Huon v. Breaking Media et al

Filing 179

MOTION by Defendants Breaking Media, Breaking Media, Inc., Breaking Media, LLC, David Lat, John Lerner, David Minkin, Elie Mystal for leave to file excess pages re memorandum in support of their motion to dismiss (Attachments: # 1 Exhibit 1, # 2 Exhibit A (to memo iso mtd), # 3 Exhibit B (to memo iso mtd), # 4 Exhibit C (to memo iso mtd))(Mandell, Steven)

Exhibit 1

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS – EASTERN DIVISION

MEANITH HUON,
Plaintiff,
v.
BREAKING MEDIA, LLC a/k/a
BREAKING MEDIA; BREAKING MEDIA, INC.
a/k/a BREAKING MEDIA; DAVID LAT; ELIE
MYSTAL; JOHN LERNER; and DAVID MINKIN;
(“ATL DEFENDANTS”);
GAWKER MEDIA, LLC a/k/a GAWKER MEDIA;
BLOGWIRE HUNGARY SZELLEMI ALKOTAST
HASZNOSITO KFT; GAWKER MEDIA GROUP,
INC. a/k/a GAWKER MEDIA; GAWKER
ENTERTAINMENT, LLC; GAWKER
TECHNOLOGY, LLC; GAWKER SALES, LLC,
NICK DENTON; IRIN CARMON; and
GABY DARBYSHIRE (“JEZEBEL
DEFENDANTS”),
Defendants.

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) Case No. 11-cv-03054
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) District Judge John J. Tharp, Jr.
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) Magistrate Judge Jeffrey T. Gilbert
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MEMORANDUM IN SUPPORT OF ABOVE THE LAW DEFENDANTS’
MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINT

TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................................................ iii
I.

STATEMENT OF FACTS .................................................................................................. 1
A.

Underlying Facts ........................................................................................................ 1

B.

Procedural Posture ..................................................................................................... 2

C.

Fourth Amended Complaint ...................................................................................... 3

II.

STANDARD OF REVIEW ................................................................................................. 3

III.

ARGUMENT ........................................................................................................................ 4
A.

Plaintiff’s Defamation Per Se And Per Quod Claims Fail As A Matter Of Law
(Counts I and II) ......................................................................................................... 4
1.

The Post provides a fair report of judicial proceedings. ................................ 4

2.

Any commentary in the Post is also protected because it contains
opinion or hyperbole. ..................................................................................... 6

3.

Any commentary in the Post can be innocently construed as a biting or
sarcastic comment and not a literal statement of fact. ................................... 7

4.

Plaintiff has not adequately alleged that the Post is defamatory. .................. 8
a) Plaintiff does not plead facts that support a claim for defamation per
se…………………………………………………………………….….8
b) Plaintiff has not alleged special damages as required for defamation per
quod…………………………………………………………….....….…9

5.

Plaintiff inappropriately bases his claim on statements that are not
defamatory, about him, or actually contained in the Post. ........................... 11

B.

Plaintiff’s False Light Claim Fails For The Same Reasons As His Defamation
Claims (Count III) .................................................................................................... 12

C.

Plaintiff’s Intrusion Upon Seclusion Is Barred By The First Amendment And
Has Not Been Pled Properly (Count IV).................................................................. 12

D.

Plaintiff Has Not Alleged Intentional Infliction Of Emotional Distress (Count
V) ............................................................................................................................. 13

E.

Plaintiff Cannot Plead Any Of The Elements Of Tortious Interference With
Prospective Economic Advantage (Count VI) ......................................................... 14

F.

Plaintiff Does Not Adequately Allege A Conspiracy (Counts VII and VIII) .......... 15
i

G.
IV.

Illinois’s Criminal Statute Concerning Cyberstalking Does Not Apply Here
(Count IX) ................................................................................................................ 16

CONCLUSION .................................................................................................................. 18

ii

TABLE OF AUTHORITIES
Cases
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ...................................................................................................... 3, 4, 9, 16
Barry Harlem Corp. v. Kraff,
273 Ill. App. 3d 388 (1st Dist. 1995) ........................................................................................ 11
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ...................................................................................................... 3, 4, 9, 16
Berkos v. Nat’l Broad. Co.,
161 Ill. App. 3d 476 (1st Dist. 1987) ........................................................................................ 14
Brown & Williamson Tobacco Corp. v. Jacobson,
713 F.2d 262 (7th Cir. 1983) .................................................................................................... 10
Busse v. Motorola Inc.,
351 Ill. App. 3d 67 (1st Dist. 2004) .......................................................................................... 13
Chapski v. Copley Press,
92 Ill. 2d 344 (1982) ................................................................................................................... 7
Cook v. Winfrey,
141 F.3d 322 (7th Cir. 1998) .................................................................................................... 14
Desnick v. Am. Broad. Cos.,
44 F.3d 1345 (7th Cir. 1995) .............................................................................................. 12, 17
Edwards v. Paddock Publ’ns, Inc.,
327 Ill. App. 3d 553 (1st Dist. 2001) .......................................................................................... 6
Flip Side, Inc. v. Chi. Tribune Co.,
296 Ill. App. 3d 641 (1st Dist. 1990) ........................................................................................ 13
Galinski v. Kessler,
134 Ill. App. 3d 602 (1st Dist. 1985) ........................................................................................ 16
Gist v. Macon Cnty. Sheriff’s Dep’t,
284 Ill. App. 3d 367 (4th Dist. 1996).......................................................................................... 9
Hahn v. Konstanty,
684 N.Y.S. 2d 38 (N.Y. App. Div. 1999) ................................................................................... 8
Harrison v. Chi. Sun-Times, Inc.,
341 Ill. App. 3d 555 (1st Dist. 2003) ...................................................................................... 6, 7

iii

Horowitz v. Baker,
168 Ill. App. 3d 603 (3d Dist. 1988) ........................................................................................... 6
Hurst v. Capital Cities Media, Inc.,
323 Ill. App. 3d 812 (5th Dist. 2001)........................................................................................ 15
Hustler Magazine, Inc. v. Falwell,
485 U.S. 46 (1988) .............................................................................................................. 12, 13
Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc.,
227 Ill. 2d 381 (2008) ............................................................................................................... 12
J. Eck & Sons, Inc. v. Reuben H. Donnelley Corp.,
213 Ill. App. 3d 510 (1st Dist. 1991) .................................................................................. 14, 15
Lane v. Fabert,
178 Ill. App. 3d 698 (4th Dist. 1989)........................................................................................ 16
Lovgren v. Citizens First Nat’l Bank,
126 Ill. 2d 411 (1989) ............................................................................................................... 13
Maag v. Ill. Coal. for Jobs, Growth & Prosperity,
368 Ill. App. 3d 844 (5th Dist. 2006)........................................................................................ 10
Muzikowski v. Paramount Pictures Corp.,
322 F.3d 918 (7th Cir. 2003) .................................................................................................... 12
Muzikowski v. Paramount Pictures Corp.,
477 F.3d 899 (7th Cir. 2007) .................................................................................................... 14
O’Donnell v. Field Enters., Inc.,
145 Ill. App. 3d 1032 (1st Dist. 1986) .............................................................................. 5, 6, 17
Parker v. House O’Lite Corp.,
324 Ill. App. 3d 1014 (1st Dist. 2001) ...................................................................................... 11
Pugh v. Tribune Co.,
521 F.3d 686 (7th Cir. 2008) ...................................................................................................... 1
Salamone v. v. Hollinger Int’l, Inc.,
347 Ill. App. 3d 837 (1st Dist. 2004) ........................................................................................ 10
Schaefer v. Hearst Corp.,
5 Media L. Rep. (BNA) 1734 (Md. Super. Ct. 1979) (same) ..................................................... 8
Schaffer v. Zekman,
196 Ill. App. 3d 727 (1st Dist. 1990) .................................................................................... 9, 10
Solaia Tech., LLC v. Specialty Publ’g Co.,
221 Ill. 2d 558 (2006) ......................................................................................................... 5, 6, 8
iv

