Black v. Wrigley et al

Filing 120

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 12/8/2017: For the reasons stated in the accompanying Memorandum Opinion and Order, the Court denies defendants' motions [dkt. nos. 83, 84, 86, 90, 92] with respect to (1) the defamation and false light claims and aiding and abetting defamation and false light claims against Wrigley, Kerr, Cohenson, and Raphan based on defendants' alleged statements that Katherine lied to the New York state court, and (2) the claim against Wrigley for intentional infliction of emotional distress, and otherwise grants the motions. Defendants are directed to answer the remainder of plaintiff's complaint by no later than January 5, 2018. Both sides' Rule 26(a)(1) disclosure are to be made by that same date. The case is set for a status hearing on January 9, 2018 at 8:45 a.m. for the purpose of setting a discovery and pretrial schedule. Counsel are directed to meet and confer prior to that date to attempt to agree on a schedule to propose to the Court. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KATHERINE BLACK,

)
)
Plaintiff,
)
)
v.
)
)
CHERIE WRIGLEY, MELISSA COHENSON, )
BRIAN A. RAPHAN, P.C., and
)
PAMELA KERR,
)
)
Defendants.
)

Case No. 17 C 101

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Plaintiff Katherine Black (Katherine) and her husband, Bernard Black (Bernard),
are law professors at Northwestern University. After Bernard's mother died in 2012, he
became involved in acrimonious litigation proceedings with his family regarding the
family members' respective inheritance claims. Defendant Cherie Wrigley is Bernard's
cousin; she has been involved in proceedings related to the family inheritance in both
Colorado and New York. Defendant Melissa Cohenson is an attorney who represented
Wrigley in a New York proceeding regarding guardianship of Bernard Black's sister,
Joanne Black. At the time she represented Wrigley, Cohenson was an associate at
defendant Brian A. Raphan, P.C., a law firm in New York City. Defendant Pamela Kerr
is a forensic accountant who was retained by one of the parties in a probate court
proceeding in Colorado concerning the inheritance.
Katherine asserts that Wrigley, Cohenson, and Kerr worked together to prevent
her from testifying as a witness or providing evidence to courts in the underlying

1

proceedings. She alleges that they did so by threatening or assisting in threatening the
physical safety of her, her husband, and her children and by making defamatory
statements about her to Northwestern. Katherine has asserted a series of tort claims
under Illinois law against each defendant. She brings claims against Wrigley and Kerr
for intentional infliction of emotional distress and against Cohenson for aiding and
abetting intentional infliction of emotional distress. Against Wrigley, Kerr, and
Cohenson, Katherine brings claims for defamation, aiding and abetting defamation,
false light, aiding and abetting false light, publication of private facts, aiding and abetting
publication of private facts, interference with contractual relations, and interference with
prospective economic advantage. In addition, Katherine asserts claims against Kerr for
intrusion upon seclusion and against Wrigley and Cohenson for aiding and abetting
intrusion upon seclusion. For every claim brought against Cohenson, Katherine also
asserts a claim against Cohenson's employer, Raphan, because she engaged in the
allegedly tortious conduct while working under Raphan's supervision and control.
Finally, Katherine asserts a claim against all defendants for civil conspiracy to engage in
the substantive torts alleged.
Defendants have moved to dismiss Katherine's complaint for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6), arguing among other things that
the alleged defamatory statements are privileged or otherwise non-actionable and that
defendants' alleged conduct is not sufficiently extreme or outrageous to hold defendants
liable for Katherine's emotional distress. The Court rules on defendants' motions in this
decision.

2

Background
Except where otherwise noted, the Court takes the following facts from
Katherine's amended complaint, documents attached to the motions to dismiss that she
refers to in the complaint and that are central to her claim, and judicial proceedings of
which the Court appropriately may take judicial notice on a motion to dismiss for failure
to state a claim. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007) (courts ruling on Rule 12(b)(6) motions to dismiss "must consider the complaint
in its entirety, as well as . . . documents incorporated into the complaint by reference,
and matters of which a court may take judicial notice."). 1
Though the complaint contains references to multiple litigation proceedings
initiated after the death of Bernard's mother, Renata, Katherine provides few details
about the specific nature of each proceeding. From court records, it appears that
Bernard filed suit in Colorado state court seeking to be appointed as conservator of his
mentally-ill sister, Joanne. See Order of Feb. 25, 2016, In re the Interest of: Joanne
Black, Case No. 12 PR 1772 (Denver Probate Court) ("DPC Order of Feb. 2016"), Ex. A
to Def. Wrigley's Mem. of Law, at 2; Black v. Black, Case No. 16 C 1763, Dkt. no. 27 at
2–3 (N.D. Ill. July 13, 2016) (Kendall, J.) ("Black v. Black Order"). In addition to that
lawsuit, it appears that Bernard has filed suit in New York state court to be appointed as
guardian of Joanne and her property. See Order to Show Cause with Temp.
1

Though a court may take judicial notice of a filing in another proceeding or
of the fact that another court ruled the way it did, this does not mean that a court ruling
on motion to dismiss may assume the truth of the matters asserted in filings or rulings
from other proceedings. See Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128
F.3d 1074, 1082 n.6 (7th Cir. 1997) ("[C]ourts generally cannot take notice of findings of
fact from other proceedings for the truth asserted therein because these findings are
disputable and usually are disputed.").
3

Restraining Order of Jan. 13, 2016, In the Matter of the Application of Cherie Wrigley for
the appointment of a Guardian of the Person and Property of Joanne Black (N.Y. Sup.
Ct., Richmond Cty.), Ex. 4 to Def. Kerr's Mem. in Supp. of Mot. to Dismiss, at 1; Black v.
Black Order at 2. Bernard has also sued Wrigley and others in at least two federal
courts in New York on matters relating to the distribution of his mother's assets. See
Black v. Wrigley, Case No. 16 C 430, at *1 (E.D.N.Y. Sept. 30, 2017), Ex. 3 to Pl.'s
Opp'n to Wrigley's Mot. to Dismiss; Black v. Dain, Case No. 16 C 1238 (E.D.N.Y.). 2
Katherine alleges that defendants' tortious conduct began when they became
aware of her intention to testify or otherwise provide evidence against them in one or
more of the court proceedings. Kerr first became involved in this dispute, according to
Katherine, by working as an accountant "for one of the parties in litigation involving
[Katherine's] extended family." Am. Compl. ¶ 49. (According to Kerr, she was retained
in the Colorado probate proceeding as a forensic accountant for the Guardian ad Litem
appointed for Joanne.) Katherine alleges that Wrigley's involvement in this dispute
began as part of a scheme that she and her brother Anthony Dain developed to gain
control over the Black family's assets following Renata's death. Cohenson became
involved as an attorney representing Wrigley in New York state court.
Katherine alleges that she informed court-appointed personnel in two different
courts that she was willing to provide evidence that Wrigley, Dain, and Wrigley's agent,
Esaun Pinto, had engaged in criminal and civil misconduct. At that point, Katherine
says, defendants initiated their tortious efforts to prevent her from testifying, providing

