Case: 1:23-cv-16856 Document #: 52 Filed: 06/12/24 Page 1 of 18 PageID #:602

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JEANNETE BRAUN, BRAUN IP LAW, LLC, )

& LAUREN PROPSON, )
Plaintiffs, )
Case No. 23 C 16856
v. )
)
REBEKAH M. DAY NEE BOX, KC THE )
OWNER & OPERATOR OF THE ONLINE )
SOCIAL MEDIA ACCOUNT )
@CAFFINATEDKITTI, LILY MARSTON, & )
JESSICA VAZQUEZ )
)
)
)
Defendants. )

DEFENDANTS LILY MARSTON’S AND JESSICA VASQUEZ’S REPLY BRIEF IN

SUPPORT OF SPECIAL MOTION TO STRIKE AMENDED COMPLAINT PURSUANT
TO O.C.G.A. § 9-11-11.1 AND CAL. CODE CIV. PROC. § 425.16, OR, IN THE
ALTERNATIVE, MOTION TO DISMISS PURSUANT TO FED. R. CIV. PROC. 12(B)(6)
 Case: 1:23-cv-16856 Document #: 52 Filed: 06/12/24 Page 2 of 18 PageID #:603

I. INTRODUCTION

Plaintiff Jeanette Braun (“Braun”) has sued Defendants Lily Marston (“Marston”) and Jessica

Vasquez (“Vasquez”) (collectively, “Defendants”) for statements they allegedly made about her on

their online podcast, which the Amended Complaint concedes “promotes online controversies,

rumors and celebrity gossip.” The allegations of the Amended Complaint and the podcast episode

during which the statements were made reveals that Defendants’ statements that Braun is “unethical”

and files “false copyright claims” comprise Defendants’ constitutionally protected, subjective

opinions made in connection with an online controversy involving Braun’s litigation tactics against

social media content creators. As explained in Defendants’ Motion to Strike, there is no question that

Defendants’ statements are connected with an issue of “public concern” and, therefore, satisfy the

first prong of the applicable Georgia and California anti-SLAPP statutes as a “protected activity.”

Indeed, Braun’s Opposition does not refute any of the arguments or authorities cited in Defendants’

Motion to Strike.

Instead, Braun’s Opposition relies on the singular, conclusory argument that Defendants’

Motion relies on “disputed facts and information outside the Complaint” to “establish a matter of

public concern” under the first prong of the anti-SLAPP statutes. Yet, the Opposition does not identify

any facts or information “outside the Complaint” relied on by Defendants, and there are none. In

reality, Defendants’ Motion relies on two things: the plain allegations of the Amended Complaint and

the podcast episode in which the alleged defamatory statements were made. Braun’s “disputed facts”

identified in her Opposition are nothing more than her disagreement with the truth of the statements

made by Defendants in their podcast. But, as explained below, whether Defendants’ statements are

true have no bearing on whether they were made “in connection with an issue of public concern”;

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certainly every defamation plaintiff disputes the veracity of the defendants’ statements. That cannot

and does not create a “factual dispute” sufficient to deny an anti-SLAPP motion.

Braun’s Opposition also fails to demonstrate the legal sufficiency of her causes of action,

which is her burden under the second prong of the applicable anti-SLAPP statutes. As explained in

Defendants’ Motion, their statements in the podcast that Braun is “unethical” and files “false

copyright claims” express their subjective belief – not assertions of fact – and are simply too general

to be verified. If the statement cannot be verified, it cannot be actionable under Illinois defamation

law. Indeed, Braun’s Opposition does not distinguish any cases cited in Defendants’ Motion

demonstrating that these statements are not actionable, nor does the Opposition cite any contrary

authority. Instead, Braun makes unsupported, conclusory assertions that Defendants’ statements are

not opinions because they can be verified – without saying how they can be verified. Similarly,

Braun’s Opposition ignores the cases Defendants cited in their Motion holding that Marston’s

statement on Twitter that Braun was “actively committing perjury” – without any factual context –

cannot be verified and is a nonactionable opinion. Braun repeats this pattern for her remaining causes

of action, i.e., ignoring the cases cited in Defendants’ Motion and making unsupported assertions that

her claims are legally sufficient simply because she says so. Conclusory arguments devoid of legal

support are inadequate to satisfy Braun’s burden of demonstrating the legal sufficiency of her claims;

thus, Defendants respectfully request that this Court grant its anti-SLAPP motion and grant

Defendants’ their attorneys’ fees, or alternatively, grant their motion to dismiss under Fed. R. Civ. P.