Spelson v. CBS, Inc.,
581 F. Supp. 1195 (N.D. Ill. 1984) ....................................................................................... 9, 10
United States v. Hope,
906 F.2d 254 (7th Cir. 1990) ...................................................................................................... 2
Venture Assocs. Corp. v. Zenith Data Sys. Corp.,
987 F.2d 429 (7th Cir. 1993) ...................................................................................................... 1
Statutes
Fed. R. Civ. P. 8 .............................................................................................................................. 9
Fed. R. Civ. P. 12 ............................................................................................................................ 3
720 ILCS 5/12-7.5 .............................................................................................................. 3, 16, 17
Other Authorities
Restatement (Second) of Torts
Section 611, cmt. f, at 300 (1977)............................................................................................... 6

v

In his lengthy and rambling nine-count Fourth Amended Complaint, Plaintiff Meanith
Huon protests that the ATL Defendants’1 web-based publication, AboveTheLaw.com, unfairly
characterized Plaintiff’s acquittal on sexual assault charges. Plaintiff believes that the ATL
Defendants defamed him and placed him in a false light because the AboveTheLaw.com post
referred to a neutral news report of his trial rather than presenting Plaintiff’s own view of the
case. In his “kitchen-sink” complaint, Plaintiff alleges a host of other flawed, non-cognizable
claims, including intrusion upon seclusion, intentional infliction of emotional distress, tortious
interference with prospective economic advantage, conspiracy, and cyberstalking and
cyberbullying. Although the Fourth Amended Complaint suffers from multiple incurable
deficiencies, fundamentally Plaintiff’s claims fail because reporting on government
proceedings—including his criminal trial—is privileged from liability under the First
Amendment. Further, AboveTheLaw.com’s commentary in the news article is also protected as
an expression of opinion. Plaintiff cannot cure these and numerous other defects in his frivolous
Fourth Amended Complaint, and, as a result, all counts against the ATL Defendants should be
dismissed with prejudice.
I.

STATEMENT OF FACTS
A.

Underlying Facts

Plaintiff was a defendant in People v. Huon, 08 CF 1496, after being charged with two
counts of criminal sexual assault. (Compl.2 ¶ 52; see People v. Huon Trial Tr., May 6, 2010,
attached as Ex. A at 178:6-15.3) His trial was held from May 4-6, 2010 in Madison County,
1

The ATL Defendants are Breaking Media, Inc. f/k/a Breaking Media, LLC, David Lat, Elie
Mystal, John Lerner, and David Minkin. John Lerner, the CEO of Breaking Media, Inc., was not
with the company at the time when the Post at issue was published.
2
In this memorandum, the “Complaint” or “Compl.” refers to the Fourth Amended Complaint.
3
On a motion to dismiss, courts may take judicial notice of documents in the public record.
Pugh v. Tribune Co., 521 F.3d 686, 691 n2 (7th Cir. 2008). See Venture Assocs. Corp. v. Zenith
1

Illinois. (Compl. ¶ 52; see generally Ex. A; People v. Huon Trial Tr., May 4, 2010, attached as
Ex. B.)4 The trial was covered by the Belleville News-Democrat. (See generally citation to
Belleville News-Democrat at Ex. C at 3.)5
The ATL Defendants are affiliated with AboveTheLaw.com. AboveTheLaw.com is a
blog that covers topics of interest to lawyers and law students6—including Plaintiff’s trial,
because he is an attorney licensed to practice in Illinois. (Compl. ¶ 49.) Accordingly, on May 6,
2010, AboveTheLaw.com posted a report about the first day of Plaintiff’s trial (the “Post”). The
Post quoted from and linked to the Belleville News-Democrat, and it included commentary by
the Post’s author, Elie Mystal. (See generally Ex. C.)
B.

Procedural Posture

On May 6, 2011, one year after he was acquitted in his criminal case, Plaintiff filed suit
against the ATL Defendants, among others. (Dkt. No. 1; Ex. A at 185:19-24; 186:13-15.)
Plaintiff has filed a total of five complaints in this matter. He filed his initial complaint and two
amended complaints before the ATL Defendants had an opportunity to respond or otherwise
plead. (Dkt. Nos. 1, 12, 22.) On September 21, 2011, the ATL Defendants moved to dismiss
Plaintiff’s Second Amended Complaint. (Dkt. Nos. 35, 36, 48, 49.) On August 13, 2012, this
Data Sys. Corp., 987 F.2d 429 (7th Cir. 1993) (“Documents that a defendant attaches to a motion
to dismiss are considered part of the pleadings if they are referred to in the plaintiff’s complaint
and are central to her claim.”); United States v. Hope, 906 F.2d 254, 260 (7th Cir. 1990) (taking
judicial notice of state court hearing transcript).
4
Ex. B omits voir dire at pages 7 through 125 but is otherwise a complete transcript of
proceedings on May 4, 2010. Per this Court’s October 11, 2011 order (Dkt. no. 74), personal
identifying information for people who are not parties to this matter has been redacted.
5
Plaintiff claims the Post at issue is attached to the Complaint as Exhibit 9, while Exhibit 8 was
intentionally left blank. (Compl. ¶¶ 42, 60.) The Post is actually attached to the Complaint at
Exhibit 8. To avoid further confusion, the Post is attached hereto as Exhibit C in a complete and
more easily readable version. This exhibit differs from the version attached to the Complaint
because it includes an “update” at the end of the post noting Plaintiff’s acquittal; the ATL
Defendants are not relying on that update in this motion.
6
The ATL Defendants dispute Plaintiff’s assertion that they are “not reporters or journalists.”
(Compl. ¶ 54.)
2

Court dismissed the Second Amended Complaint, sua sponte, for lack of subject matter
jurisdiction before ruling on the merits of the motion. (Dkt. No. 151.) On September 12, 2012,
Plaintiff filed a Third Amended Complaint, which this Court also dismissed, sua sponte, two
days later for lack of subject matter jurisdiction. (Dkt. Nos. 156-57.) On November 15, 2012,
Plaintiff filed the Fourth Amended Complaint. (Dkt. No. 162.)
C.