2

Bernard also filed a separate suit in this district seeking a declaratory
judgment against Joanne; Judge Kendall dismissed the case for lack of personal
jurisdiction. Black v. Black Order at 5.
4

evidence, or otherwise participating in any of the ongoing litigation. She alleges that
Wrigley made express threats to her in person and through telephone calls and text
messages. Specifically, she alleges that Wrigley repeatedly threatened to arrange for
Katherine to be physically and sexually assaulted; hire her associate Pinto to burglarize
Katherine's home; report damaging information to Northwestern to cause her to be fired;
and file false police reports against her stating that she was abusing her young children.
Katherine alleges that Wrigley bolstered her threat to file a false police report by
explaining that she had experience advocating for abused children and knew how to
write a strong police report so that Katherine "w[ould] not get [her] kids back for a year."
Am Compl. ¶ 127.
Katherine alleges that defendants' scheme to prevent her from testifying in court
went beyond Wrigley's alleged threats. She avers that Wrigley, Kerr, and Cohenson
each made defamatory statements about her to Northwestern in order to damage her
career as a law professor. In January 2016, Katherine sent a letter, the heading of
which included a Northwestern Law logo, to the judge in the New York state court
proceeding. In the letter, Katherine requested a hearing to present evidence of
Wrigley's and Dain's misconduct, and she expressed her willingness to testify against
them. One day after Katherine submitted her letter to the court, Wrigley filed an "ethics
complaint" with Northwestern against Katherine. 3 According to Katherine, the ethics
complaint Wrigley submitted included a number of sealed court documents, including
the letter Katherine sent to the judge in the New York state court case. She also alleges
3

None of the parties explains precisely what an ethics complaint is or the
process by which one is submitted, but Katherine alleges that there is a "centralized
'ethics complaint' system" and that documents submitted as part of such complaints are
read by numerous Northwestern employees. Id. ¶¶ 603–05.
5

that the complaint included a number of defamatory statements about her, including that
she (1) "lied to the court in the course of litigation," id. ¶ 478; (2) "acted unethically in
court proceedings," id. ¶ 482; (3) falsely represented to the court that her employer was
supporting her actions in litigation," id. ¶ 484; and (4) was using Northwestern's official
letterhead when communicating with the court, thereby enabling her to lie to the court
more effectively. Katherine also alleges that Wrigley failed to specify whether
Katherine's purportedly false statements to the court had been made under oath,
thereby "creat[ing] a false impression that they were sworn . . . [and] that [Katherine]
committed a criminal violation (perjury)." Id. ¶ 480. 4
On the same day that Wrigley submitted her ethics complaint, Kerr drafted a
letter of her own, addressed to the dean of Northwestern Law School. Though Kerr
drafted and signed the letter, Wrigley submitted it to Northwestern, attaching a copy of
Katherine's letter to the judge in the New York proceeding. According to Katherine,
Wrigley and Cohenson supplied Kerr with the letter Katherine had sent to the judge, as
well as other sealed and confidential court documents. Katherine alleges that Kerr's
letter to Northwestern defamed her by asserting that she: (1) lied under oath during
testimony in Colorado state court, thereby committing perjury; (2) committed perjury in
her letter to the judge by lying about Kerr's duties in the Colorado proceeding and
making other false representations; (3) committed financial misconduct for which Kerr
was investigating her; (4) "committed other [unspecified] criminal violations, vaguely
related to financial misconduct," id. ¶ 524; (5) lied to the court by claiming that
Northwestern supported her in the litigation about her family inheritance; (6) used her
4

None of the parties has attached a copy of the ethics complaint to any

filing.
6

employer's official letterhead; and (7) acted unethically in litigation. Katherine also
emphasizes that Kerr contended that she had first-hand knowledge to substantiate her
claims but decided to withhold the information from the letter.
Kerr has attached the letter to her motion to dismiss. Because Katherine
references the letter in her complaint and it is central to her claims, it is considered part
of the pleadings for purposes of the present inquiry. See Wright v. Associated Ins.
Companies Inc., 29 F.3d 1244, 1248 (7th Cir. 1994). Defendants maintain that
Katherine's description of the letter's contents is inconsistent with its actual text. In the
letter, for example, Kerr does not say in so many words that Katherine committed
perjury in the Colorado proceeding. Rather, Kerr expresses her belief that she has
"never, in [her] entire professional career, listened to a less credible testimony than
[Katherine's]." Kerr Letter, Ex. 2 to Def. Kerr's Am. Mem. of Law, at 2. Nor does Kerr
state in her letter that Katherine lied under oath in the New York proceeding. Kerr's
letter says that Katherine's letter to the judge in the New York case contained false
statements, but it does not say, for example, whether the letter was submitted under
oath. There is also no assertion in Kerr's letter that she was investigating Katherine or
that Katherine committed crimes related to financial misconduct. Rather, Kerr says in
her letter that the "Colorado court authorized [Kerr] to conduct an investigation into the
actions of [Katherine's] husband." Id. at 1.
In addition to the statements contained in Wrigley's complaint and Kerr's letter,
Katherine alleges in her complaint that Kerr, Wrigley, and Cohenson made other, yet
similar, defamatory statements in telephone calls and voicemail messages to individuals
at Northwestern. According to Katherine, Cohenson reported to Northwestern that

7

Katherine had represented to the New York state court that she was acting with
Northwestern's imprimatur and that she had used official Northwestern letterhead in her
communications to the court, which allowed her to lie and mislead the court with greater
effectiveness. Katherine also alleges generally that Cohenson stated that she acted
unethically during court proceedings and engaged in criminal conduct.
Katherine alleges that Kerr's oral defamatory statements were similar. She avers
that Kerr orally made false representations that Katherine lied to the court, committed
perjury and other crimes, was under investigation for financial misconduct, used
Northwestern letterhead in communications to the court, acted unethically in litigation,
and otherwise engaged in conduct that was unfit for a law professor. Katherine alleges
that Kerr also stated that she was privately aware of facts about Katherine that would be
damaging to her reputation and career.
Katherine makes similar allegations about Wrigley's oral representations.
According to Katherine, Wrigley informed a Northwestern employee that she had
personally observed Katherine acting unethically during legal proceedings, that
Katherine had lied to the court, and that Katherine was unfit to work as a law professor.
Wrigley allegedly explained that she was privately aware of facts that provided a basis
for her claims that Katherine had lied to the court, acted illegally or unethically, and was
unfit to be a law professor.
Katherine alleges that Cohenson, Wrigley, and Kerr assisted each other in their
attempts to defame her, including by exchanging documents with each other and
coordinating the timing and content of their communications with Northwestern.
According to Katherine, Cohenson also assisted Kerr and Wrigley by providing them

