Tamburo v. Dworkin, et al
MEMORANDUM Opinion and Order. Signed by the Honorable Joan B. Gottschall on 9/26/2013: Mailed notice(rj, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
JOHN F. TAMBURO, et al.,
STEVEN DWORKIN, et al.,
Judge Joan B. Gottschall
Case No. 04 C 3317
MEMORANDUM OPINION & ORDER
The essential facts in this 2004 case are undisputed. Defendant Kristen Henry, a dog
breeder and computer programmer, spent almost five years creating an extensive database of dog
pedigrees, which she made freely available for use by fellow breeders through her web site.
Plaintiffs John Tamburo and Versity Corporation (“Versity”) used an automated web browser to
harvest the data from Henry’s website. They incorporated it into software which they attempted
to sell to dog breeders for a profit. Henry was outraged. When the plaintiffs spurned her
requests to cease using her data, she reached out to the dog breeding community, through emails
and online messages, for assistance in responding to the plaintiffs’ misappropriation of her work.
This lawsuit arose from her statements.
Tamburo and Versity filed a Seventh Amended Complaint on June 28, 2010. The counts
remaining in the case are tortious interference with a contractual relationship (II), tortious
interference with prospective economic advantage (IV), defamation per se (VIII), and
defamation per quod (IX). Henry filed a motion for summary judgment on January 31, 2013.
After repeated extensions and the withdrawal of the plaintiffs’ counsel, a pro se response was
filed by Tamburo on August 26, 2013, and Henry replied on September 10, 2013. 1 For the
reasons explained below, Henry’s motion for summary judgment is granted in its entirety.
I. LEGAL STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate when the movant shows there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56;
Smith v. Hope Sch., 560 F.3d 694, 699 (7th Cir. 2009). The court ruling on the motion construes
all facts and makes all reasonable inferences in the light most favorable to the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is warranted
when the nonmoving party cannot establish an essential element of its case on which it will bear
the burden of proof at trial. Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012).
A brief discussion of the rules governing summary judgment motions is warranted here.
In addition to complying with the Federal Rules of Civil Procedure, the parties must also adhere
to the Local Rules for the Northern District of Illinois and this court’s Standing Order. Local
Rule 56.1 provides that the moving party shall serve and file:
1) any affidavits and other materials referred to in Fed. R. Civ. P. 56(e);
2) a supporting memorandum of law; and
3) a statement of material facts as to which the moving party contends there is no
genuine issue and that entitle the moving party to a judgment as a matter of law
The statement referred to in (3) shall consist of short numbered paragraphs,
including within each paragraph specific references to the affidavits, parts of the
Versity is not currently represented by counsel and has not filed its own response to the motion. Although
individuals may proceed pro se, “a corporation may appear in the federal courts only through licensed counsel.”
Rowland v. California Men’s Colony, Unit II Men’s Advisory Counsel, 506 U.S. 194, 201-02 (1993). A nonmovant’s failure to respond to a motion for summary judgment, however, does not automatically result in a
judgment in favor of the movant. Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir. 2006). The ultimate
burden of persuasion remains with the movant to show that she is entitled to judgment as a matter of law, id. at 608,
and the court evaluates Henry’s motion in light of that rule.
record, and other supporting materials relied upon to support the facts set forth in
L.R. 56.1(a). All argument must be contained in the party’s brief, not in the Rule 56.1 statement.
Standing Order at 1-2.
The party opposing summary judgment is required to respond with its own supporting
evidence, memorandum, and “concise response to the movant’s statement . . . .” L.R. 56.1(b).
The opposing party’s Rule 56.1(b) statement should also contain “any additional facts that
require the denial of summary judgment.” Id. The opponent must include references to its
supporting materials. Id. Failure to respond to a statement results in the court admitting the
uncontroverted statement as true. See Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th Cir.
2006). Henry has not responded to Tamburo’s Statement of Additional Facts, and those facts are
deemed admitted to the extent that they are supported by record evidence. 2
Tamburo is an Illinois citizen. Versity was incorporated in March 1999 and voluntarily
dissolved on May 10, 2004.
Versity’s principal place of business was Frankfort, Illinois.
Versity did business under the name “Man’s Best Friend Software” (“MBFS”). After Versity’s
dissolution, Tamburo conducted business as MBFS. Defendant Henry is a Colorado citizen.
The other defendants in this action are or were Steven Dworkin, a Canadian citizen who is
deceased; Roxy Hays, a Michigan resident who filed for bankruptcy on November 24, 2010
As support for most of his Statement of Additional Facts, Tamburo relies on his own affidavit. The
affidavit states, “I was present with Kristen Henry, my former attorney Ian Brenson, and Henry’s attorney Mark
Petrolis at the Mudd Law Offices in Chicago, Illinois, on December 21, 2011. During this meeting, Henry was
questioned under oath, and did admit all of the following facts in My [sic] hearing.” (Pl.’s Statement of Additional
Facts (“SOF”) Ex. A (Tamburo Aff.) ¶ 4, ECF No. 536-3.) The court has found little precedent for relying on an
affidavit as to statements made during a deposition rather than citing the actual deposition transcript. But the
statements attributed to Henry are not hearsay as they are admissions by a party-opponent. See Fed. R. Evid.
801(d)(2). Nor does the affidavit run afoul of the “best evidence” rule, Federal Rule of Evidence 1002, because it
was not offered to prove the contents of a writing. See In re Lang, 106 F.3d 413 (10th Cir. 1997) (table). Therefore,
although the court finds the procedure resorted to by Tamburo odd, it finds no basis to strike the statements.
(ECF No. 371); Karen Mills, an Ohio resident; and Wild Systems Pty, Ltd., an Australian
company that was previously dismissed for lack of personal jurisdiction. The court previously
held that Tamburo could not proceed against Dworkin on Counts VIII and IX, because the
defamation claims did not survive Dworkin’s death. (Order Jan. 11, 2012, ECF No. 483.) A
default was entered against Mills on May 11, 2011. (ECF No. 421.)
A. Bonchien.com and the Data Mining Robot
Henry operated breeding kennels and sold dogs, but also has substantial knowledge of
web development and computer programming.
During the relevant period, she operated a
website, Bonchien.com, containing a database of pedigree data for a small, mischievous Belgian
dog breed called the Schipperke. See http://www.akc.org/breeds/schipperke/breed_standard.cfm.