Fourth Amended Complaint

In his latest Complaint, which spans 68 pages and 273 numbered paragraphs, Plaintiff
alleges nine claims against the ATL Defendants. The basic thrust of his suit is that the Post is
actionable because it both omits and misstates information about his criminal trial. As before,
Plaintiff alleges defamation per se and per quod (Counts I and II), false-light invasion of privacy
(Count III), intentional infliction of emotional distress (Count V), conspiracy (Counts VI-VII),
and the criminal claim of cyberstalking7 (Count IX). The alleged conspiracy apparently includes
the “Jezebel Defendants,”8 who operate the blog Jezebel.com. Plaintiff also adds two new
counts: intrusion upon seclusion (Count IV) and tortious interference with economic advantage
(Count VIII).
II.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a complaint that fails

to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). These
motions challenge whether a plaintiff has alleged facts sufficient to “state a claim to relief that is

7

Although Count IX in the latest Complaint also refers to “cyberbullying,” in substance, Plaintiff
makes no additional allegations to differentiate cyberstalking from cyberbullying.
8
The Jezebel Defendants include Gawker Media, LLC a/k/a Gawker Media; Blogwire Hungary
Szellemi Alkotast Hasznosito KFT; Gawker Media Group, Inc. a/k/a Gawker Media; Gawker
Entertainment, LLC; Gawker Technology, LLC; Gawker Sales, LLC; Nick Denton; Irin Carmon;
and Gaby Darbyshire.
3

plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Complaints
require “more than an unadorned, the-defendant-unlawfully-harmed-me accusation” and “‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (citing and
quoting Twombly, 550 U.S. at 555, 557).
III.

ARGUMENT
A.

Plaintiff’s Defamation Per Se And Per Quod Claims Fail As A Matter Of Law
(Counts I and II)

Plaintiff’s defamation counts suffer from numerous deficiencies. First and foremost, the
Post provides a fair report of the criminal trial and, therefore, is privileged. In addition, Plaintiff
simply has not pled that the statements are defamatory. All of the factual statements are
supported by the trial transcript. The remaining statements consist of obvious rhetorical
hyperbole or cutting commentary. Moreover, the claims improperly rest on non-defamatory
statements that do not even refer to Plaintiff. Finally, as to his claim for defamation per quod,
Plaintiff fails to plead damages with requisite specificity.
Because of the volume of statements at issue, and for ease of reference, the ATL
Defendants provide a summary chart at the end of this brief that indicates which of the following
arguments apply to the various allegations in the Complaint. As the chart demonstrates, none of
Plaintiff’s allegations states a claim for defamation, and the Court should therefore dismiss the
defamation claims pursuant to Federal Rule of Civil Procedure 12(b)(6).
1.

The Post provides a fair report of judicial proceedings.

The information in the Post that Plaintiff claims is defamatory is protected from liability
by the First Amendment as a fair and accurate report of his trial.
Accurate reports of court proceedings are privileged against liability by the First
Amendment, even if the information stated in those proceedings is otherwise false or

4

defamatory. O’Donnell v. Field Enters., Inc., 145 Ill. App. 3d 1032, 1036 (1st Dist. 1986).
“The fair report privilege . . . promotes our system of self-governance by serving the public’s
interest in official proceedings, including judicial proceedings.” Solaia Tech., LLC v. Specialty
Publ’g Co., 221 Ill. 2d 558, 585 (2006). “If the news media cannot report what it sees and hears
at governmental and public proceedings merely because it believes or knows that the information
is false, then self-censorship by the news media would result.” O’Donnell, 145 Ill. App. 3d at
1036. Thus, “the fair report privilege overcomes allegations of either common law or actual
malice.” Solaia, 221 Ill. 2d at 587.
The trial transcript establishes that the fair report privilege applies to the Post. For
example, the newspaper report quoted in the Post accurately states Plaintiff’s attorney argued in
his opening statement that the Plaintiff’s involvement with the alleged victim was consensual,
and the trial transcript demonstrates that to be true. (See Ex. C at 2-3; Ex. B at 156 (Plaintiff’s
attorney states, “You are going to hear and see that all of those sex acts were consensual.”).) In
fact, the alleged victim was specifically asked about consent on the first day of trial. (Ex. B at
248:20-22.) Plaintiff alleges that the Post “intentionally omitted” that “[t]he jury was not
allowed to consider the consent defense,” (Compl. ¶ 72(b)), but it is clear that the actual
statements of the Post reflect an accurate report of what occurred at the trial. Similarly, Plaintiff
complains that “[t]here was no evidence of a Craigslist ad for a job for promotional modeling.”
(Compl. 72(d).) The quoted newspaper account, however, states that the alleged victim had
responded to a Craigslist ad that Plaintiff posted seeking promotional models, and again the trial
transcript confirms that fact. (See Ex. C at 1; Ex. B at 196-200.)
The ATL Defendants did not need to provide a complete “play-by-play” of the trial to
preserve the privilege. A report need not be a “complete report of the proceedings” to be

5

privileged “so long as it is a fair abridgment” or “substantially correct account” of the
proceedings. Solaia, 221 Ill. 2d at 589 (quoting Restatement (Second) of Torts § 611, cmt. f, at
300 (1977)); O’Donnell, 145 Ill. App. 3d at 1036. “Such demonstration is made where the
defendant shows that the ‘gist’ or ‘sting’ of the allegedly defamatory material is true” and does
not require technical accuracy in all of the details. Harrison v. Chi. Sun-Times, Inc., 341 Ill.
App. 3d 555, 563 (1st Dist. 2003) (citations omitted). The Post easily surpasses this threshold.
Not only does the Post capture the “gist” of the proceedings, but all of the facts can be traced
back to the trial transcript.
Moreover, the privilege applies even though the ATL Defendants were not physically
present at the trial. Despite Plaintiff’s insinuations to the contrary, reprinting material from the
Belleville News-Democrat did not extinguish the fair report privilege. Even if the material was
defamatory, AboveTheLaw.com is entitled to “reprint defamatory information reported by
another in the context of public records or proceedings.” Edwards v. Paddock Publ’ns, Inc., 327
Ill. App. 3d 553, 563 (1st Dist. 2001).
2.

Any commentary in the Post is also protected because it contains opinion
or hyperbole.

Further, the Post’s commentary on the newspaper report is non-actionable opinion or
rhetorical hyperbole. Only statements of fact, not opinion, can be defamatory; “[t]here is no such
thing as a false idea or opinion.” O’Donnell, 145 Ill. App. 3d at 1039-40 (affirming dismissal of
defamation claim based on editorial concerning criminal investigations and arrests because “it is
clear that the ideas and opinions in the editorial do not imply undisclosed defamatory facts as
their bases” and “[t]o the extent that the editorial makes disclosed factual statements, the
statements are privileged” under the fair report privilege.); see, e.g., Horowitz v. Baker, 168 Ill.
App. 3d 603 (3d Dist. 1988) (affirming dismissal of a defamation claim, holding that statements

6

in a newspaper article describing a previously-reported transaction as a “cozy little deal” and a
“rip off” were “rhetorical hyperbole” and “an average reader would not regard the statements as
factual reporting”). Many of the statements that Plaintiff claims are defamatory fall into this
category—they are discussion about the newspaper report on the trial that does not assert any
additional facts about the trial. (See, e.g., Ex. C at 1, 3 (“Our next story from the files of the
wanton and depraved”; “Huon’s potentially harmless lies allegedly turned dastardly, pretty
quickly”; “It seems to me that there is entirely too much (alleged) raping going on in this
country. If this keeps up, men and women are going to have to start carrying around sexual
consent forms on their persons.”).) Such statements are protected opinion or mere rhetorical
hyperbole.
3.

Any commentary in the Post can be innocently construed as a biting or
sarcastic comment and not a literal statement of fact.