8

with information about Northwestern's policies that she collected during a telephone call,
information that Kerr and Wrigley allegedly used to make their defamatory statements
more effective and harmful. Wrigley assisted Cohenson's alleged defamation,
according to Katherine, by providing Cohenson with factual background and documents
that made the allegedly defamatory statements more powerful. Katherine alleges that
Kerr also provided helpful factual background information for Cohenson and provided
her purported expertise in drafting defamatory statements.
Katherine alleges that defendants' conduct has caused her significant emotional,
physical, and economic harm. She says she developed severe anxiety, fear, and
depression as a result of their alleged threats and defamatory statements. The anxiety
and fear, she says, has led to insomnia and nightmares, a racing heartbeat, extreme
fatigue, sweating, and panic attacks, and has cause her to lose nearly sixty pounds.
She alleges that the extreme weight loss has also resulted in significant back and
shoulder pain. Katherine also asserts that defendants' conduct caused her to incur
significant expenses related to monitoring her children's safety, protecting her home,
and obtaining legal assistance. In addition, Katherine alleges that her anxiety hindered
her job performance and that defendants' defamation resulted in a loss of opportunities
for professional growth and promotions, as well a loss of prestigious work assignments
and opportunity for influence at work.
Discussion
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must allege
"enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). In determining whether a plaintiff has plausibly

9

stated a claim to relief, a court accepts as true all well-pleaded facts in the complaint
and draws all reasonable inferences in favor of the plaintiff. Kubiak v. City of Chicago,
810 F.3d 476, 480–81 (7th Cir. 2016).
A.

Defamation and false light
Katherine asserts claims against all defendants for defamation, false light, and

aiding and abetting defamation and false light. Defamation and false light are similar
torts. To a state a claim for defamation under Illinois law, a plaintiff must allege "facts
showing that the defendant made a false statement about the plaintiff, that the
defendant made an unprivileged publication of that statement to a third party, and that
this publication caused damages." Green v. Rogers, 234 Ill. 2d 478, 491, 917 N.E.2d
450, 459 (2009). A defamatory statement is one that "harms a person's reputation to
the extent it lowers the person in the eyes of the community or deters the community
from associating with her or him." Id. If a statement's harm is obvious and apparent on
its face, it is defamatory per se. Id. In Illinois, only five categories of statements are
considered 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.
Id. at 491–92, 917 N.E.2d at 459. A statement that falls into one of those categories is
not actionable per se, however, if the statement is "reasonably capable of an innocent
construction." Lott v. Levitt, 556 F.3d 564, 568 (7th Cir. 2009) (interpreting Illinois law).
Whether or not a statement falls into one of the five defamation per se categories, a
false statement that casts a person in a negative light before the public may provide the
10

basis for a false light invasion of privacy claim. To state a claim for false light, a plaintiff
must allege that (1) she was placed in a false light before the public as a result of the
defendants' actions, (2) the false light she was placed in would be highly offensive to a
reasonable person, and (3) the defendants acted with actual malice, "that is, with
knowledge that the statements were false or with reckless disregard for whether the
statements were true or false." Kolegas v. Heftel Broad. Corp., 154 Ill. 2d 1, 17–18, 607
N.E.2d 201, 209–10 (1992).
1.

Litigation privilege

Defamation and false light claims are subject to similar defenses, and defendants
maintain that certain of those defenses preclude Katherine's claims in this case.
Defendants argue, as a threshold matter, that all of Katherine's defamation and false
light claims are barred by the absolute litigation privilege. See Johnson v. Johnson &
Bell, Ltd., 2014 IL App (1st) 122677, ¶¶ 15–16, 7 N.E.3d 52, 56 (litigation privilege
provides complete bar to claims for defamation and invasion of privacy). The Court
disagrees; the litigation privilege does not apply to any of defendants' alleged
statements and therefore does not bar Katherine's claims. The privilege protects the
communications of attorneys, and private litigants, pertaining to proposed or pending
litigation. Libco Corp. v. Adams, 100 Ill. App. 3d 314, 317, 426 N.E.2d 1130, 1132
(1981). Its purpose is "to secure to attorneys as officers of the court the utmost freedom
in their efforts to secure justice for their clients," and the privileged is based on "the
tenet that conduct which would otherwise be actionable should escape liability because
the defendant is furthering an interest of social importance." Id.
The privilege's scope is not limited to statements made in court; it can apply, for

11

example, to communications between opposing counsel or between an attorney and a
client related to pending litigation. See Golden v. Mullen, 295 Ill. App. 3d 865, 870, 693
N.E.2d 385, 389 (1997) (collecting cases). The alleged communications at issue in this
case, however, are all out-of-court communications between participants in litigation
and an unrelated third party. Defendants cite to no case in which a court has applied
the privilege in similar circumstances. Indeed, "Illinois courts have expressly declined to
extend the attorney-litigation privilege to third parties not connected with the litigation."
August. v. Hanlon, 2012 IL App (2d) 111252, ¶ 37, 975 N.E.2d 1234, 1248 (privilege
does not cover attorney's statements about litigation to a newspaper reporter); see also
Thompson v. Frank, 313 Ill. App. 3d 661, 664, 730 N.E.2d 143, 146 (2000) (privilege
does not cover communications between one party's attorney and the spouse of the
opposing party to pending litigation).
Though Northwestern employed Katherine, it had no involvement in the
underlying litigation proceedings concerning the Black family inheritance. This is not a
case, for example, where Northwestern would be potentially liable for Katherine's
conduct. Cf. Atkinson v. Affronti, 369 Ill. App. 3d 828, 834, 861 N.E.2d 251, 256–57
(2006) (privilege applied to pre-litigation letter from attorney to plaintiff's employer
informing employer that attorney's client intended to hold it financially responsible for
plaintiff's conduct). Northwestern did not become a participant in the litigation, and
communications with the school are not swept under the privilege's umbrella, simply
because Katherine submitted a letter to one of the courts on paper bearing a
Northwestern logo. "Since the privilege affords complete immunity, classification of
absolutely privileged communications is necessarily narrow." Golden, 295 Ill. App. 3d at

12

872, 693 N.E.2d at 390. In addition, the communications at issue were part of an
alleged schemed to discourage court testimony, and defendants have failed to "explain
how [applying the privilege in this case] would further the privilege's public policy goal."
August, 2012 IL App (2d) 111252, ¶ 37, 975 N.E.2d at 1248.
2.

Fair report privilege

Defendants contend that statements they allegedly made concerning Katherine's
conduct in litigation—that she lied in court, for example—are protected under the socalled fair report privilege. See Solaia Tech., LLC v. Specialty Pub. Co., 221 Ill. 2d 558,
587, 852 N.E.2d 825, 843 (2006) ("The fair report privilege . . . permits a defendant to
publish a report of an official proceeding even though the defendant knows the report
contains a false and defamatory statement."). That privilege, however, is not applicable
to cases like this. The fair report privilege is "an exception to the general common law
rule that the republisher of defamatory material bears the same degree of liability for
defamation as the original publisher." Missner v. Clifford, 393 Ill. App. 3d 751, 760, 914
N.E.2d 540, 550 (2009) (emphasis added). The purpose of the privilege is to "serve[]
the public interest by permitting access to all public proceedings . . . regardless of
whether defamatory statements are made in those proceedings." Id. at 761, 914 N.E.2d
at 550.
In this case, however, Katherine has not alleged that defendants republished
defamatory material from the underlying litigation proceedings. That is, the "the sting of
the [alleged] defamatory statement[s]," Solaia, 221 Ill. 2d at 590, 852 N.E.2d at 845,
does not come from any statement made in the course of the proceedings but from
defendants' own reports and characterizations of the proceedings. In any event, even if

13

the privilege were applicable, it would not cover the alleged statements. Katherine
alleges that the statements falsely represent her actions in the litigation, and the
privilege only covers "accurate and complete" reports or "fair abridgement[s]." Id. at
588.
3.

