v. Sears, Roebuck & Co., 
    227 Ill. 2d 147
    , 155 (2007)). And it was
    incumbent on the Board, as the party seeking a choice of law
    No. 18-2653                                                    7
    determination, to “establish the existence of an outcome-
    determinative conflict.” 
    Id. It failed
    to do so. While the
    Board, in its response to the ABA’s motion to dismiss, “re-
    serve[d] [the] right to argue the application of the laws of a
    particular state should a conflict of laws arise with respect to
    certain issues,” the Board did not identify any specific con-
    flict in the laws of the pertinent states. So the district court
    committed no error in applying the law of the forum state,
    Illinois, to each of the Board’s claims. See 
    id. (“If the
    party
    fails to establish the existence of [] a conflict, the court ap-
    plies the law of the forum state.”).
    B
    That brings us to the merits of the Board’s claims. To
    state a claim for defamation under Illinois law, 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 [the]
    publication caused damages.” Green v. Rogers, 
    234 Ill. 2d 478
    ,
    491 (2009). 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. Tuite v. Corbitt, 
    224 Ill. 2d 490
    , 501 (2006). Illinois recognizes five categories of
    statements that are considered defamatory per se, two of
    which are relevant here—statements “imputing an inability
    to perform or want of integrity in the discharge of duties of
    office or employment” and statements that “prejudice a par-
    ty, or impute lack of ability, in his or her trade.” Van Horne v.
    Muller, 
    185 Ill. 2d 299
    , 307 (1998).
    The Board contends that the four statements highlighted
    in its amended complaint are defamatory per se because they
    falsely imply that its experts do not meet the published pro-
    8                                                   No. 18-2653
    fessional training standards for forensic examiners. But not
    all statements that doubt or impugn an individual’s profes-
    sional 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, and that is so even when
    the opinions concern one of the five defamation per se cate-
    gories under Illinois law. See Huon v. Denton, 
    841 F.3d 733
    ,
    743 (7th Cir. 2016).
    In determining whether a statement is one of opinion or
    one of fact, Illinois law—in keeping with Supreme Court
    precedent—draws no firm dividing line. See Solaia Tech., LLC
    v. Specialty Publishing Co., 
    221 Ill. 2d 558
    , 581 (2006) (citing
    Illinois cases and Milkovich v. Lorain Journal Co., 
    497 U.S. 1
    ,
    18–19 (1990)). Courts consider “whether the statement has a
    precise and readily understood meaning; whether the
    statement is verifiable; and whether the statement's literary
    or social context signals that it has factual content.” Id.; see
    also Gross v. New York Times Co., 
    82 N.Y.2d 146
    , 153 (1993)
    (articulating similar factors). Context is key, as it matters not
    only what was said, but who said it, where it was said, and
    the broader setting of the challenged statements. See, e.g.,
    Brennan v. Kadner, 
    351 Ill. App. 3d 963
    , 969–70 (2004)
    (employing similar factors).
    The context of Vastrick’s statements supports the district
    court’s conclusion that his article expressed his opinion, not
    verifiable facts. The article appeared in a scholarly law
    journal—the ABA’s The Judges’ Journal—and even more
    specifically in an edition devoted (as the front cover stated)
    to Forensic Sciences—Judges as Gatekeepers. Anyone reading
    this edition of The Judges' Journal would know that the
    primary audience was judges, with Vastrick’s article
    No. 18-2653                                                      9
    reflecting but one practicing expert’s view on how judges
    should attend to their gatekeeping obligations under Daubert
    v. Merrell Dow Pharmaceuticals, Inc., 
    509 U.S. 579
    (1993) or
    state-law analogues. Nobody reading the article in this
    context could reasonably have seen Vastrick’s statements as
    assertions of fact subject to falsification. To the contrary, the
    article was what it purported to be: one practitioner’s
    commentary on how judges should attend to the admission
    of expert opinion in the area of handwriting analysis. See,
    e.g., Lott v. Levitt, 
    556 F.3d 564
    , 570 (7th Cir. 2009) (explaining
    that in the scholarship context “it is natural to read [the
    allegedly defamatory] statement as a critique on [the
    plaintiff’s] theory, rather than an accusation of falsifying
    data”); Dilworth v. Dudley, 
    75 F.3d 307
    , 310 (7th Cir. 1996)
    (considering statements in a “work of scholarship” and
    stating that “judges are not well equipped to resolve
    academic controversies” and the appropriate remedy is “the
    publication of a rebuttal”).
