Rose v. Hollinger International, Inc. , 383 Ill. App. 3d 8 ( 2008 )


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  •                                                     FIRST DIVISION
    May 19, 2008
    No. 1-06-2885
    THOMAS A. ROSE,                          )     Appeal from the
    )     Circuit Court of
    Plaintiff-Appellant,                )     Cook County.
    )
    v.                             )
    )
    HOLLINGER INTERNATIONAL, INC., CHICAGO   )
    SUN-TIMES, INC., JERUSALEM POST, and     )
    BRET STEPHENS,                           )     Honorable
    )     Lee Preston,
    Defendants-Appellees.               )     Judge Presiding.
    JUSTICE WOLFSON delivered the opinion of the court:
    In this defamation case we are required to explore the
    indistinct line between fact and opinion.    Where we land
    determines the outcome of this appeal.
    Plaintiff Thomas A. Rose (Rose) appeals the trial court’s
    order dismissing with prejudice his action against the defendants
    Hollinger International, Inc. (Hollinger), Chicago Sun-Times,
    Inc. (Sun-Times), Jerusalem Post, and Bret Stephens (Stephens).
    Count V of plaintiff’s Second Amended Complaint alleged Stephens
    made defamatory statements against Rose in an email sent to
    Jerusalem Post employees.
    The trial court found the alleged defamatory statements--
    Rose "wrought damage to" the Jerusalem Post’s finances,
    reputation, business relationships, morale, and quality of its
    1-06-2885
    editorial product--were not actionable because they were
    protected expressions of Stephens’ opinions.      Rose appeals the
    court’s dismissal of Count V.    We affirm.1
    FACTS
    At the time of the complaint, Hollinger was the owner of the
    Sun-Times and the Jerusalem Post.      Rose began working for
    Hollinger and the Chicago Sun-Times in 1997.      In June 1998, Rose
    became the publisher and chief executive officer (CEO) of the
    Jerusalem Post.    He moved to Israel and worked in that position
    until he was fired on May 25, 2004.      On May 27, 2004, Stephens,
    the editor-in-chief of the Jerusalem Post, sent an email to the
    editorial staff in Israel and New York.      The content of the
    email, in its entirety, is as follows:
    "Subject: memo from Bret Stephens to
    editorial staff
    Dear Colleagues,
    As some of you may have heard already,
    Tom Rose was this Tuesday terminated as
    Publisher and CEO of The Jerusalem Post.    CFO
    1
    On March 26, 2008, our supreme court, under its supervisory
    authority, directed us to vacate our opinion and reconsider it in
    light of its decision in Imperial Apparel, Ltd. v. Cosmo’s
    Designer Direct, Inc., 
    227 Ill. 2d 381
    , 
    882 N.E.2d 1011
    (February
    7, 2008). We have reviewed the Imperial opinion and find it
    supports our original decision. We have vacated our opinion and
    now file this opinion in its stead.
    2
    1-06-2885
    Mark Ziman has taken his place as publisher
    on an interim basis.
    For those of us who have seen up close
    the damage Tom did to this newspaper, this is
    a happy event indeed.    For those Tom damaged
    personally, with his abusive behavior and
    bizarre management style, it is happier
    still.   So good riddance, Tom, good riddance.
    You will not be missed.
    So many of us have been waiting for this
    day, and fighting for it, that we may be
    forgiven for thinking that Tom’s departure
    brings our problems to an end.       It does not.
    It will be some time before we can undo the
    damage he has wrought:       To our finances, to
    our reputation, to our business
    relationships, to our morale, to the quality
    of our editorial product.
    What we can say is that, with Tom gone,
    we can begin to address our problems in a
    rational and purposeful way.       Improvements
    will not necessarily come quickly.       But I’m
    confident they will, in time, come.
    3
    1-06-2885
    I hope each of you had a pleasant
    holiday.    I look forward to seeing you next
    week.
    Yours, Bret."
