Stoller v. Johnson
| Citation | 2014 IL App (1st) 131250 |
| Decision Date | 13 March 2014 |
| Docket Number | No. 1-13-1250,No. 1-13-2088,1-13-1250,1-13-2088 |
| Court | United States Appellate Court of Illinois |
| Parties | LEO STOLLER, Plaintiff-Appellant, v. LANCE G. JOHNSON, et al., Defendants-Appellees. |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
¶ 1 Held: The trial court's order granting summary judgment in favor of defendants because defendants' defamatory publication is protected by the fair report privilege is affirmed.
¶ 2 Plaintiff, Leo Stoller, filed a second amended complaint for (1) defamation, (2) intentional infliction of emotional distress, (3) conspiracy to defame, (4) conspiracy to inflictemotional distress, and (5) aiding and abetting against defendants Lance G. Johnson, David Abrams, Alfred Goodman, and the law firm Roylance, Abrams, Berdo & Goodman, LLP. Prior to this suit and the allegedly defamatory publication at issue in this case, defendant Johnson, a partner in the defendant law firm, had defended a client in a trademark infringement lawsuit brought by plaintiff. The circuit court of Cook County granted defendants' motion for summary judgment. For the following reasons, we affirm.
¶ 4 Sometime between November 8, 2007, and November 10, 2007, the Intellectual Property Law Section of the State Bar of California presented a paper authored by defendant Johnson at the 32nd Annual Intellectual Property Institute, held at the Marriott Hotel in Monterey, California. The paper is titled "A House of Cards: Leo Stoller and the Central Mfg. Co. Licensing Scam." The paper's opening paragraph both summarizes the content and tone of the paper and encapsulates plaintiff's allegations of defamation. The paper states as follows:
¶ 5 Johnson's paper goes on to describe plaintiff's path to becoming an alleged professional vexatious litigator of trademark infringements. Defendant Johnson describes plaintiff's past business, how it resulted in the accumulation of trademarks, the personal issues that arose from its failure, and Johnson's own conjecture as to how plaintiff came to see value in the trademark itself, rather than any particular product it represents. The author speculates that when plaintiff did not achieve commercial gain from his trademarks he turned to litigation to realize their value. Johnson wrote that "[t]he 1996-1999 period saw the rise of Stoller's litigation career" and described the various ways in which Stoller allegedly generated income from that career. The paper describes what the author perceives to be the methodology of one of Stoller's lawsuits. Describing a prototypical lawsuit as "Stoller's operation," the author makes repeated references to Stoller's "victims," accuses Stoller of making "false allegations," fabricating discovery, and dilatory litigation tactics.
¶ 6 The allegedly defamatory paper states that plaintiff "filed 33 lawsuits from 1996 to 1998," all of which plaintiff lost, and lists several cases with "colorful decisions from this period." Two in particular resulted in sanctions in 1998, followed by a recording of assignments of trademarks held by the company involved in those cases (S. Industries, Inc.) to other corporate entities whichStoller also controlled (Central Manufacturing Co., Central Manufacturing, Inc., and Sentra Industries, Inc.). The original company, involved in the litigation that resulted in sanctions, filed for bankruptcy. Later, an entity involved in litigation with Stoller assigned the sanction judgment to another company (Pure Fishing, Inc.) which had become involved in litigation with Stoller.
