In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 18-2653

BOARD OF FORENSIC DOCUMENT EXAMINERS, INC., et al.,

Plaintiffs-Appellants,

v.

AMERICAN BAR ASSOCIATION, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:17-cv-1130 — Edmond E. Chang, Judge.

____________________

ARGUED APRIL 8, 2019 — DECIDED MAY 1, 2019

____________________

Before WOOD, Chief Judge, SCUDDER and ST. EVE, Circuit 

Judges.

SCUDDER, Circuit Judge. The Board of Forensic Document 

Examiners brought a defamation action alleging reputational 

harm from an article published in an American Bar Association law journal. The district court dismissed the action, concluding that the article did not sufficiently identify the Board 

or any of its members as the subjects of criticism and, even if 

it had, expressed nothing more than the author’s opinion. 
2 No. 18-2653

Because we agree that the statements are non-actionable, 

constitutionally protected expressions of opinion, we affirm. 

I

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, including each of the individual plaintiffs. 

This dispute centers on an article by Thomas Vastrick, a 

forensic document examiner certified by a different, much 

larger organization: the American Board of Forensic 

Document Examiners, which we will call the American 

Board. Vastrick’s article, Forensic Handwriting Comparison 

Examination in the Courtroom, appeared in The Judges’ Journal, 

a peer-reviewed scholarly journal published by the ABA. 

The summer 2015 edition of the journal in which Vastrick’s 

article was published focused on topics in forensic science 

encountered by judges when qualifying expert witnesses. 

Vastrick’s article spanned four pages and offered guidance 

for judges in evaluating the qualifications and credentials of 

handwriting experts. Vastrick urged judges to look for 

experts certified by the American Board and warned judges 

to “be wary of other certifying bodies.” The article also 

included Vastrick’s photo and a brief biography, which 

identified Vastrick as a “board certified forensic document 

examiner out of Orlando, Florida, with over 37 years of 

experience,” including service as chairman of the 

“Questioned Documents Section of the American Academy 

of Forensic Sciences” and participation in a handwriting 

study funded by the National Institute of Justice. 
No. 18-2653 3

While the article did not mention the Board of Forensic 

Document Examiners by name, the Board believed that 

Vastrick nonetheless defamed its members by making false 

and misleading statements about how to distinguish 

between “true professionals” and “lesser qualified” 

examiners. The Board initially responded by submitting a 

rebuttal to Vastrick’s article, but frustrated with the ABA’s 

suggested edits, it abandoned the effort and instead filed this 

action. The Board’s complaint asserted claims of defamation 

per se 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 Board also 

asserted claims of civil conspiracy, false advertising under 

the Lanham Act, and violations of state competition laws.

The Board amended its complaint and focused on four 

specific statements in Vastrick’s article: 

“An appropriately trained forensic document 

examiner will have completed a full-time, inresidence training program lasting a minimum 

of 24 months per the professional published 

standard for training. Judges need to be vigilant of this issue. There are large numbers of 

practitioners who do not meet the training 

standard.”

“The American Board of Forensic Document 

Examiners ... is the only certification board

recognized by the broader forensic science 

community, law enforcement, and courts for 

maintaining principles and training requirements concurrent with the published training 

standards. Be wary of other certifying bodies.”
4 No. 18-2653

The article cautioned judges “to look out for” 

examiners “[c]ertified by [a] board other than 

the American Board of Forensic Document Examiners.”

The article also cautioned against any 

“[m]ember of American Academy of Forensic 

Sciences but not the Questioned Document 

Section.”

The Board alleged that these statements misled readers 

about the qualifications of Board-certified examiners. As to 

the first statement, the Board asserted that Vastrick falsely 

suggested that to satisfy “the professional standards for 

training,” a forensic document examiner must complete a 24-

month “full-time, in-residence training program,” whereas 

the professional standards require only the equivalent of a 

24-month full-time training program. The Board also alleged 

that the second and third statements, which identified the 

American Board of Forensic Document Examiners as the only reputable certifying body, falsely implied that its members were unqualified, even though, like the American 

Board, the Board is accredited by the Forensic Specialties 

Accreditation Board. As to the fourth statement, the Board 

contended that Vastrick harmed Andrew Sulner’s reputation 

by warning judges about forensic examiners who are members of the American Academy of Forensic Sciences generally but not the American Academy’s Questioned Document 

Section specifically, as Sulner apparently is the only examiner who fits this description. 