Plaintiff also insinuates unreasonable meanings to excerpts within the Post. A statement
will not be deemed defamatory if it is reasonably susceptible of an innocent construction.
Harrison, 341 Ill. App. 3d at 569. Statements must “be considered in context, with the words
and the implications therefrom given their natural and obvious meaning.” Id. at 570 (citing
Chapski v. Copley Press, 92 Ill. 2d 344, 351 (1982)). To the reasonable reader, Plaintiff’s
interpretations of the “defamatory” statements in the Post are simply outlandish. For example,
while providing background for the underlying case, Mystal wrote that “I [Mystal] once
pretended to be an Ostrich rancher from sub-Saharan Africa because I was trying to impress
bubble gum princesses at a BU party.” (Ex. C at 1.) The natural and obvious implication is not
that the alleged victim was a minor or bubble gum princess, as Plaintiff alleges. (Compl. ¶¶ 63(t),
72(n).) Rather, this language, and other language like it in the Post, is a jocular parallel to the
astonishing testimony from the criminal trial, with Mystal poking fun at himself.

7

4.

Plaintiff has not adequately alleged that the Post is defamatory.
a) Plaintiff does not plead facts that support a claim for defamation per
se.

A plaintiff alleging defamation per se must plead that the statements at issue fall into one
or more of five categories: “(1) words that impute a person has committed a crime; (2) words
that impute a person is infected with a loathsome communicable disease; (3) words that impute a
person is unable to perform or lacks integrity in performing her or his employment duties;
(4) words that impute a person lacks ability or otherwise prejudices that person in her or his
profession; and (5) words that impute a person has engaged in adultery or fornication.” Solaia,
221 Ill. 2d at 579-80. Even on his fifth try, Plaintiff does little more than recite the per se
categories of speech that he believes apply to his claims. (Compl. ¶ 171.) Without more, this
claim still fails.
Plaintiff cannot plausibly assert that he has been defamed due to accusations of criminal
wrongdoing because he was criminally charged. See Hahn v. Konstanty, 684 N.Y.S. 2d 38, 39
(N.Y. App. Div. 1999) (holding that alleged inaccuracies in reporting of criminal proceedings
were not defamatory per se, where plaintiffs were in fact charged with a crime); Schaefer v.
Hearst Corp., 5 Media L. Rep. (BNA) 1734, 1736 (Md. Super. Ct. 1979) (same). Plaintiff
admits that cyberstalking and harassment charges were filed against him and were not dismissed
until seven months after his trial. (Compl. ¶¶ 51, 53.) He also admits there was at least one
complainant. (see, e.g., Compl. ¶ 50.) Instead, he asserts that the Post inaccurately infers that at
the time of the incident, Plaintiff had a criminal record, that there was more than one victim, or
that he was otherwise dangerous. (Compl. ¶¶ 63(i); 72(a).)
Nonetheless, the article is substantially true and its overall “gist” is accurate. To make
this determination, courts “look at the highlight of the Post, the pertinent angle of it, and not to

8

items of secondary importance which are inoffensive details, immaterial to the truth of the
defamatory statement.” Gist v. Macon Cnty. Sheriff’s Dep’t, 284 Ill. App. 3d 367, 371 (4th Dist.
1996) (internal quotation marks and citation omitted). Unquestionably, the overall thrust of the
Post is to describe the events of the first day of Plaintiff’s criminal trial, which account is
supported by the trial transcripts. Any minor inaccuracies (including, for example, the timing of
the availability on the internet of information about Plaintiff's criminal case) are immaterial—
particularly when these “inaccuracies” contain substantively correct information already
admitted by Plaintiff.
The remaining alleged categories—that Plaintiff cannot perform his employment duties
or otherwise is prejudiced in his profession—have no factual support in the pleadings. The Post
never mentions or even suggests Plaintiff’s ability as an attorney. Although Plaintiff concludes
that he was affected professionally, Federal Rule of Civil Procedure 8(a) still requires “a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). A claim simply cannot go forward when no facts are alleged. Iqbal, 556 U.S. at 678
(citing and quoting Twombly, 550 U.S. at 555, 557). Plaintiff fails to allege facts to support his
conclusory inference that the Post impugned his ability as a lawyer. Without anything more,
Plaintiff cannot sustain a defamatory per se claim.
b) Plaintiff has not alleged special damages as required for defamation
per quod.
Unlike defamation per se, defamation per quod requires special damages to be “set forth
with particularity.” Schaffer v. Zekman, 196 Ill. App. 3d 727, 733 (1st Dist. 1990). Even on his
fifth attempt, Plaintiff still fails to meet this requirement. “[U]nderlying the strict pleading rule
in libel per quod cases is the need of the courts to be able to dismiss groundless defamation cases
at an early stage of the litigation.” Spelson v. CBS, Inc., 581 F. Supp. 1195, 1201-02 (N.D. Ill.

9

1984). This rule applies in federal court pursuant to Rule 9(g) and should be utilized here. See
Spelson, 581 F. Supp. at 1201 (“[T]he allegation of special damage must be explicit.”) (quotation
omitted).
Although the Plaintiff includes more paragraphs related to “damages” in the latest
Complaint, (see Compl. ¶¶ 184, 186), he simply adds to the laundry list of general allegations
that he previously pled. In fact, Plaintiff essentially only pleads that the “special damages” he
has incurred are “damage to business, trade, profession and occupation . . . in a sum to be
determined at time of trial,” and “the loss of his professional reputation.” (Compl. ¶¶ 197, 20102.) “General allegations, such as damage to an individual’s health or reputation, economic loss,
and emotional distress, are insufficient to support an action per quod.” Schaffer, 196 Ill. App. 3d
at 733. See Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 270 (7th Cir. 1983).
Nor can Plaintiff meet his pleading burden by alleging, for all of his counts, that he
“suffered a loss of reputation and business” and, because of the Post, has seen “a decline in
prospective business, loss of job or economic opportunity, loss of clients, and business deals.”
(Compl. ¶¶ 163-65.) These allegations are still too vague to survive. Plaintiff must allege facts
which, if proven, would sufficiently show that he suffered concrete, pecuniary harm. Maag v.
Ill. Coal. for Jobs, Growth & Prosperity, 368 Ill. App. 3d 844, 853 (5th Dist. 2006). Case law is
well established that such conclusory allegations of declines in business or opportunities simply
are not specific enough to plead special damages. See, e.g., Salamone v. v. Hollinger Int’l, Inc.,
347 Ill. App. 3d 837, 843-44 (1st Dist. 2004) (collecting cases rejecting similar allegations as
insufficient to plead special damages, including loss of professional reputation, livelihood, and
potential customers).

10

Because Plaintiff has not alleged defamation per se and has not alleged special damages
to support a claim of defamation per quod, the Court should dismiss his defamation claims
against the ATL Defendants.
5.

Plaintiff inappropriately bases his claim on statements that are not
defamatory, about him, or actually contained in the Post.

Many of Plaintiff’s allegations concerning the Post cannot support a claim for defamation
or any other theory of recovery. First, many of the statements that Plaintiff identifies clearly
would not “tend[ ] to cause such harm to [Plaintiff’s] reputation . . . that [they] lower[] [Plaintiff]
in the eyes of the community or deter[] third persons from associating with him.” Parker v.
House O’Lite Corp., 324 Ill. App. 3d 1014, 1020 (1st Dist. 2001). (See, e.g., Compl. ¶ 72(m)
(complaining that the Post identifies Plaintiff as a St. Louis-area lawyer when his address is in
Chicago).) Additionally, several of the statements that Plaintiff identifies clearly do not relate to
him. See Barry Harlem Corp. v. Kraff, 273 Ill. App. 3d 388, 391-92 (1st Dist. 1995) (affirming
dismissal where statements could be construed to refer to someone other than plaintiff). (See,
e.g., Compl. ¶¶ 63(t), 72(n) (inaccurately stating that the Post’s author’s self-deprecating joke
was a statement of fact).)
Finally, many of Plaintiff’s allegations do not accurately reflect the statements in the
Post. He largely ignores that the Post describes and comments on the testimony of Plaintiff’s
alleged victim. (Compare, e.g., Compl. ¶ 63(y) (claiming that “[s]tating and/or inferring that
Plaintiff told complainant that ‘other promotional models left’ and that Plaintiff ‘was going to
interview her’ thereby inferring that Plaintiff lured complainant under the guise of a job
interview” is an actionable statement), with Ex. C at 1 (“But the next day, the victim was running
late and called Huon. He told her to meet him at another bar, but when she got there, he told her

11

the other promotional models left, and so he was going to interview her, the victim said.”)
(emphasis added).)
B.

