Author and Publisher of Article in Trade Publication Found not to Have Committed Defamation When Author Suggested that Particular Credentialing Organization Should not be Trusted by Judges Evaluating Expert Witnesses

After a forensic document examiner wrote an article on the evaluation of qualifications and credentials in his profession for a trade publication, the nonprofit credentialing organization that was mentioned in the article sued the author and the publisher of the publication for defamation. The nonprofit argued that the article was defamatory and also singled out one of its members for special criticism. The district court dismissed the case, finding that the article was not defamatory, as it contained only opinions. An appellate court ruled in favor of the author and publisher, finding that the article represented the opinions of the author and that it was not possible to read the article as containing assertions of fact subject to verification. The appellate court determined that the district court did not err in finding that the article was not defamatory, even though it found that the author of the article should have disclosed his relationship to the credentialing organization that he promoted in his article.

The Board of Forensic Document Examiners is a nonprofit organization that administers a certification program for forensic document examiners. Certified examiners analyze and compare handwriting and provide expert testimony in judicial proceedings. The Board has certified about a dozen examiners.

Thomas Vastrick is an examiner who was certified by a different, much larger organization: the American Board of Forensic Document Examiners. Vastrick wrote an article, titled, Forensic Handwriting Comparison Examination in the Courtroom, which appeared in The Judges’ Journal, a peer-reviewed scholarly journal published by the American Bar Association. Vastrick’s article offered guidance for judges in evaluating the qualifications and credentials of handwriting experts. Vastrick urged judges to look for examiners certified by the American Board and warned judges to be wary of other certifying bodies.

The Board eventually sued the ABA, alleging claims of defamation and invasion of privacy on behalf of all of its members generally and member Andrew Sulner specifically on the basis that he was singled out by Vastrick. The ABA moved to dismiss the complaint, arguing that the challenged statements did not identify the Board, or any of its members, as the target of criticism, and reflected only Vastrick’s opinion, not verifiable facts. The district court agreed and dismissed the Board’s complaint. The Board then appealed.

The appellate panel began by addressing the Board’s claim for defamation. The panel found that the context of Vastrick’s statements supported the district court’s conclusion that his article expressed his opinion, not verifiable facts. The panel stated that it was not possible to read the article and reasonably see Vastrick’s statements as assertions of fact subject to falsification. The panel stated that, while it agreed with the district court that Vastrick should have disclosed his relationship to the American Board in his article, none of his statements were defamatory. The panel found that, though the Board may disagree with Vastrick’s opinions, the proper avenue for doing so was in a rebuttal article in the journal, and not in a lawsuit. The panel, therefore, affirmed the decision of the district court.

You can view the decision here.

Our Schaumburg, IL libel and slander lawyers concentrate in this area of the law. We have defended or prosecuted a number of defamation and libel cases, including cases representing a consumer sued by a large luxury used car dealer in federal court for hundreds of negative internet reviews and videos which resulted in substantial media coverage of the suit; one of Loyola University’s largest contributors when the head basketball coach sued him for libel after he was fired; and a lawyer who was falsely accused of committing fraud with the false allegation published to the Dean of the University of Illinois School of Law, where the lawyer attended law school and the President of the University of Illinois. One of our partners also participated in representing a high profile athlete against a well-known radio shock jock.

Our Chicago defamation attorneys defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. You can view here a federal court decision where we prevailed in a libel per se claim asserting the innocent construction defense. Here is an arbitration decision where we won a decision in favor our client after we presented evidence and cross-examined the used car dealer defendant at a hearing where we proved that our client’s 20 plus Youtube videos voicing his opinion that a used car dealer committed consumer fraud were true, were protected opinions under the First Amendment, or involved inconsequential and minor errors of fact. We recently required a defendant who publicized an allegedly false lawsuit regarding our client to provide an apology and full retraction as part of a confidential financial settlement following our filing of a $16 million suit for libel per se in federal district court. You can read about that case here.

Our Chicago Internet Libel lawyers also represent and prosecute claims on behalf of businesses throughout the Chicago area including in Deerfield and Park Ridge who have been unfairly and falsely criticized by consumers and competitors in defamatory publications in the online and offline media. We have successfully represented businesses who have been the victim of competitors setting up false rating sites and pretend consumer rating sites that are simply forums to falsely bash or business clients. We have also represented and defended consumers First Amendment and free speech rights to criticize businesses who are guilty of consumer fraud and false advertising.

Super Lawyers named Chicago and Oak Brook commercial dispute trial attorney Peter Lubin a Super Lawyer in the Categories of Class Action, Business Litigation, and Consumer Rights Litigation and Chicago slander attorney Patrick Austermuehle a Rising Star. Lubin Austermuehle’s Oak Brook and Chicago business trial lawyers have over thirty years of experience in litigating complex class action, consumer rights, and business and commercial litigation disputes. We handle emergency business lawsuits involving injunctions, and TROS, defamation, libel, and covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist businesses and business owners who are victims of fraud or defamatory attacks on their business and reputations.

Lubin Austermuehle’s Cook County County defamation and slander lawyers near Vernon Hills and Libertyville have more than three decades of experience helping business clients unravel the complexities of Illinois and out-of-state business laws. Our Chicago commercial defamation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. From offices in Elmhurst and Glencoe near Wilmette and Northfield, we serve clients throughout Illinois and the Midwest.

For a free consultation, you can call us locally at 630-333-0333.  You can also contact us online.