¶ 7 The paper states that Stoller began litigating trademarks again in 2004 by filing oppositions to trademark registrations by other entities and sending letters demanding they cease use of his trademarks with licensing offers. In 2005, Stoller filed suit against Pure Fishing, Inc. Johnson writes why this later round of litigation failed, including that, in one case, Stoller "failed to keep (or manufacture convincing versions of) adequate records to substantiate his allegation of use of the *** mark" before the defendant who allegedly infringed on Stoller's trademark began using it, and, in another case, the defendant (Pure Fishing, Inc.) could "file counterclaims to assert an unsatisfied sanction award from 1998." The paper states that the latter case resulted in the cancellation of 34 of Stoller's trademark registrations. Subsequently, in a separate bankruptcy proceeding involving Stoller personally (and due to Stoller allegedly lying on disclosure forms, omitting key information, and filing false bankruptcy schedules), "Pure Fishing Inc. became Stoller's largest creditor." Johnson described Stoller's bankruptcy proceeding as including "a trademark trafficking business that included more than 200 federal registration certificates, third party licenses and almost three dozen pending oppositions and lawsuits that lacked factual or documentary foundation." In that bankruptcy proceeding, an organization thepaper only identifies as the "Society for the Prevention of Trademark Abuse, LLC"1 purchased Stoller's portfolio of trademarks and as a result, according to Johnson, "Leo Stoller is now out of the trademark business for the foreseeable future."
¶ 8 Johnson identifies "Nine Factors That Allowed Stoller To Stay In Business." Included among them was a statement that "Stoller obtained new registrations and maintained old registrations by filing fabricated evidence and false declarations of use." Johnson alleged he could (but in his paper he did not) "document 23 registrations in which Stoller submitted nothing more than a specimen consisting of a label printed on his computer with [a trademark] and a conclusionary, [sic] false declaration in which he attested to use of the attached specimen on the goods specified in the registration." Many of the factors Johnson identified and commentary in the paper are directed at alleged "weaknesses in multiple aspects of the TM registration system" and at the Trademark Trial and Appeal Board (TTAB), which Johnson opines permitted Stoller to exploit the system with his "open and notorious conduct."
¶ 9 In September 2008 plaintiff filed a pro se complaint against defendants in the circuit court of Cook County for defamation, intentional infliction of emotional distress (IIED), conspiracy to defame, conspiracy to inflict emotional distress, and aiding and abetting. Each count in the September 2008 complaint was based on the paper defendant Johnson prepared for the Intellectual Property Law Section of the State Bar of California conference. Plaintiffattempted to serve defendants by certified mail. In June 2009, the trial court quashed plaintiff's service and plaintiff appealed. The appellate court affirmed, our supreme court declined review, and the matter returned to the circuit court in December 2011.
¶ 10 In May 2012 plaintiff filed a second amended complaint. Plaintiff's second amended complaint is based solely on the paper presented to the Intellectual Property Law Section of the California bar at its conference in 20072. The second amended complaint makes claims based on the same five causes of action raised in the September 2008 complaint against the original defendants and against additional defendants named for the first time in the second amended complaint. Those additional defendants are not parties to this appeal. (Hereinafter all references to defendants are to the original defendants named in the September 2008 complaint and again in the second amended complaint.)
¶ 11 In December 2012, defendants moved for summary judgment on the grounds (1) their description of plaintiff as a trademark terrorist who should be in jail was rhetorical hyperbole protected by the First Amendment, (2) their publication was protected by the fair report privilege as an accurate report of several judicial proceedings involving plaintiff, and (3) plaintiff failed to allege extreme and outrageous conduct in support of his claim for IIED. In March 2013, the trial court granted defendants' motion for summary judgment. The trial court found defendants' paper was not protected as "exaggerated, figurative and hyperbolic" speech because the paper as a whole suggested factual content. The trial court found that "when the entire paper is read as awhole, it is replete with statements that are clearly verifiable, and the surrounding of the hyperbolic ['trademark terrorist,' 'he should be in jail,' and 'wasn't wearing federal orange years ago,'] by the verifiable infer that the hyperbolic is also a statement of fact."
¶ 12 However, the trial court granted summary judgment based on its application of the fair report privilege. The court also found the record devoid of evidence to support plaintiff's allegations of extreme and outrageous conduct. Finally, the court found that in light of its holdings, plaintiff's derivative claims of conspiracy and aiding and abetting must also fail. The court denied plaintiff'...
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