author: BAUER, Circuit Judge.

text:
    Leora H. BELL, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. CITY OF COUNTRY CLUB HILLS, Defendant-Appellee.
    Nos. 16-1245 and 16-1448
    United States Court of Appeals, Seventh Circuit.
    Argued September 13, 2016
    Decided November 8, 2016

      Thomas A. Zimmerman, Jr., Matthew Charles DeRe, Attorneys, Zimmerman Law Offices, P.C¿, Chicago, IL, for Plaintiff-Appellant.
    Michael R. Radak, Thomas Weiler, Attorneys, Langhenry, Gillen, Lundquist & Johnson, LLC, Chicago, IL, for Defendant-Appellee.
    Before BAUER, KANNE, and HAMILTON, Circuit Judges,
   BAUER, Circuit Judge.

Plaintiff-appellant, Leora H,.Bell, filed suit against Defendant-appellee, City of Country Club Hills, claiming a deprivation of her constitutional rights, in violation of 42 U.S.C. § 1983. Bell’s claims arise from the City’s decision to repeal an ordinance that provided a twenty-five percent tax rebate to qualifying homeowners. The district court granted the City’s motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), holding that the tax rebate did not confer a vested property right upon Bell. Bell appeals, arguing that she maintains a vested property right in the rebate program, and that the City unlawfully repealed the ordinance. For the reasons stated below, we affirm.

I. BACKGROUND

On' April 23, 2012, the City of Country Club Hills City Council'adopted Ordinance No. 0-02-12, which provided to homeowners a twenty-five percent rebate of 2010 city property taxes paid in 2011, subject to the completion of an application by the homeowner and approval by the City Clerk. According to the application, this was the City’s twelfth consecutive year of offering a rebate program. The application stated that the “FILING, OF THIS APPLICATION DOES- NOT GUARANTEE APPROVAL BY THE CITY OF COUNTRY CLUB HILLS.” The city prepared the rebate checks but never distributed them to homeowners. In 2012, the Cook County treasurer overpaid the City by more than $6 million, and the County brought suit against the City in Cook County Circuit Court to collect the overpayment in July 2012. Judgment was entered against the City a year later for nearly $6.6 million.

Bell filed the instant action on May 15, 2015, on behalf of herself and others similarly situated. She asserted a claim under § 1983, arguing that the City’s refusal to issue the rebates constituted a taking in violation of the Fifth and Fourteenth Amendments to the United States Constitution, as well as Article I, § 15 of the Illinois Constitution. Bell also asserted state law claims for conversion and unjust enrichment. On August 24, 2015, the City Council passed Ordinance 0-11-15, which repealed the April 2012 Ordinance. On September 1, 2015, the City filed a motion to dismiss under Rule 12(b)(6), contending that Bell had no constitutionally protected property interest in the expectation of a rebate, and that she had adequate state court remedies for her claims under state law. The district court agreed with the City, and granted its motion on January 6, 2016.

Bell filed a motion for relief from a final judgment under Federal Rule of Civil Procedure 60(b) on February 4, 2016, arguing that the City’s August 2015 repeal of the April 2012 Ordinance was invalid because it violated the Illinois Open Meetings Act, 5 Ill. Comp. Stat. 120/2(e). The district court denied Bell’s motion. On March 28, 2016, the City Council responded to concerns over the validity of its August 2015 repeal by again repealing the April 2012 Ordinance. This appeal followed.

II. DISCUSSION

We review the district court’s granting of a motion to dismiss under Rule 12(b)(6) de novo, accepting all well-pleaded facts as true and drawing all reasonable inferences in favor of the non-moving party. Golden v. State Farm Mut. Auto. Ins. Co., 745 F.3d 252, 255 (7th Cir. 2014). A Rule 12(b)(6) motion challenges the sufficiency of the complaint itself. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990) (citation omitted). To state a claim, a complaint must first provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The statement of the claim must sufficiently give to the defendants “fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citation omitted). Additionally, the complaint’s factual allegations must raise the claim above a mere “speculative level.” Id. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (citations and internal alterations omitted).

Bell asserts her constitutional claims against the City under § 1983, which provides that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law....” In order to state a claim under this provision, the following conditions must be met: “(1) the offending conduct [must be] committed by someone who acted under the color of state law; (2) the actions deprive the plaintiff of a constitutionally protected property interest; and (3) the alleged deprivation occurred without due process of law.” Germano v. Winnebago Cnty., 403 F.3d 926, 927 (7th Cir. 2005). The parties do not appear to dispute that the City acted under color of law.

Bell contends that the City’s failure to issue the rebate constitutes a taking of a government benefit without due process of law in violation of the United States and Illinois Constitutions. The Takings Clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, provides: “[N]or shall private property be taken for public use, without just compensation.” Sorrentino v. Godinez, 777 F.3d 410, 413 (7th Cir. 2015) (quoting U.S. Const, amend. V). The Due Process Clause of the Fourteenth Amendment provides: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. “[I]n any due process ease where the deprivation of property is alleged, the threshold question is whether a protected property interest actually exists.” Cole v. Milwaukee Area Tech. Coll. Dist., 634 F.3d 901, 904 (7th Cir. 2011).

“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). “Property interests are not created by the Constitution but rather ‘they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.’ ” Cole, 634 F.3d at 904 (quoting Roth, 408 U.S. at 577, 92 S.Ct. 2701).

“Accordingly, federal property interests under the 14th Amendment usually arise from rights created by state statutes, state or municipal regulations or ordinances, and contracts with public entities.” O’Gorman v. City of Chi., 777 F.3d 885, 890 (7th Cir. 2015) (citation omitted). “Although we look to state law for the source of the plaintiffs alleged property interest, whether a particular state-created interest rises to the level of a ‘legitimate claim of entitlement’ is a question of federal law.” Dibble v. Quinn, 793 F.3d 803, 808 (7th Cir. 2015) (quoting Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978)).

Bell’s principal contention is that her property interest in the rebate is derived from the April 2012 Ordinance. She argues further that the rebate is a “vested right” under Illinois law, and thus the City is precluded from using subsequent legislation to deny homeowners their rebates.

Under Illinois law, vested rights are “interests that are protected from legislative interference by [the Illinois] due process clause[.]” Dardeen v. Heartland Manor, Inc., 186 Ill.2d 291, 238 Ill.Dec. 30, 710 N.E.2d 827, 830 (1999) (quoting First of Am. Tr. Co. v. Armstead, 171 Ill.2d 282, 216 Ill.Dec. 639, 664 N.E.2d 36, 39 (1996)). “Although whether a particular expectation rises to the level of a vested rights is not capable of a precise definition^]” a vested right is “so complete and unconditional that it may be equated with a property interest.” Dardeen, 238 Ill.Dec. 30, 710 N.E,2d at 830 (quoting Armstead, 215 Ill.Dec. 639, 664 N.E.2d at 40) (internal alterations and quotation marks omitted).

We note that while Bell raises takings claims under both the United States and Illinois Constitutions, federal jurisdiction has been conferred based on her § 1983 claim. As stated above, § 1983 remedies deprivations of federal constitutional rights; it does not contemplate state constitutional errors. Therefore, to the exr tent Bell is seeking a remedy for state constitutional violations, she would need to raise her claim in state court, as the district court here relinquished supplemental jurisdiction over any such claim. We agree ■that this was the proper course of action. See Petra Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846, 848 (7th Cir. 2007) (affirming the relinquishment of supplemental jurisdiction of a state law “vested- rights” claim).

However, to the extent Bell seeks protection of a vested property right under the Fourteenth Amendment, we reject that argument on the merits. In People ex. rel. Eitel v. Lindheimer, 371 Ill. 367, 21 N.E.2d 318 (1939), plaintiffs were property owners who sought refunds for excess property tax payments that they made in previous years. State law in effect at the time- permitted a refund or credit of taxes when property owners overpaid as a result of errors in the property value assessment. Id. at 320. The legislature repealed the state law subsequent to plaintiffs filing suit in Cook County Circuit Court. Id. at 319. Nonetheless, the circuit court ordered the County to issue the rebates to plaintiffs. Id. at 320. The County treasurer and clerk appealed, arguing that plaintiffs lacked a vested right in the rebates, and therefore the repeal was a valid legislative action that should be enforced. Id.

The court noted that because a citizen’s obligation to pay taxes arises from statute, any refund offered by the legislature must also be “purely of statutory origin[,]” which it characterized as a “special remedial statute.” Id. at 320-21 (citations omitted). In fact, the court observed that without a statute expressly providing for a refund, the county could not refund taxes that were overpaid. Id. at 320 (citation omitted). The court then inquired “whether the granting of a special remedy creates a vested right in the remedy that cannot be abrogated by repeal of the remedy.” Id. at 321 (citation omitted). The court answered in the negative, finding that “[t]he unconditional repeal of a special remedial statute without a saving clause stops all pending actions where the repeal finds them.” Id. at 321.