Truth and opinion

Defendants maintain that a number of their statements are nonactionable
because they are substantially true or because they are mere statements of opinion. A
statement cannot serve as the predicate for a defamation or false light claim if it is
substantially true—that is, if the "gist or sting of the allegedly defamatory material is
true." Coghlan v. Beck, 2013 IL App (1st) 120891, ¶ 42, 984 N.E.2d 132, 146 (internal
quotation marks omitted). Although whether a statement is substantially true is usually
a question for the jury, "the question is one of law where no reasonable jury could find
that substantial truth had not been established." Id. (internal quotation marks omitted).
A statement is also nonactionable if it is merely the expression of an opinion, as
opposed to an assertion of fact, because "there is no such thing as a false idea" under
the First Amendment. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974). "A
defamatory statement is constitutionally protected only if it cannot be reasonably
interpreted as stating actual fact." Solaia, 221 Ill. 2d at 581, 852 N.E.2d at 840. In
determining whether a statement contains an assertion of fact, a court considers
"whether the statement has a precise and readily understood meaning; whether the
statement is verifiable; and whether the statement's literary or social context signals that
it has factual content." Id.
Before examining defendants' alleged statements to determine whether they are

14

they are substantially true or are expressions of opinion, the Court must first address
certain disputes between the two sides about the significance of Kerr's letter to
Northwestern. Katherine alleges that Kerr made a number of defamatory statements in
her January 2016 letter to Northwestern. When Katherine's allegations concerning the
letter are compared to the letter itself, which Kerr has attached to her motion to dismiss,
it is apparent that Katherine's allegations loosely paraphrase or interpret the contents of
the letter rather than represent the statements directly. The Court agrees with
defendants that where the allegations about what the letter says conflict with the letter
itself, the contents of the letter should control. See Forrest v. Universal Sav. Bank, F.A.,
507 F.3d 540, 542 (7th Cir. 2007) ("Where an exhibit and the complaint conflict, the
exhibit typically controls."). The Court will therefore consider whether the statements
contained in the letter itself, as opposed to Katherine's characterizations of those
statements, are substantially true or are nonactionable opinion. See id. ("A court is not
bound by the party's characterization of an exhibit and may independently examine and
form its own opinions about the document.").
Kerr also emphasizes Katherine's allegation that Kerr "restated the contents of
her phone conversation" and that the "contents of Kerr's phone call were substantially
similar to the contents of her letter." Am. Compl. ¶¶ 350, 5552. According to Kerr,
those allegations constitute an admission that the oral statements and the statements in
the letter were the same, such that allegations about Kerr's oral statements should be
disregarded to the extent they are inconsistent with the statements found in the letter.
The Court disagrees. Katherine's allegations that the letter's statements were a
restatement of or were substantially similar to the contents of the phone call are not an

15

admission that the content, or the substance of the message conveyed, was identical. It
is possible, for example, that two communications concerning "substantially similar"
content would convey different information based on the context of the expression and
the precise wording used. Because the letter is not a documentation of Kerr's oral
conversations, the content of Kerr's alleged oral statements is not conclusively rebutted,
at the pleading stage, by inconsistent statements contained within her letter.
There is also a dispute between the parties about whether Kerr can be held liable
for the statements contained in the letter even though Wrigley is the one who sent it.
"Publication is an essential element of a claim for defamation." Layne v. Builders
Plumbing Supply Co., 210 Ill. App. 3d 966, 975, 569 N.E.2d 1104, 1110 (1991). Kerr
maintains that the allegations in the complaint conclusively establish that she did not
publish the letter. In the complaint, Katherine alleges that Kerr wrote the letter and that
Wrigley sent it to Northwestern. She also alleges that Kerr informed Northwestern that
she had written the letter but "did not send it on the advice of her counsel." Am. Compl.
¶ 214. But the next sentence in the complaint supports an inference that Kerr provided
the letter to Wrigley with the knowledge that she would send it to Northwestern. See id.
("Kerr did not explain how her signed, formal letter, addressed to the employer and
demanding employer's actions, happened to land in Plaintiff's employer's hands if Kerr
never sent it."). That allegation is sufficient to satisfy the publication element for
defamation claims against Kerr based on statements contained in the letter. See
Layne, 210 Ill. App. 3d at 975, 569 N.E.2d at 1110 ("In order to establish publication,
there must be a communication of the allegedly defamatory statement to someone other
than plaintiff.").

16

Having determined which alleged statements to consider, the Court next
examines whether any of those statements are nonactionable because they are
substantially true or merely express an opinion. The Court finds that defendants'
alleged statements regarding Katherine's use of Northwestern letterhead are either
substantially true or mere expressions of opinion. Katherine acknowledges in her
complaint that the letterhead she used included her employer's name and a logo. The
name and a Northwestern logo are also clearly visible on the copy of the letter Kerr
attached to her motion to dismiss. Katherine maintains that she did not use
Northwestern's official letterhead; rather, she used a self-designed letterhead that used
an unofficial name for the law school, as well as a color, font, and logo that were
different from the official letterhead. She argues that defendants' statements that she
used her employer's official letterhead are therefore not substantially true. The gist or
sting of defendant's statements, however, is that Katherine wrote her letter to the court
on paper that included her employer's name and a school logo for the school and that
therefore appeared to be official letterhead. The gist or sting is not substantially
lessened by the fact that certain details of the letterhead Katherine used are different
from the school's official letterhead, and these alleged statements are thus substantially
true. See Coghlan, 2013 IL App (1st) 120891, ¶ 42, 984 N.E.2d at 146 ("[A]llegedly
defamatory detail is not actionable even where it is not technically accurate in every
detail.")
In addition to defendants' true statements of fact that Katherine used
Northwestern letterhead, defendants allegedly made statements opining about the
effect or significance of Katherine's use of the letterhead. The Court concludes that

17

those statements are nonactionable expressions of opinion. "[W]hen the facts
underlying a statement of opinion are disclosed, readers will understand that they are
getting the author's interpretation of those facts and are therefore unlikely to construe
the statement as insinuating the existence of additional, undisclosed facts." Hadley v.
Doe, 2014 IL App (2d) 130489, ¶ 48, 12 N.E.3d 75, 91. In this case, defendants
disclosed the fact that Katherine wrote to the court using Northwestern letterhead and
then offered interpretations of that fact. The Court concludes that the following
statements are nonactionable opinions: Kerr's statement that she was shocked to
receive the letter on Northwestern letterhead and truly believed Northwestern Law
School was supporting Katherine's positions, Kerr's alleged statement that
Northwestern had become a party to the litigation because of the appearance of the
letterhead, and Cohenson's alleged statement that Katherine was representing to the
court that she was acting with her employer's imprimatur. Each statement expresses
the speaker's subjective belief about the effect of Katherine's use of the letterhead.
Defendants maintain that their alleged statements accusing Katherine of lying to
the court are also substantially true. Kerr contends that Katherine inaccurately told the
judge in the New York state court that the Colorado court had authorized investigation
of Pinto's conduct. According to Kerr, no such authorization exists. Katherine,
however, points to the Colorado court's order that "Pinto shall provide a complete
accounting with documentation of all funds that were held under his control to Ms.
Kerr . . . ." Order of Apr. 2, 2015, In re the Interest of: Joanne Black, Case No. 12 PR
1772 (Denver Probate Court), Ex. 7 to Def. Kerr's Mem. in Supp. of Mot. to Dismiss at 3,
¶ 8. Katherine maintains that that order authorized Kerr to investigate Pinto. Because,

