Huon v. Breaking Media et al

Filing 49

MEMORANDUM by Abovethelaw.com, Breaking Media, Breakingmedia.com, David Lat, John Lerner, David Minkin, Elie Mystal in support of motion to dismiss 35 (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Mandell, Steven)

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

MEANITH HUON,
Plaintiff,
v.
ABOVETHELAW.COM, DAVID LAT, ELIE
MYSTAL, BREAKINGMEDIA.COM, JOHN
LERNER, DAVID MINKIN, BREAKING MEDIA,
JOHN DOES 1 to 100, GAWKER MEDIA a/k/a
GAWKER.COM, JEZEBEL.COM, NICK DENTON,
IRIN CARMON, GABY DARBYSHIRE, JOHN
DOES 101 to 200, LAWYERGOSSIP.COM, JOHN
DOE NO. 201, NEWNATION.ORG a/k/a
NEWNATION.TV a/k/a NEW NATION NEWS, and
JOHN DOE NOS. 401, 402, and 403,
Defendants.

)
)
)
)
) Case No. 11-cv-03054
)
) Judge Aspen
)
) Magistrate Judge Gilbert
)
)
)
)
)
)
)
)
)

MEMORANDUM IN SUPPORT OF ABOVE THE LAW DEFENDANTS’
MOTION TO DISMISS PURSUANT TO RULE 12(b)(6)

TABLE OF CONTENTS
TABLE OF AUTHORITIES ..........................................................................................................ii
I.

COMPLAINT.......................................................................................................................1

II.

ARGUMENT........................................................................................................................2
A.

Plaintiff’s Defamation And False Light Claims Fail As A Matter Of Law...............2
1.

The Post provides a fair report of judicial proceedings. ................................2

2.

The Post is not defamatory per se and Plaintiff has not alleged special
damages..........................................................................................................5

3.

Plaintiff cannot base his claim on statements that could not be harmful,
are not about him, or are not actually contained in the Post. .........................6

4.

The attached chart addresses each of Plaintiff’s allegations..........................7

B.
C.

Plaintiff Has Not Alleged Intentional Infliction Of Emotional Distress....................8

D.

Illinois’s Criminal Statute Concerning Cyberstalking Does Not Apply Here...........9

E.
III.

Plaintiff’s False Light Claim Fails For The Same Reason As His Defamation
Claim..........................................................................................................................7

Plaintiff Does Not Adequately Allege A Conspiracy ..............................................10

CONCLUSION ..................................................................................................................11

i

TABLE OF AUTHORITIES
Cases
Ashcroft v. Iqbal,
129 S. Ct. 1937 (2009).............................................................................................................. 11
Barry Harlem Corp. v. Kraff,
273 Ill. App. 3d 388 (1st Dist. 1995) .......................................................................................... 7
Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007).................................................................................................................. 11
Berkos v. Nat’l Broad. Co.,
161 Ill. App. 3d 476 (1st Dist. 1987) .......................................................................................... 8
Brown & Williamson Tobacco Corp. v. Jacobson,
713 F.2d 262 (7th Cir. 1983) ...................................................................................................... 6
Cook v. Winfrey,
141 F.3d 322 (7th Cir. 1998) ...................................................................................................... 8
Desnick v. Am. Broad. Cos., Inc.,
44 F.3d 1345 (7th Cir. 1995) .................................................................................................... 10
Eubanks v. Northwest Herald Newspapers,
397 Ill. App. 3d 746 (2d Dist. 2010)........................................................................................... 8
Galinski v. Kessler,
134 Ill. App. 3d 602 (1st Dist. 1985) .......................................................................................... 9
Hahn v. Konstanty,
684 N.Y.S.2d 38 (N.Y. App. Div. 1999) .................................................................................... 5
Horowitz v. Baker,
168 Ill. App. 3d 603 (3d Dist. 1988)........................................................................................... 4
Hurst v. Capital Cities Media, Inc.,
323 Ill. App. 3d 812 (5th Dist. 2001)........................................................................................ 10
Hustler Magazine v. Falwell,
485 U.S. 46 (1988)...................................................................................................................... 8
Imperial Apparel v. Cosmo’s Designer Direct,
227 Ill. 2d 381 (2008) ................................................................................................................. 7
Lane v. Fabert,
178 Ill. App. 3d 698 (4th Dist. 1989).......................................................................................... 9