The court held that plaintiffs did not possess a vested right in . the rebate because they could not show more than “a mere expectation based upon an anticipated continuance of the existing law.” Id. The court also found that the legislature had the right to repeal the statute because “there is no vested right in a public law which is not in the nature of a private grant.” Id. at 322 (citation omitted). The guiding principle from Lindheimer is that when a right is derived from a remedial statute, the right is not vested, and the legislature has ongoing authority to repeal or amend the statute.

Lindheimer is factually similar to- "the instant case, and applying its guiding principle, we find that April 2012 Ordinance is also a special remedial statute that does not confer vested rights upon Bell or the City’s other homeowners. Without the ordinance, the City is powerless to provide the rebate to homeowners. Further, the granting of this special remedy does not create a vested right under Illinois law.

Bell’s attempt to distinguish Lindheimer is unpersuasive. She argues that while the refund in Lindheimer is a special remedial statute, the rebate program in the instant case is a private grant that is immune to repeal. Bell contends that the remedial statute in Lindheimer is distinguishable because it was available to the general public, and the specific individuals who would invoke their rights under the statute were unknown at the time of the statute’s passage. In contrast, she argues that the City’s rebate program is a private grant because the April 2012 Ordinance is directed toward a specific group of individuals— “all eligible homeowners”—instead of the general public. Thus, Bell concludes that the City’s rebate program is a private grant.

However, we could not discern the basis of Bell’s theory of general versus specific applicability, as it is not rooted in any case law or statute that we could locate. Bell fails to raise any meaningful substantive distinctions between the April 2012 Ordinance and the special remedial statute in Lindheimer. Accordingly, we decline to adopt her novel interpretation of a “private grant.” Indeed, it is clear under Lindheimer that the right to a property tax rebate can only stem from a remedial statute. Thus, we conclude that the April 2012 Ordinance is a remedial statute incapable of conferring vested rights, and therefore the City acted within the scope of its legal authority in repealing the April 2012 Ordinance.

Having examined the source of the Bell’s property interest, we now analyze whether it rises to the level of a protected property interest. See Quinn, 793 F.3d at 808. We have held that “[a] protected property interest exists only when the state’s discretion is ‘clearly limited such that the plaintiff cannot be denied the interest unless specific conditions are met.’ ” Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 900 (7th Cir. 2012) (quoting Brown v. City of Mich. City, Ind., 462 F.3d 720, 729 (7th Cir. 2006)); see also Barrows v. Wiley, 478 F.3d 776, 780 (7th Cir. 2007) (“Where state law gives people a benefit and creates a system of nondi'scretionary rules governing revocation or renewal of that benefit, the recipients have a secure and durable property right, a legitimate claim of entitlement.” (citation omitted)). In essence, a plaintiff must “point to a state law, or another independent source, that guarantees him” entitlement to a government benefit. Brown, 462 F.3d at 729.

Bell argues that the mandatory language “shall”" used in the April 2012 Ordinance removes any discretion on the part of the City to refuse issuing the rebates. See Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35, 118 S.Ct 956, 140 L.Ed.2d 62 (1998) (“[T]he mandatory ‘shall’ ... normally creates an obligation impervious to judicial discretion”). However, the language used in both the text of the April 2012 Ordinance and on the face of the rebate application demonstrates that the City explicitly retained the discretion to reject applications from homeowners. Therefore, it cannot be said that “nondiscretionary rules” governed the granting of the rebate, thereby creating a legal entitlement. The Lindheimer court described the tenuous relationship between property owners and property tax rebates as a “mere expectation” rather than a vested right. See Lindheimer, 21 N.E.2d at 321. And as the district court judge noted, the rebate program was a discretionary measure taken by the City that it was free to nullify under Illinois law. Accordingly, no state law or ordinance guarantees Bell an entitlement to the rebate.

We recognize that the City offered the rebate program for a number of years prior to 2012, but this fact alone is insufficient to confer the status of a constitutionally protected property interest upon the rebates. See, e.g., Brown, 462 F.3d at 729 (city’s historical practice of allowing its residents to use its parks free of charge did not create a property interest because city possessed discretion to decide whether and under what conditions members of the public can access the parks); Hussey v. Milwaukee Cnty., 740 F.3d 1139, 1145-46 (7th Cir. 2014) (county’s historical practice of providing cost-free health insurance to retirees did not create a vested property right in free health insurance because no state law or municipal ordinance explicitly provided for free health insurance). We find that the rebate program is the type of “unilateral expectation” that does not rise to the level of a property interest. See Roth, 408 U.S. at 577, 92 S.Ct. 2701. Thus, Bell has no constitutionally protected property interest in the rebate. Consequently, she cannot state a claim for an unconstitutional taking.

The deficiency in Bell’s takings claim is conclusive regarding her due process claim, as there can be no deprivation of property without procedural or substantive due process of law without an underlying property interest. See Khan v. Bland, 630 F.3d 519, 533-35 (7th Cir. 2010).

We briefly turn to Bell’s remaining state law claims. We affirm the district court’s dismissal of Bell’s state law claims because Bell has no viable federal claim, and neither party contends that we should retain jurisdiction over state law claims. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

Nonetheless, while Bell has failed to state a viable claim under the federal Constitution, assuming arguendo that she had, we and the district court would still be obliged to abstain from granting relief based on the principles of comity and abstention set forth in Fair Assessment in Real Estate Ass’n v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981), and Capra v. Cook Cnty. Bd. of Review, 733 F.3d 705, 712-13 (7th Cir. 2013).

In conclusion, Bell cannot state a claim under § 1983 for a taking or due process violation because she lacks a protected property interest. Having no viable federal claim, the district court correctly concluded that Bell’s only path forward was to file her state law claims in state court.

III. CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED.

      . This fact is not included in Bell’s complaint. However, Judge Zagel recited it as part of his oral ruling in this case. His consideration of this fact was proper, as it originates from a report of an administrative body, permitting him to take judicial notice. Menominee Indian Tribe of Wis. v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998). Courts may "consider judicially noticed documents without converting a motion to dismiss into a motion for summary judgment." Id. Although our analysis does not turn on this fact, it does provide context to the City's actions, and we have therefore included it as background.

      . It appears that Bell maintains doubt as to whether the district court dismissed the complaint under Rule 12(b)(6) or Rule 12(b)(1). However, after reviewing the judge's oral ruling, we think it is clear from the substance of his remarks that in his view Bell failed to state a claim under federal law. Therefore, the dismissal is properly considered under Rule 12(b)(6).

      . In so holding, we do not reach the issue of whether the City Council’s August 2015 repeal of the April 2012 Ordinance violated the Illinois Open Meetings Act, 5 Ill. Comp. Stat, 120/2(e). It is clear that no vested rights were at issue, and therefore the City had an ongoing right to amend or repeal the ordinance. Therefore, the validity of the repeal is immaterial to our takings analysis. Any violation of the Illinois Open Meetings Act committed by the City should be addressed in state court.


source: Caselaw Access Project

author: FLAUM, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Anna F. NOVAK and John C. Morrison, Defendants-Appellants.
    Nos. 15-3589 & 15-3601
    United States Court of Appeals, Seventh Circuit.
    Argued September 28, 2016
    Decided November 9, 2016

      David J. Reinhard, John W. Vaudreuil, Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Madison, WI, for Plaintiff-Appellee.
    Charles L. Hawkins, Attorney, CHARLES HAWKINS LAW, Minneapolis, MN, for Defendant-Appellant Anna F. Novak.
    Mark Jon Wieczorek, Attorney, WIEC-ZOREK LAW FIRM, LLC, for Defendant-Appellant John C. Morrison.
    Before POSNER, FLAUM, and MANION, Circuit Judges.
   FLAUM, Circuit Judge.

Defendants-appellants John Morrison and Anna Novak both pled guilty to distributing a controlled substance analog and to tax fraud. The district court accepted their guilty pleas and later sentenced Morrison to forty-eight months of incarceration and Novak to ninety-six months. They now appeal, challenging the constitutionality of the Controlled Substances Analogue Act, 21 U.S.C. § 813 (the Analogue Act), the district court’s acceptance of their guilty pleas, and their sentences. We affirm.

I. Background

From approximately November 2009 through September 2013, Morrison, and Novak sold substances they referred to as “herbal incense” from their retail store, JC Moon, in Ashland, Wisconsin. These substances included XLR-11, UR-144, PB-22, and 5F-PB-22, which at the time were not listed on the controlled substance schedules but were similar to scheduled controlled substances. Between November 2012 and July 2013, undercover law enforcement officers made twenty-eight controlled purchases of various substances from JC Moon.