According to Henry’s affidavit, the website was developed for non-commercial use by the dog
breeding community. The site provided free access to the information. A user could conduct a
query search for an individual dog’s pedigree. The data collected included dogs’ names, dates of
birth, gender, parents’ names, offspring’s names, showing titles, color, medical certifications,
and registration numbers. Henry states that she marked the individual dog pedigrees with a
unique code in order to identity the pedigrees she had compiled, although Tamburo states that
her “code” merely involved inserting slashes into the pedigrees. Henry spent almost five years
collecting the dog pedigree data contained in her database from different sources. As of around
April 2004, she had collected data in her database on over 23,900 dogs.
From December 8, 1991, through May 2004, Versity created software products for use by
animal breeders and pet groomers.
On January 9, 2004, Versity launched The Breeder’s
StandardTMNET (“TBS”), a web-based dog pedigree software program. The program operates as
a database designed for research and genetic calculations. Tamburo developed a computer
program that used a web browser to scan the internet for information about dog breeds and copy
data from dog pedigree websites (“the Data Mining Robot”). The data was saved as a text file
and incorporated into TBS. Tamburo copied only data, not the formatting of the sites.
On or around April 17, 2004, the Data Mining Robot created by Tamburo visited
Bonchien.com and copied the information on the website.
It also copied information in
databases belonging to Dworkin, Hayes, and Mills. The information was incorporated into TBS.
On April 29, 2004, Tamburo posted a statement on the MBFS website describing the Data
Mining Robot’s gathering of data. On May 4, 2004, Dworkin sent an email to Henry stating that
her database might have been harvested by the Data Mining Robot. Henry thus learned of the
B. Henry’s Statements
Henry states in her affidavit that she felt frustrated and violated by the plaintiffs’ use of
her database. Henry told Tamburo that he had no right to collect data from her website in an
automated manner and requested that he remove her data from TBS. The plaintiffs refused to
comply with Henry’s request.
On May 4, 2004, Henry posted a message to the Schipperke Yahoo!Group, an online
message board for dog breeders. The subject line of the message was “My Schipperke Database
has been stolen, and The Breeders Standard is the thief.” The message stated:
“Breeders Standard has stolen my Schipperke database and is offering it as a perk
if you buy their software. Schipperke people, you don’t need that perk, as you
already have my site to use for free. Steve, I too noticed that the 23900 dogs that
I keyed in all by myself to chronicle the history of the Schipperke breed have
been stolen. . . . I feel frustrated and violated.
I am asking the Schipperke fancy [sic] to complain loudly to MBFS. Why should
I do all this work so MBFS can steal it and sell their software with this stolen
I will add a statement to my website about MBFS deceitful practice. . . . Perhaps
if we contact news service who would be interested in a story on intellectual
capital rights and the internet. I offer my data free for use to the Schipperke fancy
[sic], not for a price, or to be held hostage by MBFS.
(Pl.’s Statement of Facts (“SOF”) Ex. U, ECF No. 536-8.)
On May 5, 2004, Henry sent Tamburo an email, copying members of the Schipperke
Yahoo!Group, stating that Tamburo was trying to sell his customers “stolen goods.” (Pl.’s SOF
Ex. R, ECF No. 536-5.) Later that day, she sent another email to Tamburo, copying the
Schipperke Yahoo!Group, the American Kennel Club, and other breeders, stating:
You keep saying that you aren’t charging for the data on your site that you took
from mine. Your perspective is such a Joke because without the data on your site
you would not have any value. . . . Will you also be using a Robot to mine data
from the AKC.org site? I am sure they wouldn’t appreciate that either. . . . I feel
violated and your perspective escapes me you alleged unethical dolt.
(Pl.’s SOF Ex. H, I, ECF No. 532-8.) The email displays an earlier message from Henry stating:
You are not entitled to the endless hours I spent compiling the data relationships.
You cannot simply copy my database into yours without permission and start
charging money for it. I have copyright statements on my site to boot. I do not
give you permission to use that which you took from my domain without my
permission. Again, shame on you MBFS.
Later that day, Henry sent another email to the Schipperke Yahoo!Group stating “we
have a few ideas. The court of public opinion is a powerful thing.” (Pl.’s SOF Ex. J, ECF No.
532-10.) She wrote another email to the group, with copies to other breeders and the American
Kennel Club, stating:
MBFS has written an agent robot to go to these individual sites and steal certain
files (Alfirin pedigree database files) that were not offered to them except through
a query user interface for page by page query of a single dog’s pedigree at a time.
John is focusing on the dog information. He did not have and still does not have
my permission to take or use the set of Schipperke data that I compiled for a
specific type of manipulation and distribution on my web site. MBFS has
targeted and stolen my personal data files from non public areas of my website
(Pl.’s SOF Ex. P, ECF No. 532-16.)
Also on May 5, 2004, Henry posted a message on her website stating:
[In] May 2004, MBFS (The Breeder’s Standard) has stolen the Pedigree
Databases of many breeds including this one using a Data Mining Robot. They
are now offering access to this data for use at $9.95/month from their site. I spent
the last 4.5 years keying this data in. MBFS stole it in one day.
Please complain by email or phone to [Tamburo’s contact information].
(Pl.’s SOF Ex. O, ECF No. 532-15.)
That evening, Henry sent a message to the Schipperke Yahoo!Group stating,
I want to let you all know that there are now a few irons in the fire regarding other
people he has stolen from too, and also, some of the National Dog Clubs . . . are
stepping up to lend an ear and possibly some support especially with getting some
important big players on board and in the loop. . . . Also, now that you have all
seen the ethics and behavior of MBFS/TBS and Versity . . . please consider
supporting the good, and take your business elsewhere.
(Pl.’s SOF Ex. S, ECF No. 536-6.)
Henry exchanged emails with an individual named Eileen Lane on May 5, 2004. Henry
told Lane that the plaintiffs “wrote an agent robot to take specific files off of specific sites and
return them to their computer. The data files were not in a public venue.” Henry also told Lane
that this constituted “Hacking.” Lane responded by email with a link to an article she wrote on
her forum, www.freerepublic.com. (Pl.’s SOF Ex. M, ECF No. 532-13.) The text of the article
itself is not part of the exhibits submitted in support of the parties’ Statements of Facts.