ii

Muzikowski v. Paramount Pictures Corp.,
322 F.3d 918 (7th Cir. 2003) ...................................................................................................... 8
O’Donnell v. Field Enters., Inc.,
145 Ill. App. 3d 1032 (1st Dist. 1986) .......................................................................... 2, 3, 4, 10
Parker v. House O’Lite Corp.,
324 Ill. App. 3d 1014 (1st Dist. 2001) ........................................................................................ 6
Ray v. City of Chicago,
629 F.3d 660 (7th Cir. 2011) ...................................................................................................... 3
Schaefer v. Hearst Corp.,
5 Media L. Rep. (BNA) 1734 (Md. Super. Ct. 1979)................................................................. 5
Schaffer v. Zekman,
196 Ill. App. 3d 727 (1st Dist. 1990) .......................................................................................... 6
Solaia Tech., LLC v. Specialty Publ’g Co.,
221 Ill. 2d 558 (2006) ......................................................................................................... 2, 3, 5
Spelson v. CBS, Inc.,
581 F. Supp. 1195 (N.D. Ill. 1984) ............................................................................................. 6
United States v. Hope,
906 F.2d 254 (7th Cir. 1990) ...................................................................................................... 3
Venture Assocs. Corp. v. Zenith Data Sys. Corp.,
987 F.2d 429 (7th Cir. 1993) ...................................................................................................... 3
Statutes
720 ILCS 5/12-7.5 ................................................................................................................ 2, 9, 10
Other Authorities
Restatement (Second) of Torts
§ 611, cmt. f, at 300 (1977)......................................................................................................... 3

iii

Plaintiff has brought a voluminous multi-count complaint against a web-based
publication, AboveTheLaw.com, and related parties because the website publicized Plaintiff’s
acquittal on sexual assault charges. Plaintiff essentially claims that the websites defamed him
because they referred to a neutral news report of his trial rather than presenting Plaintiff’s own
view of the case. Plaintiff’s defamation and related claims fail because such reporting on
government proceedings is privileged from liability under the First Amendment. Further, Above
The Law’s commentary on the news article is also protected from liability as an expression of
opinion. Plaintiff’s defamation claim also fails because he has alleged only defamation per quod
and not defamation per se, and has not alleged special damages. These doctrines and numerous
other legal principles bar Plaintiff’s frivolous claims.
I.

COMPLAINT
Plaintiff Meanith Huon (“Plaintiff”) alleges six claims against the ATL Defendants1

based on a May 6, 2010, post (“Post”)2 on the website AboveTheLaw.com, a blog that covers
topics of interest to lawyers and law students.3
Among other things, the Post quotes from and provides commentary on a newspaper
article concerning the first day of Plaintiff’s trial on sexual assault charges and also includes the

1

The ATL Defendants are Breaking Media, LLC (erroneously sued as AboveTheLaw.com,
BreakingMedia.com, and Breaking Media), David Lat, Elie Mystal, John Lerner, and David
Minkin. John Lerner, the CEO of Breaking Media, LLC, was not with the company at the time
when the Post was published.
2
Portions of the Post are attached to the Second Amended Complaint (“Complaint”) as Exhibit
A. Attached hereto as Exhibit A is a complete and more easily readable version of the Post’s
text, but it differs from the version attached to the Complaint in that 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.
3
The Second Amended Complaint is the current version of the complaint. Plaintiff twice
amended the complaint before any defendants filed a response.

commentary of the Post’s author, Elie Mystal. The Post links to and quotes from an article about
the first day of Plaintiff’s trial on the website of the Belleville News-Democrat.
Plaintiff claims that the Post is actionable because it both omits and misstates information
about the trial. Plaintiff’s allegations in this regard, which are mainly listed in Paragraphs 24 and
25 of the Second Amended Complaint, are voluminous and will be discussed in further detail in
the Argument section below and in the chart at the end of this brief.
Plaintiff alleges not only defamation and false-light invasion of privacy but also
cyberstalking (under Illinois’s criminal law, 720 ILCS 5/12-7.5) and conspiracy. The alleged
conspiracy apparently includes Jezebel.com, a blog whose current tagline is “Celebrity, Sex,
Fashion for Women”; LawyerGossip.com, an apparently defunct website whose last post is dated
March 1, 2010; and NewNation.org, an explicitly racist website that collects news stories
concerning crimes perpetrated by members of ethnic minority groups.
II.

ARGUMENT
A.

