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Case Illustrates Difficulty in Pursuing Libel Claims — Top Chicago Defamation and Media Defense Attorneys

A recent libel case in Chicago federal court involving the American Bar Association illustrates the difficulty of succeeding in a defamation claim.

The litigation centered around an article published in an ABA journal in 2015. The plaintiffs comprised seven forensic handwriting experts, or “diplomates,” certified by the Board of Forensic Document Examiners, which has only 12 certified diplomates.

Defendant Thomas V., a forensic document examiner certified by the American Board of Forensic Document Examiners, a different body, published in the Judges’ Journal an article entitled “Forensic Handwriting Comparison Examination in the Courtroom.” Not mentioned was the fact that Thomas sits on the board of the American Board and is its past president. Both boards are certified by the Forensic Specialties Accreditation Board.

The article proposed preferred qualifications for forensic document examiners. The plaintiffs alleged several statements were specifically defamatory to them based on their affiliations with the Board of Forensic Document Examiners:

  1. “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 vigilant of this issue. There are large numbers of practitioners who do not meet the training standard.”
  2. “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 requirements concurrent with the published training standards. Be wary of other certifying bodies.”

As a member of the ABA’s Judicial Division, plaintiff Andrew S. received a pre-publication copy of the issue containing Thomas’s article and demanded changes to the article, which ABA refused.

The ensuing complaint against Thomas, article editor Stephanie D., ABA, and the American Board alleged defamation per se, false light invasion of privacy, false advertising under the Lanham Act, violation of various states’ unfair competition and consumer protection laws, and civil conspiracy to defame.

The plaintiffs claimed that Thomas made false and misleading statements about how judges should differentiate between “true professionals” and “unqualified” or “lesser qualified practitioners.”

A statement that is defamatory on its face is actionable as defamation per se. Plaintiffs do not need to show actual damage to their reputations. Under Illinois law, those statements include “words that impute an inability to perform or want of integrity in the discharge of duties of office or employment,” and “words that prejudice a party, or impute a lack of ability, in his or her trade, profession, or business” (Bryson v. News American Publ’ns, Inc., 672 N.E. 2d 1207 (Ill. 1996)).

ABA and the other defendants argued the statements did not identify the plaintiffs and also that they were constitutionally protected opinion and not assertions of fact. District Judge Edmond E. Cheng agreed, finding that none of the statements identified Andrew or any of the plaintiffs with sufficient specificity for a reasonable reader to associate the article’s claims with them.

Judge Cheng rejected the argument that the statements qualified as “group” defamation, a legal theory that a statement identifies individual persons in a group if the group is “sufficiently small and the words may reasonably be understood to have personal reference and application to any member of the group” (Missner v. Clifford, 914 N.E.2d 540 (Ill. App. Ct. 2009)).”

Cheng also ruled the statements were protected opinion: “Here, [t]he Judges’ Journal is … a “scholarly” journal. That sets the overall stage for the article as an opinion piece because reasonable readers (especially judges) know that scholarly journals often present one side or the other in opinionated debates. And the statements appear in an article that explicitly presents itself as offering suggestions for judges to consider in evaluating the expertise of document examiners.”

He pointed out that a note at the bottom of the issue’s table of contents contained the disclaimer: “Articles represent the opinions of the authors alone.”

Because the statements were protected opinion, the false light, Lanham Act, and state law competition claims also fail, the judge ruled.

“It might have been better for [Thomas] to disclose in the article … that he is a member of the American Board so that readers would know he was singing the praises of an organization to which he belongs,” Cheng wrote. “As a matter of law, however, the challenged statements are not defamatory.”

The case is Board of Forensic Document Examiners, et al., vs. American Bar Association, et al., No. 17 C01130 (N.D. Ill.)

Our Evanston, IL libel and slander lawyers concentrate in this area of the law. We have defended or prosecuted a number of defamation and libel cases including cases representing a high profile athlete against a well known radio shock jock, a consumer sued by a large car dealer in federal court for negative internet reviews and videos, one of Loyola University’s largest contributors when the head basketball coach sued him for libel after he was fired, a lawyer who was falsely accused of committing fraud with the false allegation published to the Dean of the University of Illinois School of Law where the lawyer attended law school and the President of the University of Illinois.

Our Chicago defamation attorneys defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. Our Chicago Cybersquatting attorneys also represent and prosecute claims on behalf of businesses throughout the Chicago area including in Elgin and St. Charles who have been unfairly and falsely criticized by consumers and competitors in defamatory publications in the online and offline media. We have successfully represented businesses who have been the victim of competitors setting up false rating sites and pretend consumer rating sites that are simply forums to falsely bash or business clients. We have also represented and defended consumers First Amendment and free speech rights to criticize businesses who are guilty of consumer fraud and false advertising.

Super Lawyers named Chicago and Oak Brook business trial attorney Peter Lubin a Super Lawyer in the Categories of Class Action, Business Litigation, and Consumer Rights Litigation. DiTommaso Lubin Austermuehle’s Oak Brook and Chicago business trial lawyers have over thirty years of experience in litigating complex class action, consumer rights and business and commercial litigation disputes. We handle emergency business lawsuits involving injunctions, and TROS, defamation, libel, and covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist businesses and business owners who are victims of fraud or defamatory attacks on their business and reputations.

DiTommaso Lubin Austermuehle’s DuPage and Kane County defamation and slander lawyers near Lisle and Geneva have more than three decades of experience helping business clients unravel the complexities of Illinois and out-of-state business laws. Our Chicago business, commercial, class-action and consumer litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. From offices in Oak Brook, near Rosemont and Lombard, we serve clients throughout Illinois and the Midwest.