    Rose alleges Stephens took no steps to ensure the email was
    not forwarded beyond its original recipients.      He says the email
    was sent to several freelance journalists around the world and
    forwarded to other people in Illinois and New York.      Excerpts
    from the email were published in at least two newspaper articles
    available on the Internet.      He alleges Stephens made the
    defamatory statements in the course of his employment, "with the
    intent to injure Rose personally and to interfere with Rose’s
    efforts to obtain employment following his termination."
    Count V of Rose’s Second Amended Complaint alleges the
    statements in the email were defamatory per se because they
    imputed an inability to perform, or a lack of integrity in the
    discharge of, Rose’s employment duties, and imputed he lacked
    ability in his trade, profession, or business.
    The defendants filed a motion to dismiss pursuant to section
    2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615
    (West 2004)), contending: (1) the statements constitute
    expressions of opinion; (2) the statements are subject to a
    qualified privilege; (3) Rose failed to sufficiently allege
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    1-06-2885
    "actual malice;" (4) defendants are not liable for statements
    made by Stephens outside the scope of his employment; and (5)
    Rose cannot state a claim against Hollinger or the Sun-Times as
    those companies were not Rose’s employers at the time the
    statements were made.
    The trial court dismissed the defamation count with
    prejudice, holding the alleged defamatory statements were
    expressions of Stephens’ opinions.    The court did not address
    defendants’ other arguments.   The court subsequently entered an
    order finding no just reason to delay appeal of the dismissal
    order.   155 Ill. 2d R. 304(a).
    DECISION
    A section 2-615 motion to dismiss challenges the legal
    sufficiency of a complaint based on defects apparent on its face.
    735 ILCS 5/2-615 (West 2004); Marshall v. Burger King Corp., 
    222 Ill. 2d 422
    , 429, 
    856 N.E.2d 1048
    (2006).    Our review is de novo.
    Wakulich v. Mraz, 
    203 Ill. 2d 223
    , 228, 
    785 N.E.2d 843
    (2003).
    A statement is considered defamatory "if it tends to cause
    such harm to the reputation of another that it lowers that person
    in the eyes of the community or deters third persons from
    associating with him."   Kolegas v. Heftel Broadcasting Corp., 
    154 Ill. 2d 1
    , 10, 
    607 N.E.2d 201
    (1992), citing Restatement (Second)
    of Torts § 559 (1977).   "Statements are considered defamatory per
    5
    1-06-2885
    se when the defamatory character of the statement is apparent on
    its face; that is, when the words used are so obviously and
    materially harmful to the plaintiff that injury to his reputation
    may be presumed."     
    Kolegas, 154 Ill. 2d at 10
    .
    Rose alleges Stephens’ statements add up to imputation he is
    unable to perform his professional duties, thus per se
    defamation.    The posture of this appeal does not call on us to
    decide whether Stephens’ email contains defamatory words.    We
    will assume, as the parties apparently do in this appeal, there
    is at least some defamation.    The question we must answer is
    whether the defamatory words are actionable.    See Bryson v. News
    America Publications, Inc., 
    174 Ill. 2d 77
    , 99-100, 
    672 N.E.2d 1207
    (1996).   That is, statements that are defamatory per se may
    enjoy constitutional protection as expressions of opinion.
    Solaia Technology, LLC v. Specialty Publishing Co., 
    221 Ill. 2d 558
    , 581, 
    852 N.E.2d 825
    (2006); U.S. Const., amend. I.
    First, we look at some of the decisions that have brought us
    to the fact versus opinion contest we must resolve.
    Before 1990, courts perceived a fundamental distinction
    between statements of fact and statements of opinion for first
    amendment purposes.    
    Bryson, 174 Ill. 2d at 99
    .   The distinction
    was grounded in dictum contained in Gertz v. Robert Welch, Inc.,
    
    418 U.S. 323
    , 339-40, 
    41 L. Ed. 2d 789
    , 805, 
    94 S. Ct. 2997
    ,
    6
    1-06-2885
    3006-07 (1974):
    "Under the First Amendment there is no such
    thing as a false idea.       However pernicious an
    opinion may seem, we depend for its
    correction not on the conscience of judges
    and juries but on the competition of other
    ideas.   But there is no constitutional value
    in false statements of fact."
