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Full Opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12-‐‑3294
SCOTTIE PIPPEN,
Plaintiff-‐‑Appellant,
v.
NBCUNIVERSAL MEDIA, LLC, et al.,
Defendants-‐‑Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 8834 — Sharon Johnson Coleman, Judge.
____________________
ARGUED APRIL 19, 2013 — DECIDED AUGUST 21, 2013
____________________
Before EASTERBROOK, Chief Judge, and POSNER and
WILLIAMS, Circuit Judges.
EASTERBROOK, Chief Judge. Scottie Pippen, who won six
championship rings with the Chicago Bulls and was named
in 1996 to the National Basketball Association’s list of the 50
greatest players in its history, has encountered financial re-‐‑
verses since his playing days ended in 2004. He has lost
through bad investments a large portion of the fortune he
amassed during his playing days. In an effort to recoup
No. 12-‐‑3294 2
some of these losses, he has pursued multiple lawsuits
against former financial and legal advisors who he believes
led him astray. The media caught wind of Pippen’s woes,
and several news organizations reported that he had filed
for bankruptcy. This is false; he has not.
Pippen contends that the false reports have impaired his
ability to earn a living through product endorsements and
personal appearances. He filed this suit against multiple de-‐‑
fendants under the diversity jurisdiction in the Northern
District of Illinois, contending that he was defamed and cast
in a false light. The district court dismissed the complaint. It
found that the falsehoods did not fit within any of the cate-‐‑
gories of statements recognized by Illinois law to be so in-‐‑
nately harmful that damages may be presumed. The district
court also concluded that the complaint did not plausibly
allege that the defendants had published the falsehoods with
actual malice—a term that looks as if it might mean “ill will”
but in fact means knowledge the statement is false or reck-‐‑
less disregard of whether it is false. Masson v. New Yorker
Magazine, Inc., 501 U.S. 496, 510 (1991). Demonstrating actual
malice is a requirement for a public figure such as Pippen to
recover damages for defamation, New York Times Co. v. Sulli-‐‑
van, 376 U.S. 254, 279–80 (1964), and to make out a claim of
false light under Illinois law. Lovgren v. Citizens First National
Bank of Princeton, 126 Ill. 2d 411, 422–23 (1989).
There are two types of action for defamation. The first,
called defamation per quod, requires a plaintiff to show that
the false statements caused him harm. Some statements,
however, expose the subject to such great obloquy that they
are actionable without proof of injury. This is defamation per
3 No. 12-‐‑3294
se. Tuite v. Corbitt, 224 Ill. 2d 490, 501 (2006). Let us begin
with the latter type.
Illinois recognizes five categories of defamation per se,
Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 88–89
(1996), but only two are of interest here: (1) statements that
suggest that the subject can’t perform his job because of lack
of ability or want of integrity, and (2) statements that preju-‐‑
dice the subject in the pursuit of his trade or profession. The
difference between the two is subtle. The former seems to
imply some sort of on-‐‑the-‐‑job malfeasance; the latter covers
suitability for a trade or profession. Haynes v. Alfred A. Knopf,
Inc., 8 F.3d 1222, 1226 (7th Cir. 1993). Pippen argues that this
court has already established in Giant Screen Sports v. Canadi-‐‑
an Imperial Bank of Commerce, 553 F.3d 527 (7th Cir. 2009),
that false accusations of bankruptcy fit into one of these cat-‐‑
egories.
But the statements at issue in Giant Screen Sports were not
about bankruptcy; instead, they repeated false accusations
that a company willfully defaulted on a credit agreement it
was not a party to. The statements depicted the company as
one that shirked its contractual obligations; a reader might
reasonably think twice about doing business with the com-‐‑
pany. A similar taint does not attach to the reputation of
people who go bankrupt. Many innocent reasons lead to fi-‐‑
nancial distress. Readers of the defendants’ statements who
mistakenly believe that Pippen is insolvent readily could
conclude that his advisers bear the blame.
What’s more, Pippen was reported to be personally
bankrupt. To succeed under Illinois law without the need to
prove injury, he must show that he was falsely accused of
lacking ability in his trade or of doing something bad while
No. 12-‐‑3294 4
performing his job. Cody v. Harris, 409 F.3d 853, 857–58 (7th
Cir. 2005). Pippen has been employed since he retired from
basketball as a goodwill ambassador for the Chicago Bulls, a
basketball analyst, and a celebrity product endorser. Bank-‐‑
ruptcy does not imply that he lacks the competence or integ-‐‑
rity to perform any of these jobs.
Sometimes personal and professional ability or integrity
are linked. Kumaran v. Brotman, 247 Ill. App. 3d 216 (1993).
When the subject of the 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 unemploy-‐‑
ment. Pippen does not contend that his is such a situation.
