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

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.