12(b)(6).

II. THE OPPOSITION FAILS TO DEMONSTRATE THAT BRAUN’S CLAIMS

SURVIVE THE GEORGIA OR CALIFORNIA ANTI-SLAPP STATUTES.

A. Braun Fails to Demonstrate that Defendants’ Statements Were Not a “Protected

Activity” Under the California and Georgia Anti-SLAPP Statutes.

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Braun’s Opposition concedes that California and Georgia law would apply to an anti-SLAPP

determination given that Marston and Vasquez are citizens of California and Georgia, respectively,

and her Opposition concedes that this Court can make an anti-SLAPP determination based solely on

the allegations of the Amended Complaint, applying a Fed. R. Civ. P. 12(b)(6) standard. (Opposition

(“Opp.”), pp. 3-8). Braun also does not dispute the anti-SLAPP standard laid out in Defendants’

Motion to Strike. Namely, the Court must grant a Motion to Strike under Georgia and California anti-

SLAPP law if: (1) the speech is considered a “protected activity” under the anti-SLAPP statute, and

(2) the plaintiff cannot establish that there is a probability it will prevail on its claim. (Motion, pp. 5-

6) (citing ACLU, Inc. v. Zeh, 312 Ga. 647, 650 (2021); Clarity Co. Consulting, LLC v. Gabriel, 77

Cal.App.5th 454, 461-62 (2022)). As explained in Defendants’ Motion, speech is a “protected

activity” if it is made in a “public forum” and “in furtherance of the person's or entity's right of petition

or free speech under” the Constitution . . . in connection with an issue of public interest or concern”

or a “in connection with a public issue.” See OCGA § 9-11-11.1(c)(3)(4); Code Civ. Proc. § 425(e)

(emphasis added).

Here, as explained in Defendants’ Motion, Braun claims Defendants defamed her by stating

in Episode 97 of their podcast “Do We Know Them?” that Braun’s “practices are unethical” and she

has filed “false copyright strikes” against content creators. 1 (Am. Compl., ¶¶ 146-149). 2 Additionally,

1
While the Opposition argues that Braun’s defamation claim is based on the allegation that Defendants stated that
Braun filed “false copyright claims,” Braun’s cause of action for defamation in the Amended Complaint is based only
on the alleged “unethical” and “actively committing perjury” statements. (Am. Comp., ¶ 204) (“[Defendants] are
business partners that defamed [Braun] by publicly stating that Ms. Braun is unethical and commits perjury and using
their platform to smear [Braun’s] character and reputation”). Braun should not be permitted to amend her complaint
through an opposition to a motion to dismiss. See Guajardo v. Skechers USA, Inc., 503 F.Supp.3d 746, 756–757 (C.D.
Ill. 2020) (“a plaintiff may not amend her complaint in response to a motion to dismiss”) (citing Pirelli Armstrong Tire
Corp. Retiree Med. Benefits Tr. v. Walgreen Co., 631 F.3d 436, 448 (7th Cir. 2011)).
2
As explained in Defendants’ Motion, while the Amended Complaint does not explicitly refer to Episode 97 of
Defendants’ podcast “Where are They NOW?”, it is indisputable that this is the episode in which the alleged
defamatory statements were made, as Braun sets forth screen shots from this episode in the original Complaint [Dkt.
1 (Orig. Compl.), at ¶¶ 89, 91], and a review of Episode 97 reveals that the alleged defamatory statements were made
during it. (See https://www.youtube.com/watch?v=FWDqzt59xI4).

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the Amended Complaint alleges Marston defamed Braun by accusing Braun on Twitter of “actively

committing perjury.” (Id., ¶ 149). Relying only on the allegations of the Amended Complaint,

Defendants’ Motion establishes that their statements were made in connection with a “public issue”

or an issue of “public interest or concern,” because they were made in an open place or forum (i.e.,

in a podcast disseminated on the Internet to more than 110,000 subscribers and on Twitter) and

concerning a matter of public interest (i.e., Defendants alerting their viewers about their impressions

of Braun’s litigation tactics against other social media content creators). (Motion, pp. 7-9).