    This interpretation is particularly reasonable as The
    Judges’ Journal warned readers that “[a]rticles represent the
    opinions of the authors alone” and “provide opposing
    views” for readers to consider. Vastrick likewise highlighted
    the subjective nature of his article, presenting his views as
    suggestions and not facts: “I, as a practicing forensic
    document examiner, would like to respectfully suggest ways
    to differentiate between the true professional and the lesser-
    qualified practitioners.” To be sure, neither the ABA nor
    Vastrick could avoid liability simply by labeling the
    challenged statements as opinions. See 
    Milkovich, 497 U.S. at 19
    . But these warnings are relevant to our assessment of the
    broader context of Vastrick’s statements and to our
    10                                                  No. 18-2653
    conclusion that the article could not reasonably be
    interpreted as stating facts. See 
    Solaia, 221 Ill. 2d at 581
    .
    A closer look at the content of Vastrick’s statements
    reinforces our conclusion. In the first challenged statement,
    for example, Vastrick discussed the qualifications of “an
    appropriately trained forensic document examiner.” This
    express qualification—“appropriately trained”—signaled
    that Vastrick was offering his own view on adequate
    qualifications for a forensic examiner, not describing factual,
    objective standards for qualifications. Vastrick’s assertion
    that the American Board “is the only certification board
    recognized by the broader forensic science community, law
    enforcement, and courts,” likewise reflects the expression of
    a viewpoint, as the statement is so broad as to lack objective,
    verifiable meaning. See Haynes v. Alfred A. Knopf, Inc., 
    8 F.3d 1222
    , 1227 (7th Cir. 1993) (“[I]f 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.”).
    While we agree with the district court that the better
    course would have been for Vastrick to disclose (somewhere
    in the article) his affiliation with the American Board—
    thereby allowing readers to see that he was showering praise
    on an organization to which he belonged—none of his
    statements were defamatory. Indeed, though the Board may
    disagree with Vastrick’s assessment of who is properly qual-
    ified and what credentials district judges should look for
    when considering proffered experts, the appropriate avenue
    for expressing a contrary point of view was through a re-
    No. 18-2653                                                    11
    buttal article, not a defamation lawsuit. See, e.g., 
    Lott, 556 F.3d at 570
    –71.
    Because we conclude Vastrick’s article contained only
    non-actionable opinion, we need not consider other aspects
    of the district court’s reasoning that informed the dismissal
    of the Board’s claims.
    III
    The Board also challenges the district court’s dismissal of
    its Lanham Act claims. But here too the opinion-based na-
    ture of Vastrick’s statements is dispositive.
    To establish a deceptive advertising claim under
    § 1125(a)(1) of the Lanham Act, a plaintiff must show that
    “(1) the defendant made a material false statement of fact in
    a commercial advertisement; (2) the false statement actually
    deceived or had the tendency to deceive a substantial seg-
    ment of its audience; and (3) the plaintiff has been or is likely
    to be injured as a result of the false statement.” Eli Lilly & Co.
    v. Arla Foods, Inc., 
    893 F.3d 375
    , 381–82 (7th Cir. 2018). As
    with Illinois defamation law, opinions are non-actionable
    under the Lanham Act because the statute prohibits only
    misrepresentations “of fact.” 15 U.S.C. § 1125(a)(1). Because
    Vastrick’s article reflected only his opinion, none of the chal-
    lenged statements can form the basis of a Lanham Act claim.
    IV
    Finally, the Board argues that the district court abused its
    discretion in failing to grant leave to amend its complaint.
    The district court offered two reasons for this denial: delay
    and futility. Because we agree that each of the challenged
    statements reflects Vastrick’s opinion—and there was noth-
    ing the Board could do to change that reality in a new
    12                                                No. 18-2653
    amended complaint—the district court acted within its dis-
    cretion in denying the Board’s request for leave to file a sec-
    ond amended complaint. See Runnion ex rel. Runnion v. Girl
    Scouts of Greater Chicago & Nw. Ind., 
    786 F.3d 510
    , 520 (7th
    Cir. 2015) (explaining that leave may be denied when it is
    “clear that the defect cannot be corrected so that amendment
    is futile”).
    For these reasons, we AFFIRM.