Plaintiff’s Defamation And False Light Claims Fail As A Matter Of Law
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
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

2

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. A report need not be a “complete report of the proceedings”
to be privileged “so long as it is a fair abridgment” or “substantially correct account” of the
proceedings. Id. at 589 (quoting Restatement (Second) of Torts § 611, cmt. f, at 300 (1977));
O’Donnell, 145 Ill. App. 3d at 1036.
To evaluate the fair report privilege, the Court may take judicial notice of the transcript of
the first day of Plaintiff’s trial, the relevant portions of which are attached hereto as Exhibit B.4
See Ray v. City of Chicago, 629 F.3d 660, 665 (7th Cir. 2011) (“[D]istrict courts may take
judicial notice of certain documents—including records of administrative actions—when
deciding motions to dismiss.”); Venture Assocs. Corp. v. Zenith 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). If the Court finds that such a procedure is not proper, the ATL Defendants
respectfully request that the Court convert this motion to a summary judgment motion under
Rule 12(d), because this is a simple legal issue that can resolve this case at an early stage and
because no further evidence will be relevant to evaluate the fair report privilege.
The trial transcript establishes that the fair report privilege applies to the Post, and it
demonstrates that Plaintiff takes a broad view in the Complaint of what information should be
deemed defamatory. 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
4

Exhibit B omits voir dire at pages 7 through 125 but is otherwise a complete transcript of
proceedings on May 4, 2010.
3

alleged victim was consensual, and the trial transcript demonstrates that to be true. (See Ex. A 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.”).) Plaintiff alleges that the Post “intentionally omitted” that “[t]he jury
was not allowed to consider the consent defense,” but it is clear that the actual statements of the
Post reflect an accurate report of what occurred at the trial. (Compl. ¶ 24(b).) Similarly, the
quoted newspaper account states that the alleged victim had responded to a Craigslist ad that
Plaintiff posted seeking promotional models, and again the trial transcript confirms that. (See
Ex. A at 1; Ex. B at 196-200.) Plaintiff alleges that “[t]here was no evidence of a Craigslist ad
for a job for promotional modeling,” apparently intending some narrow meaning of the word
“evidence” that is unrelated to the statements in the Post.
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
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 – discussion of the newspaper report on the trial that does not assert any additional facts
about the trial. (See Ex. A at 1 (“Our next story from the files of the wanton and depraved”;

4

“Huon’s potentially harmless lies allegedly turned dastardly, pretty quickly”).) Such statements
are protected opinion or mere rhetorical hyperbole.
2.

The Post is not defamatory per se and Plaintiff has not alleged special
damages.

Plaintiff’s defamation claim also fails because he has alleged only defamation per quod,
not per se, and has not alleged special damages.
A plaintiff alleging defamation per se need not allege special damages. Five categories
of statements are defamatory per se: “(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.
Plaintiff has not alleged defamation per se, although that is how he designates Count IV
of the Complaint. In that count, Plaintiff does not specify which of the defamation per se
categories the statements fall under, but he presumably relies on the first category listed above –
that the Post “impute[s] that [he] committed a crime.” In fact, however, Plaintiff does not deny
that he was charged with multiple counts of sexual assault and cyberstalking and went to trial; he
only claims that it was inaccurate to state or suggest that those charges stemmed from complaints
from more than one woman. (Compl. ¶ 24(a).) This claimed inaccuracy is not defamatory per
se. See Hahn v. Konstanty, 684 N.Y.S.2d 38 (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).

5

Because Plaintiff has not alleged defamation per se, he must allege defamation per quod,
which requires that he plead and prove special damages. “[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.
1984). This rule applies in federal court pursuant to Rule 9(g). See Spelson, 581 F. Supp. at
1201 (“[T]he allegation of special damage must be explicit.”) (quotation omitted).
Plaintiff has not met his pleading burden for a claim of defamation per quod because he
has not alleged special damages. “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 v. Zekman, 196 Ill. App. 3d 727, 733 (1st Dist. 1990). Plaintiff generally states
that he has incurred “special damages,” “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. Count I ¶ 114, Count III ¶¶ 115, 119.) Such general statements are not
sufficient allegations of special damages. See Brown & Williamson Tobacco Corp. v. Jacobson,
713 F.2d 262, 270 (7th Cir. 1983). 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.
3.

Plaintiff cannot base his claim on statements that could not be harmful, are
not about him, or are not 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 it lowers [Plaintiff] in
the eyes of the community or deters 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. ¶ 25(c)

6

(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 are not about
Plaintiff. 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. ¶ 25(f) (inaccurately stating that the Post’s author’s self-deprecating
joke was a statement of fact about Plaintiff).)
Finally, many of Plaintiff’s allegations do not accurately reflect the statements in the
Post. Specifically, Plaintiff largely does not acknowledge that the Post describes and comments
on the testimony of Plaintiff’s alleged victim. (Compare, e.g., Compl. ¶ 25(k) (claiming that the
Post “[f]alsely report[s] that [Plaintiff and the alleged victim] agreed to meet at the downtown St
Louis bar Paddy O’s”), with Ex. A at 1 (“The two agreed to meet at the downtown St. Louis bar
Paddy O’s, the victim testified.”) (emphasis added).)
4.