18

at this stage, a reasonable jury could find that the substantial truth of Kerr's statement
that Katherine lied has not been established, the alleged statement is actionable. See
Coghlan, 2013 IL App (1st) 120891, ¶ 42, 984 N.E.2d at 146 (internal quotation marks
omitted). Wrigley similarly argues that it is substantially true that Katherine lied to the
judge in the New York court by stating that Dain made misrepresentations to that court
and by mischaracterizing the Colorado court's understanding of her husband's
submissions in that proceeding. To support her contention that Katherine actually lied,
Wrigley relies upon findings from the Colorado court. As discussed above, however,
the Court cannot assume the truth of those findings when ruling on a Rule 12(b)(6)
motion. Indeed, Katherine disputes that court's findings and alleges that they are based
on misrepresentations from defendants and others. Thus defendants have not
conclusively established the substantial truth of their statements that Katherine lied to
the New York court.
The Court concludes that certain other alleged statements are nonactionable as
expressions of opinion—namely, defendants' assertions that Katherine's testimony in
the Colorado proceeding lacked credibility, that she acted unethically in litigation, and
that she is unfit for employment as a law professor. In her letter, Kerr stated that "in
[her] entire professional career, [she has never] listened to a less credible testimony
than [Katherine's testimony in the Colorado proceeding]." Kerr Letter at 2. Katherine
maintains that this statement implies a statement of fact: that she lied during her sworn
testimony and committed perjury. But as Illinois courts have recognized, "all opinions
imply facts" in some sense. Wynne v. Loyola Univ. of Chicago, 318 Ill. App. 3d 443,
452, 741 N.E.2d 669, 676 (2000). "[T]he question of whether a statement of opinion is

19

actionable as defamation is one of degree; the vaguer and more generalized the
opinion, the more likely the opinion is nonactionable as a matter of law." Id. Kerr's
vague and general opinion about Katherine's credibility is nonactionable. In the
statement, Kerr does not specify the subject of the testimony to which she refers or
explain what made the testimony less credible. Her statement therefore does not
contain "an objectively verifiable assertion." Id.; see also Huon v. Mudge, 597 F. App'x
868, 877 (7th Cir. 2015) (assessment of accuser's credibility that could imply her
allegations against plaintiff were true was nonactionable opinion).
Defendant's alleged statements that Katherine acted unethically during litigation
and is unfit to be a law professor are also nonactionable expressions of opinion. Like
the statements interpreting the effect of Katherine's use of Northwestern letterhead,
these alleged statements are interpretations or characterizations of other facts
defendants disclosed. Namely, defendants opined that Katherine's misrepresentations
about the Colorado proceeding and use of Northwestern letterhead in a letter to a judge
was unethical conduct that made her unfit to be a professor of law. Readers would be
"unlikely to construe the statement[s] as insinuating the existence of additional,
undisclosed facts." Hadley, 2014 IL App (2d) 130489, ¶ 48, 12 N.E.3d at 91; see also
Tamburo v. Dworkin, 974 F. Supp. 2d 1199, 1213 (N.D. Ill. 2013) ("Whether a person's
actions are ethical or deceptive is not objectively verifiable."); Patlovich v. Rudd, 949 F.
Supp. 585, 594 (N.D. Ill. 1996) (putting "subjective labels" like "reprehensible" and "selfserving" on previously described factual assertions does not add any new facts and is
"pure opinion"). Katherine maintains that those statements are not mere expressions of
opinion because defendants indicated that they based their opinions on undisclosed

20

private facts. But Katherine's assertions that defendants implied the existence of private
facts on which they based their opinions are wholly conclusory. She does not allege
any facts indicating how defendants intimated that their opinions were based on private
facts or what allegedly defamatory facts defendants might be implying. See McCauley
v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) ("[L]egal conclusions and
conclusory allegations merely reciting elements of [a] claim are not entitled to [the usual]
presumption of truth" in deciding a motion to dismiss). It is true that Kerr, in her letter,
alluded to undisclosed facts she had found as part of her forensic investigation. That
investigation, however, was of Bernard, not Katherine, and Kerr provides no indication
in her letter that those facts formed the basis for opinion about the purportedly unethical
nature of Katherine's conduct during the litigation.
5.

Defamation per se

If a statement is considered defamatory per se, it is presumed that the plaintiff
suffered damages as a result of the statement. Tuite v. Corbitt, 224 Ill. 2d 490, 501, 866
N.E.2d 114, 121 (2006). If a statement is not considered defamatory per se, because,
for example, it does not fall into one of the five recognized categories of per se
defamatory statements, the plaintiff may still assert a claim under Illinois law for
defamation per quod. Id. To state a claim for defamation per quod, however, a plaintiff
must plead special damages. Id. That is, a plaintiff asserting a defamation per quod
claim must "itemize [her] losses or plead specific damages of actual financial injury."
Muzikowski v. Paramount Pictures Corp., 322 F.3d 918, 927 (7th Cir. 2003) (citing Fed.
R. Civ. P. 9(g) and Anderson v. Vanden Dorpel, 172 Ill. 2d 399, 416, 667 N.E.2d 1296,
1303–04 (1996)). A plaintiff must also plead special damages with particularity to state

21

a claim for false light based on statements that are not defamatory per se. Id. (citing
Schaffer v. Zekman, 196 Ill. App. 3d 727, 736, 554 N.E.2d 988, 994 (1990)).
Katherine contends that she has sufficiently pleaded special damages so that her
claims can survive as defamation per quod actions even if they fail as claims for
defamation per se. The Court disagrees. Katherine has not provided an itemization of
losses stemming from the alleged defamation or otherwise pointed to any concrete loss
resulting from the allegedly defamatory statements. She alleges generally that she
suffered harm to her career and professional advancement, lost opportunities for
professional growth and promotions, lost prestigious assignments and influence within
her department, and that her "ability to earn extra income from taking up summer jobs
or consulting projects [was] harmed." Am. Compl. ¶ 292. Because she does not
explain with the required specificity "what pecuniary losses [she] suffered as a result" of
the alleged harm to her reputation, Katherine can state a claim for defamation and false
light only for alleged statements that are defamatory per se. Lott, 556 F.3d at 570.
A statement is not actionable as defamatory per se "if it is reasonably capable of
an innocent construction." Tuite, 224 Ill. 2d at 502, 866 N.E.2d at 121. Similarly, a
statement is not defamatory per se if it may "reasonably be interpreted as referring to
someone other than the plaintiff." Id. at 503, 866 N.E.2d at 122. In addition, to allow a
court to determine whether a statement is defamatory, the plaintiff must plead the
substance of an allegedly defamatory per se statement with "sufficient precision and
particularity." Green, 234 Ill. 2d at 492, 917 N.E.2d at 459. Although federal pleading
standards apply in diversity cases such as this one, a federal court's "reliance on federal
procedural rules does not allow [it] to ignore Illinois substantive law," which puts a