.Through undercover interviews with. No-vak, the government learned that appellants hid a significant portion of their cash income from the IRS. Novak directed JC Moon employees to take all $50 and $100 bills from the cash registers and put them in Novak and Morrison’s safe. These bills never went into JC Moon’s business bank account. This artificially low business income information was provided to the appellants’ tax preparer; as a result, the “skimmed” cash was not included on the returns and not reported to the IRS. From 2010 to 2012, appellants under-reported JC Moon’s business income by approximately $575,752 for a tax loss of $186,095.

On December 10, 2014, a federal grand jury returned a thirty-five-count indictment against Novak and Morrison. These counts included the Analogue Act and tax fraud counts to which Novak and Morrison would eventually plead guilty.

On May 5, 2015, Novak and Morrison moved to dismiss the thirty indictment counts alleging either conspiracy or substantive distribution charges. Appellants argued before the district court that the Analogue Act was unconstitutionally vague as applied to XLR-11 and several other analogues involved in the case. On July 24, 2015, the court denied Novak and Morrison’s motion to dismiss.

On August 27, 2015, Novak and Morrison pled guilty to one count each of distributing a controlled substance analogue—XLR-11—and to tax fraud. The plea agreements were unconditional and did not reserve the right to appeal the previously-denied motion to dismiss.

At Morrison’s change of plea hearing, the district court reviewed the maximum penalties and asked whether Morrison understood the proceedings. The government then summarized the evidence it would submit at trial on the Analogue Act charge, including employee and customer testimony that appellants sold synthetic marijuana as “herbal incense” from a back room at JC Moon; a Facebook post indicating that appellants sold XLR-11 after they knew it was scheduled to be treated as a controlled substance; undercover agent testimony regarding a May 2, 2013 XLR-11 purchase; expert testimony demonstrating the physiological-effects and chemical-structural similarities between XLR-11 and JWH-18, a controlled substance; and lay witness testimony from JC Moon customers regarding the effects of XLR-11. Morrison then agreed that the government could have proved all of the above facts.

When questioned, both appellants vacillated between knowing and not knowing that XLR-11 was similar to controlled substances while they were selling it. When the court first asked Morrison to explain the distribution offense in his own words, he said,

I didn’t realize I was being charged with anything because I didn’t think there was anything wrong with [the XLR-11] at the time. Because every time that something came down, we always stopped and ... I didn’t know. I’m sorry. I really didn’t know it was illegal.

Morrison then said that he knew that people used the XLR-11 he sold to get high, he “thought it was like marijuana,” and he knew marijuana was a controlled substance. However, when questioned further, Morrison stated that he did not know that XLR-11 was a controlled substance when he sold it and that he stopped selling it once he believed it became a scheduled controlled substance.

In response, the government said that XLR-11 was in fact not a scheduled controlled substance as of the date of the charged offense, May 2, 2013. Rather, the evidence showed that Morrison knew that XLR-11 would be treated as a controlled substance later that same month, yet continued to sell it after having that knowledge. The government continued,

Mr. Morrison’s forthright answers that he knew people were smoking, it means he knew it was for human consumption. He knew they were using it to get high, which we had a lot of proof of that and I knew he would say that, and then his acknowledgement that he thought it was like marijuana, a Schedule 1 controlled substance, I think is sufficient.
One of the things McFadden [v. United States, — U.S. -, 135 S.Ct. 2298, 192 L.Ed.2d 260 (2015) ] tells us is you can prove knowingly ... by showing that the defendant knew the characteristics that would make it illegal even if he did not know its legal status as an analogue — I would submit ... that there are facts, circumstantial facts that he knew it produced a high. It could give rise to an inference. The Court could infer ... that he then knew enough— that it would be an analogue even though he doesn’t know its legal status as an analogue.

The district court concluded,

I’m satisfied that there’s a factual basis for the plea, despite Mr. Morrison’s denials of the specific knowledge of the chemical involved or its specific legal status. But I think on the theory that [the government] described that ... Mr. Morrison was familiar with the features of the products that he was selling that made them controlled substance analogues, .... there is indeed a factual basis for the plea.

Morrison also initially seemed unsure about how his tax reporting worked. He was not aware of how much money JC Moon made in 2012 or how much business income it reported. He also said the he was unaware of the cash-skimming operation underlying the tax fraud. However, after speaking with his attorney, Morrison said, “We put the fifties and hundreds -in the safe as a separate, and ... the taxes were made out the way they were, ■ I signed them and I’m guilty of it.” Morrison also said that he and Novak gave their business income information—without including the $50 and $100 bills—to their tax preparer, and that Morrison signed the return. The court questioned Morrison on his ability to raise lack of knowledge as a defense to the tax fraud charge. Morrison responded that he knew and that he nevertheless wanted to plead guilty.

The court concluded,

despite Mr. Morrison’s denial, ■ I think there is a factual basis ... because of his knowledge of the treatment of the fifties and hundreds at the store, that he knew that the tax return that he signed was not an accurate tax return and that it understated the income ....

The district court conditionally accepted Morrison’s guilty pleas pending a review of his presentence report.

The district court then proceeded with Novak’s change of plea hearing. The court reviewed the maximum penalties and ensured that Novak understood the proceedings. The government noted that evidence from Morrison’s change of plea hearing applied to Novak. Novak was present at the defense table during that recitation and waived a proffer of the same evidence at her hearing, which took place directly after Morrison’s. Novak agreed that the government could prove everything from Morrison’s proffer. Then, like Morrison, Novak expressed some hesitation about the distribution charge. Novak initially said she thought XLR-11 was supposed to be tobacco, but then later realized it was not. Novak also stated that she did not know people smoked the substances sold at JC Moon.

After speaking with her attorney, Novak said she later learned that people were smoking the herbal incense, but that people were interested in its “relaxing effect,” When asked if she knew that people used the substances to get high, Novak responded, “I don’t like to use that terminology. [I]t affects everybody differently. Some it would relax; some would go to sleep; some would buzz ...Novak later admitted that JC Moon sold XLR-11 after Novak knew it had effects similar to marijuana.

When questioned about the May 2, 2013 Facebook post, Novak said she was out of the state and did not create the post but that she was “aware of a date coming up, this particular, and our wholesalers would say [XLR-11] is going to be banned and so we just--posted that instantly, not knowing it was going to come back at us.” The district court then found that there was a sufficient factual basis for accepting No-vak’s guilty plea on the distribution charge.

Regarding the tax fraud charge, Novak admitted that she knew the $50 and $100 bills were not reflected in the information she gave to the tax preparer, and that therefore the tax returns reflected fraudulently low business- income. The court found that there was a sufficient factual basis for Novak’s plea. The court conditionally accepted Novak’s pleas pending a review of the presentence report. Neither appellant objected to the factual basis for the guilty pleas or attempted to withdraw the pleas. Novak and Morrison did not orally reserve them rights to appeal the district .court’s earlier denial of their motion to dismiss.

On November 6, 2015, the district court formally accepted appellants’ guilty pleas and sentenced them. At the hearing, the government called an expert who testified that XLR-11, UR-144, PB-22, and 5F-PB-22 had pharmacological effects substantially similar to THC and were at least as potent as THC. The expert also provided reasons why the substances were not most similar to marijuana. Five lay witnesses, all customers at JC Moon, testified to the effects of the substances. The court then found that THC was the closest controlled substance to the substances at issue. THC had a 1:167 marijuana- equivalency ratio, used to calculate the base offense level under U.S.S.G. § 2D1.1. The district court applied the 1:167 ratio to the substances in this case.

The court sentenced Morrison to forty-eight months in prison on the Analogue Act charge and thirty-six months in prison on the tax fraud charge, with the sentences to run concurrently. The court sentenced Novak to ninety-six months in prison on the drug charge and thirty-six months in prison on the tax charge, with these sentences also running concurrently.

II. Discussion

A. Analogue Act Vagueness Challenge

Typically, we review de novo the district court’s legal conclusions regarding the constitutionality of a statute. United States v. Morris, 821 F.3d 877, 879 (7th Cir. 2016). However, an unconditional guilty plea waives appellate review of all non-jurisdictional pretrial issues. United States v. Adams, 125 F.3d 586, 588 (7th Cir. 1997). “An exception exists if the plea is conditioned on preserving specified issues for appeal,” and although “[t]hat conditional plea should be in- writing, ... we have held that the conditions can also be sufficiently indicated in a transcript of the sentencing hearing.” United States v. Robinson, 20 F.3d 270, 273 (7th Cir. 1994) (citing Fed. R. Crim. P. 11(a)(2); United States v. Yasak, 884 F.2d 996, 999 (7th Cir. 1989)).