In her Opposition, Braun does not dispute that Defendants’ statements were made in an “open

place or forum”, and Braun does not dispute that statements regarding her litigation practices are

connected to a “public issue” or a matter of “public interest or concern”. (Opp., pp. 11-23). Thus,

Braun has conceded these points. See Cincinnati Ins. Co. v. E. Atl. Ins. Co., 260 F.3d 742, 747 (7th

Cir. 2001) (where a party fails to address a non-frivolous or dispositive argument, it is appropriate to

infer acquiescence, and “acquiescence operates as a waiver”). Indeed, the Opposition makes no effort

to refute or distinguish the cases cited in Defendants’ Motion which stand for the proposition that

online statements regarding a plaintiff’s business practices are made “in connection with” a “public

interest” for purposes of the Georgia and California anti-SLAPP statutes. 3 Braun’s Opposition also

does not address the argument in Defendants’ Motion demonstrating that Defendants’ statements are

a “protected activity” made in connection with an “official proceeding authorized by law,” i.e., the

filing of a copyright strike under the DMCA. (Motion, p. 9, n. 5).

3
(See Motion, p. 9) (citing Piping Rock Partners, Inc. v. David Lerner Assocs., Inc., 946 F.Supp.2d 957, 969 (N.D.
Cal. 2013) (finding that online blog post “warning . . . consumers not to do business with plaintiffs because of their
allegedly faulty business practices” concerns an issue of public interest, and “it makes no difference , for purposes of
the public interest requirement whether the warning was not sincere, accurate, or truthful”); Chaker v. Mateo, 209
Cal.App.4th 1138, 1146 (2012) (concluding that online statements regarding plaintiff’s character and business practices
were “of public interest” because they “were intended to serve as a warning to consumers about his trustworthiness”);
ACLU, 312 Ga. at 650 (statement regarding lawyer’s professional conduct on blog post was protected by Georgia anti-
SLAPP statute)).

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Instead, the Opposition argues only that Defendants rely on “disputed facts and information

outside the Complaint” to “establish a matter of public concern” and those purported “disputed facts”

prevent the Court from granting a motion to strike at this stage of the litigation. (Opp., p. 11). This

assertion is nonsensical, as Defendants’ Motion to Strike relies only on the allegations of the Amended

Complaint and statements made in the podcast on which Braun’s claims are based. While the

Opposition vehemently argues that this Court cannot consider Episode 97 itself (in which Defendants

made their alleged defamatory statements) because it is outside the “four corners” of the Amended

Complaint (Opp., pp. 11-12), Braun ignores well-settled Seventh Circuit case law holding that “[i]n

a defamation case, where the published material is central to a plaintiff's allegations, courts routinely

look outside the four corners of the complaint to view the entire publication.” 4 Financial Fiduc.,

LLC v. Gannett Co., Inc., 46 F.4th 654, 664 (7th Cir. 2022) (emphasis added); see also Law Offices

of David Freydin, P.C. v. Chamara, 24 F.4th 1122, 1131 (7th Cir. 2022)(same); Osundairo v. Geragos,

447 F.Supp.3d 727, 738 (N.D. Ill. 2020) (“where a document is referenced in the complaint and

central to plaintiff's claims, the Court may consider it in ruling on the motion to dismiss”).

Braun’s Opposition does not point to any extrinsic evidence cited or relied on by Defendants.

Instead, Braun argues that because Defendants’ Motion purportedly relies on “assumed facts” with

which Braun disagrees, these are somehow disputed facts that preclude granting an anti-SLAPP

4
It should also be noted that nowhere in the Opposition does Braun dispute the authenticity of the video of Episode
97 of Defendants’ podcast in which the alleged defamatory statements were made, a link to which Defendants provided
to the Court in their Motion. (See Motion, p. 3). Braun does not argue that the link is not the actual episode on which
her claims are based or otherwise not authentic; rather, she argues only that the “video references documents that have
not been tendered to the Plaintiffs and involves witness testimony that is not before this Court”, and Defendants’
request that the Court view Episode is somehow a “request for this Court to accept their characterizations of hearsay
statements as true . . . .” (Opp., p. 12). Defendants are not asking this Court to accept any characterizations or
statements in the video as “true,” and Defendants are in no way relying on “documents” or “witness testimony” to
establish that their statements are in connection with a “public issue” or “public interest or concern” under anti-SLAPP
law. Rather, Defendants are simply asking the Court to view the statements in the context in which they were made,
i.e., Episode 97 in its entirety, which the Seventh Circuit has held is appropriate. Financial Fiduc,, 46 F.4th at 664;
Freydin, 24 F.4th at 1131 (“courts must also analyze the entirety of [the publication in which the statement] appeared
in to determine whether the [speaker] expressed a factual assertion or opinion”); Osundairo, 447 F.Supp.3d at 738.