22

"thumb on the scale for defendants" in defamation per se actions, where damages are
presumed. Lott, 556 F.3d at 569. Other courts in this district have recognized that
requiring a plaintiff to alleged defamatory statements with particularity does not hold the
plaintiff "to a higher, fact pleading standard, but rather [requires that] [s]he plead the
substantive element" of defamation that entitles her to the presumption of damages.
Ludlow v. Nw. Univ., 79 F. Supp. 3d 824, 836–37 (N.D. Ill. 2015) (citing Keen v.
Bluestar Energy Servs., Inc., No. 11 C 7754, 2012 WL 1118215, at *5 (N.D. Ill. Mar. 30,
2012)).
The Court concludes that a number of the remaining alleged defamatory
statements cannot be considered defamatory per se, because they lack the requisite
particularity or are otherwise reasonably capable of being interpreted innocently or as
referring to someone other than Katherine. Defendants' alleged statements accusing
Katherine of criminal conduct are either too vague and general to be actionable per se
or are otherwise reasonably capable of an innocent construction. "Illinois courts have
repeatedly observed that, to be actionable as defamation per se (in the commission-ofa-crime category), a statement must directly or expressly accuse the plaintiff of
committing a specific crime." Lansing v. Carroll, No. 11 CV 4153, 2015 WL 3962345, at
*8 (N.D. Ill. June 29, 2015) (collecting cases). Under that rule, Katherine's allegations
that defendants "told or intimated to Plaintiff's employer that Plaintiff engaged in criminal
conduct" are insufficient to support a claim for defamation per se. Am Compl. ¶ 461. In
a similar vein, defendants' alleged statements that "communicated that [Katherine]
committed perjury" are likely not actionable per se under the commission-of-a-crime
category. Id. ¶ 193. Katherine alleges that defendants communicated that she

23

committed perjury by stating that she lied in her letter to the judge in the New York state
court but "le[aving] it deliberately ambiguous whether [Katherine's] alleged lies were
made in a sworn document." Id.; see also id. ¶¶ 461, 480. Because those statements
contain no "direct or express" accusation of perjury, they appear to be reasonably
capable of a non-defamatory construction. 5
In addition to her allegation that Kerr accused her of committing perjury,
Katherine alleges that Kerr falsely accused her of "other criminal violations." Id. ¶¶ 195,
524. Those alleged statements are plainly too vague and conclusory to be defamatory
per se. Katherine also alleges generally that Kerr "repeatedly and strongly intimated
that there were facts about [Katherine] that Kerr was unable to disclose to [Katherine's]
employer, and that those facts were extremely damaging to [Katherine's] reputation and
career." Id. ¶ 204. This alleged statement, too, is insufficiently precise to allow the
Court to review it for defamatory content and thus cannot be actionable per se.
Certain of the alleged statements can be reasonably interpreted as referring to
someone other than Katherine and are therefore nonactionable. Katherine's allegation
that Kerr threatened Northwestern with litigation is plainly not an assertion of fact
"identifiably about the plaintiff" and is therefore nonactionable. Shivarelli v. CBS, Inc.,
333 Ill. App. 3d 755, 765, 776 N.E.2d 693, 701 (2002). And although Katherine alleges

5

Though a charge that Katherine lied to a court, by itself, can reasonably
be construed as something other than an accusation of "perjury," the alleged statement
may impute the commission of another crime. Specifically, attempting to influence
litigation by making a false statement, even if not made under oath, may constitute
obstruction of justice or a similar crime under applicable state law. Katherine has not
alleged that defendants accused her of any specific crime other than perjury, however,
and in any event, as discussed below, the Court concludes that defendant's alleged
accusations that Katherine lied to the court are actionable under a separate per se
category.
24

that Kerr intimated in her letter that she was investigating Katherine for financial
misconduct, the actual text of the letter shows that Kerr clearly stated that the court
"authorized [her] to conduct an investigation into the actions of [Katherine's] husband."
Kerr Letter at 1. Katherine contends that in the context of a letter attacking her, a
reader would interpret Kerr's statement as a suggestion that Katherine was being
investigated. A more reasonable interpretation, however, is the straightforward reading
of the text's plain language, which "refer[s] to someone other than [Katherine]," namely,
Bernard. Tuite, 224 Ill. 2d at 502, 866 N.E.2d at 121.
Katherine does allege that, apart from her statement in the letter, Kerr falsely
informed Northwestern employees that she had been appointed to investigate Katherine
for financial misconduct. That alleged statement, however, is nonactionable as
defamation per se, because it does not fall into one of the five recognized categories of
per se statements. To the extent Katherine contends that the statement imputes the
commission of crime, the statement is insufficiently specific in that it does not include a
contention that Katherine committed a crime at all (as opposed to being under
investigation) or what specific crime Kerr alleged her to have committed. Katherine also
cannot successfully argue that committing financial misconduct imputes that she is
"unable to perform or lacks integrity in performing her or his employment duties."
Green, 234 Ill. 2d at 492, 917 N.E.2d at 459. That category "seems to imply some sort
of on-the-job malfeasance," and Katherine does not allege that Kerr accused her of
engaging in financial misconduct in the course of her work as a law professor. Pippen
v. NBCUniversal Media, LLC, 734 F.3d 610, 613 (7th Cir. 2013). Katherine has also not
argued that financial propriety is a trait of such importance to the job of a law professor

25

that an accusation of financial misconduct would impute a lack of ability to do her job or
otherwise prejudice her in her profession. Green, 234 Ill. 2d at 492, 917 N.E.2d at 459;
cf. Pippen, 734 F.3d at 613 ("When the subject of false statements is employed in an
occupation (schoolteacher for example) that requires certain personal traits, such as
trustworthiness, accusations of being a scam artist or an inveterate liar could lead to
unemployment.").
After accounting for the nonactionable alleged statements, it appears that the
only remaining statements are defendants' respective alleged accusations that
Katherine lied in her letter to the judge in the New York case by making certain
misrepresentations about the Colorado proceedings. As discussed above, those
alleged statements are not mere expressions of opinion, and they cannot be
conclusively labeled as substantially true. They also contain sufficient detail (at least in
the context of the parties' dispute) to allow the Court to assess their defamatory content.
And although the alleged accusations of perjury are inadequate to place the alleged
statements in the commission-of-a-crime category, lying to a court does fall into the
category of "prejudice to one's profession" in Katherine's case. Unlike allegations of
financial misconduct, allegations that a law professor lied to a court "could lead to
unemployment" in a profession whose role includes training future attorneys on proper
conduct in court proceedings. Those statements thus support actionable claims for
defamation per se and false light.
5.