The threshold question is therefore whether Novak and Morrison’s vagueness challenge alleges jurisdictional, pre-plea defects that this Court may consider even after an unconditional plea. This Court has spoken directly on the' issue: “While a facial attack on a statute’s constitutionality is jurisdictional, an as-applied vagueness challenge is not.” United States v. Phillips, 645 F.3d 859, 863 (7th Cir. 2011). To the extent that appellants make non-jurisdictional as-applied challenges to the Analogue Act, those • arguments are waived. Their guilty pleas did not reserve the right to appeal the district court’s denial of their motion to dismiss, and nothing in the record indicates that they preserved the issue during the hearings before the district court. To the extent that appellants facially attack the Analogue Act on vagueness grounds, the Supreme Court resolved this issue in the government’s favor in McFadden v. United States, — U.S.-, 135 S.Ct. 2298, 2307, 192 L.Ed.2d 260 (2015) (holding that the Analogue Act is not unconstitutionally vague due to its scienter requirement).

B. Guilty Pléas

Appellants next say they unknowingly and involuntarily entered their guilty pleas and argue the district court accepted the pleas without a sufficient factual basis. Where, as here, a defendant makes no attempt to withdraw his plea in the district court, we review the claim for plain error. United States v. Pineda-Buenaventura, 622 F.3d 761, 770 (7th Cir. 2010). Likewise, we conduct plain-error review for the sufficiency of a factual basis to support a plea where the defendant failed to make such an objection below. United States v. Arenal, 500 F.3d 634, 637 (7th Cir. 2007).

1. Voluntariness

Rule 11 requires that before the court accepts a plea of guilty or nolo contende-re the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands^] the nature of each charge to which the defendant is pleading.... To determine whether a defendant in fact understands the nature of a charge, we take a totality-of-the-circumstances approach and consider (1) the complexity of the charge; (2) the defendant’s intelligence, age, and education; (3) whether the defendant was represented by counsel; (4) the district judge’s inquiry during the plea hearing and the defendant’s own statements; and (5) the evidence proffered by the government.

Pineda-Buenaventura, 622 F.3d at 770 (internal citations, quotation marks, brackets, and alterations omitted).

The balance of these factors leads to the conclusion that Morrison and Novak understood the nature of the charges against them and that they knowingly and voluntarily entered their guilty pleas. First, while the complexity of Analogue Act charges can be difficult for defendants to grasp, the district' court can alleviate this burden through careful questioning and explanation of the charges. See United States v. Fernandez, 205 F.3d 1020, 1026 (7th Cir. 2000); United States v. LeDonne, 21 F.3d 1418, 1423 (7th Cir. 1994). The district court in this case reviewed the elements of the Analogue Act and Controlled Substances Act with appellants and thoroughly questioned each on his or her knowledge of XLR-ll’s effects.

Second, Morrison was seventy-one years old at the time of the plea, had served in the Army, and had earned, a GED. He had been operating businesses like JC Moon around Wisconsin for many years. English is his native language. Though there is some suggestion in the change of plea hearing that Morrison was suffering from the early stages of Alzheimer’s, there is no indication that any such complications impacted his ability to understand the nature of the proceedings. Novak was fifty-eight years old when she pled guilty. She had graduated high school and had taken some college courses. She ran the operations of JC Moon. Previously, she had managed her own restaurant. English is also Novak’s native language. Nothing about appellants’ personal history indicated that either was unable to understand the proceedings or the nature of the charges.

Third, both Novak and Morrison were represented by counsel. Fourth, as explained above, the district court reviewed the nature of the charges with each appellant and dwelled on what each knew about XLR-11 and at what time. Finally, the government summarized, in plain language, the expert and lay witness testimony it expected to elicit at trial, and both appellants agreed that the government could prove all of the facts mentioned. These factors, and the totality of the circumstances surrounding Novak’s and Morrison’s guilty pleas, indicate that they entered into those pleas voluntarily and with sufficient understanding of the charges against them.

2. Factual Basis

Appellants next argue the district court lacked a sufficient factual basis on which to accept their distribution pleas and Morrison’s tax fraud plea. As to the Analogue Act charges, appellants say the government did not proffer, and the district court did not elicit, sufficient evidence of their knowledge about the chemical structure and effects of XLR-11. Alternatively, they contend that if the court found sufficient evidence to satisfy the knowledge requirement, it did so by impermissibly relying on a now-disfavored Turcotte inference. See United States v. Turcotte, 405 F.3d 515, 527 (7th Cir. 2005) (creating the “provisional remedy” of a rebuttable, permissive inference of knowledge in Analogue Act cases, such that a defendant knew about the chemical structure of an analogue if the government' can show the defendant knew the analogue had similar physiological effects to those of a controlled substance).

The Analogue Act calls for analogues to be treated as controlled substances. 21 U.S.C. § 813. Though this statute does not itself contain any scienter requirements, courts have interpreted the Analogue Act to incorporate the knowledge requirement from federal laws prohibiting the distribution of scheduled controlled substances. That is, a defendant must have known that the substance in question was a controlled substance or analogue, just as someone who distributes a controlled substance must have known that he was dealing with a controlled substance. McFadden, 135 S.Ct. at 2305 (citing 21 U.S.C. § 841(a)(1)). McFadden sets forth two ways in which the government can satisfy this knowledge requirement:

First, [knowledge] can be established by evidence that a defendant knew that the substance with which he was dealing is some controlled substance—that is, one actually listed on the federal drug schedules or treated as such by operation of the Analogue Act—regardless of whether he knew the particular identity of the substance. Second, it can be established by evidence that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue.

Id.

To satisfy the knowledge requirement the second way, the Supreme Court further reasoned that the government must show that a defendant knew the substance he is charged with distributing had (1) a chemical structure substantially similar to that of an already-scheduled controlled substance and (2) a physiological effect substantially similar to or greater than the effect of an already-scheduled controlled substance. Id.

Appellants are correct that after McFadden, courts can no longer rely on the Turcotte inference to demonstrate a defendant’s chemical-structure and physiological-effects knowledge. Turcotte effectively collapsed the second requirement (that the defendant know the analogue had physiological effects similar to those of a controlled substance) into the first requirement (that the defendant know that the analogue had a chemical structure substantially similar to that of a controlled substance) in a way that is unsupported by McFadden’s reasoning. However, the government may still prove either through circumstantial evidence. McFadden, 135 S.Ct. at 2304, n.l (“Circumstantial evidence could include, for example, a defendant’s concealment of his activities, evasive behavior with respect to law enforcement, knowledge that a particular substance produces a ‘high’ similar to that produced by controlled substances, and knowledge that a particular substance is subject to seizure at customs.”); id. at 2306, n.3.

In the case at hand, considering the government’s proffer—which both appellants admitted could be proven at trial—and appellants’ admissions at the change of plea hearings, the district court had sufficient circumstantial evidence to satisfy the first McFadden knowledge requirement: appellants knew the substance in question was a controlled substance or analogue.

As explained above, the parties agreed the government could prove at trial that appellants sold XLR-11 as “herbal incense” from the back of their store, JC Moon. While selling it, appellants learned from customers and employees that XLR-11 would give users a high. Novak admitted that she knew XLR-11 got people buzzed, and Morrison believed it was like marijuana. In other words, appellants knew XLR-11 was not meant to be used as incense; rather, they knew it was for smoking and that it would give a buzz or high similar to marijuana. Most tellingly, JC Moon’s May 2, 2013 Facebook post said, “The federal government is banning the current herbal incense on May 13, 2013. What that means for us is everything we are selling right now will be banned as of May 13. Our inventory is limited. We may run out before then. We will keep you posted.” Appellants knew XLR-11 was going to be treated as a controlled substance, yet they continued to sell it. In sum, there was enough evidence before the district court to find that appellants were aware of the specific analogue they were dealing with and its status as a controlled substance analogue. The court committed no plain error in concluding that it had a sufficient factual basis to accept Novak’s and Morrison’s guilty pleas on the Analogue Act charges.

The district court likewise had a sufficient factual basis on which to accept Morrison’s guilty plea for tax fraud. Morrison initially hesitated to admit he knew about the cash-skimming scheme; however, he later admitted to knowing that the $50 and $100 bills went into his and Novak’s safe, that the taxes were prepared without including income from the skimmed bills, and that he knowingly signed off on the artificially low tax returns. Furthermore, the district court informed Morrison that not knowing the submitted tax information was false would be a defense to the tax fraud charge. Morrison still pled guilty. Thus,- the district court did not err in accepting Morrison’s plea to the tax fraud charge.

C. 1:167 Marijuana Equivalency Ratio

Finally, appellants argue the district court erred in finding that THC was the most closely related controlled substance to XLR-11, UR-144, PB-22, and 5F-PB-22 for purposes of calculating the offense level under U.S.S.G. § 2D1.1 cmt. n.6. The district court’s conclusion that THC is the most closely related controlled substance to XLR-11, UR-144, PB-22, and 5F-PB-22 is a finding of fact we review for clear error. United States v. Malone, 828 F.3d 331, 337 (5th Cir. 2016) (collecting cases); United States v. Hall, 101 F.3d 1174, 1176 (7th Cir. 1996).