His post-‐‑retirement employability derives from his pre-‐‑
retirement stardom (for his endorsement and appearance
work) and basketball knowledge (for his work as an ana-‐‑
lyst), not his financial prudence or investment savvy. Re-‐‑
ports of personal bankruptcy would not so impugn his job
performance that they necessarily constitute defamation.
This leaves the second type of defamation (per quod). Eve-‐‑
rything we say about defamation per quod applies to the
false-‐‑light claim as well; we need not mention it again. The
district court dismissed these claims after concluding that
Pippen had failed to allege special damages in sufficient de-‐‑
tail. We think this a mistake. In diversity litigation, the fed-‐‑
eral rules prevail over any contrary requirements of state
practice. Walker v. Armco Steel Corp., 446 U.S. 740 (1980);
Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262,
269 (7th Cir. 1983); Anderson v. Vanden Dorpel, 172 Ill. 2d 399,
416 (1996). The federal rule, Fed. R. Civ. P. 9(g), says that
special damages must be “specifically stated”. It can be hard
5 No. 12-‐‑3294
to know how specific is specific enough, but “specifically”
must be something less than the “particularity” standard
that Rule 9(b) prescribes for allegations of fraud. We need
not probe the meaning of “specifically”, because it is enough
to identify a concrete loss. Action Repair, Inc. v. American
Broadcasting Cos., Inc., 776 F.2d 143, 149–50 (7th Cir. 1985).
Pippen’s complaint alleges that his endorsement and
personal-‐‑appearance opportunities dwindled as a result of
the defendants’ false reports. In a proposed amended com-‐‑
plaint, Pippen itemized losses that in his view flowed from
defendants’ statements; he identified specific business op-‐‑
portunities that had been available to him earlier but that,
following the defendants’ statements, were available no
more. This is more than a general allegation of economic
loss; it is an allegation that third parties have ceased to do
business with him because of the defendants’ actions. This
contention may be substantively inadequate. It appears to be
an example of the post hoc ergo propter hoc fallacy: since Pip-‐‑
pen’s opportunities diminished after the statements were
made, he believes they must have diminished because the
statements were made. This theory of causation is weak for
professional athletes, whose earnings related to past stardom
drop as time passes since their playing days. But, as a matter
of pleading, Pippen did enough.
The district court had a second reason, however, and it is
stronger. The judge observed that Pippen is a public figure,
which he concedes. Thus he must show that the defendants
published the defamatory statements with actual malice—in
other words, that the defendants either knew the statements
to be false or were recklessly indifferent to whether they are
true or false. New York Times, 376 U.S. at 279–80; Underwager
No. 12-‐‑3294 6
v. Salter, 22 F.3d 730, 733 (7th Cir. 1994). States of mind may
be pleaded generally, but a plaintiff still must point to de-‐‑
tails sufficient to render a claim plausible. Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
Defendants had many ways to learn whether Pippen had
filed for bankruptcy. For example, all bankruptcy court
dockets can be searched simultaneously through the federal
courts’ PACER service. And then there’s the tried-‐‑and-‐‑true
journalistic practice of asking a story’s subject. If rather than
relying on the rumor mill the defendants had conducted
even a cursory investigation, they would have discovered
that Pippen had not declared bankruptcy—and they concede
this. But failure to investigate is precisely what the Supreme
Court has said is insufficient to establish reckless disregard
for the truth. Harte-‐‑Hanks Communications, Inc. v. Connaugh-‐‑
ton, 491 U.S. 657, 688 (1989).
The Supreme Court also has said that actual malice can-‐‑
not be inferred from a publisher’s failure to retract a state-‐‑
ment once it learns it to be false. New York Times, 376 U.S. at
286. Thus the fact that Pippen alerted the defendants by
email after publication that he had not entered bankruptcy
does not help him establish actual malice at the time of pub-‐‑
lication. And Illinois has adopted the Uniform Single Publi-‐‑
cation Act, 740 ILCS 165/1, which provides that a claim for
relief for defamation is complete at the time of first publica-‐‑
tion; later circulation of the original publication does not
trigger fresh claims. The Act protects speakers and writers
from repeated litigation arising from a single, but mass-‐‑
produced, defamatory publication.
7 No. 12-‐‑3294
Pippen argues that the Act does not apply to statements
on the Internet, where all defendants made their reportage
available. Online publishers do not face the same logistical
hurdles or costs in correcting a false statement as their old-‐‑
media counterparts. Print publishers would need to hunt
down every physical copy of a book, magazine, or newspa-‐‑
per in circulation, while Internet publishers can alter their
sites with relative ease. In Pippen’s view, then, every day
that an unaltered defamatory statement remains online after
a publisher learns of its falsity constitutes an actionable re-‐‑
publication.