    In Milkovich v. Lorain Journal Co., 
    497 U.S. 1
    , 18, 111 L.
    Ed. 2d 1, 17, 
    110 S. Ct. 2695
    , 2705 (1990), the United States
    Supreme Court held the above passage from Gertz was not intended
    to create a "wholesale defamation exemption" for anything labeled
    an "opinion."    Rejecting what it called "the creation of an
    artificial dichotomy between ‘opinion’ and fact," the Court held
    there is no separate first amendment privilege for statements of
    opinion.    
    Milkovich, 497 U.S. at 18-19
    , 111 L. Ed. 2d at 
    18, 110 S. Ct. at 2706
    .      A false assertion of fact can be libelous even
    though couched in terms of an opinion.         For example, simply
    couching the statement "Jones committed perjury" in terms of
    opinion--"In my opinion Jones committed perjury"--does not dispel
    the factual implications contained in the statement.         
    Milkovich, 497 U.S. at 18-19
    , 111 L. Ed. 2d at 17-
    18, 110 S. Ct. at 2706
    .
    The statement at issue in Milkovich appeared in a newspaper
    7
    1-06-2885
    column that said the petitioner "lied at the hearing after ***
    having given his solemn oath to tell the truth."       
    Milkovich, 497 U.S. at 5
    , 111 L. Ed. 2d at 
    9, 110 S. Ct. at 2698
    .      The Court
    said the dispositive question was "whether a reasonable
    factfinder could conclude that the statements in the [column]
    imply an assertion that petitioner Milkovich perjured himself in
    a judicial proceeding."       
    Milkovich, 497 U.S. at 21
    , 111 L. Ed. 2d
    at 
    19, 110 S. Ct. at 2707
    .      The Court answered the question in
    the affirmative, holding:
    "This is not the sort of loose, figurative,
    or hyperbolic language which would negate the
    impression that the writer was seriously
    maintaining that petitioner committed the
    crime of perjury.    Nor does the general tenor
    of the article negate this impression.    We
    also think the connotation that petitioner
    committed perjury is sufficiently factual to
    be susceptible of being proved true or
    false."     
    Milkovich, 497 U.S. at 21
    , 111 L.
    Ed. 2d at 
    19, 110 S. Ct. at 2707
    .
    The Illinois Supreme Court has adopted and applied the
    Milkovich test.       
    Bryson, 174 Ill. 2d at 100
    ; 
    Kolegas, 154 Ill. 2d at 10
    0.   Calling it a "restrictive" test, the court held a
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    1-06-2885
    statement is protected by the first amendment only if it cannot
    be "reasonably interpreted as stating actual facts" about the
    plaintiff.   
    Bryson, 174 Ill. 2d at 100
    ; 
    Kolegas, 154 Ill. 2d at 14-15
    , citing 
    Milkovich, 497 U.S. at 20
    , 111 L. Ed. 2d at 
    19, 110 S. Ct. at 2706
    .    The determination is a matter of law for the
    court to decide.    Hopewell v. Vitullo, 
    299 Ill. App. 3d 513
    , 518,
    
    701 N.E.2d 99
    (1998).
    Courts consider several factors in determining whether a
    statement is actionable: (1) whether the statement has a precise
    and readily understood meaning; (2) whether the statement is
    objectively verifiable as true or false; and (3) whether the
    statement’s literary or social context signals that it has
    factual content.    
    Solaia, 221 Ill. 2d at 581-82
    ; Bryson, 
    174 Ill. 2d
    at 100-01; Mittelman v. Witous, 
    135 Ill. 2d 220
    , 243, 
    552 N.E.2d 973
    (1989) (adopting factors announced in Ollman v. Evans,
    
    750 F.2d 970
    , 984-85 (D.C. Cir. 1984)).    Statements made in the
    form of insinuation, allusion, irony, question, ridicule, or
    sarcasm may be considered defamatory as positive assertions of
    fact.   