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Motion or Motion to Dismiss under Rule 12(b)(6). Specifically, Braun targets Defendants’ argument

that their statements regarding Braun’s practices are connected to an issue of “public concern

affecting a large group of individuals,” for example, “social media content creators who might be

targeted by Braun or who might be considering using Braun as a lawyer.” (Opp., p. 11). Braun argues

that there is a “factual dispute” precluding a motion to strike because “whether [Defendants] actually

received messages and DM’s from other content creators is a fact not within the complaint and

involves hearsay statements and additional documents that are not presently before the Court.” (Id.)

The Opposition also argues that Braun disputes the veracity of statements Defendants made in

Episode 97 of their podcast regarding an email they received from a content creator who claims to

have been the subject of a copyright strike by Braun (although, those statements are not the subject

of Braun’s defamation action). (Id., p. 12).

The question of whether Defendants actually received messages from other content creators

about Braun’s litigation tactics has nothing to do with the question at issue here: whether Defendants’

alleged defamatory statements regarding Braun’s practices are connected to a public issue under the

Georgia and California anti-SLAPP statutes. Defendants do not have to prove that the “public”

reached out to them to tell them that this is a matter in which they are interested in to satisfy the anti-

SLAPP “public issue” requirement, and Braun has not cited any case law supporting any such

argument. Rather, the inquiry to be made at this stage is a simple one: were Defendants’ statements

made “in connection with a public issue or an issue of public concern?” See OCGA 9-11-

11.1(c)(3)(4); Code Civ. Pric. 425.16(e); see also Amin, 2022 WL 16964770, at *7 (holding that

statements are made “in connection” with an issue of public concern if they “relate to” the public

issue and “directly discuss[] and investigat[e]” the issue). As explained in Defendants’ Motion, the

answer is yes. (See Motion, p. 9); see also Prehired, LLC v. Provins, 2023 WL 2717509, at *7 (E.D.

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Cal., Mar. 30, 2023) (“[W]arnings to the public regarding plaintiff's potentially unethical alleged

business practices plainly implicate the public's interest”) (emphasis added). The fact that Braun

may disagree with Defendants’ statements is irrelevant and does not create a “factual dispute”

precluding a motion to strike. Id. at *6 (“California law does not require a statement to be serious or

truthful in order to concern an issue of public interest”). Furthermore, Plaintiffs’ allegations that

Defendants’ statements have been “spread and repost[ed]” (Am. Compl., ¶ 157) and that a “multitude

of content creators have republished” (id., ¶ 159) Defendants’ statements, and that Defendants’

statements have been the subject of “online messages, comments, and pages” (id., at ¶ 160) further

demonstrates that Defendants’ statements are an issue of public interest. Prehired, LLC, 2023 WL

2717509 at *7 (holding that allegation that “defendant's statements have been viewed more than

750,000 times on LinkedIn’ “support a finding that these statements pertain to an issue of public

interest”) 5 (citing Summit Bank v. Rogers, 206 Cal. App. 4th 669, 695 (2012) (“The fact that

[defendant's] posts drew numerous comments, including comments vehemently disagreeing with

[defendant], suggests that the broad topic [of the statement], and the narrow topic of [plaintiff] and

its personnel and activities, are matters of public discourse and are of considerable public interest.”) 6

Thus, while Braun’s Opposition argues that Defendants’ “arguments rely on disputed facts

and third-party witness testimony” (Opp., p. 12), that simply is not the case. The plain allegations of

the Amended Complaint alone (even without any reference to Episode 97 of Defendants’ podcast for

5
As explained in Defendants’ Motion, the podcast episode in which Defendants made the alleged defamatory
statements had been viewed at least 190,000 times at the time the Motion was filed. (Motion, p. 7).