Plaintiff’s False Light Claim Fails For The Same Reasons As His Defamation
Claims (Count III)

Plaintiff’s claim for false-light invasion of privacy fails for the same reason as his
defamation claims. The protection for reports on government proceedings and statements of
opinion described above springs from the First Amendment and is not limited to defamation
claims. Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 227 Ill. 2d 381, 393 (2008)
(holding that language protected by the First Amendment “cannot serve as the predicate” for
defamation or false-light claims). The requirement of pleading special damages also applies to
false-light claims. Muzikowski v. Paramount Pictures Corp., 322 F.3d 918, 927 (7th Cir. 2003)
(“If the action is based on statements that are not defamatory per se, special damages too must be
pleaded.”). Accordingly, the Court should dismiss Plaintiff’s false-light claim.
C.

Plaintiff’s Intrusion Upon Seclusion Is Barred By The First Amendment And
Has Not Been Pled Properly (Count IV)

Like the defamation and false-light claims, the First Amendment precludes an allegation
of intrusion upon seclusion. As the Seventh Circuit explained, even “tabloid-style” reporting “is
entitled to all the safeguards with which the Supreme Court has surrounded liability for
defamation. And it is entitled to them regardless of the name of the tort....” Desnick v. Am.
Broad. Cos., 44 F.3d 1345, 1355 (7th Cir. 1995) (citing Hustler Magazine, Inc. v. Falwell, 485
U.S. 46 (1988) (emphasis added)). Plaintiff’s intrusion claim is based on the Post, which, as
described supra,9 is a fair report of the proceedings and protected by the First Amendment.
Constitutional issues aside, Plaintiff has not properly pled his claim. To plead intrusion
upon seclusion, the Complaint must set forth (1) an unauthorized intrusion or prying into his
9

See Section III.A.1.
12

seclusion, (2) that is offensive or objectionable to a reasonable person, (3) intrudes on a private
matter, and (4) causes anguish or suffering. Busse v. Motorola Inc., 351 Ill. App. 3d 67, 71-72
(1st Dist. 2004). If a plaintiff fails to “allege private facts, the other three elements of the tort
need not be reached.” Id. at 72. Although Plaintiff generally pleads that the ATL Defendants
have invaded his privacy, (Compl. ¶ 237), he never indicates how they did so. The Complaint is
clear that the ATL Defendants obtained their information from the Belleville News-Democrat,
which in turn obtained all of its information from Plaintiff’s public trial. (See Ex. C at 3; see
generally Ex. B.) The very nature of intrusion upon seclusion, however, is the “highly offensive
prying into the physical boundaries or affairs of another person. The basis of the tort is not
publication or publicity. Rather, the core of this tort is the offensive prying into the private
domain of another.” Lovgren v. Citizens First Nat’l Bank, 126 Ill. 2d 411, 417 (1989) (emphasis
added). Without any allegations that the ATL Defendants published private information—much
less that they actively invaded Plaintiff’s privacy to do so—Plaintiff cannot sustain this claim.
D.

Plaintiff Has Not Alleged Intentional Infliction Of Emotional Distress (Count
V)

Similarly, Plaintiff’s claim for intentional infliction of emotional distress (“IIED”) is
barred by the First Amendment and also fails to state a claim. The First Amendment protections
for fair reports of government proceedings and statements of opinion that bar Plaintiff’s
defamation and false light claims apply equally to his IIED claim. Flip Side, Inc. v. Chi. Tribune
Co., 296 Ill. App. 3d 641, 656 (1st Dist. 1990) (holding that an emotional distress count based on
the same publication as a defamation claim cannot be “treat[ed] separately”; the “same first
amendment considerations must be applied”) (citing Hustler Magazine, 485 U.S. at 56)).
Further, to the extent that the Post is not protected from liability by either constitutional
doctrine, the claim should nevertheless be dismissed because Plaintiff has not alleged conduct

13

that is so extreme and outrageous as to exceed all possible bounds of decency as is required to
state a claim for IIED. See Berkos v. Nat’l Broad. Co., 161 Ill. App. 3d 476, 496-97 (1st Dist.
1987) (listing elements of IIED claim). Courts routinely dismiss claims based on publications
for failure to allege extreme and outrageous conduct. See, e.g., Muzikowski v. Paramount
Pictures Corp., 477 F.3d 899 (7th Cir. 2007) (allegedly false portrayal of plaintiff in movie not
extreme and outrageous); Cook v. Winfrey, 141 F.3d 322, 330-31 (7th Cir. 1998) (affirming
dismissal of IIED claim based on statements that the court held properly stated a claim for
defamation). The Court should dismiss Plaintiff’s IIED claim.
E.

Plaintiff Cannot Plead Any Of The Elements Of Tortious Interference With
Prospective Economic Advantage (Count VI)

Plaintiff’s new claim for tortious interference with prospective economic advantage is
also deficient. To prevail on such a claim, the Complaint should allege that “(1) plaintiff must
have a reasonable expectancy of entering into a valid business relationship; (2) defendant must
know about this expectancy; (3) defendant must intentionally interfere with the expectancy
preventing the expectancy from ripening into a valid business relationship; and (4) defendant’s
intentional interference must injure the plaintiff.” J. Eck & Sons, Inc. v. Reuben H. Donnelley
Corp., 213 Ill. App. 3d 510, 513-14 (1st Dist. 1991) (citation omitted). “The key issue in the tort
of interference with a party's prospective economic advantage is intent. . . . ” Id. at 515.
Like the other failed claims, the Complaint is both too general and tries to force
inferences without actually pleading more than a legal conclusion. In this count, Plaintiff
essentially attempts to convert his allegations against ATL Defendants’ publication of the Post
into intent to disrupt his business. (See Compl. ¶ 263.) Such “conversion,” however, is
improper, because factual allegations regarding publication of the Posts cannot be conflated to
create inferences of intent to interfere with business expectancies. See also id. at 514-15. Intent

14

for this tort “is defendant’s knowledge of a reasonable business expectancy and defendant’s
subsequent intentional interference which prevents the expectancy from ripening into a valid
business relationship.” Id. at 515. Plaintiff has not and cannot plead either, much less both of
these elements. Instead he assumes that the ATL Defendants dissuaded Plaintiff’s prospective
business opportunities—but without saying how. Without more than a legal conclusion that the
ATL Defendants’ publication of the Post harmed him professionally, the Court must dismiss
Plaintiff’s claim.
F.