    Solaia, 221 Ill. 2d at 581
    ; 
    Kolegas, 154 Ill. 2d at 16
    .
    Courts evaluate the totality of the circumstances in each
    case, but the emphasis is on whether the statement is capable of
    objective verification.    Imperial Apparel, Ltd. v. Cosmo’s
    Designer Direct, Inc., 
    367 Ill. App. 3d 48
    , 53, 
    853 N.E.2d 770
    9
    1-06-2885
    (2006), appeal allowed, 
    222 Ill. 2d 572
    , 
    861 N.E.2d 655
    (November
    29, 2006); 
    Hopewell, 299 Ill. App. 3d at 519
    .
    To aid our analysis of whether the statements at issue are
    constitutionally protected opinion or actionable factual
    assertions, we examine the ways various courts have analyzed
    similar statements.
    Cases Finding Non-Actionable Opinion
    In Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc.,
    
    227 Ill. 2d 381
    , 
    882 N.E.2d 1011
    (2008), the defendant placed a
    newspaper ad disparaging the plaintiffs’ competing discount men’s
    clothing business.     The ad stated, in part:
    "It is laughable how with all the integrity
    of the ‘Iraq Information Minister,’ they
    brazenly attempt pulling polyester over your
    eyes by conjuring up a low rent 3 for 1
    imitation that has the transparency of a
    hookers come on. . . but no matter how they
    inflate prices and compromise quality, much
    to their dismay, Cy and his son Paul the
    plagiarist still remain light years away from
    delivering anything close to our ‘3 for 1'
    values."   Imperial 
    Apparel, 227 Ill. 2d at 386
    .
    10
    1-06-2885
    While the court found the language in the ad was "artless,
    ungrammatical, sophomoric, and sometimes nonsensical," the court
    said it did not believe "an ordinary reader would perceive it as
    making objectively verifiable assertions about plaintiffs’
    business."    Imperial 
    Apparel, 227 Ill. 2d at 401
    .   The terms in
    the ad--"rags," "flea market style warehouse," "dried cream
    cheese," "low rent," "a hookers come on"--were "merely subjective
    characterizations lacking precise and readily understood
    meaning."    Imperial 
    Apparel, 227 Ill. 2d at 401
    .
    In Schivarelli v. CBS, Inc., 
    333 Ill. App. 3d 755
    , 
    776 N.E.2d 693
    (2002), a segment in a 30-second promotional
    commercial for a television station depicted investigative
    reporter Pamela Zekman saying to the plaintiff, " ‘Let’s sum this
    up for a second, the evidence seems to indicate that you’re
    cheating the city.’ "    
    Schivarelli, 333 Ill. App. 3d at 758
    .    The
    ad did not provide any further detail, although the context of
    the ad "trumpeted the reporter’s ability to dig up hidden
    corruption, abuse, and unethical or illegal conduct."
    
    Schivarelli, 333 Ill. App. 3d at 760
    .
    The court held the statement was not objectively verifiable
    because it was not made in any specific factual context.    The
    reporter did not explain the evidence, state why she thought the
    plaintiff was cheating, or even explain what she meant by
    11
    1-06-2885
    "cheating."    
    Schivarelli, 333 Ill. App. 3d at 762
    .   It was not
    actionable.
    In Wynne v. Loyola University of Chicago, 
    318 Ill. App. 3d 443
    , 
    741 N.E.2d 669
    (2000), the court held the statements about a
    professor in a memorandum authored by a university employee did
    not constitute actionable defamation.   The memorandum stated the
    plaintiff "made bizarre telephone calls" to other colleagues
    about her fertility injections; she "appeared to wheedle,
    persuade, nag, and domineer" for changes in the university’s
    special education program; nothing ever seemed to satisfy her;
    meetings with her were "uniformly unpleasant"; and she began
    "striking various deals" with the dean.    