Where a substance, such as XLR-11, is not listed in the Sentencing Guidelines, the Guidelines require application of the marijuana equivalent of the most closely related controlled substance. U.S.S.G. § 2D1.1 cmt. n.6. To make this finding, the Guidelines instruct the district court to consider (1) whether the unlisted substance has a chemical structure substantially similar to that of a controlled substance listed in the Guidelines; (2) whether the unlisted substance produces a pharmacological effect that is substantially similar to the effect produced by a controlled substance in the Guidelines; and (3) whether a lesser or greater amount of the unlisted substance is required to produce a pharmacological effect that is substantially similar to the effect produced by a controlled substance in the Guidelines. Id.

The government conceded at sentencing that none of the analogues involved in this case had a chemical structure similar to any controlled substance referenced in the Guidelines. The district court acknowledged that this factor was of no help in finding the most closely-related controlled substance for XLR-11. However, missing the first factor does not end the analysis. The government produced evidence on the latter two factors. At sentencing, the government called an expert witness and lay witnesses who testified that the substances had similar or stronger physiological effects to those of THC. The expert also elaborated on why the substances were like THC, and not like marijuana, which contains THC as one of its many chemicals. The expert also opined that less of the substances was needed to produce an effect compared to a given amount of THC. The district court was entitled to credit that testimony and use it to find that the substances were most like THC. It follows that the district court did not'err in applying the 1:167 marijuana equivalency ratio for THC to the substances involved in this case, or in calculating appellants’ offense levels accordingly.

III. Conclusion

For the foregoing reasons, we Affirm the judgment of the district court.

      The May 2, 2013 post read: "The federal government is banning the current herbal incense on May 13, 2013. What that means for us is everything we are selling right now will be banned as of May 13. Our inventory is limited. We may run out before then. We will keep you posted.” The government said it also would have submitted evidence that XLR-11 was to be officially treated as a controlled substance on May 16, 2013, but that the notice of this change had been publicized earlier.


author: Per Curiam,

text:
    KENOSHA UNIFIED SCHOOL DISTRICT NO. 1 BOARD OF EDUCATION, et al., Petitioners-Defendants, v. Ashton WHITAKER, Respondent-Plaintiff.
    No. 16-8019
    United States Court of Appeals, Seventh Circuit.
    Submitted October 19, 2016
    Decided November 14, 2016

      Ronald S. Stadler, Attorney, Mallery & Zimmerman, Milwaukee, WI, for Petitioners-Defendants.
    Shawn Thomas Meerkamper, Alison Pennington, Ilona M. Turner, Attorneys, Transgender Law Center, Oakland, CA, Joseph John Wardenski, Sasha-.M. Sam-berg-Champion, Attorney, Reiman, Dane & Colfax PLLC, Washington, DO, Robert Theine Pledl, Attorney, Pledl & Cohn, Milwaukee, WI, for Respondent-Plaintiff.
    Before RIPPLE, KANNE, and WILLIAMS, Circuit Judges.
   Per Curiam,

Plaintiff Ash Whitaker is a transgender boy whose high school will not permit him to use the boys’ bathroom. He sued the school district for discriminating against him on the basis of sex, in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, and the Equal Protection Clause of the Fourteenth Amendment. After the district court denied the defendants’ motion to dismiss, the defendants filed this petition for interlocutory appeal. The defendants asserted that appellate jurisdiction is proper under 28 U.S.C. § 1292(b), but the district court has since vacated its certification. Thus we lack appellate jurisdiction.

The district court had issued an oral ruling denying the defendants’ motion to dismiss. The next day, at the conclusion of a hearing on the plaintiffs motion for a preliminary injunction, the defendants stated their intention to appeal the ruling denying, their motion to dismiss and presented the court with a proposed order that memorialized the denial and certified the order for immediate interlocutory appeal under 28 U.S.C. § 1292(b). The district court entered the proposed order, and the defendants filed this petition. The plaintiff then moved the district court to reconsider the interlocutory certification pursuant to Federal Rule of Civil Procedure 60(b).

Before this court had issued an order on the defendants’ petition, the district court granted the plaintiffs motion for reconsideration and revoked its certification. The district court pointed out that the defendants had not made a legal or factual argument in support of certification, nor did the court ask either party to address certification. The court admitted that it erred in failing to solicit argument on this issue and erred in including the interlocutory certification language in the order. The district court then correctly enumerated the factors that it must consider to certify an order for appeal under 28 U.S.C. § 1292(b), including whether the order to be appealed involves a controlling question of law, whether an immediate appeal would materially advance the ultimate termination of the litigation, and whether there is a substantial ground for difference of opinion on the question of law. See Ahrenholz v. Bd. of Tr. of the Univ. of Ill., 219 F.3d 674, 675 (7th Cir. 2000); In re Hamilton, 122 F.3d 13, 14 (7th Cir. 1997). Appellate resolution of the contestable question whether “sex” in Title IX encompasses gender identity would control one of the plaintiffs claims, the court reasoned, but resolution would not speed up litigation because the plaintiff had pleaded sufficient facts to survive, the motion to dismiss .on two alternate grounds.

In light of the district court’s revocation of its certification, we asked the parties to file statements of position. The parties agree—as do we—that our jurisdiction to hear an interlocutory appeal under 28 U.S.C. § 1292(b) derives from a district court’s certification of an order. See Caterpillar Inc. v. Lewis, 519 U.S. 61, 74 n.10, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996); Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 46, 47 n.4, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995); Coopers & Lybrand v. Livesay, 437 U.S. 463, 475-76, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978); 16 C. Wright, A. Miller, & E. Cooper, Fed. Practice & Proc., § 3929, at 438-39 (2016). We did not enter an order granting the petition, and thus we did not acquire jurisdiction to consider this issue in the case. The district court’s decision to withdraw certification destroys our jurisdiction to consider the petition under § 1292(b). See Weir v. Propst, 915 F.2d 283, 286 (7th Cir. 1990); In re Powerhouse Licensing, LLC, 441 F.3d 467, 471 n.2 (6th Cir. 2006); City of L.A. v. Santa Monica Baykeeper, 254 F.3d 882, 885-86 (9th Cir. 2001).

The defendants contend, however, that this court has authority to exercise pendent appellate jurisdiction over this appeal in conjunction with the appeal of the order partially granting the motion for a preliminary injunction, which is separately docketed and derives jurisdiction pursuant to 28 U.S.C. § 1292(a)(1). The doctrine of pendent appellate jurisdiction permits this court to review a non-final order when it is “inextricably intertwined” with an ap-pealable order. See Ne. Rural Elec. Membership Corp. v. Wabash Valley Power Ass’n, Inc., 707 F.3d 883, 886 (7th Cir. 2013); Montano v. City of Chicago, 375 F.3d 593, 595 (7th Cir. 2004). But this petition is not properly taken from an ap-pealable order, so there is no proper jurisdictional basis from which we may extend pendent jurisdiction. The appropriate place for the defendants to request pendent appellate jurisdiction is in the appeal from the preliminary injunction order.

Because we lack appellate jurisdiction, the petition for permission to appeal under 28 U.S.C. § 1292(b) is DENIED.


author: WILLIAMS, Circuit Judge.

text:
    Meanith HUON, Plaintiff-Appellant, v. Nick DENTON, et al., Defendants-Appellees.
    No. 15-3049
    United States Court of Appeals, Seventh Circuit.
    Argued May 31, 2016
    Decided November 14, 2016

      Meanith Huon, Attorney, Huon Law Firm, Chicago, IL, for Plaintiff-Appellant.
    Chad Russell Bowman, Attorney, Levine Sullivan Koch & Schulz, Washington, DC, for Defendants-Appellees.
    Before EASTERBROOK and WILLIAMS, Circuit Judges, and YANDLE, District Judge.

       Of the Southern District of Illinois, sitting by designation.

   WILLIAMS, Circuit Judge.

Meanith Huon sued the website Above the Law for implying that he was a rapist in an article published on the same day he was acquitted of rape. When another website, Jezebel (which was owned by Gawker at the time), reported on the lawsuit in an article entitled, “Acquitted Rapist Sues Blog for Calling Him Serial Rapist,” Huon added Gawker to the lawsuit. He accused Gawker of defamation, false light invasion of privacy, and intentional infliction of emotional distress with regard to (i) the article’s headline, (ii) its description of Huon’s criminal trial and subsequent complaint against Above the Law, and (iii) certain comments posted by a number of anonymous third-party users (at least some of whom Huon claimed were Gawker employees). The district judge granted Gawker’s motion to dismiss as to all of Huon’s claims, and later denied him leave to file a fifth amended complaint. Huon appeals both decisions.