6
As explained in Defendants’ Motion, the Georgia Supreme Court has held that the California anti-SLAPP statute is
“very similar in text to the text of Georgia’s revised anti-SLAPP statute, and because the California Supreme Court
“has developed a considerable body of case law interpreting the text of [the California anti-SLAPP statute],” Georgia
courts “may look to California case law” “for guidance” when interpreting the Georgia anti-SLAPP statute. Wilkes &
McHugh, P.A. v. LTC Consulting, L.P., 306 Ga. 252, 258 (2019).

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context) make clear that under cited Georgia and California law, Defendants’ statements are

connected to a public issue and the first prong of the anti-SLAPP analysis is satisfied.

B. Braun Fails to Demonstrate That Her Claims Are Legally Sufficient.

1. Braun Cannot State a Claim for Defamation.

As explained in their Motion, because Defendants have satisfied the first prong of the Georgia

and California anti-SLAPP statutes, the burden shifts to Braun to demonstrate there is a probability

she will prevail on her claims. (Motion, p. 10). At this stage of the litigation, the Court looks to

whether the causes of action are legally sufficient under federal pleading requirements. (Id.)

Defendants’ Motion demonstrated that Braun’s defamation claim does not satisfy this standard

because Defendants’ statements: (1) are nonactionable, constitutionally protected opinions, and (2)

are subject to a qualified privilege under Illinois law. The Opposition does not distinguish, discuss

or even mention any of the cases cited by Defendants. Instead, Braun makes conclusory assertions

regarding the viability of her defamation claim – unsupported by any legal authority – that fall far

short of overcoming a motion to strike or dismiss.

As to Braun’s allegation that Defendants’ reference to her as “unethical” constitutes

defamation, Defendants’ Motion explains that when examined in the context of Episode 97 7, it is

apparent that Defendants were expressing their subjective belief of Braun’s actions. (Motion, pp. 11-

12) (citing Tamburo v. Dworkin, 974 F.Supp.2d 1199, 1212 (N.D. Ill. 2013)) (“a plainly subjective

remark is not actionable). The Opposition does not explain how or why Defendants’ statement does

not constitute their subjective opinion. Instead, the Opposition simply states – with no support

whatsoever – that the “unethical” statement is actionable because it is “verifiable,” i.e., “it can be

7
Freydin, 24 F.4th at 1131 (“courts must also analyze the entirety of [the publication in which the statement] appeared
in to determine whether the [speaker] expressed a factual assertion or opinion”).

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investigated whether Plaintiff’s Braun’s actions adhered to legal and ethical standards” and because

Braun “is an attorney in good standing” with “no disciplinary actions made against her.” (Opp., p.

29). Whether Braun is an attorney in good standing or has not been subject to disciplinary action does

not “verify” that her actions are not unethical. Certainly, there are many lawyers and other

professionals who are considered “unethical,” but have never been disciplined for their actions. And

what conduct should one examine to determine whether Braun is or is not “unethical,” and by what

standards should Braun’s conduct be measured to “verify” whether she has “adhered” to those

standards? Certainly, what is “ethical” to one person may not be to another. That is precisely why

the Seventh Circuit and this district have explicitly held that “[w]hether a person’s actions are

unethical” “is not objectively verifiable.” Tamburo, 974 F.Supp.2d at 1213 (emphasis added);

Freydin, 24 F.4th at 1132 (rejecting argument that term “unethical” “‘carries a precise and

understandable meaning which would subject the attorney to the discipline’ of the Illinois Attorney

Registration and Disciplinary Commission” and holding that statement was a “non-actionable

expression of an opinion”); see also Manjarres v. Nalco Co., 2010 WL 918072, at *5 (N.D. Ill., Mar.

9, 2010) (“Without citing to any authority, Plaintiff argues that the professional codes and ethical

obligations of attorneys render Defendants' alleged statement capable of objective verification. Even

if this were true, and professional codes generally provided a yardstick with which to measure

behavior, Plaintiff still has not provided the necessary factual basis to allow for objective verification

of the alleged statement here"); Gardner v. Senior Living Systems, Inc., 314 Ill.App.3d 114, 120 (Ill.

App. Ct. 2000) (“[m]erely calling plaintiff ‘unethical’ here cannot not be reasonably interpreted as

stating actual verifiable facts and therefore falls under a constitutionally protected opinion”). Here,

the term “unethical” in Defendants’ statement – “as unhinged as [Braun] is, as unethical as [Braun]

is, she is finding some success in her practices” (Am. Compl., ¶ 47) – is no more “verifiable” or

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grounded in facts than the term “unhinged.” As a matter of law, these terms are nothing more than

subjective opinions and rhetoric name-calling, neither of which are actionable as defamation.