    Wynne, 318 Ill. App. 3d at 452
    .
    The court held none of the words and phrases was capable of
    objective verification; it was clear the employee was merely
    expressing her opinions in the memorandum.    Wynne, 
    318 Ill. App. 3d
    at 452.    The court found, "[w]hile in one sense all opinions
    imply facts, the question of whether a statement of opinion is
    actionable as defamation is one of degree; the vaguer and more
    generalized the opinion, the more likely the opinion is
    nonactionable as a matter of law."    
    Wynne, 318 Ill. App. 3d at 452
    , citing Hopewell, 299 Ill. App 3d at 521.
    In Dubinsky v. United Airlines Master Executive Council, 303
    12
    1-06-2885
    Ill. App. 3d 317, 
    708 N.E.2d 441
    (1999), the plaintiffs alleged
    the defendants falsely accused them of criminal conduct related
    to the employee purchase of United Airlines.    Specifically,
    plaintiff Dubinsky alleged defendant Richards defamed him by
    calling him a "crook" in front of 30 to 40 pilots and their
    wives.   
    Dubinsky, 303 Ill. App. 3d at 329
    .    The court held the
    statement was not actionable because it was not made in any
    specific factual context.   The court said, "[o]ne cannot rely on
    an assumption that those who heard the statement were completely
    apprised of all the developments in the ESOP controversy so as to
    create a definitive factual context for the use of the word
    ‘crook.’ "   
    Dubinsky, 303 Ill. App. 3d at 329
    -30.
    In Doherty v. Kahn, 
    289 Ill. App. 3d 544
    , 556-57, 
    682 N.E.2d 163
    (1997), the court held statements made by plaintiff’s former
    employer to clients were non-actionable opinion.     Defendants told
    potential customers plaintiff was "incompetent," "lazy,"
    "dishonest," "cannot manage a business," and/or "lacks the
    ability to perform landscaping services."     Doherty, 
    289 Ill. App. 3d
    at 554.   The court held the statements were not actionable
    defamation because there were no specific facts at the root of
    the statements capable of being objectively verified as true or
    false.   Doherty, 
    289 Ill. App. 3d
    at 557.
    In 
    Hopewell, 299 Ill. App. 3d at 515-16
    , a former paid
    13
    1-06-2885
    officer on a United States senator’s election committee brought a
    defamation action against another committee member who told a
    newspaper the plaintiff was "fired because of incompetence."      The
    court found the statement did not have a "precise and readily
    understood meaning" because of its broad scope and lack of
    detail.    
    Hopewell, 299 Ill. App. 3d at 519
    .   "[O]ne person’s idea
    of when one reaches the threshold of incompetence will vary from
    the next person’s."    
    Hopewell, 299 Ill. App. 3d at 519
    .   The
    tenor and context of the article in which the statement appeared
    further justified finding the statement was an opinion.     The
    article was riddled with allegations concerning the senator’s
    campaign finances, which easily could lead readers to conclude
    the statements were efforts at posturing before an ensuing legal
    battle between the plaintiff and the senator.      Hopewell, 299 Ill.
    App. 3d at 520.   Finally, the veracity of the statement could not
    be verified because the statement was so ambiguous and indefinite
    that any number of possible facts might support the conclusion
    that Hopewell was "incompetent."      
    Hopewell, 299 Ill. App. 3d at 520
    .
    For other examples of nonactionable opinions, see also Maag
    v. Illinois Coalition for Jobs, Growth & Prosperity, 368 Ill.
    App. 3d 844, 851-52, 
    858 N.E.2d 967
    (2006) (flyer aimed at
    judicial candidate stating: “What was he thinking?,” “Letting a
    14
    1-06-2885
    Murderer Back on the Streets,” “A Mistake with Consequences,”
    “Questionable Judgment,” “ ‘Technicality’ Justice?,” and
    “Overturning the Conviction of a Sexual Predator”); Brennan v.