Illinois courts have not yet considered how the single-‐‑
publication rule applies to Internet publications, so our job is
to predict how the state’s highest court would answer the
question if asked. Giuffre Organization, Ltd. v. Euromotorsport
Racing, Inc., 141 F.3d 1216, 1219 (7th Cir. 1998). In the ab-‐‑
sence of any Illinois authority on the question, decisions
from other jurisdictions may prove instructive. Lexington In-‐‑
surance Co. v. Rugg & Knopp, Inc., 165 F.3d 1087, 1090 (7th
Cir. 1999). We conclude that, if presented with the oppor-‐‑
tunity, the Supreme Court of Illinois would deem the single-‐‑
publication rule applicable to the Internet.
Every state court that has considered the question applies
the single-‐‑publication rule to information online. See Chris-‐‑
toff v. Nestle USA, Inc., 47 Cal. 4th 468 (2009); T.S. v. Plain
Dealer, 194 Ohio App. 3d 30 (2011); Ladd v. Uecker, 323 Wis.
2d 798 (App. 2010); Kaufman v. Islamic Society of Arlington,
291 S.W. 3d 130 (Tex. App. 2009); Woodhull v. Meinel, 145
N.M. 533 (App. 2008); Churchill v. State, 378 N.J. Super. 471
(2005); Firth v. State, 98 N.Y. 2d 365 (2003). And those federal
courts that have addressed the topic have concluded that the
No. 12-‐‑3294 8
relevant state supreme court would agree. See Shepard v.
TheHuffingtonPost.Com, Inc., 509 F. App’x. 556 (8th Cir. 2013)
(Minnesota law) (nonprecedential); In re Philadelphia Newspa-‐‑
pers, LLC, 690 F.3d 161, 174–75 (3d Cir. 2012) (Pennsylvania
law). Pippen does not alert us to any authority supporting
his view, and we have found none.
The theme of these decisions is that excluding the Inter-‐‑
net from the single-‐‑publication rule would eviscerate the
statute of limitations and expose online publishers to poten-‐‑
tially limitless liability. This same concern previously led
courts to apply the single-‐‑publication rule to books. They
did so despite the fact that book publishers have greater
post-‐‑publication control over the circulation of their content
than do newspaper publishers. See Gregoire v. G.P. Putnam’s
Sons, 298 N.Y. 119, 124–26 (1948); Kilian v. Stackpole Sons, Inc.,
98 F.Supp. 500, 503–04 (M.D. Pa. 1951). All copies of a single
newspaper edition are made available to the public on one
day; in contrast, book publishers hold stock in reserve and
release batches to the public over months or years. In Pip-‐‑
pen’s view, the single-‐‑publication rule ought not have been
extended to book publishers because they could pulp the
books they kept in stock, while newspaper publishers had
no leftover stock to destroy. But no court saw it that way,
and no court has been persuaded that the even greater con-‐‑
trol that Internet publishers have over their content—and the
much lower cost of editing or deleting that content—is a rea-‐‑
son to exclude them from the Act’s coverage. Indeed, courts
have drawn the opposite conclusion: the Internet’s greater
reach comes with an “even greater potential for endless
retriggering of the statute of limitations, multiplicity of suits
and harassment of defendants.” Firth, 98 N.Y. 2d at 370; see
9 No. 12-‐‑3294
also, e.g., Churchill, 378 N.J. Super. at 480–81. All the more
reason that the single-‐‑publication rule should apply.
A publisher’s degree of control over its content does not
matter to Illinois’s test for whether redistribution of a de-‐‑
famatory statement amounts to a republication. Instead,
courts must ask whether the “act of the defendant [was] a
conscious independent one”. Winrod v. Time Inc., 334 Ill.
App. 59 (1948); see also Dubinksy v. United Airlines Master
Executive Council, 303 Ill. App. 3d 317, 333–34 (1999); Found-‐‑
ing Church of Scientology v. American Medical Association, 60
Ill. App. 3d 586, 589 (1978). Courts have grappled with what
degree of affirmative act constitutes a republication. See
Canatella v. Van De Kamp, 486 F.3d 1128, 1135–36 (9th Cir.
2007); Yaeger v. Bowlin, 693 F.3d 1076, 1083 (9th Cir. 2012).
The defendants in those cases changed the URL where the
statements were posted but left the statements unaltered. In
Firth, the defendants added an unrelated story to the web
page hosting the allegedly defamatory statement. 98 N.Y. 2d
at 367. None of those acts was sufficient to count as a repub-‐‑
lication. Pippen does not contend that the defendants took
any action beyond initially posting the stories to their web
sites, and we conclude that Illinois would deem the passive
maintenance of a web site not a republication.
AFFIRMED