Henry organized, with the other individual defendants, an invitation-only Yahoo!Group
called the “APDUG group.” (APDUG stood for Alfirin Pedigree Database Users Group. Alfirin
provides free software used to create pedigree databases for animal breeds.) Henry wrote to the
group on May 6, 2004, stating that “we want to collect data here to help support our cause, that
of our pedigree data being taken without permission by MBFS to make a profit. . . . We are also
keeping the list invitation only so we can try to keep only Alfirin database folks as members.”
(Pl.’s SOF Ex. N, ECF No. 532-14.) On May 7, 2004, Henry wrote the group stating that she
“would like to make a list or record of all the Pedigree Databases that were harvested by MBFS
. . . . If you provide me with tell-tale ways to look for data from your site, I will provide it to my
friend who has subscribed for this purpose.” (Pl.’s SOF Ex. Q, ECF No. 532-17.)
On May 9, 2004, Henry posted to the APDUG Yahoo!Group, stating:
None of us like what happened but there is only so much we can do about the
public data part. . . . [M]y Lawyer says there isn’t anything we can do about the
‘public data’ part of the problem. We can, and are, working on the Ethics part of
the problem by sharing with the masses the story of what happened to so many of
us. . . . We can also get the word out that we have the data for free, and that
people do not have to pay to see it. . . . One thing we must do is get smarter and
smarter and not make the mistake of libel or slander just for sport. . . . Please, it
would be out of context to share posts that would do nothing else but fuel Dear
John’s unique style. . . . Simply spread the word far and wide that he took for
himself something that was so unethical to do, and now you have to pay to see it
. . . shame on him.
(Def.’s SOF Ex. M, ECF No. 510-13.) Henry states in an affidavit that she believed at the time,
and still believes, that her statements about the plaintiffs’ conduct were true.
C. Henry’s use of the Robot Exclusion Standard
The parties dispute whether Tamburo and Versity evaded security measures to access
Bonchien.com. Henry contends that a user could access the data on her site only through a query
based search, by entering an individual dog name and the generations of ancestry to be
displayed. Tamburo, however, states that the data could also be accessed through the site’s
URL. He states in his affidavit that Henry admitted during her deposition that the URL used by
the Data Mining Robot to access the web site was plainly visible, and that her allegations that the
plaintiffs accessed data from non-public areas of the web site were false.
Henry states in an affidavit that she did not give Tamburo or Versity express permission
to access and gather the data on her website by any automated means, such as the Data Mining
Robot. She contends that she placed a “robots.txt” header on the site to keep robots from
indexing the site. The robots.txt protocol, or Robot Exclusion Standard, is a convention “to
instruct cooperating web crawlers not to access all or part of a website that is publicly viewable.
If a website owner uses the robots.txt file to give instructions about its site to web crawlers, and a
crawler honors the instruction, then the crawler should not visit any pages on the website. The
protocol can also be used to instruct web crawlers to avoid just a portion of the website that is
segregated into a separate directory.” Associated Press v. Meltwater U.S. Holdings, Inc., No. 12
Civ. 1087, 2013 WL 1153979, at *23 (S.D.N.Y. Mar. 21, 2013).
Tamburo claims, however, that a visible robots.txt file was not placed on Bonchien.com
until May 10, 2004, after his Data Mining Robot visited the site, and that such a file was not
visible on the site when he visited it. He also states that Henry admitted during her deposition
that the industry standard regarding automated browsing program is to look for a robots.txt file
or robot exclusion headers. She further admitted that no robots.txt file was visible to an external
browser on the date the Data Mining Robot visited the site because the file had been placed in
the “root of the server” and not the “root of the web site,” that no terms or conditions on the site
restricted or prohibited the use of an automated program to access the web site, that the web site
lacked any sort of robot exclusion META headers, and that the plaintiffs had not circumvented or
attempted to circumvent any security protocol on the site.
Tamburo claims that the web browsing program was deployed only to websites that had
no robots.txt file prohibiting robots, no META tag prohibiting robots, and no visible terms of
service that prohibited automated browsing. He denies attempting to circumvent any website’s
Tamburo cites a May 6, 2004, email from Henry to the APDUG
Yahoo!Group stating that Tamburo “claims he first checked for robot.txt and [a] Meta tag . . .
prior to taking in the content.” (Pl.’s SOF Ex. L, ECF No. 532-12.) Tamburo also points to
usage logs from Henry’s site showing that no robots.txt file was browsed in April 2004, and a
digital archive of the site showing the presence of the robot.txt file only after May 10, 2004.
(Pl.’s SOF Ex. F, ECF No. 532-6.) Tamburo also states that he has been unable to locate any
copyright registered to Henry.
Tamburo states in his affidavit that Henry admitted during her deposition that she
consulted with two attorneys, both of whom advised her, prior to the publications at issue, that
the plaintiffs had committed no unlawful act.
D. Lost Contracts and Damages
Tamburo claims that Henry told the people on the message boards to take their business
elsewhere, citing the statements listed above. He argues that, as a result, he has suffered lost
contracts and sales. In support, he cites his own affidavit, which states, “My estimate of lost
sales attributable to Henry’s defamations is, as of August 13, 2013, in excess of $2,469,800.00,
in contracts cancelled, and in sales not realized because of the damage wrought by Henry and her
cohorts in the APDUG Group acting at her direction, and in depletion of the value of the
business, which continues to this day.” (Tamburo Aff. ¶ 20.) The estimate of lost sales is based
on Tamburo’s statement that Versity had $3,538.98 in sales from May 1-4, 2004, and $184.60 in
sales from May 5-7, 2004.
(Id. at ¶¶ 18-19.)
Versity was dissolved on May 10, 2004.
Tamburo further states in his affidavit, “I had a valid expectancy to enter into business
relationships with Mavis Taylor and Cathy Gaul-Montgomery to sell my products.” (Id. at ¶ 23.)