    Kadner, 
    351 Ill. App. 3d 963
    , 968, 
    814 N.E.2d 951
    (2004)
    (statement in newspaper column that "the election board could
    refer [plaintiff’s] case to the U.S. attorney’s office, claiming
    that he used the U.S. mail in perpetrating a fraud"); Quinn v.
    Jewel Food Stores, Inc., 
    276 Ill. App. 3d 861
    , 866-67, 
    658 N.E.2d 1225
    (1995) (statements made in an evaluation in employee’s
    personnel file: “very aggressive, to the point of being cocky,”
    “A con artist!! Watch out for the bullshit!”); Piersall v.
    Sportsvision of Chicago, 
    230 Ill. App. 3d 503
    , 510, 
    595 N.E.2d 103
    (1992) (plaintiff was a "liar"); Horowitz v. Baker, 168 Ill.
    App. 3d 603, 607, 
    523 N.E.2d 179
    (1988) (plaintiff “secretly” and
    “cheaply” sold city property); Kakuris v. Klein, 
    88 Ill. App. 3d 597
    , 600, 
    410 N.E.2d 984
    (1980) (employer’s statements that
    employee exhibited a "[l]ack of achievement in basic goals" and
    "did not have the qualifications needed to achieve the objectives
    of the profession.")
    Cases Finding Actionable Factual Statements
    In 
    Solaia, 221 Ill. 2d at 583
    , the court examined several
    statements in a magazine article discussing the plaintiffs’
    patent infringement claims against various well-known companies
    15
    1-06-2885
    and reached a split decision.    The court held the article’s
    characterization of the plaintiffs as “deeply greedy people”
    victimizing "the innocent companies who are being forced to
    defend themselves in this debacle" fell within the bounds of
    constitutionally protected opinion.     
    Solaia, 221 Ill. 2d at 583
    .
    The phrase had “no precise meaning” and was “not verifiable.”
    
    Solaia, 221 Ill. 2d at 583
    .    But a reprinted comment in the
    article from an industry veteran describing the plaintiffs’
    patent as “ ‘essentially worthless,’ *** being used to generate
    settlement proceeds *** filing claims ‘to make a lot of money,’
    regardless of the means” was actionable fact.     Solaia, 
    221 Ill. 2d
    at 583-84.    Though the phrase “essentially worthless” had no
    precise meaning in the abstract, it had a very precise meaning in
    the context of the letter.     Solaia, 
    221 Ill. 2d
    at 584.   Although
    the letter “undoubtedly employs hyperbole,” the court held the
    statement was not an opinion.    “Under its metaphorical chaff
    hides a kernel of fact: Solaia Technology secured a worthless
    patent and filed infringement claims with the sole aim of
    extracting settlements.”     Solaia, 
    221 Ill. 2d
    at 584.
    In 
    Bryson, 174 Ill. 2d at 100
    -102, the court held a short
    story’s description of the plaintiff as a “slut” was an assertion
    of fact.    The clear impact of the statement was that the
    plaintiff was sexually promiscuous.    The court held the assertion
    16
    1-06-2885
    was “sufficiently factual to be susceptible of being proven true
    or false.”   
    Bryson, 174 Ill. 2d at 100
    -01.
    In 
    Mittelman, 135 Ill. 2d at 245
    , the court examined a
    statement by a supervising attorney in a meeting with the law
    firm’s board of directors.    The attorney told the directors the
    waste of time and money in preparing a case was "not his fault."
    He said the plaintiff "sat on the statute of limitations defense
    with knowledge of [adverse authority] for three years without
    attempting to settle or cut the firm’s probable losses."
    
    Mittelman, 135 Ill. 2d at 245
    .   The court held the word "fault"
    was used to express a non-actionable opinion, but the remainder
    of the statement was factual because it had a precise core of
    meaning and referred to the plaintiff’s actions or omissions with
    respect to events that had taken place.    