Haberstroh v. Crain Publications, Inc., 189 Ill.App.3d 267, 271 (Ill. App. Ct. 1989) (“Numerous

Illinois cases have found words that are mere name-calling not to be actionable”).

As for Marston’s statement on Twitter (“do we think demps knows that her embarrassing

excuse of a lawyer is using her name while actively committing perjury?”), the Opposition argues

that the statement is “verifiable” because it can be determined whether [Braun] has ever been

convicted of committing perjury.” (Opp., p. 29). As a preliminary matter, whether someone has “been

convicted” for something is not the same as whether they have “committed” it, and verifying whether

someone has or has not been convicted of a crime has no bearing on whether they actually committed

it. More importantly, however, this argument flatly ignores the legal authority in Defendants’ Motion,

holding that a statement cannot be a verifiable statement of fact without factual context. (Motion, p.

12) (citing e.g., Schivarelli v. CBS, Inc., 333 Ill.App.3d 755, 762 (Ill. Ct. App. 2002) (statement that

plaintiff was “cheating the city”, in the absence of any factual context, “was a nonactionable opinion,

as it was too broad, conclusory, and subjective to be objectively verifiable”); Piersall, 230 Ill.App.3d

at 511 (statement that “[plaintiff] is a liar” was nonactionable opinion because it lacked a factual basis

surrounding the statement). Here, Marston’s Tweet provides absolutely no factual context required to

verify this statement. It does not explain how, when or under what circumstances she was “actively

committing perjury.” (Am. Compl., ¶ 149).

Finally, as to the Opposition’s arguments regarding Defendants’ statement that Braun filed

“false copyright claims,” the Amended Complaint does not include this alleged statement in Braun’s

defamation claim. (Id., ¶ 204). As explained above, an attempt to amend her defamation claim in

opposition to Defendants’ Motion is improper. Guajardo, 503 F.Supp.3d at 756–757 (“a plaintiff may

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not amend her complaint in response to a motion to dismiss”). Regardless, the Opposition’s

contention that the term “false copyright claim” is actionable because it can be verified is without

merit. Specifically, the Opposition argues that the term “false copyright strike” can be verified

because it can be “determined whether the copyright strikes filed by [Braun]” “were frivolous.”

(Opp., p. 12). But how can it be verified whether Braun’s copyright strikes were “frivolous”? That

term could vary from person to person and is simply too vague to be actionable. Freydin, 24 F.4th at

1130 (if there are numerous interpretations of a term or phrase, it cannot be actionable). Moreover,

the Amended Complaint and Episode 97 make clear that Defendants are expressing their opinions

about the merits of the copyright strikes filed by Braun, and “[d]eprecatory statements regarding the

merits of ligation are nothing more than the predictable opinion of one side to the lawsuit and cannot

be the basis for a defamation claim.” Bauer v. Hill, 2022 WL 18397513, at *6 (C.D. Cal. Nov. 23,

2022) (citing GetFugu, Inc. v. Patton Boggs LLP, 220 Cal.App.4th 141, 156 (2013) (statement that

certain claims were “frivolous” were unactionable statements of opinion that are predictable in the

context of litigation); see also Amaretto Ranch Breedables, LLC v. Ozimals, Inc., 2013 WL 3460707,

at *4 (N.D. Cal. July 9, 2013) (holding that statements regarding the merits of a case “expressed

Ozimals' opinions and purported to apply Ozimals' understanding of copyright law as applied to the

facts”); Alzheimer's Found. of Amer., Inc. v. Alzheimer's Disease & Related Disorders Ass'n, Inc., 796

F.Supp.2d 458, 471 (S.D.N.Y. 2011) (holding that “statement condemning an opponent's legal claims

as ‘baseless’ is mere opinion and is not defamatory” and dismissing claim). 8

8
Defendants were unable to locate any Illinois cases addressing the issue of whether statements as to the merits of a
legal dispute or lawsuit are actionable as defamation. However, given that California, New York and Illinois consider
similar factors in determining whether a statement is a nonactionable opinion, Defendants respectfully requests that
the Court consider these holdings in making its determination on this issue. See e.g., Freydin, 24 F.4th at 1129
(discussing factors court considers in determining whether statement is fact or opinion); compare with Brian v.
Richardson, 87 N.Y.2d 46, 51 (1995); Steam Press Holdings, Inc. v. Hawaii Teamsters, Allied Workers Union, Local
996, 302 F.3d 998, 1005–1006 (9th Cir. 2002).