In support, he points to two emails dated May 5, 2004. The first, from Kathy Gaul-Montgomery,
states, “What a shame your company has sunk so low as to steal data from the Schipperke group
and abuse Kristen Henry’s hard work. I won’t ever use your services.” The second, from a
person named “Margie,” states, “You Mr. Tamburo are a low lying snake belly scum sucking rat
that doesn’t have the gut to do the work yourself . . . for what you have done you should be
quartered and hung. . . .” (Pl.’s SOF Ex. K, ECF No. 532-11.) Tamburo’s affidavit further states
that “numerous additional third parties . . . refused to do business with John as a direct and
proximate result of Henry’s defamatory statements and those made by her APDUG Group
cohorts acting on her instructions.” (Tamburo Aff. ¶ 25.) He further states that Henry sought the
identities of his customers and the breed coordinators of TBS for the purpose of causing
disciplinary action to be taken against them by the Schipperke Club of America and the
American Kennel Club.
On May 11, 2004, Tamburo and Versity filed a complaint in this action. Nine years later,
four of the counts in the plaintiffs’ Seventh Amended Complaint remain. Versity claims tortious
interference with a contractual relationship (II) and tortious interference with prospective
economic advantage (IV), while Tamburo asserts claims of defamation per se (VIII), and
defamation per quod (IX).
A. Count II: Tortious Interference with a Contractual Relationship
In Count II, Versity brings a claim for tortious interference with a contractual
relationship. Under Illinois law, such a claim requires the plaintiff to prove (1) the existence of a
contract; (2) the defendants’ awareness of the contract; (3) the intentional inducement of a
contract breach; (4) an actual breach of the contract; and (5) damages.” Cody v. Harris, 409 F.3d
853, 859 (7th Cir. 2005). Plaintiff Versity has produced no evidence on the first element—the
existence of a contract. It is thus “unable to establish the existence of an essential element of its
case on which it will bear the burden of proof at trial.” Kidwell, 679 F.3d at 964. Summary
judgment is granted in favor of Henry on Count II.
B. Count IV: Tortious Interference with Prospective Economic Advantage
In Count IV, Versity brings a claim for tortious interference with prospective economic
advantage. Under Illinois law, Versity is required to show: (1) “‘a reasonable expectancy of
entering into a valid business relationship, (2) the defendant’s knowledge of the expectancy, (3)
an intentional and unjustified interference by the defendant that induced or caused a breach or
termination of the expectancy, and (4) damage to the plaintiff resulting from the defendant’s
interference.’” Adelman-Reyes v. Saint Xavier Univ., 500 F.3d 662, 667 (7th Cir. 2007) (quoting
Evans v. City of Chi., 434 F.3d 916, 929 (7th Cir. 2006)). In Ali v. Shaw, 481 F.3d 942, 945 (7th
Cir. 2007), the Seventh Circuit noted that numerous Illinois appellate courts have also required
the plaintiff to demonstrate “a business expectancy with a specific third party.” Id. at 946
(quoting Schuler v. Abbott Labs., 639 N.E.2d 144, 147 (Ill. App. Ct. 1993), and Assoc.
Underwriters of Am. Agency, 826 N.E.2d 1160, 1169 (Ill. App. Cit. 2005)). 3
Versity has presented no evidence that it had a reasonable expectation of entering into a
valid business relationship with a specific third party. The only evidence 4 regarding specific
persons who declined to do business with Versity consists of two emails from people,
This court’s December 29, 2010 opinion declined to dismiss Count IV, explaining that Tamburo was not
required to allege a specific third party to survive a motion to dismiss. Id. at *6-7. As the case is now at the
summary judgment stage, more is required. See Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (“[S]ummary
judgment is ‘not a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit, when a party must
show what evidence it has that would convince a trier of fact to accept its version of events.”) (internal citation and
quotation marks omitted).
The court recognizes that this evidence was submitted by Tamburo, not Versity, and that Tamburo may not
appear pro se on behalf of Versity, a corporation. But the evidence obviously bears on the question of whether
Versity had a reasonable expectancy of entering into a valid business relationship with a third party, and the court
deems it more expeditious to consider the evidence than to disregard it.
presumably dog breeders, who maligned Tamburo for his conduct. One writer, Kathy GaulMontgomery states, “I won’t ever use your services.” The other, “Margie,” suggested that he
should be “quartered and hung.” This is insufficient evidence to defeat Henry’s motion for
There is no evidence that Versity communicated with Ms. Gaul-
Montgomery or the colorful “Margie” (who Tamburo calls “Mavis”) prior to Henry’s statements
or had any reasonable expectation—or anything more than a thin hope—of selling them services.
See, e.g., Hoopla Sports and Entm’t, Inc. v. Nike, Inc., 947 F. Supp. 347, 358 (N.D. Ill. 1996)
(“The hope of receiving a[n] . . . offer is not a sufficient expectancy.”) (quoting Anderson v.
Vanden Dorpel, 667 N.E.2d 1296, 1299 (Ill. 1996)). Summary judgment is granted in favor of
Henry on Count IV.
C. Count VIII: Defamation Per Se
Tamburo alleges that some of the statements made by Henry in May 2004, protesting
Tamburo’s harvesting of her data without permission, constitute defamation. He argues that the
defamatory statements include accusations of 1) theft; 2) selling stolen goods; 3) “hacking”; 4)
copyright infringement; and 5) removing data from Bonchien.com.
Under Illinois law, a plaintiff asserting a defamation claim must demonstrate that the
defendant made a false statement about the plaintiff, that the statement was published to a third
party, and that the publication caused damage to the plaintiff. Krasinski v. United Parcel Serv.,
Inc., 530 N.E.2d 468, 471 (Ill. 1988). A plaintiff need not prove special damages if a statement
is defamatory per se. In Cody v. Harris, the Seventh Circuit explained the types of statements
that can constitute defamation per se:
Some statements are considered defamatory per se because they are so obviously
and materially harmful to a plaintiff that his injury may be presumed and he does
not need to prove actual damages to recover. There are five such categories of
statements in Illinois: (1) those imputing the commission of a criminal offense;
(2) those imputing infection with a loathsome communicable disease; (3) those
imputing an inability to perform or want of integrity in the discharge of duties of
office or employment; (4) those imputing a lack of ability, or that prejudice a
party in his trade, profession, or business; and (5) those imputing adultery or
409 F.3d 853, 857 (7th Cir. 2005) (citing Bryson v. News Am. Publ’ns, Inc., 672 N.E.2d 1207,
1214-15 (Ill. 1996)).