We conclude that the district judge correctly rejected Huon’s defamation claim as to the article. The title can be construed innocently when viewed with the rest of the article as a whole, and the article’s text fairly reported on both Huon’s criminal trial and his initial complaint against Above the Law. In addition, the district judge did not err in denying Huon leave to file a fifth amended complaint, since Huon had ample opportunity to cure any deficiencies.

However, we reverse and remand the district judge’s rejection of Huon’s defamation claim as to the third-party user comments. Huon adequately alleged that Gawker helped create and develop at least some of the comments, and one of the comments constitutes defamation under Illinois law. We also reverse and remand the district judge’s rejection of Huon’s false-light and intentional-infliction claims, which were dismissed against Gawker based solely on the rejection of his defamation claims. Since part of his defamation claim can proceed, so too can his false-light and intentional-infliction claims.

I. BACKGROUND

In July 2008, Plaintiff Meanith Huon was charged with criminal sexual assault in connection with a sexual encounter he had with Jane Doe. Huon pleaded not guilty, claimed that the encounter was consensual, and was acquitted by a jury. On the day Huon was acquitted, the legal website Above the Law (ATL) published an article entitled, “Rape Potpourri” (ATL article). The article discussed two “rape stories,” one of which concerned Jane Doe’s allegations and Huon’s opening statement at his criminal trial. At some point after its initial publication, the ATL article was updated to note that Huon was acquitted.

One year after publication of the ATL article, Huon filed suit against ATL, alleging defamation, intentional infliction of emotional distress, and false light invasion of privacy. Several days later, the website Jezebel published an article entitled, “Acquitted Rapist Sues Blog for Calling Him Serial Rapist” (Jezebel article). The article superimposed Huon’s 2008 mugshot onto the ATL article and briefly explained the circumstances of Huon’s criminal trial and subsequent lawsuit against ATL. The article’s title was later changed to read, “Man Acquitted of Sexual Assault Sues Blog for Calling Him Serial Rapist” (emphasis added), but otherwise remained the same. The Jezebel article generated over 80 comments from anonymous third-party users.

Huon amended his complaint in response to the publication of the Jezebel article, adding several new allegations and nearly a dozen new defendants, including Irin Carmon, the Jezebel article’s author; Gawker Media, Jezebel’s then-owner; and Nick Denton, Gawker’s founder (Gawker Defendants). After Huon amended his complaint several additional times to cure certain jurisdictional defects, the Gawker Defendants moved to dismiss Huon’s fourth amended complaint.

The district judge granted the motion in full. He rejected Huon’s defamation claims as to the third-party user comments, finding insufficient allegations that Gawker employees had actually authored the comments, and concluding that the Communications Decency Act protects online publishers like Gawker from third-party comments. The judge also dismissed Huon’s defamation per se claim, finding that the Article’s headline was protected by the innocent construction rule and its text by the fair report privilege, and concluded that Huon had failed to plead the requisite special damages to maintain his defamation per quod claim. In addition, the judge dismissed Huon’s false-light and intentional-infliction claims, noting that the failure of his defamation claims was dispositive. The district judge later denied Huon’s motion to reconsider and for leave to file a fifth amended complaint. This appeal followed.

II. ANALYSIS

We review de novo the district judge’s grant of the Gawker Defendants’ motion to dismiss for failure to state a claim. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). A complaint need only contain enough factual content to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). While “detailed factual allegations” are not required, the complaint must contain more than mere “labels and conclusions” and “a formulaic recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citation and internal quotation marks omitted). We review the complaint in the light most favorable to Huon and accept all well-pleaded facts as true. Tamayo, 526 F.3d at 1081.

A. Jezebel Article’s Title and Content Defamation Claim Properly Dismissed

A statement is defamatory under Illinois law if “it tends to harm a person’s reputation to the extent that it lowers that person in the eyes of the community or deters others from associating with that person,” Tuite v. Corbitt, 224 Ill.2d 490, 310 Ill.Dec. 303, 866 N.E.2d 114, 121 (2006). The per se designation applies if the statement’s “defamatory character is obvious and apparent on its face and injury to the plaintiffs reputation may be presumed.” Id. A statement will usually constitute defamation per se if it falls into one of five categories; the only one at issue here concerns “statements imputing the commission of a crime.” Id.

On appeal, Huon contends that two aspects of the Jezebel article constituted defamation per se; (1) the headline and adjacent graphic containing his mug shot, to which the district judge applied the innocent construction rule; and (2) the article’s description of the criminal trial and subsequent civil suit, to which the judge applied the fair report privilege. We consider each issue in turn.

1. Innocent Construction Rule Applies to Headline and Graphic

A statement that is defamatory per se will not be actionable “if it is reasonably capable of an. innocent construction,” Green v. Rogers, 234 Ill.2d 478, 334 Ill.Dec. 624, 917 N.E.2d 450, 463 (2009). Under.this rule, a court must give the defendant’s words their natural and obvious meaning, after having considered “both the substance of defendant’s alleged statements and the context in which they .allegedly were made.” Id., 334 Ill.Dec. 624, 917 N,E.2d at 464. “[I]f a statement is capable of two reasonable constructions, one defamatory and one innocent, the innocent one will prevail.” Muzikowski v. Paramount Pictures Corp., 322 F.3d 918, 925 (7th Cir. 2003) (citing Anderson v. Vanden Dorpel, 172 Ill.2d 399, 217 Ill.Dec. 720, 667 N.E.2d 1296, 1302 (1996)). Nevertheless, “when the defendant clearly intended and unmistakably conveyed a defamatory meaning, a court should not strain to see an inoffensive gloss on the statement.” Green, 334 IllDec. 624, 917 N.E.2d at 463.

Here, Huon maintains that the Jezebel article’s headline, “Acquitted Rapist Sues Blog For Calling Him Serial Rapist,” is defamatory because it imputes to him the commission of a crime (rape), and is not subject to an innocent construction. According to Huon, the most reasonable meaning of the headline is that Huon has committed rape at least once, and that the word “acquitted,” by itself, does not controvert this false insinuation.

We need not decide whether the headline itself defamed Huon because, even if it did, it is subject to an innocent construction. As the Gawker Defendants correctly note, headlines must be considered alongside the accompanying article and not in isolation. See, e.g., Harrison v. Chi. Sun-Times, Inc., 341 Ill.App.3d 555, 276 Ill.Dec. 1, 793 N.E.2d 760, 772 (2003) (“As a general rule in applying the innocent construction rule, a newspaper headline and the text of the article to which it refers are to be considered as one document and read together as a whole.”); accord Solaia Tech., LLC v. Specialty Pub. Co., 221 Ill.2d 558, 304 Ill.Dec. 369, 852 N.E.2d 825, 846 (2006); Seith v. Chi. Sun-Times, Inc., 371 Ill.App.3d 124, 308 Ill.Dec. 552, 861 N.E.2d 1117, 1127 (2007); cf. Twite, 310 Ill.Dec. 303, 866 N.E.2d at 127-28 (examining allegedly defamatory statements in the context of the entire book in which they were published); Bryson v. News Am. Publ’ns, Inc., 174 Ill.2d 77, 220 Ill.Dec. 195, 672 N.E.2d 1207, 1217 (1996) (examining allegedly defamatory word in magazine article alongside the adjacent sentences).

Huon argues that “[h]eadlines alone may be enough to make libelous per se an otherwise innocuous article,” but the small handful of cases he relies on are unhelpful. All of them involve the laws of states other than Illinois, and -many are distinguishable on their facts insofar as the allegedly defamatory front-page headline was not next to the underlying article; See Solano v. Playgirl, Inc., 292 F.3d 1078, 1083-84 (9th Cir. 2002) (emphasizing that “the magazine is displayed for sale in plastic wrapping, making the cover the key to what a reader can expect to find inside the magazine”); Kaelin v. Globe Commc’ns Corp., 162 F.3d 1036, 1041 (9th Cir. 1998) (concluding that a reasonable jury could find that the magazine article “was too far removed [17 pages] from the cover headline to have the salutary effect that [defendant] claims”), Here, in contrast,:the complaint indicates that the headline and article were directly adjacent to one another.

•The content of the underlying Jezebel article makes clear that the only instance of alleged rape was the one Huon was acquitted of. Indeed, one need only read the first sentence to see that this is so: “A Chicago man who was acquitted on a sexual assault charge is suing the legal blog Above The Law for implying that he’s a serial rapist.” And two paragraphs later, after having discussed Huon’s acquittal, the article explains that ATL “mistakenly believes that news accounts of the same incident are different incidents that should have tipped the woman off that Huon was a serial offender.” (emphasis added). .