The ABA and other defendants moved to dismiss the 

complaint, arguing that the challenged statements did not 

identify the Board (or any of its members) as the target of 
No. 18-2653 5

criticism and, regardless, reflected only Vastrick’s opinion, 

not verifiable facts. The district court agreed and dismissed 

each of the Board’s claims. The court also denied the Board’s 

motion for reconsideration and request to file a second 

amended complaint, concluding that any amendment would 

be futile in light of the ruling that the article contained only 

non-actionable opinion. 

II

On appeal the Board challenges the district court’s 

decision to grant the defendants’ motion to dismiss and, 

separately, to deny leave to file a second amended 

complaint. The Board also argues that the court erred by 

applying Illinois law to each claim (except for the claim 

specific to plaintiff Andrew Sulner, to which the district 

court properly applied New York law). We review a 

dismissal for failure to state a claim de novo, Santana v. Cook 

County Bd. of Review, 679 F.3d 614, 620 (7th Cir. 2012), and a

denial of leave to amend for abuse of discretion, Dubicz v. 

Commonwealth Edison Co., 377 F.3d 787, 792 (7th Cir. 2004).

A

Beginning with the choice of law issue, we turn to the 

law of the forum state, Illinois. See West Side Salvage, Inc. v. 

RSUI Indemnity Co., 878 F.3d 219, 223 (7th Cir. 2017). Illinois 

law tells us that the law of the state with the “most significant relationship to the occurrence and the parties” applies 

in the event of a conflict. Barbara's Sales, Inc. v. Intel Corp., 227 

Ill. 2d 45, 61 (2007). In defamation cases, the plaintiff’s home 

state often has the “most significant relationship” because 

that location is where the plaintiff suffers the most reputa-
6 No. 18-2653

tional harm. See Kamelgard v. Macura, 585 F.3d 334, 341 (7th 

Cir. 2009). 

Each individual plaintiff lives in a different state, and the 

district court agreed with the Board that, in the event of a 

conflict of laws, the law of the affected plaintiff’s home state 

would apply to the claim in question. From there, however, 

the district court identified only one conflict with Illinois 

law: for the defamation per se claim brought by Andrew 

Sulner, New York law (unlike Illinois) permits a plaintiff to 

rely on extrinsic evidence to establish that he is the target of 

a challenged statement. Compare Bryson v. News America 

Publications, Inc., 174 Ill. 2d 77, 118–19 (1996) (explaining that 

statements are not defamatory per se if “additional facts are 

required to show the identity of the allegedly defamed 

person”) with Hinsdale v. Orange County Publications, Inc., 17 

N.Y.2d 284, 290 (1966) (holding that extrinsic facts may be 

considered in determining whether a written statement is 

libelous per se if the extrinsic facts are “presumably known to 

[the] readers” of the challenged statement). As a result, the 

district court applied New York law to Sulner’s claim, but 

seeing no other conflicts, applied Illinois law to the Board’s 

remaining claims. 

The Board now argues that the district court should have 

applied the law of each plaintiff’s home state in assessing 

their defamation claims. We disagree. A district court is required to engage in a choice of law analysis only “if there is 

a conflict between Illinois law and the law of another state 

such that ‘a difference in law will make a difference in the 

outcome.’” West Side Salvage, 878 F.3d at 223 (citing Townsend 

v. Sears, Roebuck & Co., 227 Ill. 2d 147, 155 (2007)). And it was 

incumbent on the Board, as the party seeking a choice of law 
No. 18-2653 7

determination, to “establish the existence of an outcomedeterminative conflict.” Id. It failed to do so. While the 

Board, in its response to the ABA’s motion to dismiss, “reserve[d] [the] right to argue the application of the laws of a 

particular state should a conflict of laws arise with respect to 

certain issues,” the Board did not identify any specific conflict in the laws of the pertinent states. So the district court 

committed no error in applying the law of the forum state, 

Illinois, to each of the Board’s claims. See id. (“If the party 

fails to establish the existence of [] a conflict, the court applies the law of the forum state.”). 