The statements at issue here suggest that Tamburo lacked integrity in carrying out his
business affairs, because he “stole” data from Henry and the other defendants and then attempted
to sell it to customers. The statements can be considered defamatory per se. See, e.g., id. at 858
(distinguishing between attacks on personal integrity and attacks on integrity with regard to job
performance); Kumaran v. Brotman, 617 N.E.2d 191, 199 (Ill. App. Ct. 1993) (article accusing
teacher of filing “scam” lawsuits was defamatory per se because teacher’s job is to serve as a
role model for students).
Certain factors, however, render defamatory statements non-actionable as a matter of law.
Hopewell v. Vitullo, 701 N.E.2d 99, 102 (Ill. App. Ct. 1998). A statement is non-actionable if it
is substantially true, Hnilica v. Rizza Chevrolet, Inc., 893 N.E.2d 928, 931 (Ill. App. Ct. 2008);
capable of innocent construction, Muzikowski v. Paramount Pictures Corp., 322 F.3d 918, 924
(7th Cir. 2003); an opinion that does not misstate actual facts, Milkovich v. Lorain Journal Co.,
497 U.S. 1, 20 (1990); or rhetorical hyperbole, Kolegas v. Heftel Broad. Corp., 607 N.E.2d 201
(Ill. 1992). An allegedly defamatory statement may also be protected by a privilege. DePinto v.
Sherwin-Williams Co., 776 F. Supp. 2d 796, 804 (N.D. Ill. 2011) (citing Kuwik v. Starmark Star
Mktg. and Admin., Inc., 619 N.E.2d 129, 135 (Ill. 1993)).
1. Accusations of Theft
Tamburo first argues that Henry’s statements that he committed theft are defamatory.
Henry made numerous statements on message boards, through emails, and on her website about
TBS stealing her data. On May 4, she made the following statements:
My Schipperke Database has been stolen, and The Breeders Standard is the thief.
Breeders Standard has stolen my Schipperke database . . . .
[T]he 23900 dogs that I keyed in all by myself to chronicle the history of the Schipperke
breed have been stolen. . . .
Why should I do all this work so MBFS can steal it and sell their software with this stolen
I will add a statement to my website about MBFS deceitful practice
On May 5, 2004, Henry sent additional messages stating:
Tamburo was “not entitled” to her data and “took [it] from [her] domain without [her]
MBFS has written an agent robot to go to these individual sites and steal certain files . . . .
MBFS has targeted and stolen my personal data files from non public areas of my
MBFS (The Breeder’s Standard) has stolen the Pedigree Databases of many breeds
including this one using a Data Mining Robot. . . . MBFS stole it in one day.
[T]here are now a few irons in the fire regarding other people he has stolen from too . . . .
Henry also referred to Tamburo’s behavior as “unethical” on several occasions.
First, Henry’s statements that Tamburo’s actions were “unethical” and “deceitful” are not
actionable. The First Amendment protects opinions that do not misstate actual facts. See
Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990); see also Moriarty v. Greene, 732 N.E.2d
730, 739 (2000). A plainly subjective remark is not actionable. Wilkow v. Forbes, 241 F.3d 552,
555 (7th Cir. 2001). Whether a person’s actions are ethical or deceptive is not objectively
verifiable. See Lifton v. Bd. of Educ. of the City of Chicago, 416 F.3d 571, 579 (7th Cir. 2005).
See also Hopewell v. Vitullo, 701 N.E.2d 99, 104 (Ill. App. Ct. 1998) (concluding that the
statement “fired because of incompetence” did not have a “precise and readily understood
meaning,” and that “the veracity of the statement” was unverifiable).
Nor are Henry’s statements that Tamburo’s actions constituted “theft” actionable as
defamation, because the statements were substantially true. “Truth is an absolute defense to a
defamation action.” Lerman v. Turner, No. 10 C 2169, 2013 WL 4495245, at *18 (N.D. Ill.
Aug. 21, 2013) (citing Hnilica v. Rizza Chevrolet, Inc., 893 N.E.2d 928, 931 (Ill. App. Ct.
2008)). The statement at issue need not be completely accurate; the defense applies if “the ‘gist’
or ‘sting’ of the statement is true.” Id. (quoting J. Maki Constr. Co. v. Chi. Reg’l Council of
Carpenters, 882 N.E.2d 1173, 1186 (Ill. App. Ct. 2008)); see also Coghlan v. Beck, 984 N.E.2d
132, 146 (Ill. App. Ct. 2013). The truth of a statement is usually a question for the jury, but may
be resolved on summary judgment if “no reasonable jury could find that substantial truth had not
been established.” Id. (citing J. Maki Constr. Co., 882 N.E.2d at 1186).
Here, there is no dispute that Henry’s description of the events in question was accurate:
the plaintiffs harvested data from Henry’s web site that she had spent years collecting, they
repackaged it for their own use and profit, and they did not have Henry’s permission to use the
data harvested from the site. The only question is whether Henry’s characterization of these
events as “theft” is false.
Tamburo argues that Henry’s statements that he stole from her are false because he did
not commit theft. He did not delete or remove data from Henry’s site (thus depriving her of her
property), Henry had made her data freely available, and no robots.txt file was visible on her site
at the time the Data Mining Robot copied information on the site. According to Tamburo,
because the data was not protected, either legally or by security protections on Henry’s web site,
he could not have committed theft by appropriating it.
Even so, the court concludes that no reasonable jury could find that Henry’s statements
were not substantially true. Henry accurately reported in her messages that Tamburo copied data
from her site without her permission, and it is undisputed that he did so. Henry states under oath
that she believed (and still believes) that this constituted theft, and that she felt injured by
Tamburo’s actions. It may be true that Tamburo could not be prosecuted or held liable for his
actions because the data was publicly available and not protected by adequate security measures.
But Tamburo’s argument relies on a narrow legal meaning of “theft.” Under Illinois law, the
court must consider whether Henry’s use of the word “theft” is reasonably susceptible to a nondefamatory construction. Solaia Tech., LLC v. Specialty Pub. Co., 852 N.E.2d 825, 839 (Ill.
2006). It is. To a lay person such as Henry, “theft” can also mean the wrongful act of taking the
property of another person without permission.
The data Henry had collected could be
reasonably understood as her property—she had collected it, and it was her work in compiling it
that gave it value. She did not give Tamburo permission to copy it and sell access to it.
Although Henry might not be able to successfully sue Tamburo for using her data in this way,
the gist of her statements was true: he took the data without her permission.