Huon also contends the graphic containing his mugshot and the phrases “Above the Law” and “Rape Potpourri” constitutes defamation per se. We disagree. Above the Law was the name of the website that Huon had sued, “Rape Potpourri” was the headline of the ATL article, and the mugshot illustrated the subject matter at issue. So the innocent construction rule applies to the Jezebel article’s headline and graphic.

2. Fair Report Privilege Applies to Discussion of Criminal Trial and Civil Lawsuit

Under Illinois law, a defamatory statement is not actionable if it falls within the fair report privilege, which applies to statements that are “complete and accurate or a fair abridgment of [an] official proceeding.” Solaia Tech., LLC v. Specialty Pub. Co., 221 Ill.2d 558, 304 Ill.Dec. 369, 852 N.E.2d 825, 843-44 (2006). Illinois courts have repeatedly stressed the importance of a robust privilege, as it “promotes our system of self-governance by serving the public’s interest in official proceedings, including judicial proceedings.” Id., 304 Ill.Dec. 369, 852 N.E.2d at 842; see also, e.g., Lulay v. Peoria Journal-Star, Inc., 34 Ill.2d 112, 214 N.E.2d 746, 747-48 (1966) (“The right to speak and print about such actions of government is well established; denial of this right would be a serious infringement of both State and Federal constitutional guarantees of free speech and press”).

A report constitutes a fan-abridgment if it conveys “a substantially correct account” to readers. Solaia Tech., 304 Ill.Dec. 369, 852 N.E.2d at 844-45 (citation omitted). Because the summary of a legal proceeding “is bound to convey a somewhat different impression than the ... proceeding itself,” an abridgment is typically unfair only if it “significantly change[s] the defamation appearing in the governmental or public proceeding.” O’Donnell v. Field Enters., Inc., 145 Ill.App.3d 1032, 96 Ill.Dec. 752, 491 N.E.2d 1212, 1217 (1986). A determination “is made by comparing the gist or sting of the alleged defamation in the official report or proceedings with the gist or sting in the news account.” Harrison v. Chi. Sun-Times, Inc., 341 Ill.App.3d 555, 276 Ill.Dec. 1, 793 N.E.2d 760, 773 (2003). Contrary to Huon’s contention, the fair report privilege typically raises a question of law, not a question of fact, and is not concerned with the defendant’s alleged subjective intent. E.g., Solaia Tech., 304 Ill.Dec. 369, 852 N.E.2d at 842-43; Missner v. Clifford, 393 Ill.App.3d 751, 333 Ill.Dec. 121, 914 N.E.2d 540, 551 (2009).

Huon argues that the privilege should not apply to the following sentence from the Jezebel article concerning his criminal trial: “Huon’s version was that it was a consensual encounter, and partly on the strength of the bartender’s testimony that the woman had been drinking and asked where to go to have fun, the jury believed him.” It bears noting, however, that the district judge did not apply the fair report privilege to this sentence, concluding instead that it did not amount to defamation. See Huon v. Breaking Media, LLC, 75 F.Supp.3d 747, 768 (N.D. Ill. 2014) (statement “bolster[ed] rather than defame[d] his reputation” because it suggested that “the jury found reason to discredit Jane Doe’s claims and therefore acquitted Huon of the charges”).

We agree with the Gawker Defendants that the fair report privilege applies to the Article’s references to consent and the bartender’s testimony, since they appear to accurately capture the gist of what occurred at the trial. Huon’s counsel emphatically and repeatedly referenced consent during opening statements, and the multiple facts that Huon points to as grounds for his acquittal, taken together, dovetail with a consent-focused defense strategy. In addition, Huon makes no attempt to explain how the statement about the bartender’s testimony mischaracterizes what she actually said at trial.

We cannot, however, easily dismiss Huon’s argument about the Article’s statement about the jury’s beliefs—especially since there is no indication as to what swayed any particular juror’s vote. The Gawker Defendants insist that the statement is nothing more than a non-actionable opinion, but we are dubious. The statement does not appear to be the kind of subjective claim that courts applying

Illinois law have typically viewed as non-actionable, see, e.g., Wynne v. Loyola Univ., 318 Ill.App.3d 443, 251 Ill.Dec. 782, 741 N.E.2d 669, 676 (2000) (explaining that non-actionable statements typically contain no “objectively verifiable factual assertion”), and the article’s context more closely resembles a news article than an editorial. However, we need not decide the issue, since we agree with the district judge that the statement could not have injured Huon’s reputation in the eyes of the public. (If anything, the statement improved it.)

Huon also maintains that the Jezebel article failed to capture the gist of his lawsuit against the ATL Defendants in two ways. First, he faults the article for omitting the fact that' the ATL Defendants called him a rapist on the same day he was acquitted. However, we fail to see how omitting this fact, by itself, caused the gist to be inaccurate. The Jezebel article accurately conveyed the crux of Huon’s complaint against the ATL Defendants—that ATL erroneously indicated Huon had committed multiple sexual assaults, and that he was acquitted in the only case brought against him—and Huon makes no attempt to explain why omitting the temporal relationship between Huon’s acquittal and publication of the ATL article misrepresents the nature of his lawsuit. In essence, Huon complains that the Jezebel article omitted a factual allegation of only modest significance; yet without such omissions, abridgments of legal proceedings could never occur.

Second, Huon faults the Jezebel article for republishing the ATL article’s defamatory comments. See Brennan v. Kadner, 351 Ill.App.3d 963, 286 Ill.Dec. 725, 814 N.E.2d 951, 970 (2004) (“The republisher of a defamatory statement made by another is himself liable for defamation even if he gives the originator’s name.”). But the Jezebel Article did not -simply parrot the rape-based allegations in the ATL article; rather, it summarized Huon’s criticism of these allegations, and, if anything, indicated that the criticism was founded, insofar as it noted that Huon was “acquitted” and that the ATL article was based on a “mistaken[ ] belie[f].” So the fair report privilege applies to the Jezebel article’s statements regarding Huon’s criminal trial and subsequent lawsuit against ATL.

B. District Judge Erred in Dismissing Defamation Claim Involving Third-Party User Comments 1. Communications Decency Act Not Applicable

The Communications Decency Act states, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1); see also id. § 230(f)(3) (defining “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service”). This means that for purposes of defamation and other related theories of liability, a company like Gawker cannot be considered the publisher of information simply because the company hosts an Online forum for third-party users to submit comments. See, e.g., Chi. Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671-72 (7th Cir. 2008) (concluding that Craigslist “is not the author of the ads and could not be treated as the ‘speaker’ of the posters’ words, given § 230(c)(1)”); Doe v. GTE Corp., 347 F.3d 655, 658-59 (7th Cir. 2003) (explaining that “entities that know the information’s content do not become liable for the sponsor’s deeds,” and noting that § 230(c) preempts contrary state law).

A company can, however, be liable for creating and posting, inducing another to post, or otherwise actively participating in the posting of a defamatory statement in a forum that that company maintains. See Chi. Lawyers’ Comm., 519 F.3d at 671; see also Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1166-67 (9th Cir. 2008) (en banc) (concluding that a website was not a “passive transmitter of information provided by others” but instead helped develop the information by “requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of pre-populated answers”); FTC v. Accusearch Inc., 570 F.3d 1187, 1199-1200 (10th Cir. 2009) (concluding that a website developed the information by “soliciting] requests” for the information and then “pa[ying] researchers to obtain it”).

Huon argues that the Act is inapplicable here because Gawker’s comments forum was not a mere passive conduit for disseminating defamatory statements. Rather, Gawker itself was an information content provider, insofar as the Gawker Defendants: (1) “encouraged and invited” users to defame Huon, through selecting and urging the most defamation-prone commenters to “post more comments and continue to escalate the dialogue”; (2) “edited,” “shaped,” and “choreographed” the content of the comments that it received; (3) “selected” for publication every comment that appeared beneath the Jezebel article; and (4) employed individuals who authored at least some of the comments themselves.

The district judge concluded that these arguments failed to plausibly state a claim for relief. But we see nothing farfetched about Huon’s factual allegations— in ■ particular, his contention that one or more of the comments were authored by Gawker employees. Rather than asserting one or two standalone factual allegations concerning Gawker’s control over comments, Huon’s fourth amended complaint devotes over four pages to detailing Gawker’s alleged activities. Critically, the complaint hints at why Gawker employees might have anonymously authored comments, alleging that increasing the defamatory nature of comments can increase traffic to Gawker’s websites; which can in turn enhance the attractiveness of Gawk-er’s commenting system for prospective advertisers. In doing so, the complaint quotes several passages, .from a Reuters article that explains precisely how Gawk-er was planning to “monetize” comments, and why advertisers might find this commenting system appealing.