The attached chart addresses each of Plaintiff’s allegations.

Because of the volume of statements at issue, for ease of reference, the ATL Defendants
are providing a summary chart at the end of this brief that indicates which of the above
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 dismiss the defamation
claims pursuant to Federal Rule of Civil Procedure 12(b)(6).
B.

Plaintiff’s False Light Claim Fails For The Same Reason As His Defamation
Claim

Plaintiff’s claim for false-light invasion of privacy fails for 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. See
Imperial Apparel v. Cosmo’s Designer Direct, 227 Ill. 2d 381, 393 (2008) (opinion); Eubanks v.

7

Northwest Herald Newspapers, 397 Ill. App. 3d 746 (2d Dist. 2010) (fair report). 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.”). The Court
should dismiss Plaintiff’s false-light claim.
C.

Plaintiff Has Not Alleged Intentional Infliction Of Emotional Distress

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. See Hustler Magazine v. Falwell, 485 U.S.
46, 53-56 (1988).
Further, to the extent that the statement in the Post are not protected from liability by
either constitutional doctrine, the claim should nevertheless be dismissed because Plaintiff has
not alleged IIED. Plaintiff has not alleged conduct 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.

8

D.

Illinois’s Criminal Statute Concerning Cyberstalking Does Not Apply Here

Plaintiff alleges a claim of cyberstalking, citing 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 stiff criminal penalties
the cyberstalking statute provides and the availability of other causes of action for the type of
conduct Plaintiff claims, 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”
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

9

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. ¶ 108.) 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 be applied to 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 v. Am.
Broad. Cos., Inc., 44 F.3d 1345 (7th Cir. 1995) (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.
E.

Plaintiff Does Not Adequately Allege A Conspiracy

Finally, the Court should 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
10

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 Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
Plaintiff alleges that each of the twelve named defendants (and, presumably, the numerous “John
Does”) “agreed with another Defendant to participate in an unlawful act of cyberstalking,
cyberbullying, defaming [sic] Mr. Huon” and “performed an overt act . . . in furtherance of the
common scheme.” (Compl. ¶¶ 106-07.) 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 enhancement.’” Iqbal, 129 S. Ct. at 1949 (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.
III.

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

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

11

Dated: September 21, 2011

Respectfully submitted,
BREAKING MEDIA, LLC (erroneously sued as
AboveTheLaw.com, BreakingMedia.com, and
Breaking Media), DAVID LAT, ELIE MYSTAL,
JOHN LERNER, AND DAVID MINKIN
By: /s/ Steven P. Mandell
One of their attorneys

Steven P. Mandell (ARDC #6183729)
Steven L. Baron (ARDC #6200868)
Sharon R. Albrecht (ARDC #6288927)
MANDELL MENKES LLC
One North Franklin, Suite 3600
Chicago, IL 60606
[phone]

12

j

Allegation (emphases in original)
Omitted that “[t]he complainant that is the
subject of all the news articles is the same
woman.”
Omitted that “[t]he jury was not allowed to
consider the consent defense and, thus, the
jury found that no sexual contact took place.
The trial judge had barred the consent
defense.”
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. There 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.”

R OC X

 



 

 

 



 

F O P









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

24(f)

24(e)

24(d)

24(c)

24(b)

24(a)

Paragraph

The Post actually states...

196

156

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.

 

 





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

 

 



“Falsely labeling Mr. Huon as wanton and
depraved.”

 



25(b)

 





 

The Post actually states...

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

R OC X

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F O P

“Falsely identifying Mr. Huon as an attorney
rapist near you on the day of his acquittal.”

Allegation (emphases in original)
Omitted that “[t]he police never interviewed
witnesses at the scene who testified at trial that
the complainant gave different versions of the
alleged incident.”
Omitted that “[t]he police 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 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.”

25(a)

24(l)

24(k)

24(j)

24(i)

24(h)

24(g)

Paragraph

233-36

e.g.,
224, 231

231-32

Trans.

“Falsely reporting that the two agreed to meet
at the downtown St Louis bar Paddy O’s.”