Aiding and abetting

Defendants do not provide arguments for dismissing the claims of aiding and
abetting defamation apart from their arguments against the substantive defamation

26

claims. Katherine has adequately alleged that each defendant knowingly assisted each
other in their defamation efforts. Thus because at least one defamation claim against
each defendant survives, Katherine has also stated a claim for defamation against each
defendant.
B.

Intentional infliction of emotional distress
Katherine asserts claims against Wrigley and Kerr for intentional infliction of

emotional distress and asserts claims against each defendant for aiding and abetting
intentional infliction of emotional distress. To state a claim for intentional infliction of
emotional distress, a plaintiff must allege that (1) an actor engaged in "truly extreme and
outrageous" conduct, (2) the actor intended that his conduct inflict severe emotional
distress or knew that there was a high probability that his conduct would cause severe
emotional distress, and (3) the conduct did in fact cause "severe emotional distress."
McGrath v. Fahey, 126 Ill. 2d 78, 86, 533 N.E.2d 806, 809 (1988) (emphasis in original).
Defendants argue that Katherine has failed to allege that they engaged in sufficiently
extreme and outrageous conduct or that she suffered sufficiently severe emotional
distress. The Court concludes that Wrigley's alleged conduct is sufficiently extreme and
outrageous and that the alleged emotional distress that resulted from that conduct is
sufficiently severe. Kerr's alleged conduct, however, does not rise to the level of "truly
extreme and outrageous," and Katherine has therefore not stated a claim for intentional
infliction of emotional distress against her.
To be "truly extreme and outrageous," the alleged conduct must be "so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

27

community." Schweihs v. Chase Home Fin., LLC, 2016 IL 120041, ¶ 51, 77 N.E.3d 50,
63. Though there are factors to consider when determining whether conduct may be
deemed outrageous, such as the defendant's power to affect the plaintiff's interests, the
reasonableness of a defendant's belief that his objective is legitimate, or the defendant's
awareness that the plaintiff is particularly susceptible to emotional distress, the
"outrageousness of a defendant's conduct must [ultimately] be determined in view of all
the facts and circumstances pled . . . in a particular case." Id. at ¶ 52, 77 N.E.3d at 63.
A reasonable jury in this case could find that Wrigley's alleged conduct went beyond the
bounds of decency, was atrocious, and is utterly intolerable.
Among other things, Wrigley allegedly (1) threatened that she would direct
someone to physically and sexually assault Katherine if she testified in the underlying
court proceedings, (2) threatened to submit a false police report and a false report to an
Illinois child welfare agency in order to have Katherine's small children removed from
their home, and (3) threatened to send Pinto to burglarize Katherine's home unless she
transferred assets to Wrigley. Katherine alleges that Wrigley engaged in this pattern of
threats persistently from 2012 through 2016. She also alleges that Wrigley indicated
that she had the power to follow through on her threats, emphasizing that Pinto was a
convicted criminal who had previously stalked a member of Katherine's family and that
Wrigley had years of experience as an advocate for abused children and knew how to
write effective police reports to have Katherine's children removed from their home. The
duration of Wrigley's alleged conduct and her attempts to add credibility to her
objectively deplorable threats would allow a reasonable jury to find her conduct extreme
and outrageous.

28

A reasonable jury could also find that Katherine suffered severe emotional
distress as a result of Wrigley's threats. Katherine alleges that Wrigley's threats have
caused her to develop severe anxiety, fear, and depression. More specifically, she
alleges that she now has a persistent fear that her children will be taken from her and
that someone will break into her house. She says she suffers from insomnia,
nightmares, racing heartbeat, extreme fatigue, sweating, and panic attacks. In addition,
she says her anxiety has become so severe that she has lost 60 pounds and has
developed significant shoulder and back pain. A reasonable jury could find that such
distress, endured over the course of years, is "so severe that no reasonable [person]
could be expected to endure it." McGrath, 126 Ill. 2d at 86, 533 N.E.2d at 809; see also
Bristow v. Drake St. Inc., 41 F.3d 345, 350 (7th Cir. 1994) (even though plaintiff did not
seek psychiatric help, evidence that she had stomach pains and vomiting, stopped
talking, stopped eating, lost weight, was not a happy person, cried all the time, was
distraught and too thin, and appeared frightened was enough to establish severe
emotional distress).
Unlike the claim asserted against Wrigley, the intentional infliction of emotional
distress claim asserted against Kerr is based solely on her alleged defamatory
statements to Northwestern. Making false statements to a party's employer to hurt the
party's reputation and prevent her from testifying is certainly unseemly conduct, but it is
not so extreme in degree to be utterly intolerable in a civilized community. Courts in
similar circumstances have dismissed intentional infliction of emotional distress claims
based on allegedly defamatory statements, and the Court sees no reason to treat the
claim against Kerr differently. See, e.g., Socorro v. IMI Data Search, Inc., No. 02 C

29

8120, 2003 WL 1964269, at *5 (N.D. Ill. Apr. 28, 2003) (Kennelly, J.) (firing plaintiff
based on an erroneous report that he had been in jail and portraying him falsely to
others, thereby damaging his reputation and harming his employment prospects, was
"deplorable if proven" but did not rise to required level of "outrageousness"); Layne v.
Builders Plumbing Supply Co., 210 Ill. App. 3d 966, 973, 569 N.E.2d 1104, 1109 (1991)
(making allegedly defamatory statements to the police accusing plaintiff of harassing,
assaulting, and verbally threatening a co-worker likely created "some distress and
embarrassment" but was not sufficiently outrageous or extreme).
The only non-conclusory allegations concerning defendants' conduct concerning
their aiding and abetting intentional infliction of emotional distress involve conduct
related to the alleged defamatory statements, not Wrigley's threats. The Court therefore
grants defendants' motions to dismiss with respect to the claims for aiding and abetting
intentional infliction of emotional distress.
C.

Private facts and intrusion upon seclusion
Katherine asserts claims for intrusion upon seclusion against Kerr and for

publication of private facts against each defendant, as well as claims against each
defendant for aiding and abetting those substantive torts. The tort of invasion of privacy
based on intrusion upon seclusion does not fit the facts alleged against Kerr in this
case. Katherine alleges that Kerr invaded her privacy through intrusion upon seclusion
when she illegally obtained the sealed letter that Katherine had written to the court. The
tort of intrusion upon seclusion addresses "highly offensive prying into the physical
boundaries or affairs of another person." Lovgren v. Citizens First Nat. Bank of
Princeton, 126 Ill. 2d 411, 417, 534 N.E.2d 987, 989 (1989). Examples of offensive