Alternatively, the court concludes that Henry’s statements that Tamburo’s actions
constituted theft are subject to a qualified privilege. Such a privilege may exist “where the
situation involves an interest of the person who publishes the defamatory statement or an interest
of the person to whom the matter is published. DePinto, 776 F. Supp. 2d at 804 (citing Kuwik,
619 N.E.2d at 135). Courts also recognize as privileged communications involving a recognized
public interest. Kuwik, 619 N.E.2d at 134. Whether a qualified privilege exists is a question of
law for the court. Id. at 133.
Henry’s statements are privileged because they related to her interests in protecting the
substantial time and effort spent accumulating her data and in making it freely available to the
community of Schepperke breeders, to promote the health of the breed. She also had an interest
in ensuring that her data was presented in a certain way and in controlling the manner in which it
could be accessed. Furthermore, the statements were published to people who likewise had an
interest in the way in which the dog pedigree data was made available, and they involved a
public interest in how access to information available on the internet is regulated.
“The qualified privilege serves to enhance a defamation plaintiff’s burden of proof.” Id.
at 133. The privilege may protect the speaker from liability regardless of the statement’s
contents. Id. To overcome the privilege, the plaintiff must show not just that the statements
were untrue, but that the defendant abused the privilege by intentionally publishing false material
or by displaying a “reckless disregard” as to its truth or falsity—meaning that the defendant
“entertained serious doubts about the truth of the statement but failed to properly investigate the
truth.” DePinto, 776 F. Supp. 2d at 804 (citing Dawson v. New York Life Ins. Co., 135 F.3d
1158, 1167 (7th Cir. 1998)). See also Smock v. Nolan, 361 F.3d 367, 372 (7th Cir. 2004). Abuse
of a privilege may also occur when the defendant fails to “limit the scope of the material, or send
the material to only the proper parties.” Kuwik, 619 N.E.2d at 136.
Whether a privilege was abused is usually a question of fact for the jury. Kuwik, 619
N.E.2d at 133. “However, just because an issue is generally one for a trier of fact to resolve does
not mean that a defamation plaintiff is automatically entitled to present his case to a jury when a
qualified privilege applies. A court may determine that as a matter of law insufficient facts are
alleged . . . to show an abuse of the applicable qualified privilege.” Huon v. Beatty, No. 1-092234, 2011 WL 9717454, at *6 (Ill. App. Ct. Mar. 25, 2011).
Here, Tamburo has presented no evidence that Henry abused the qualified privilege,
either by intentionally making false statements or by acting with “reckless disregard” as to the
truth of her statements. Henry claims that she believed (and still believes) that her statements
were true, and nothing in the record raises an issue of fact as to whether, at the time the
statements were made on May 4 and 5, 2004, Henry entertained doubts about whether her data
was in fact “stolen.” Henry had personal knowledge that the data had been copied, and her
statements were based on that undisputed fact. See Xinos v. O’Brien, No. 2-12-0997, 2013 WL
1798844, at *9 (Ill. App. Ct. Apr. 25, 2013). Furthermore, the statements were limited in scope
to Tamburo’s harvesting of Henry’s data, and they were made to a community of dog breeders
who shared Henry’s interest in maintaining the availability of the data and protecting the rights
of those who had worked for years to compile it. Through her publications, Henry reached out to
that community for help in finding some remedy for her injury.
Tamburo contends that Henry admitted during her deposition that lawyers told her she
had no legal recourse against Tamburo and Versity, and that prior to the publications, she had
been advised that the plaintiffs had committed no unlawful act. Furthermore, on May 9, 2004,
Henry stated to the APDUG Yahoo!Group that “[M]y Lawyer says there isn’t anything we can
do about the ‘public data’ part of the problem.” Tamburo argues that, based on the advice from
her lawyers, Henry had actual knowledge of the falsity of her statements. He further argues that
Henry was obligated to investigate the legality of his actions before making her statements and
that, by failing to do so, she abused the qualified privilege.
Henry’s May 9, 2004, statement indicates that she eventually concluded that she could
pursue no copyright infringement claim or other type of legal action against Tamburo. But
Henry was a lay person, and the record shows plainly that as of May 4 and 5, 2004, when she
made the statements that her data was “stolen,” Henry believed that Tamburo had stolen her data
and was attempting to determine whether the law afforded her any protection against that theft.
Moreover, even had Henry immediately consulted with an attorney, no such actual
knowledge that Tamburo’s actions were lawful would have been revealed. Rather, in May 2004,
the law governing the automated harvesting of data from web sites was unsettled. For example,
a number of courts had held that website owners might have a remedy under the Computer Fraud
and Abuse Act (“CFAA”) against defendants who had accessed information on their websites
using automated harvesting. See Southwest Airlines Co. v. BoardFirst, L.L.C., No. 3:06-CV0891-B, 2007 WL 4823761, at *13 (N.D. Tex. Sept. 12, 2007) (collecting cases). In 2003, the
First Circuit reversed a district court that had issued an injunction pursuant to the CFAA against
a company using an automated “web scraper” to copy pricing information from a travel website.
The district court had relied in part on “the fact that the website was configured to allow ordinary
visitors to the site to view only one page at a time.” EF Cultural Travel BV v. Zefer Corp., 318
F.3d 58, 62 (1st Cir. 2003). The First Circuit disagreed and noted, “It is . . . of some use for
future litigation . . . in this circuit to indicate that, with rare exceptions, public website providers
ought to say just what non-password protected access they purport to forbid.” Id. at 64.
The First Circuit’s opinion suggests that it is unlikely Henry could have pursued a CFAA
claim, given the state of the law, and Tamburo is correct that a collection of data is normally not
subject to copyright protections. See Feist Publ’ns v. Rural Tel. Serv. Co., 499 U.S. 340, 364
(1991) (noting that “copyright rewards originality, not effort”). Even so, further investigation on
Henry’s part would not have revealed that Tamburo’s actions were undisputedly legal or illegal.
