Huon v. Breaking Media et al

Filing 90

MEMORANDUM by Abovethelaw.com, Breaking Media, Breakingmedia.com, David Lat, John Lerner, David Minkin, Elie Mystal in support of motion to dismiss 35 - Summary of (Mandell, Steven)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
MEANITH HUON,
Plaintiff,
v.
ABOVETHELAW.COM, et al.,
Defendants.

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

SUMMARY OF THE
MEMORANDUM IN SUPPORT OF ABOVE THE LAW DEFENDANTS
MOTION TO DISMISS PURSUANT TO RULE 12(b)(6) AND ITS EXHIBITS
The ATL Defendants1 are filing this summary of their memorandum in support of their
Rule 12(b)(6) motion to dismiss ( Memorandum ) pursuant to the Court s December 5, 2011,
order.
Background. Plaintiff Meanith Huon alleges several claims against the ATL Defendants
based on a post that was published on the blog AboveTheLaw.com (the Post ). All of
Plaintiff s legal theories fail. The Post quoted and discussed a news report about Plaintiff s trial
for sexual assault. At Paragraphs 24-25 of the Second Amended Complaint, Plaintiff identifies
forty separate reasons why he believes the Post is actionable.
Defamation and false light claims. For the most part, Plaintiff disputes the accuracy of
the trial testimony that the Post describes; however, the Post s description of the trial is
privileged as a fair report of a governmental proceeding. The Post s commentary on the trial
testimony is privileged for the same reason and also as an expression of opinion and rhetorical
hyperbole. Plaintiff also fails to state a claim for defamation or false light invasion of privacy
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.

because he does not allege special damages. Finally, many of the statements that Plaintiff
identifies in Paragraphs 24-25 of his Second Amended Complaint are clearly not actionable
because they plainly do not refer to Plaintiff, would not tend to harm his reputation, or simply do
not appear in the Post at all.
Other causes of action. Plaintiff also alleges claims of intentional infliction of emotional
distress, conspiracy, and cyberstalking. The emotional distress claim fails for the same reasons
as the defamation and false light claims and also because Plaintiff does not allege extreme and
outrageous conduct. Plaintiff s cyberstalking claim is based on Illinois s criminal stalking law.
The Court should not allow a private cause of action under that statute, which at any rate would
not apply here. The Court should dismiss Plaintiff s conspiracy claim along with his other
claims and also because Plaintiff has simply recited the elements of a conspiracy claim without
alleging any facts at all.
Chart attached to Memorandum. Because of the volume of Plaintiff s allegations, the
ATL Defendants attached a chart to their Memorandum that specifies which defenses apply to
which of Plaintiff s allegations. The ATL Defendants believe that this chart will aid the Court in
considering their arguments for dismissal. For each of Plaintiff s allegations, the chart provides
the corresponding language of the Post (if any exists) and identifies the defenses that apply to
that allegation. Additionally, to the extent that any portion of the transcript of Plaintiff s trial is
relevant to consideration of an allegation, the chart lists the page of the transcript on which the
relevant testimony occurs.
Exhibit A the Post. Exhibit A to the Memorandum is a copy of the Post. Plaintiff
attached portions of the Post as an exhibit to the Second Amended Complaint, but the version
attached to the Memorandum is complete and more easily readable.

2

Exhibit B

the trial transcript. Exhibit B to the Memorandum is a copy of the transcript

of the first day of Plaintiff s trial (omitting 119 pages of voir dire that are not relevant to this
case). Names and addresses have been redacted from the transcript pursuant to Magistrate Judge
Gilbert s October 12, 2011, order. In the chart that is attached to the Memorandum, the ATL
Defendants identify the pages of the transcript relating to each of Plaintiff s allegations in this
case (as applicable). The ATL Defendants have requested that the Court take judicial notice of
the trial transcript and consider it in deciding the motion to dismiss and have requested in the
alternative that the Court convert the ATL Defendants motion to a motion for summary
judgment pursuant to Rule 12(d).

Dated: December 12, 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]

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