    Mittelman, 135 Ill. 2d at 245
    -46.   The words were actionable.
    In Moriarty v. Greene, 
    315 Ill. App. 3d 225
    , 232-33, 
    732 N.E.2d 730
    (2000), the statement by a newspaper columnist that a
    child psychologist "has readily admitted that she sees her job as
    doing whatever the natural parents instruct her to do," was found
    to be actionable because it was a factual assertion capable of
    being proved true or false.    
    Moriarty, 315 Ill. App. 3d at 233
    .
    The court in Kumaran v. Brotman, 
    247 Ill. App. 3d 216
    , 228,
    
    617 N.E.2d 191
    (1993), held a statement in a newspaper article
    17
    1-06-2885
    was a verifiable assertion of fact.   The court found the gist of
    the article--that plaintiff was "working a scam" by filing
    frequent, unwarranted lawsuits to procure pecuniary settlements,
    concerned plaintiff’s conduct and character, suggesting it was
    factual.    
    Kumaran, 247 Ill. App. 3d at 228
    , citing 
    Mittelman, 135 Ill. 2d at 241
    .   The word "scam" had a precise core of meaning
    for which a consensus of understanding exists, namely, swindle.
    And the statement was verifiable by reviewing the evidence in
    plaintiff’s filed lawsuits to determine whether they were bona
    fide or bogus.    
    Kumaran, 247 Ill. App. 3d at 228
    .
    For other examples of actionable statements, see also
    
    Kolegas, 154 Ill. 2d at 15
    (“not for real,” “scamming,” and “no
    such show as the classic cartoon festival”); Barakat v. Matz, 
    271 Ill. App. 3d 662
    , 672, 
    648 N.E.2d 1033
    (1995) (statements that
    defendant “had patients from [plaintiff] before,” that defendant
    “found nothing wrong with his patients,” that plaintiff’s
    “practice was a joke,” that plaintiff was not “any good as a
    doctor,” and that plaintiff’s “opinion wasn’t any good”); Quality
    Granite Construction Co. v. Hurst-Rosche Engineers, Inc., 
    261 Ill. App. 3d 21
    , 26-27, 
    632 N.E.2d 1139
    (1994) (defendants’
    statements that plaintiff’s “failure to complete the project in a
    timely manner, substandard workmanship, reluctance to complete
    punch list items and inability to correctly interpret the
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    1-06-2885
    contract documents”).
    Application to the Instant Case
    Plaintiff’s strongest argument for the presence of
    actionable defamatory statements of fact is found in the third
    paragraph of the email:
    "It will be some time before we can undo the
    damage he has wrought: To our finances, to
    our reputation, to our business
    relationships, to our morale, to the quality
    of our editorial product."
    We are particularly interested in the reference to damage
    "to our finances."    It strikes us that the balance of the
    paragraph and the other assertions in the email--"abusive
    behavior," "bizarre management style," for example--clearly are
    nonactionable opinions and require no further analysis.
    We consider whether a reasonable reader would understand the
    "damage to our finances" phrase as Stephens’ opinion or his
    factual assertion, bearing in mind "[t]he test is restrictive: a
    defamatory statement is constitutionally protected only if it
    cannot be reasonably interpreted as stating actual fact."     Solaia
    Technology, 
    221 Ill. 2d
    at 581.    We look to the three
    "considerations" used by the supreme court in Solaia to separate
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    fact from opinion.     Solaia Technology, 
    221 Ill. 2d
    at 581.
    First, whether the statement has a precise and readily
    understood meaning.     The meaning of "damage" is fairly clear,
    when taken in isolation.     Our dictionary defines it as "loss due
    to injury; injury or harm to *** property."     Webster’s Third New
    International Dictionary 571 (1981).     Webster’s defines
    "finances" as: "the pecuniary affairs or resources of a ***
    company."    Webster’s Third New International Dictionary 851
    (1981).   While the words at issue, when parsed separately, might
    be understandable, they do not exist in a vacuum.     They refer to
    a business enterprise, the Jerusalem Post.     The company’s
    "pecuniary affairs or resources" is a broad term, an outer shape
    without an inner core.     The reasonable reader cannot know which
    pecuniary affairs or resources are being referred to.       Different
    readers will have different views of the meaning of the phrase.