B

That brings us to the merits of the Board’s claims. To 

state a claim for defamation under Illinois law, a plaintiff 

must allege 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 [the] 

publication caused damages.” Green v. Rogers, 234 Ill. 2d 478, 

491 (2009). If a statement’s “defamatory character is obvious 

and apparent on its face,” it is considered defamation per se, 

with the law then presuming damages. Tuite v. Corbitt, 224 

Ill. 2d 490, 501 (2006). Illinois recognizes five categories of 

statements that are considered defamatory per se, two of 

which are relevant here—statements “imputing an inability 

to perform or want of integrity in the discharge of duties of 

office or employment” and statements that “prejudice a party, or impute lack of ability, in his or her trade.” Van Horne v. 

Muller, 185 Ill. 2d 299, 307 (1998).

The Board contends that the four statements highlighted 

in its amended complaint are defamatory per se because they 

falsely imply that its experts do not meet the published pro-
8 No. 18-2653

fessional training standards for forensic examiners. But not 

all statements that doubt or impugn an individual’s professional abilities are actionable. To the contrary, opinions that 

do not misstate facts are protected not only by Illinois law 

but also by the First Amendment, and that is so even when 

the opinions concern one of the five defamation per se categories under Illinois law. See Huon v. Denton, 841 F.3d 733, 

743 (7th Cir. 2016).

In determining whether a statement is one of opinion or 

one of fact, Illinois law—in keeping with Supreme Court 

precedent—draws no firm dividing line. See Solaia Tech., LLC 

v. Specialty Publishing Co., 221 Ill. 2d 558, 581 (2006) (citing 

Illinois cases and Milkovich v. Lorain Journal Co., 497 U.S. 1, 

18–19 (1990)). Courts consider “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.; see 

also Gross v. New York Times Co., 82 N.Y.2d 146, 153 (1993) 

(articulating similar factors). Context is key, as it matters not 

only what was said, but who said it, where it was said, and 

the broader setting of the challenged statements. See, e.g., 

Brennan v. Kadner, 351 Ill. App. 3d 963, 969–70 (2004) 

(employing similar factors).

The context of Vastrick’s statements supports the district 

court’s conclusion that his article expressed his opinion, not 

verifiable facts. The article appeared in a scholarly law 

journal—the ABA’s The Judges’ Journal—and even more 

specifically in an edition devoted (as the front cover stated) 

to Forensic Sciences—Judges as Gatekeepers. Anyone reading 

this edition of The Judges' Journal would know that the 

primary audience was judges, with Vastrick’s article 
No. 18-2653 9

reflecting but one practicing expert’s view on how judges 

should attend to their gatekeeping obligations under Daubert

v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) or 

state-law analogues. Nobody reading the article in this 

context could reasonably have seen Vastrick’s statements as 

assertions of fact subject to falsification. To the contrary, the 

article was what it purported to be: one practitioner’s 

commentary on how judges should attend to the admission 

of expert opinion in the area of handwriting analysis. See, 

e.g., Lott v. Levitt, 556 F.3d 564, 570 (7th Cir. 2009) (explaining 

that in the scholarship context “it is natural to read [the 

allegedly defamatory] statement as a critique on [the 

plaintiff’s] theory, rather than an accusation of falsifying 

data”); Dilworth v. Dudley, 75 F.3d 307, 310 (7th Cir. 1996) 

(considering statements in a “work of scholarship” and 

stating that “judges are not well equipped to resolve 

academic controversies” and the appropriate remedy is “the 

publication of a rebuttal”). 