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Finally, the Opposition wholly ignores the social context in which these statements were

made, i.e., an online podcast “that promotes online controversies, rumors and celebrity gossip” and

in Marston’s personal Twitter account. (Am. Compl., ¶¶ 128, 149). As explained in Defendants’

Motion, the Court must consider this context, and numerous courts have held that statements made

in this realm give a “strong signal” to a viewer that the statement is opinion. (Motion, p. 12 and n. 8)

(citing Ganske v. Mensch, 480 F.Supp.3d 542, 533 (S.D.N.Y. 2020) (holding social media platforms

are “informal and freewheeling” and convey a “strong signal to a reasonable reader” that a statement

is opinion); Freydin, 24 F.4th at 1130 (holding that readers of online reviews would be “skeptical

about what they read, both positive and negative”). Indeed, in Brennan v. Kadner, 351 Ill.App.3d

963, 958-59 (Ill. App. Ct. 2004), the alleged defamatory statement was made in the context of a

regular column by the defendant who, “regularly expressed his personal opinions on a wide range of

public and social issues” and his statements concerned plaintiff's involvement in a public controversy.

Id. The court held that “[i]n light of the nature of the controversy and the overall tenor of the column,

we cannot conclude that [defendant’s] statement was a factual assertion.” Id. (holding that given the

context in which the statements were made, “a reasonable reader would not have taken the statement

as a literal assertion that plaintiff had actually committed mail fraud”). The same can be said here.

Defendants’ statements were made in the context of their personal opinions regarding “online

controversies, rumors and celebrity gossip”; thus, a reasonable viewer would not perceive their name-

calling and rhetoric as “assertions of fact.”

Finally, the Opposition does not dispute that Defendants’ statements are subject to a “public

interest” qualified privilege 9, but instead claims that Braun has “overcome any claim of qualified

privilege” because Defendants statements were made “knowingly” and with a “reckless disregard for

9
Thus, Plaintiffs concede that the statements fall within the scope of this qualified privilege. Cincinnati Ins., 260
F.3d at 747.

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the truth” and “intent to harm” Braun’s reputation. (Opp., p. 29). While Defendants agree that a

plaintiff may overcome the qualified privilege at the pleading stage by alleging the statement was

made with “actual malice,” Braun simply has not satisfied this requirement. (See Motion, pp. 13). To

overcome the qualified privilege on the grounds of “actual malice” by the defendant, “courts in this

district [] have looked for something more than conclusory statements in order to infer that the

defendant knew the statements were untrue or recklessly disregarded the truth or falsity of the

statements.” Id. (citing Ludlow v. Northwestern Univ., 79 F.Supp.3d 824, 845 (N.D. Ill. 2015)). Here,

the Amended Complaint relies on nothing more than conclusory assertions regarding Defendants’

purported intent (Am. Compl., ¶¶ 139, 212), and the Opposition simply echoes those inadequate

allegations. (Opp., p. 29) (arguing that Braun “alleges sufficient facts to show that [Defendants]

intended to harm [Braun]”, without actually identifying what those “facts” are). Thus, Braun’s

defamation claim against Defendants is not legally sufficient and fails to satisfy the second prong of

the anti-SLAPP statutes.

2. Braun Cannot State Claims for False Light and Trade Libel against
Defendants.

As explained in Defendants’ Motion, because Braun’s defamation claim is insufficient, her

false light and trade libel claims based on the identical allegations must fail as well. (Motion, pp. 13-

14) (citing Madison v. Frazier, 539 F.3d 646, 659 (7th Cir. 2008)). The Opposition does not explain

how these claims can survive if the defamation claims fail (which they do); thus, dismissal of the

defamation claims warrants dismissal of these claims based on identical inadequate allegations.

3. Braun Cannot State a Claim for Tortious Interference against

Defendants.