    The conclusion we reach is substantially similar to that
    expressed by our court in Hopewell:
    "Regardless of the fact that ‘incompetent’ is
    an easily understood term, its broad scope
    renders it lacking the necessary detail for
    it to have a precise and readily understood
    meaning.   There are numerous reasons why one
    might conclude that another is incompetent;
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    1-06-2885
    one person’s idea of when one reaches the
    threshold of incompetence will vary from the
    next person’s."     
    Hopewell, 299 Ill. App. 3d at 519
    -20.
    We do not believe the phrase at issue has a "precise core of
    meaning for which a consensus of understanding exists."
    
    Mittelman, 135 Ill. 2d at 243
    , citing 
    Ollman, 750 F.2d at 979-84
    .
    Second, whether the statement is verifiable.      That is,
    whether the alleged defamatory statement contains an objectively
    verifiable assertion.      
    Schivarelli, 333 Ill. App. 3d at 760
    .   Is
    it objectively capable of proof or disproof?      See Quinn, 276 Ill.
    App. 3d at 867.
    Given the broad and shapeless form of Stephens’ accusation,
    we do not see how a reasonable person would go about proving or
    disproving the assertion.     Where would such a person begin?
    No specific location of injury is provided.      Nor is one
    inferred in some undisclosed defamatory manner.      One cannot tell
    whether it is a matter of profit and loss.      Or assets and
    liabilities.    Or net worth.    And so on.   As in Hopewell, an
    attempt to prove or disprove the statement would entail an
    "endless analysis of each and every fact connected with" the
    plaintiff’s duties.      
    Hopewell, 299 Ill. App. 3d at 520
    .
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    That an analysis of company records would be difficult is
    not dispositive.    It is the fruitlessness of the investigation,
    given the sparse information provided, that leads to our
    conclusion that the statement is too broad, conclusory, and vague
    to be objectively verifiable.
    Third, we look to the statement’s literary or social context
    to see whether it signals that it has factual content.    Here,
    Stephens’ email represents a mean-spirited sendoff of a
    discharged publisher for no apparent institutional purpose.    It
    was gloating ("So good riddance, Tom, good riddance.   You will
    not be missed.").    Stephens was not making a case or stating an
    argument.   He did not claim "to be in possession of objectively
    verifiable facts."    Brennan v. Kadner, 
    351 Ill. App. 3d 963
    , 969,
    
    814 N.E.2d 951
    (2004) (statement in column that a source told
    defendant the Election Board could refer plaintiff’s case to the
    United State’s Attorney’s office for a mail fraud prosecution was
    a subjective judgment, not a verifiable statement of fact).
    Here, given the occasion for sending of the email and the
    audience it was intended to reach, we do not see how a reasonable
    reader would take "wrought damage to our finances" as a factual
    assertion that Rose caused some injury to specific, identifiable
    pecuniary affairs or resources of the newspaper.
    We recognize this is a close case.    As Professor Graham has
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    1-06-2885
    written: "A clear line between fact and opinion is impossible to
    draw."   M. Graham, Cleary & Graham’s Handbook of Illinois
    Evidence § 701.1, at 516 (8th ed. 2004).   But draw it we must.
    We conclude Stephens’ intemperate words in the email are
    constitutionally protected opinions.
    CONCLUSION
    For the reasons we have stated, the trial court’s order
    dismissing Count V of the plaintiff’s complaint with prejudice is
    affirmed.    Because we reach this conclusion, we see no need to
    discuss other issues raised by the defendants.
    Affirmed.
    HOFFMAN, P.J., and SOUTH, J., concur.
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