This interpretation is particularly reasonable as The 

Judges’ Journal warned readers that “[a]rticles represent the 

opinions of the authors alone” and “provide opposing 

views” for readers to consider. Vastrick likewise highlighted 

the subjective nature of his article, presenting his views as 

suggestions and not facts: “I, as a practicing forensic 

document examiner, would like to respectfully suggest ways 

to differentiate between the true professional and the lesserqualified practitioners.” To be sure, neither the ABA nor 

Vastrick could avoid liability simply by labeling the 

challenged statements as opinions. See Milkovich, 497 U.S. at

19. But these warnings are relevant to our assessment of the 

broader context of Vastrick’s statements and to our 
10 No. 18-2653

conclusion that the article could not reasonably be 

interpreted as stating facts. See Solaia, 221 Ill. 2d at 581. 

A closer look at the content of Vastrick’s statements 

reinforces our conclusion. In the first challenged statement, 

for example, Vastrick discussed the qualifications of “an 

appropriately trained forensic document examiner.” This 

express qualification—“appropriately trained”—signaled 

that Vastrick was offering his own view on adequate 

qualifications for a forensic examiner, not describing factual, 

objective standards for qualifications. Vastrick’s assertion 

that the American Board “is the only certification board 

recognized by the broader forensic science community, law 

enforcement, and courts,” likewise reflects the expression of 

a viewpoint, as the statement is so broad as to lack objective, 

verifiable meaning. See Haynes v. Alfred A. Knopf, Inc., 8 F.3d 

1222, 1227 (7th Cir. 1993) (“[I]f it is plain that the speaker is 

expressing a subjective view, an interpretation, a theory, 

conjecture, or surmise, rather than claiming to be in 

possession of objectively verifiable facts, the statement is not 

actionable.”). 

While we agree with the district court that the better 

course would have been for Vastrick to disclose (somewhere 

in the article) his affiliation with the American Board—

thereby allowing readers to see that he was showering praise 

on an organization to which he belonged—none of his 

statements were defamatory. Indeed, though the Board may 

disagree with Vastrick’s assessment of who is properly qualified and what credentials district judges should look for 

when considering proffered experts, the appropriate avenue 

for expressing a contrary point of view was through a re-
No. 18-2653 11

buttal article, not a defamation lawsuit. See, e.g., Lott, 556 

F.3d at 570–71.

Because we conclude Vastrick’s article contained only 

non-actionable opinion, we need not consider other aspects 

of the district court’s reasoning that informed the dismissal 

of the Board’s claims. 

III

The Board also challenges the district court’s dismissal of 

its Lanham Act claims. But here too the opinion-based nature of Vastrick’s statements is dispositive. 

To establish a deceptive advertising claim under

§ 1125(a)(1) of the Lanham Act, a plaintiff must show that 

“(1) the defendant made a material false statement of fact in 

a commercial advertisement; (2) the false statement actually 

deceived or had the tendency to deceive a substantial segment of its audience; and (3) the plaintiff has been or is likely 

to be injured as a result of the false statement.” Eli Lilly & Co. 

v. Arla Foods, Inc., 893 F.3d 375, 381–82 (7th Cir. 2018). As 

with Illinois defamation law, opinions are non-actionable 

under the Lanham Act because the statute prohibits only 

misrepresentations “of fact.” 15 U.S.C. § 1125(a)(1). Because 

Vastrick’s article reflected only his opinion, none of the challenged statements can form the basis of a Lanham Act claim. 

IV

Finally, the Board argues that the district court abused its 

discretion in failing to grant leave to amend its complaint. 

The district court offered two reasons for this denial: delay 

and futility. Because we agree that each of the challenged 

statements reflects Vastrick’s opinion—and there was nothing the Board could do to change that reality in a new 
12 No. 18-2653

amended complaint—the district court acted within its discretion in denying the Board’s request for leave to file a second amended complaint. See Runnion ex rel. Runnion v. Girl 

Scouts of Greater Chicago & Nw. Ind., 786 F.3d 510, 520 (7th 

Cir. 2015) (explaining that leave may be denied when it is 

“clear that the defect cannot be corrected so that amendment 

is futile”).

For these reasons, we AFFIRM.