Plaintiff Does Not Adequately Allege A Conspiracy (Counts VII and VIII)

The Court should also dismiss Plaintiff’s claim of conspiracy. As an initial matter, the
claim of conspiracy cannot stand because Plaintiff has not properly alleged any other tort. See
Hurst v. Capital Cities Media, Inc., 323 Ill. App. 3d 812, 823 (5th Dist. 2001) (“Conspiracy is
not a separate and distinct tort in Illinois. . . . There is no cause of action unless an overt,
tortious, or unlawful act is done that, in absence of the conspiracy, would give rise to a claim for
relief.”).
Further, the allegations of this count are so vague as to fail to state a claim under
Twombly and Iqbal. Plaintiff generally alleges that each of the twelve named defendants “agreed
between and among themselves, and with each other, to publish the actionable and offensive
statements on the Internet” in order to invade Plaintiff’s privacy and injure his personal and
professional reputation, “in furtherance of [a] common scheme.” (Compl. ¶¶ 252-53.) That
allegation simply states elements for a claim of conspiracy and does not apprise the ATL
Defendants of any specific conduct that Plaintiff asserts gives rise to his claim. “A pleading that
offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will
not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

15

enhancement.’” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555, 557). This type of
vague pleading fails to state a claim. The Court should dismiss Plaintiff’s conspiracy claim.
G.

Illinois’s Criminal Statute Concerning Cyberstalking Does Not Apply Here
(Count IX)

Plaintiff attempts to allege a claim of cyberstalking under Illinois’s criminal stalking law,
720 ILCS 5/12-7.5. The Court should dismiss this claim because the statute does not provide a
private cause of action, the statute does not apply to the Post, and fair reports of governmental
proceedings are constitutionally protected.
This Court should not allow a private cause of action under this cyberstalking statute.
“[T]he judiciary by implying causes of action is assuming policy-making authority, a power
more properly exercised by the legislature. The court should exercise such authority with due
caution.” Galinski v. Kessler, 134 Ill. App. 3d 602, 605-06 (1st Dist. 1985) (refusing to allow
private cause of action for barratry, a petty offense under Illinois law). The ATL Defendants
have been unable to locate any cases involving private claims for cyberstalking or the related
criminal offense of stalking. See id. at 605 (noting that the court could locate no cases involving
private claims for criminal offense at issue in that case). In light of the statute’s stiff criminal
penalties and the availability of other causes of action for the type of conduct that Plaintiff has
inadequately alleged, there is no need for a civil remedy under the law. See 720 ILCS 5/127.5(b) (Cyberstalking is a Class 4 felony.); Lane v. Fabert, 178 Ill. App. 3d 698, 702-03 (4th
Dist. 1989) (holding no need for a private remedy under the Illinois Pawnbrokers’ Act where the
statute already provides large criminal penalties and because many civil causes of action address
the same type of conduct).
Additionally, the cyberstalking statute does not apply to the Post. The statute
criminalizes “a course of conduct using electronic communication directed at a specific person”

16

when the actor “knows or should know that [it] would cause a reasonable person to: (1) fear for
his or her safety or the safety of a third person; or (2) suffer other emotional distress.” 720 ILCS
5/12-7.5(a). The Post was published on a website and is not an “electronic communication
directed at a specific person.”
Plaintiff also attempts to allege a claim under subsection (a-5)(2) of the statute, alleging
that the ATL Defendants created and maintained a website that “contain[ed] harassing
statements” and “place[d] [Plaintiff] in reasonable apprehension of immediate or future bodily
harm, sexual assault, confinement, or restraint.” (Compl. ¶ 270.) This section of the statute does
not apply, as the Post does not “harass” Plaintiff, nor would any apprehension of bodily harm
caused by the Post be “reasonable.” 720 ILCS 5/12-7.5(a-5)(2); see 720 ILCS 5/12-7.5(c)(4)
(definition of harass is “to engage in a knowing and willful course of conduct directed at a
specific person that alarms, torments, or terrorizes that person”) (emphasis added).
Finally, the cyberstalking statute should not grant Plaintiff a private right of action in this
case because it would controvert the First Amendment protections of fair reports of
governmental proceedings and statements of opinion explained above. See Desnick, 44 F.3d at
1355 (finding that speech “is entitled to all the safeguards with which the Supreme Court has
surrounded liability for defamation . . . regardless of the name of the tort . . . .”); O’Donnell, 145
Ill. App. 3d at 1036 (cautioning against “self-censorship by the news media” if it “cannot report
what it sees and hears at governmental and public proceedings”). Plaintiff’s interpretation of the
cyberstalking statute would effectively prevent the press from reporting on criminal
investigations and charges—just the sort of liability that the fair report privilege is intended to
prevent.

17

IV.

CONCLUSION
WHEREFORE, the ATL Defendants respectfully request that the Court dismiss the

claims against them in Plaintiff’s Fourth Amended Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) with prejudice, and grant such further relief as is just.

Dated: January 7, 2013

Respectfully submitted,
BREAKING MEDIA, INC., f/k/a BREAKING
MEDIA, LLC, DAVID LAT, ELIE MYSTAL,
JOHN LERNER, and DAVID MINKIN
By:

Steven P. Mandell (ARDC #6183729)
Steven L. Baron (ARDC #6200868)
Elizabeth A.F. Morris (ARDC #6297239)
MANDELL MENKES LLC
One North Franklin, Suite 3600
Chicago, IL 60606
Telephone: [phone]
Facsimile: [phone]

18

/s/ Steven P. Mandell
One of their attorneys

j

9

9
9 9 9

9

9

9 9 9

R OC

Key:
F = Fair report
OC = Not of and concerning Plaintiff
O = Opinion / rhetorical hyperbole I = Innocent construction
P = Not per se
X = Not stated in the Post
R = Not tending to harm Plaintiff’s reputation
1

63(f)

63(e)

63(d)

“Stating and/or inferring that Plaintiff
had an excellent little game to meet
women.”
“Stating and/or inferring that Plaintiff
allegedly listed Craigslist ads where he
claimed to be a talent scout for models
thereby inferring that Plaintiff is a sexual
predator.”
“Stating and/or inferring that Plaintiff
told lies and is a liar.”
“Stating and/or inferring that Plaintiff is
dastardly.”

9 9

“Stating and/or inferring that Plaintiff is
wanton and depraved.”

63(b)

63(c)

9

“Stating and/or inferring that Plaintiff is
an attorney rapist.”

63(a)

F O P

Allegation

Paragraph

9

9 “But Huon’s potentially harmless lies
allegedly turned dastardly, pretty
9 quickly”

X

The Post actually states...
“We cover the rape allegations of the
9 9 rich and famous, as well as any alleged
attorney rapists near you…”
“Our next story from the files of the
9 wanton and depraved is a little more in
our wheelhouse.”

I

194-200

194-200

Trans.

This chart lists each of Plaintiff’s allegations of defamatory statements, then indicates which of the ATL Defendants’ arguments applies to
that allegation. The key at the bottom of each page explains the abbreviations. Where applicable, the chart quotes the portion of the Post to
which the allegation refers to demonstrate that the Complaint does not accurately describe the Post, or cites to pages of the transcript of
Plaintiff’s trial that demonstrate the applicability of the fair report privilege.

9

“Stating and/or inferring that Plaintiff
fondled the complainant and forced her
to perform oral sex on him.”