Thus, even if Henry’s lawyer advised her that Tamburo had acted legally and that she did not
have a remedy against him, such advice is not dispositive as to whether she abused the qualified
privilege in making the statements in question. Henry was entitled to disagree with the lawyer
about whether Tamburo had any right to access her database, another lawyer might have held a
different opinion, and her statements were made as part of her efforts to seek help in protecting
her interests. Thus, the fact that the law has evolved in a way that does not protect Henry’s years
of work is not evidence that she made the statements about Tamburo’s theft with “a high degree
of awareness of the[ir] probable falsity or entertaining serious doubts as to [their] truth.” Kuwik,
619 N.E.2d at 133.
Tamburo also argues that Henry knew that, because she did not properly protect her
website with the Robot Exclusion Standard and stated that her data was freely available to the
public, Tamburo was entitled to copy her data. He argues that by failing to adopt a robots.txt
protocol to limit the access of web crawlers to her website, Henry effectively invited him to use
the data, and thus knew his actions were not “theft.”
The court has found no precedent indicating that failure to use the Robot Exclusion
Standard means that a website creator has given up her intellectual property rights or invited the
general public to copy the material on a site. To the contrary, in the copyright context, one
district court recently rejected the idea that a website’s failure to use the robots.txt protocol to
block access created an implied license to copy copyrighted material. Associated Press, 2013
WL 1153979, at *24. That court stated that “there is no fair inference, based simply on the
absence of the robots.txt protocol, that there has been a meeting of the minds between the
copyright owner and the owner of the web crawler about the extent of copying.” Id. It follows
that the failure to use the robots.txt protocol is not evidence that Henry knew that Tamburo was
allowed to copy her data and knew that her statements that he had stolen her data were false.
Thus, besides being substantially true, Henry’s statements about Tamburo’s actions
constituting “theft” are protected by a qualified privilege, and Tamburo has presented no
evidence that Henry abused that privilege. She did not make the statements with knowledge of
or a reckless disregard for their falsity, fail to limit the scope of the statements properly, or send
them to improper parties. The court concludes that there is insufficient evidence that Henry
abused the qualified privilege to submit the question to the jury. See DePinto, 776 F. Supp. 2d at
807; Anglin v. Sears Roebuck & Co., No. 93 C 3438, 1998 WL 483524, at *8 (N.D. Ill. Aug. 10,
1998) (“[A]buse of a qualified privilege cannot simply be asserted to defeat a motion for
summary judgment. Plaintiff has the burden to provide sufficient evidence to create a genuine
issue of material fact; absent such evidence, summary judgment is appropriate.”).
statements accusing Tamburo of theft are not actionable as defamation.
2. “Selling Stolen Goods”
Tamburo argues that Henry’s statement that he was “selling stolen goods” falsely
imputed the commission of a crime and thus constitutes defamation per se. He claims that Henry
knew the statement was not true because her attorneys had advised her that his actions were
legal, and because Henry knew that she had not been deprived of any tangible property.
Henry made the statement that Tamburo was “selling stolen goods” on May 5, 2004. The
court agrees that the statement is defamatory per se, because it calls Tamburo’s professional
integrity into question. But, just as the statements about theft are substantially true, so is the
statement that Tamburo was selling stolen goods. It is undisputed that Tamburo attempted to
make a profit using data that he had copied from Henry’s website without her permission.
Additionally, the statement is protected by a qualified privilege, for the same reasons that
the statements about theft discussed above are protected. And, for the same reasons, Tamburo
has not submitted evidence that creates a genuine issue of fact with respect to whether Henry
made the statement based on a reasonable belief that it was true. Absent any evidence that Henry
abused the privilege, the statement is not actionable.
Henry exchanged emails with Eileen Lane on May 5, 2004. Henry told Lane that the
plaintiffs “wrote an agent robot to take specific files off of specific sites and return them to their
computer. The data files were not in a public venue.” Henry also told Lane that this constituted
“Hacking.” Lane posted an article on her forum, www.freerepublic.com, about the incident.
Tamburo argues that Henry’s statement that he committed “hacking” and that he took
data from non-public areas of her website are defamatory because they imply illegal activity. He
claims that the statements are false because he did not evade any security measures employed on
Henry’s site, and no prohibition on robotic browsing was visible on the site.
The statements that Tamburo “wrote an agent robot to take specific files off of specific
sites” and that the “files were not in a public venue” are substantially true and thus not
actionable. Although Tamburo argues that the files were accessible to him through a URL, it is
undisputed that Henry’s site was designed to allow the user to search manually for the pedigree
of an individual dog. Nothing in the record indicates that Henry intended to make the entire
database available to the public. The “gist” of the statements is therefore true. See J. Maki
Constr. Co., 882 N.E.2d at 1186.
As to the word “hacking,” Henry argues that the term is susceptible to innocent
construction because “the term has positive connotations,” implying the development of “a
creative solution” to a computer problem. (Def.’s Mem. in Supp. of Mot. for Summ. J. 13-14,
ECF No. 508-1.) The innocent construction rule “requires a court to consider the statement in
context and give the words of the statement, and any implications arising from them, their
natural and obvious meaning.” Madison v. Frazier, 539 F.3d 646, 653-54 (7th Cir. 2008)
(quoting Solaia Tech., LLC v. Speciality Publ’g Co., 852 N.E.2d 825, 839 (2006)). Courts “are
to interpret the words of the statement as they appear to have been used and according to the idea
they were intended to convey to a reader of reasonable intelligence,” and “should avoid
straining” to give a term an innocent meaning. Seith v. Chicago Sun–Times, Inc., 861 N.E.2d
1117, 1127 (Ill. App. Ct. 2007). Although Henry proposes that the word “hacking” can be used
to convey an innocent meaning, it is clear from the context of her statement that she meant to
imply that the way Tamburo accessed her database was unethical or illegal, not “creative.” Thus,
the word, as used by Henry, was defamatory.
Even so, the statement is protected by the same qualified privilege that renders Henry’s
statements about theft non-actionable. Tamburo has presented no evidence showing that Henry
abused the privilege. Although she admitted during her deposition that Tamburo had not evaded
any security measures on her site, nothing in the record indicates that, at the time she made the
statement about “hacking,” on May 5, 2004, she had serious doubts about the truth of the
statement. Rather, the evidence shows that Henry designed her website to make data available to
the public through a query search, which would provide information about one dog pedigree at a
time. There is no dispute that this was the way Henry intended the site to be used, and that
Tamburo instead accessed the site in a way that allowed him to copy Henry’s entire database.