As a preliminary matter, a failed defamation claim cannot serve as a basis for a claim of

tortious interference with existing or potential business relationships. Makhsous v. Mastroianni, 2020

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WL 1530740, at *4 (N.D. Ill. Mar. 31, 2020) (citing Jacobson v. CBS Broad., Inc., 19 N.E.3d 1165,

1182 (Ill. App. Ct. 2014) (holding that a dismissed defamation claim cannot serve as a basis for a

claim of intentional interference with prospective economic advantage)). Here, as explained in

Defendants’ Motion, Braun’s interference claim against Defendants is based entirely on their

constitutionally protected opinions. (Motion, p. 14). The Opposition fails to address this argument or

distinguish the cases Defendants cited. Instead, the Opposition simply reiterates the vague allegations

of the Amended Complaint regarding the unidentified “members of the public” who left “negative

reviews” about Braun and the termination of “several client engagements” that Braun experienced

purportedly as a result of Defendants’ statements. (Opp., p. 41). Again, however, vague references to

“clients” is insufficient to state a claim for tortious or intentional interference. (Motion, p. 14) (citing

Hackman v. Dickerson Realtors, Inc., 557 F.Supp.2d 938, 948 (N.D. Ill. 2008)); see also Kapotas v.

Better Government Ass'n, 30 N.E.3d 572, 596 (Ill. App. Ct. 2015) (holding that “[t]he hope of

receiving a job offer is not a sufficient expectancy . . . The plaintiff must specifically identify the

person with whom the plaintiff expected to contract and allege specific acts of interference”).

Furthermore, Braun fails to allege “an action by the defendant directed towards [a] third party” with

whom the plaintiff expected to contract, which is a factual allegation required to state a claim for

intentional interference with prospective economic advantage. See LoggerHead Tools, LLC v. Sears

Holding Corp., 2013 WL 1858590, at *6 (N.D. Ill. May 1, 2013). Finally, the Amended Complaint

does not contain a factual allegation that the statements by Defendants caused the unidentified clients

not to employ Braun or to terminate their existing engagement. Braun’s unsupported assumption that

these individuals did not employ Braun or terminated their relationship with her because of

Defendants’ statements is wholly insufficient. Hackman, 557 F.Supp.2d at 949 (dismissing allegations

that were “too attenuated” to plead causation element of an intentional inference claim).

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4. Braun Cannot State a Claim for Emotional Distress Against Defendants.

As explained in Defendants’ Motion, Braun’s emotional distress claims are entirely derivative

of their failed defamation claims. The law is clear that if Braun cannot state a claim for defamation,

she cannot state a claim for emotional distress based on the purported defamation. (Motion, p. 15).

The Opposition fails to address or distinguish the authorities cited by Defendants. (Opp., pp. 43-44).

Thus, Braun’s emotional distress claim cannot survive.

III. ALTERNATIVELY, BRAUN’S CLAIMS SHOULD BE DISMISSED UNDER

FED. R. CIV. P. 12(B)(6).

As explained in Defendants’ Motion and above, the second prong of the Georgia and California

anti-SLAPP statutes employ the same standard as Fed. R. Civ. P. 12(b)(6). Because Braun cannot

satisfy the second prong of the anti-SLAPP statute, she cannot state a claim under Rule 12(b)(6).

Thus, if the Court finds that Defendants’ statements are not a “protected activity” under the anti-

SLAPP statutes, Defendants respectfully request that this Court dismiss each of Braun’s claims under

Rule 12(b)(6).

Dated: June 12, 2024 Respectfully Submitted,

s/ Brandon J. Witkow

Brandon J. Witkow [pro hac vice]

WITKOW | BASKIN
21031 Ventura Boulevard, Suite 700
Woodland Hills, CA 91364
(818) 296-9508
[email protected]

s/ Amy M. Doig

Amy M. Doig
COZEN O’CONNOR
123 N. Wacker Dr., Suite 1800
Chicago, Illinois 60606
(312) 474-7900
[email protected]

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CERTIFICATE OF SERVICE

The undersigned attorney hereby certifies that the foregoing document was filed and served

on all counsel of record noted below via the CM/ECF system of the United States District Court

of the Northern District of Illinois.

Benjamin C.R. Lockyer

Lockyer Law LLC
100 N. Riverside Plaza, Suite 2400
Chicago, Illinois 60606
[email protected]

Attorney for Plaintiffs

Dated: June 12, 2024 s/ Brandon J. Witkow

Brandon J. Witkow

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