63(l)

9

Key:
F = Fair report
OC = Not of and concerning Plaintiff
O = Opinion / rhetorical hyperbole I = Innocent construction
P = Not per se
X = Not stated in the Post
R = Not tending to harm Plaintiff’s reputation
2

9 9 9

63(k)

Allegation
F O P R OC
“Stating that the complainant is a
‘victim’ of Plaintiff thereby inferring that
9
the complainant was actually criminally
assaulted by Plaintiff.”
“Stating that the complainant responded
to a Craigslist ad posted by Plaintiff in
9
9
late June seeking promotional models
thereby inferring that Plaintiff is some
kind of sexual predator.”
“Stating that if the complainant had
Googled Plaintiff’s name, she would
have found other stories in the Madison
9
County Record and other sites inferring
that Plaintiff had a criminal record, that
there was more than one woman victim
or was otherwise dangerous.”
“Stating that Mr. Huon was posing as a
supervisor for a company that sets up
9
9
promotions for alcohol sales at area
bars.”

“Stating and/or inferring that Plaintiff is
a potential rapist and/or ‘depraved dude’
walking around who is a potential
rapist.”

63(j)

63(i)

63(h)

63(g)

Paragraph

I
Quoting Belleville News-Democrat
website: “The victim said she
responded to a Craigslist ad posted by
Huon in late June, seeking promotional
models, sending her resume, her phone
number and two pictures of herself…”

The Post actually states...

“Of course, women shouldn’t have to
assume that every guy they meet is a
9 potential rapist. But apparently there are
a lot of depraved dudes walking around
out there that are potential rapists.”
Quoting Belleville News-Democrat
website: “As the car was moving, Huon
9 fondled the woman, then forced her to
perform oral sex on him, the victim
said.”

X

222-25

e.g., 208

194-200

Trans.

“Stating that the complainant hurled
herself out of a moving vehicle thereby
inferring that she was assaulted and/or in
danger of being assaulted by Plaintiff.”
“Stating and/or inferring that Plaintiff
has committed rape.”

“Stating and/or inferring that Plaintiff
lied to the complainant about a job and
his intentions to lure her into a car.”

Allegation
“Stating that a photograph of the
complainant showed bruised knees,
skinned feet and cut toes, thereby
inferring that Plaintiff caused physical
harm to the complainant.”

9

9 9

9 9

9

9

F O P

R OC

Key:
F = Fair report
OC = Not of and concerning Plaintiff
O = Opinion / rhetorical hyperbole I = Innocent construction
P = Not per se
X = Not stated in the Post
R = Not tending to harm Plaintiff’s reputation
3

63(p)

63(o)

63(n)

63(m)

Paragraph

I

9

X

“If you can’t get a woman to
consensually stay in a moving vehicle,
can you really get her to consensually
agree to sex (insofar as lying to her
about your job and your intentions to get
her into the car counts as consensual in
the first place)?”
“So we’re not denying that she hurled
herself out of a moving vehicle, we’re
contending that she jumped out of the
car to make it look like she was raped?”

The Post actually states...

231-32

233-36

Trans.

9

9

“Stating and/or inferring that Plaintiff is
chronically lonely, was desirous of a hot
body, sought amorous undulations and
has or would have sexual relations with a
barnyard animal.”

“Stating and/or inferring that Plaintiff
requires a consent form in order to have
sex.”

“Starting and/or inferring that Plaintiff
had raped the complainant in ‘breaking
rape coverage’ on the date that he was
acquitted of sexual assault charges.”

63(q)

63(r)

63(s)

9

9

9

R OC

Key:
F = Fair report
OC = Not of and concerning Plaintiff
O = Opinion / rhetorical hyperbole I = Innocent construction
P = Not per se
X = Not stated in the Post
R = Not tending to harm Plaintiff’s reputation
4

F O P

Allegation

Paragraph

X

The Post actually states...
“It seems to me that there is entirely too
much (alleged) raping going on in this
country. If this keeps up, men and
women are going to have to start
carrying around sexual consent forms on
their persons:

“Here at ATL, we’re your one-stop shop
for breaking rape coverage. We cover
9 9 the rape allegations of the rich and
famous, as well as any alleged attorney
rapists near you…”

9 9

I, the undersigned, being of sound mind
and hot body, do hereby consent to
affixing my ___ to the other party’s
9 9
____. Such amorous undulations
include, but are not limited to, ___, ___,
and ___, all proposals will be considered
so long as no animals (barnyard or
otherwise) are involved. I claim nor
rights to future ____, ____, or ____, in
exchange for this brief interruption in
my chronic loneliness. While I may be
quite intoxicated right now, I know
damn well what I’m doing.”

I

Trans.

9 9

“Stating and/or inferring that ‘This is
gonna end badly’ thereby inferring that
the allegations of rape are credible.”

63(z)

9 9

9 9

Key:
F = Fair report
OC = Not of and concerning Plaintiff
O = Opinion / rhetorical hyperbole I = Innocent construction
P = Not per se
X = Not stated in the Post
R = Not tending to harm Plaintiff’s reputation
5

9

63(y)

9

9

9

9

R OC

9 9

F O P

“Stating and/or inferring that Plaintiff
told complainant that ‘other promotional
models left’ and that Plaintiff ‘was going
to interview her’ thereby inferring that
Plaintiff lured complainant under the
guise of a job interview.”

63(x)

63(w)

“Stating and/or inferring that Plaintiff
was a sex offender or sexual predator.”
“Stating and/or inferring that Plaintiff
was a pedophile.”
“Stating and/or inferring that Plaintiff
used the Internet to meet women for
sex.”

63(u)

63(v)

“Stating and/or inferring that Plaintiff’s
acts or conduct was more depraved and
wanton than raping a 15 year-old girl.”

63(t)

Allegation

“Stating and/or inferring that the
complainant is a minor or bubble-gum
princess.”

Paragraph

9

9

X

Quoting Belleville News-Democrat
website: “But the next day, the victim
was running late and called Huon. He
told her to meet him at another bar, but
when she got there, he told her the other
promotional models left, and so he was
going to interview her, the victim said.”

The Post actually states...
“I once pretended to be an Ostrich
rancher from sub-Saharan Africa
9 9
because I was trying to impress bubble
gum princesses at a BU party.”
The Post contains two stories about rape
allegations. The first involves New York
9
Giants linebacker Lawrence Taylor’s
alleged rape of a fifteen-year-old girl.

I

e.g.,
201, 204,
207

194-200

Trans.

Allegation
F O P R OC
“Stating and/or inferring that ‘Oh, come
on. If somebody was driving and tried to
“force” me to perform oral sex on them,
9 9 9
I’d just get out of the stupid car. Which
is to say, I’d do exactly what the victim
did in this case,’ thereby improving the
credibility of the defamation.”
“Stating and/or inferring that the jury
was allowed to consider the defense of
rape in their deliberations: ‘Damn. If
you can’t get a woman to consensually
stay in a moving vehicle, can you really
9 9
get her to consensually agree to sex
(insofar as lying to her about your job
and your intentions to get her into the car
counts as consensual in the first place)?
Obviously, Huon sees things
differently.’”
“Stating and/or inferring that ‘It seems to
me that there is entirely too much
(alleged) raping going on in this
9
country,’ thereby inferring that Plaintiff
got away with rape and improving the
credibility of the rape charges on the date
of Mr. Huon’s acquittal.”
Omitted that “[t]he complainant that is
9 9
the subject of all the news articles is the
same woman.”