30

prying include: "invading someone's home; an illegal search of someone's shopping
bag in a store; eavesdropping by wiretapping; peering into the windows of a private
home; and persistent and unwanted telephone calls." Id. Katherine has not alleged that
Kerr engaged in prying of that sort. Nor has she adequately alleged why Kerr's
obtaining of the letter submitted to the court, concerning prior litigation proceedings in
which Kerr had been participating, would be "highly offensive to a reasonable person."
Id. at 416, 534 N.E.2d at 988. Any "subsequent harm resulted from [Kerr's] act of
publication [to Northwestern], not from any act of prying analogous to the examples"
listed above, and Katherine has therefore failed to state a claim for intrusion upon
seclusion. Id. at 417, 534 N.E.2d at 989.
Katherine has also failed to adequately allege publication of private facts. To
state a claim for invasion of privacy based on public disclosure of private facts, a plaintiff
must allege that: "(1) publicity was given to the disclosure of private facts; (2) the facts
were private, and not public, facts; and (3) the matter made public was such as to be
highly offensive to a reasonable person." Miller v. Motorola, Inc., 202 Ill. App. 3d 976,
978, 560 N.E.2d 900, 902 (1990). "Private facts" are facts that a "plaintiff 'does not
expose to the public eye, but keeps entirely to himself or at most reveals only to his
family or to close friends.'" Ameristar Casino E. Chicago, LLC v. UNITE HERE Local 1,
No. 16 C 5379, 2016 WL 7339199, at *6 (N.D. Ill. Dec. 19, 2016) (quoting Restatement
(Second) of Torts § 652D cmt. b). "Examples of private facts include sexual relations,
embarrassing illnesses, intimate personal letters, matters related to domestic or familial
relations, and mental health conditions." Id. (collecting Illinois cases); see also Best v.
Malec, No. 09 C 7749, 2010 WL 2364412, at *5 (N.D. Ill. June 11, 2010) ("Illinois cases

31

addressing the question of publication of private facts have held that private facts are
'intimate personal facts,' such as health issues and sexual relationships.").
It is not apparent that any of the facts regarding the litigation that were allegedly
published concern the type of intimate details considered "private facts" under the
doctrine. But in any event, to the extent the alleged disclosed facts do relate to intimate
personal matters, they do not appear to be the type that one would refrain from
"exposing to the public eye" and "keep entirely to himself." Indeed, Bernard filed a
lawsuit in this district, in an open proceeding, mere weeks after the Katherine sent her
letter containing the allegedly private facts, knowing that facts about the Blacks'
acrimonious family litigation, Joanne's mental health, and other allegedly private facts
would be made public as a result of that litigation. See Black v. Black Order (discussing
family litigation proceedings, Joanne's mental illness and capacity, and family financial
matters). Because Katherine has not alleged the disclosure of the type of private facts
recognized in Illinois, she has failed to state a claim for publication of private facts.
Finally, because Katherine has failed to state a claim for either invasion of
privacy tort, the claims for aiding and abetting those torts must also be dismissed.
D.

Interference with contract and prospective economic advantage
Katherine also asserts claims for interference with contractual relations and

interference with prospective economic advantage, but she fails to allege necessary
elements of both claims. To state a claim for tortious interference with a contract, a
plaintiff must plead: "the existence of a valid and enforceable contract between the
plaintiff and another; the defendant's awareness of this contractual relation; the
defendant's intentional and unjustified inducement of a breach of the contract; a

32

subsequent breach by the other, caused by the defendant's wrongful conduct; and
damages." Douglas Theater Corp. v. Chicago Title & Tr. Co., 288 Ill. App. 3d 880, 883,
681 N.E.2d 564, 567 (1997). Katherine has not adequately alleged that Northwestern
breached its contract with her. She asserts that her contract with Northwestern
"implicitly but unambiguously provided that Plaintiff's career would be reasonably
advanced in the absence of improper conduct on her part" and that Northwestern
breached that contract when she "suffered the loss of compensation [and] loss of
professional advancement." Am. Compl. ¶¶ 627–28. These conclusory assertions,
however, do not constitute plausible allegations that she had an implied contract with
Northwestern for reasonable career advancement that Northwestern breached. Among
other things, Katherine does not explain "what communications formed the basis . . . of
the supposed implied contract[] . . . ." Thomas v. UBS AG, 706 F.3d 846, 852 (7th Cir.
2013); cf. id. (breach of contract claim based on allegation that plaintiffs "entered into
implied, oral and/or written contracts with [defendants] to provide . . . professionally
competent tax advice" would have failed to state a claim even before Twombly and
Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
To state a claim for the similar tort of intentional interference with prospective
economic advantage, a plaintiff must allege: a reasonable expectation of entering into a
valid business relationship, that the defendant had knowledge of that expectation,
purposeful interference by the defendant that prevents the plaintiff's legitimate
expectations from ripening into a valid business relationship, and damages resulting
from the interference. Fellhauer v. City of Geneva, 142 Ill. 2d 495, 511, 568 N.E.2d
870, 878 (1991). The alleged purposeful interference must be directed toward the third

33

party. "It is not enough for the defendant's action to impact a third party; rather, the
defendant's action must be directed toward [that] party." Boffa Surgical Grp. LLC v.
Managed Healthcare Assocs. Ltd., 2015 IL App (1st) 142984, ¶ 28, 47 N.E.3d 569, 577.
Though Katherine alleges that defendants' conduct resulted in a loss of outside
business opportunities, such as consulting and lecturing opportunities, she does not
allege that any of the defendants directed their actions at any of the parties who have or
would have provided her those opportunities. Katherine maintains that it is sufficient for
her to allege that defendants directed her actions toward her employer and her
colleagues, who participate in the network through which Katherine would obtain
business opportunities. But it is not sufficient to allege that defendants' actions would
impact those third parties; the alleged actions must be directed toward those parties. Id.
E.

Civil conspiracy
Defendants argue that Katherine's civil conspiracy claim should be dismissed

because it is duplicative of her other underlying tort claims. The Court declines to
dismiss the claim on this basis at this time. "Illinois recognizes civil conspiracy as a
distinct cause of action," and "dismissal of a conspiracy count as duplicative of other
theories of recovery alleged in the complaint [would be] premature." Dowd & Dowd, Ltd.
v. Gleason, 181 Ill. 2d 460, 486, 693 N.E.2d 358, 371 (1998). If the case proceeds to
trial, "at the very least the jury must be instructed . . . that there cannot be double
recovery for the same injury." Cameron v. City of Chicago, No. 16 C 08347, 2017 WL
3421474, at *5 (N.D. Ill. Aug. 9, 2017).
Conclusion
The Court denies defendants' motions [dkt. nos. 83, 84, 86, 90, 92] with respect

34

to (1) the defamation and false light claims and aiding and abetting defamation and
false light claims against Wrigley, Kerr, Cohenson, and Raphan based on defendants'
alleged statements that Katherine lied to the New York state court, and (2) the claim
against Wrigley for intentional infliction of emotional distress, and otherwise grants the
motions. Defendants are directed to answer the remainder of plaintiff's complaint by no
later than January 5, 2018. Both sides' Rule 26(a)(1) disclosure are to be made by that
same date. The case is set for a status hearing on January 9, 2018 at 8:45 a.m. for the
purpose of setting a discovery and pretrial schedule. Counsel are directed to meet and
confer prior to that date to attempt to agree on a schedule to propose to the Court.

Date: December 8, 2017

________________________________
MATTHEW F. KENNELLY
United States District Judge

35