Tamburo argues that the privilege does not apply because the statement was published to
an unrelated website, freerepublic.com, and to persons who were not part of the dog breeding
community. But Henry had a legitimate interest in the information in her database, and the
question of whether it is legal to use a robot to harvest information from internet sites without the
permission of the website owners implicates legitimate public interests. There is no evidence
that Henry failed to limit her communications to the “proper parties,” because the segment of the
public that had an interest in the statements was broad, and Henry made the statements as part of
her earnest efforts to find a remedy for the misappropriation of her data.
4. Copyright Infringement
On May 5, 2004, Henry sent a message to Tamburo, copying the Schipperke
Yahoo!Group, the American Kennel Club, and other breeders. She stated, “You cannot simply
copy my database into yours without permission and start charging money for it.
copyright statements on my site to boot.” These statements are not actionable as defamation
because they are substantially true. See J. Maki Constr. Co., 882 N.E.2d at 1186. Tamburo
copied Henry’s database without her permission and charged money for the information, and
Tamburo does not dispute that Henry had “copyright statements” on her site, though he does
argue that the data itself was not copyrightable.
Alternatively, the statements are protected by the qualified privilege. Tamburo argues
that copyright infringement is a crime and that Henry’s statements imply that he infringed her
copyright to her database. He argues that such statements were false because the information on
Bonchien.com consisted of “facts” copied from other sources, and there is no copyright to such
information. See Feist Publ’ns, 499 U.S. at 364. But whether Henry could successfully assert a
copyright interest in her database is beside the point. Because Henry’s statement is protected by
a qualified privilege, to survive her motion for summary judgment, Tamburo must point to
evidence that Henry made the statement with a reckless disregard as to its truth.
Tamburo argues that Henry knew the information in her database was copied from
elsewhere and was not copyrightable. He points to her admission that lawyers told her she had
no legal remedy against the plaintiffs, and to her statement to the APDUG Yahoo!Group on May
9, 2004, in which she essentially admitted that the information was public data and that she had
no legal recourse against Tamburo. But the exchange of messages and emails on May 4 and 5,
2004, shows that Henry and the other defendants were involved in a heated dispute with
Tamburo as to whether Tamburo had violated copyright laws by copying the individual
defendants’ databases. Tamburo has presented no evidence indicating that Henry abused the
qualified privilege by making a statement on May 5, 2004, about possible copyright violations
with a reckless disregard for the statement’s truth. Moreover, she made the statement to other
members of the breeding community, who shared her interests in maintaining pedigree data and
protecting the rights of those who had invested time and effort in compiling the data.
5. Deleting/Removing Data from Bonchien.com
Tamburo claims that Henry published statements that falsely implied that Tamburo had
deleted data from her website. Specifically, he points to her statements to the APDUG Yahoo!
Group that members should “spread the word far and wide that he took for himself something
that was so unethical to do, and now you have to pay to see it,” and that the information was
being “held hostage.” Tamburo argues that these statements were false because Henry knew that
the information remained available on her site and had not been removed.
The court concludes that the statement that Tamburo “took” the data “and now you have
to pay to see it” is not actionable as defamation because it susceptible to an innocent
construction. Under Illinois law, “if a statement is capable of two reasonable constructions, one
defamatory and one innocent, the innocent one will prevail.” Muzikowski v. Paramount Pictures
Corp., 322 F.3d 918, 925 (7th Cir. 2003) (citing Anderson v. Vanden Dorpel, 667 N.E.2d 1296,
1302 (Ill.1996)). Here, a reasonable—indeed the only plausible—interpretation of Henry’s
statements is that Henry was making the Schipperke data available for free, while Tamburo was
attempting to sell access to it, and that Henry wanted the group members to “spread the word”
that breeders did not have to pay for the pedigree information because she and other website
owners would continue to provide it to them. Henry stated in the same message, “We can also
get the word out that we have the data for free.” As to the statement that Tamburo was holding
the data “hostage,” that statement is reasonably construed as meaning that Tamburo was asking
people to pay for the data, not that Tamburo had removed Henry’s data from her site and was
demanding payment for its return.
The court further notes that the statement that the data was being “held hostage” is
rhetorical hyperbole, which is not actionable. See Hopewell, 701 N.E.2d at 103-04. The United
States Supreme Court has characterized language as “rhetorical hyperbole” where, in context, it
is obviously understood as an exaggeration, rather than a statement of literal fact. See Greenbelt
Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6 (1970) (in context, the word “blackmail” referred, not
to a criminal act, but to unreasonable negotiating practices); Old Dominion Branch No. 496 v.
Austin, 418 U.S. 264, 284-86 (1974) (characterization of union “scab” as a “traitor” was
understood to convey reprehensible actions, not actual treason). Here, “hostage” was not used
literally to mean that Tamburo was holding the data for ransom; it merely meant that Tamburo
was charging for it.
D. Count IX: Defamation Per Quod
“When a defamation claim is one for defamation per quod, . . . a plaintiff must show
special damages, i.e., actual damages of a pecuniary nature, to succeed.” Hukic v. Aurora Loan
Serv., 588 F.3d 420, 438 (7th Cir. 2009). Tamburo has presented insufficient evidence of special
damages to proceed on his defamation per quod claim. In support of his claim to have suffered
damages, he states that Versity had sales of $3,538.98 between May 1-4, 2004, and sales of
$184.60 between May 5-7, 2004. He then claims, based on those figures, to have suffered over
$2 million in lost sales to date.
This estimate of damages is based on nothing but conjecture. There is no support in the
record for such a calculation, and no basis on which to link the alleged lost sales to the alleged
defamation. Tamburo does not point to any cancelled contracts that resulted from Henry’s
statements, and he provides no evidence regarding Versity’s sales between the time TBS was
launched in January 2004 and May 1, 2004. Many factors determine the success of a business
venture over time. Tamburo’s claim that Versity would have made millions in profits over nine
years had it not shut down after a few months “is far too speculative and uncertain to entertain as
special damages.” Maag v. Ill. Coalition for Jobs, Growth, and Prosperity, 858 N.E.2d 967, 976
(Ill. App. Ct. 2006) (internal citation and quotation marks omitted). Henry is therefore entitled to
summary judgment on Count IX.
For the reasons explained above, summary judgment is granted in favor of Henry on
Counts II, IV, VIII, and IX.
JOAN B. GOTTSCHALL
United States District Judge
DATED: September 26, 2013