Key:
F = Fair report
OC = Not of and concerning Plaintiff
O = Opinion / rhetorical hyperbole I = Innocent construction
P = Not per se
X = Not stated in the Post
R = Not tending to harm Plaintiff’s reputation
6

72(a);
see 82, 85

63(cc)

63(bb)

63(aa)

Paragraph

I

9

X

The Post actually states...

156

222-25

Trans.

1

Allegation
Omitted that “[t]he jury was not allowed
to consider the consent defense, because
Mr. Huon did not testify and the trial
judge barred the consent defense before
closing arguments. Thus, the jury had to
have found that no sexual contact took
place.”
Omitted that “[t]he complainant
sustained minor injuries from walking or
running in a cornfield.”
Omitted that “[t]here was no evidence of
a Craigslist ad for a job for promotional
modeling.”
Omitted that “[t]here was no evidence
that Mr. Huon represented himself as a
talent scout.”
Omitted that “[t]he video evidence at
trial showed Mr. Huon, dressed in shorts,
on a Sunday afternoon with the
complainant, in a bar.”
Omitted that “[t]here was no DNA
evidence of semen and the complainant
never went to the hospital.”
Omitted that “[t]he detectives never
interviewed the two key witnesses at the
scene who testified at trial that the
complainant gave different versions of
the alleged incident.”
9 9

9
9 9
9

9 9

9 9

9 9

9
9
9

9

9

9

R OC

9

F O P

I

X

The Post actually states...

194-200

196

156

Trans.

Plaintiff has two paragraphs marked as 72(f). Therefore, in the chart, the first one has been marked as 72(f)(1) and the second as 72(f)(2).
Key:
F = Fair report
OC = Not of and concerning Plaintiff
O = Opinion / rhetorical hyperbole I = Innocent construction
P = Not per se
X = Not stated in the Post
R = Not tending to harm Plaintiff’s reputation
7

72(g)

72(f)(2)

72(f)(1)1

72(e)

72(d)

72(c)

72(b)

Paragraph

Allegation
Omitted that “[t]he detectives asked the
complainant to call Mr. Huon to arrange
a private meeting and to ask for money.”
Omitted that “[t]he complainant had
gone drinking with Mr. Huon at several
bars for hours.”
Omitted that “[t]here was no physical
evidence presented that the complainant
jumped out of a moving car.”
Omitted that “[t]here was no evidence of
force presented at trial. The police report
stated that complainant alleged that Mr.
Huon raised his voice but that Mr. Huon
never threatened the complainant.”
Omitted that “[t]he photograph of the
complainant showed no injuries (besides
from her walking in a cornfield barefoot)
and showed her clothes to be completely
intact with no tears.”
Omitted that “Mr. Huon is not a St.
Louis-area lawyer. He was a financial
advisor for St. Louis-based Edward
Jones Investments at the time of the
alleged incident.”
Omitted that “[t]he complainant was 26
years old at the time of the alleged
incident and not a minor or bubble gum
princess.”
9 9
9 9

9 9

9 9

9
9

9

9

9 9

9 9

9 9

9

R OC

9

F O P

Key:
F = Fair report
OC = Not of and concerning Plaintiff
O = Opinion / rhetorical hyperbole I = Innocent construction
P = Not per se
X = Not stated in the Post
R = Not tending to harm Plaintiff’s reputation
8

72(n)

72(m)

72(l)

72(k)

72(j)

72(i)

72(h)

Paragraph

I

X

The Post actually states...

233-36

e.g.,
224, 231

231-32

Trans.

Allegation
Omitted that “[t]he complainant’s
boyfriend was arrested in 2008 and
convicted and sentenced in 2009 in
Federal Court in St. Louis, Missouri for
possession and intent to distribute
cannabis.”
Omitted that “Mr. Huon was not charged
with ‘rape’ to the extent that he was not
charged with forcing the complainant to
have vaginal sexual intercourse by penile
penetration.”
Omitted that “[t]he complainant made
conflicting statements to two key
witnesses—who were never interviewed
by the detectives.”
“Defendants omitted that Mr. Huon had
been acquitted on May 6, 2010.”
“Defendants defamed Mr. Huon and
placed him in a false light by
inaccurately reporting his defense
attorney’s opening argument.
Defendants omitted that Mr. Huon’s
defense counsel was relying on
information contained in the police
report that was replete with false
statements and that opening argument is
not a statement of the facts.”
9

9

9

9

9

9

9

R OC

9 9

F O P

Key:
F = Fair report
OC = Not of and concerning Plaintiff
O = Opinion / rhetorical hyperbole I = Innocent construction
P = Not per se
X = Not stated in the Post
R = Not tending to harm Plaintiff’s reputation
9

73

72(r)

72(q)

72(p)

72(o)

Paragraph

I

X

The Post actually states...

149-161

Trans.

Allegation
“Defendants created the following
consent form which further defamed Mr.
Huon and placed him in a false light:
‘I, the undersigned, being of sound mind
and hot body, do hereby consent to
affixing my ___ to the other party’s
____. Such amorous undulations
include, but are not limited to, ___, ___,
and ___, all proposals will be considered
so long as no animals (barnyard or
otherwise) are involved. I claim nor
rights to future ____, ____, or ____, in
exchange for this brief interruption in my
chronic loneliness. While I may be quite
intoxicated right now, I know damn well
what I’m doing.”
“The consent form defames Mr. Huon
and places him in a false light in that it
suggests that he has ‘chronic loneliness,’
was seeking a ‘brief interruption’ for a
‘hot body’ from anyone other than a
‘barnyard’ animal.”
“The consent form defames Mr. Huon
and places him in a false light in that he
is intimated as a rapist who needs to use
a consent form.”
9

9

9

9

9

R OC

9

F O P

Key:
F = Fair report
OC = Not of and concerning Plaintiff
O = Opinion / rhetorical hyperbole I = Innocent construction
P = Not per se
X = Not stated in the Post
R = Not tending to harm Plaintiff’s reputation
10

76

75

74

Paragraph

X

9 9

9 9

9

I

The consent form is preceded by the
following: “It seems to me that there is
entirely too much (alleged) raping going
on in this country. If this keeps up, men
and women are going to have to start
carrying around sexual consent forms on
their persons.”

The Post actually states...

Trans.

Allegation
“The consent form defames Mr. Huon
and places him in a false light in that the
trial judge barred the consent defense
and Mr. Huon’s defense attorneys were
barred from arguing consent. Consent
was not a defense submitted to the jury
for their deliberation.”
“Defendants omitted that when Mr.
Huon asked the newspapers to remove
the false and defamatory statements, a
reporter contacted Mr. Huon’s defense
attorneys to complain during trial,
adversely affecting relationship with his
defense attorney.”
9

9

9

R OC

9 9

F O P

Key:
F = Fair report
OC = Not of and concerning Plaintiff
O = Opinion / rhetorical hyperbole I = Innocent construction
P = Not per se
X = Not stated in the Post
R = Not tending to harm Plaintiff’s reputation
11

80

77

Paragraph

X

9 9

I

The Post actually states...

Trans.

CERTIFICATE OF SERVICE
The undersigned, an attorney, hereby certifies that a true and correct copy of the
foregoing MEMORANDUM IN SUPPORT OF ABOVE THE LAW DEFENDANTS’
MOTION TO DISMISS PLAINTIFF’S FOURTH AMENDED COMPLAINT has been
served on January 7, 2012 via the Court’s CM/ECF system on all counsel of record who have
consented to electronic service.
Any other counsel of record will be served by electronic mail and regular mail.

/s/ Steven P. Mandell

#201852.7

l