Allegation (emphases in original)
“Falsely identifying Mr. Huon as a St. Louisarea lawyer. Mr. Huon’s address in the news
article is in Chicago and he was a financial
advisor at the time of the alleged incident.”
“Falsely reporting that Mr. Huon came up
with an excellent little game to meet
women.”
“Falsely reporting that Meanith Huon
allegedly listed Craigslist ads where he
claimed to be a talent scout for models.”
“Falsely suggesting that Mr. Huon was
targeting “bubble gum princesses at a BU
party.” The alleged complainant was 26
years old at the time of the alleged incident.”
“Falsely reporting that Mr. Huon told lies.”
“Falsely calling Mr. Huon’s actions as
dastardly.”
“Falsely reporting the complainant as a
“victim” of Mr. Huon.”
“Falsely reporting that the complainant
responded to a Craigslist ad posted by
Huon in late June, seeking promotional
models.
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R OC X

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F O P

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

25(k)

25(j)

25(i)

25(h)

25(g)

25(f)

25(e)

25(d)

25(c)

Paragraph

“I once pretended to be an Ostrich
rancher from sub-Saharan Africa
because I was trying to impress bubble
gum princesses at a BU party.”
“But Huon’s potentially harmless lies
allegedly turned dastardly, pretty
quickly”
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…”
Quoting Belleville News-Democrat
website: “The two agreed to meet at the
downtown St. Louis bar Paddy O’s, the
victim testified.”

The Post actually states...

201

194-200

194-200

194-200

Trans.

“Falsely reporting that Mr. Huon asked the
complainant if she wanted to go to Pop’s in
Sauget to meet the other models.”
“Falsely reporting that the complainant said
she didn’t have enough gas in her car, so
she went with him.”
“Falsely reporting that ‘This is gonna end
badly.’”

“Falsely calling Mr. Huon a potential rapist
and a depraved dude walking around that
are potential rapist.”

“Falsely reporting that if the complainant had
Googled Mr. Huon, she would have found
other stories in the Madison County Record
and Lawyer Gossip.”
“Falsely reporting that Mr. Huon was posing
as a supervisor for a company that sets up
promotions for alcohol sales at area bars.”

“Falsely reporting that Mr. Huon told
complainant that ‘other promotional models
left’ and that Mr. Huon ‘ was going to
interview her.’”

Allegation (emphases in original)
“Falsely reporting that Mr. Huon told
complainant to meet him at certain bars.”

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The Post actually states...
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.”

“Of course, women shouldn’t have to
assume that every guy they meet is a
 potential rapist. But apparently there are
a lot of depraved dudes walking around
out there that are potential rapists.”

R OC X

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F O P

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

25(s)

25(r)

25(q)

25(p)

25(o)

25(n)

25(m)

25(l)

Paragraph

216

215

e.g., 208

207

Trans.
e.g.,
201, 204

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The Post actually states...
Quoting Belleville News-Democrat
website: “As the car was moving, Huon
 fondled the woman, then forced her to
perform oral sex on him, the victim
said.”

R OC X

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

25(w)

25(v)

25(u)

“Falsely reporting that Mr. Huon ‘fondled the
woman, then forced her to perform oral sex
on him.’”

25(t)

F O P

“Falsely stating that Mr. Huon ‘force’ the
complainant to perform oral sex and that the
complainant jumped out of the car for that
reason. Defendants write: ‘Oh, come on. If
  
somebody was driving and tried to “force” me
to perform oral sex on them, I’d just get out
of the stupid car. Which is to say, I’d do
exactly what the victim did in this case.’”
“Falsely reporting that the photograph of the
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woman showed bruised knees, skinned feet
and cut toes.”
“Falsely reporting that the issue of consent
was an issue before the jury: ‘Damn. 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)? Obviously, Huon sees
things differently.’”

Allegation (emphases in original)

Paragraph

156

233-36

222-25

222-25

Trans.

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R OC X

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

28-29

25(aa)

25(z)

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“Falsely reporting that complainant hurled
herself out of a moving car.”

25(y)

“Falsely reporting that Mr. Huon ‘raped’ the
complainant: ‘It seems to me that there is
entirely too much (alleged) raping going on
in this country.’”
“Falsely inventing a fiction that the issue of
consent was submitted to the jury. The issue
of consent was never submitted to the jury
and, thus, the jury had to have found no sexual
contact.”
Alleges that mock consent form at the end of
the Post “suggests that he has ‘chronic
loneliness,’ was seeking a ‘brief interruption’
for a ‘hot body’ from anyone other than a
‘barnyard’ animal,” and “he is intimated as a
rapist [sic] who needs to use a consent form.”

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F O P

25(x)

Allegation (emphases in original)

“Falsely reporting that Mr. Huon lied about
his intentions or that he tried to get
complainant into the car.”

Paragraph

The Post actually states...
“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?”

156

231-32

Trans.