The Gawker Defendants may well be correct in contending that none of Huon’s various allegations actually occurred, but this doesn’t mean that' the allegations are so implausible as to warrant dismissal under Rule 12(b)(6). See Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (explaining that a complaint need only plead enough facts to “raise a right to relief above a speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)” (footnote and citations omitted)); id. at 556, 127 S.Ct. 1955 (“[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” (citation and internal quotation marks omitted)). Discovery is the proper tool for Huon to use to test the validity of his allegations, and if he is unable to marshal enough facts to support his claim the Gawker Defendants can move for summary judgment. Moreover, to the extent Gawker and other publishers are concerned that our ruling will result in a flood of frivolous lawsuits, we remind them that sanctions are available under Federal Rule of Civil Procedure 11 if it is determined that a plaintiffs factual allegations were plead with improper purpose, are frivolous, or were known by plaintiffs counsel to be lacking any factual basis.

The Gawker Defendants proffer several arguments in support of the Act’s application here, but none are availing. For example, they argue that Huon’s allegations amount to the kind of “traditional publishing activities” that other courts of appeals have found warrant protection under the Act. See, e.g., Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) (Under § 230, “lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred.”); accord Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 18-20 (1st Cir. 2016); Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398, 407 (6th Cir. 2014). But we need not wade into that debate, since Huon has adequately pleaded that at least some of the allegedly defamatory comments were authored by Gawker-employ-ees—thus making Gawker an “information content provider” under § 230(f).

'In addition, the Gawker Defendants argue that Huon’s allegation that the Defendants induced the comments is belied by Gawker’s terms of use for commenters, which, among other things, prohibited the posting of “harassing, defamatory or libelous material.” But the mere fact that a terms-of-use statement exists does .not establish that all comments complied with it.

The Gawker Defendants also argue that Huon failed to plead facts plausibly establishing that Gawker authored the allegedly defamatory comments. As discussed above, however, there is nothing implausible about this allegation, and we reject the Gawker Defendants’ invitation to interpret Rule 8, Twombly, and Iqbal as requiring more. Indeed, potentially meritorious claims could be prematurely and improperly dismissed if we were to accept the Gawker Defendants’ position, since the information necessary to prove or refute allegations like Huon’s is typically available only to defendants. Cf. Brown v. Budz, 398 F.3d 904, 914 (7th Cir. 2005) (“Where pleadings concern matters peculiarly within the knowledge of the defendants, con-clusory pleading on ‘information and belief should be liberally viewed.” (citation and internal quotation marks omitted)).

2. One Comment Is Defamatory

The fact that Huon has plausibly alleged that Gawker employees created the defamatory comments, by itself, does not allow him to press forward with his defamation per se claim; the comments must actually constitute defamation. We have already discussed the general principles of defamation per se under Illinois law. But given the fact that the statements at issue were shared in a comments forum, a brief discussion of the distinction between actionable factual assertions and non-actionable opinions is in order.

Opinions that do not misstate actual facts are protected by the First Amendment and thus non-actionable. E.g., Madison v. Frazier, 539 F.3d 646, 653 (7th Cir. 2008) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990)); Moriarty v. Greene, 315 Ill.App.3d 225, 247 Ill.Dec. 675, 732 N.E.2d 730, 739 (2000). Illinois courts consider the following three factors in differentiating between factual assertions and opinions: “(1) whether the statement has a precise and readily understood meaning; (2) whether the statement is verifiable; and (3) whether the statement’s literary or social context signals that it has factual content.” J. Maki Const. Co. v. Chi. Reg’l Council of Carpenters, 379 Ill.App.3d 189, 318 Ill.Dec. 50, 882 N.E.2d 1173, 1183 (2008). Notably, “[w]ords that are mere name calling or found to be rhetorical hyperbole or employed only in a loose, figurative sense have been deemed nonactiona-ble.” Pease v. Int’l Union of Operating Eng’rs Local 150, 208 Ill.App.3d 863, 153 Ill.Dec. 656, 567 N.E.2d 614, 619 (1991); see also Milkovich, 497 U.S. at 20, 110 S.Ct. 2695 (statements that are not reasonably understood as stating actual facts should not be actionable, in order to ensure that “public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation”).

Here, most—but not all—of the comments do not constitute defamation per se. Some comments are not defamatory because they do not directly concern Huon himself, but instead relate to acquittal and guilt more generally. For example:

SarahMc:
Just because a man is acquitted of rape does not mean he did not commit rape. That a jury would decide “not guilty” does not magically erase what he did—if he did, in fact, rape someone. The vast majority of rapists are never convicted of rape. Does that make them not rapists?
Dinosaurs and Nachos, girlfriend!:
Innocent until proven guilty is a widely misunderstood concept. It basically means that the mere fact that someone is charged with a crime is not itself evidence that the person committed a crime.
Then you go to court. In court, there will be evidence presented. This evidence is where an actual, legal determination is made. Nobody is declared “innocent” in a court of law, they are found guilty or not guilty.
“Not guilty” is absolutely not the same thing as “innocent” from a legal standpoint. Those words do not mean the same thing in the world of law. “Innocent until proven guilty” is merely a concept for laymen to try to keep their non-lawyer brains from jumping to (nonlegal) conclusions.

Other comments amount to hyperbole that cannot be reasonably understood as asserting objectively verifiable facts. For example:

SorciaMacnasty:
Nevermind [sic] “serial rapist,” he sounds like a foreal [sic] crazy person.

Still other comments, while referencing certain alleged facts surrounding Huon’s criminal trial, do not directly accuse him of committing a crime and are better classified as nonactionable opinions—specifically, a rhetorical decrying of general notions of “rape culture” and “victim blaming.” For example:

cooLas_KimDeal:
Well shit! I didn’t know kicking back at a bar and asking where I should go to have fun meant that I hereby consent to any and all sexual activity, with anybody, with this bartender here as my witness. Can I sign away my right to consent here on my bar tab? Okay, great.
JadeSays:
Weird. I didn’t know “where do I go to have fun” meant the same thing as “where do I go to get raped.” It’s great that that jury made that clear to me, otherwise I could get myself in some sticky situations like apparently accidentally begging to be raped.
AWE. SOME.

rachel723 (in reply to JadeSays’s comment):

you know it’s women like you. who don’t understand the rules that make the rest of us ladies look bad.
I’m glad you learned before you actually got raped not -to complain now if you do, you were asking for it!! /sarcasm
HeartRateRapid:
Yea, all those crazy bitches going to the cops and lying about being raped. Except that false reports for stolen cars are more common. False rape reports make up less than 3% of all reported rapes, and as I’m sure you know, it horrendously underreported.

Only the following comment qualifies as defamation per se under Illinois law:

vikkitikkitavi:
She jumped out of a moving car, leaving her shoes and purse behind and ran barefoot through a cornfield and pounded on a stranger’s door to help her?
Fuck this “he’s been acquitted” noise. He’s a rapist alright, so we may as well call him one.

This comment unequivocally accuses Huon of committing a crime (rape), and nothing in its context suggests it is more appropriately viewed as mere name-calling or stylistic exaggeration. So Huon’s defamation per se claim as to this comment may proceed.

C. False Light Invasion of Privacy and Intentional Infliction of Emotional Distress Claims Improperly Rejected

The district judge rejected Huon’s false-light and intentional-infliction claims based solely on the dismissal of Huon’s defamation claims. It appears that this tethering is consistent with Illinois law. See Madison v. Frazier, 539 F.3d 646, 659 (7th Cir. 2008) (When an “unsuccessful defamation per se claim is the basis of [a plaintiffs] false-light claim, his false-light invasion of privacy claim fails as well.”). But that reasoning no longer holds, since Huon’s defamation per se claim as to one third-party user comment was improperly dismissed. And because the false-light and intentional-infliction claims have not been adequately briefed on appeal, we reverse the dismissal of those claims and remand for further proceedings.

D. No Error in Denying Motion for Leave to File Fifth Amended Complaint

Finally, Huon argues that the district judge erred in denying him leave to file a fifth amended complaint to cure certain alleged deficiencies relating to his defamation per quod claim. Federal Rule of Civil Procedure 15(a)(1) instructs that courts should freely give plaintiffs leave to amend their complaints “when justice so requires.” However, district judges have “broad discretion” to deny leave to amend, “where there is undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice to the defendants, or where the amendment would be futile.” Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008). “We review a district court’s denial of leave to amend for abuse of discretion and reverse only if no reasonable person could agree with that decision.” Schor v. City of Chi., 576 F.3d 775, 780 (7th Cir. 2009).

Huon has not satisfied this high bar. The district judge explained that in each of his previously amended complaints, Huon had added new .factual and legal allegations, added or removed defendants, or revised certain statements in an attempt to cure jurisdictional deficiencies. In addition, the judge emphasized that the modifications in the proposed complaint could have been made earlier, since they purport to cure deficiencies highlighted in the Defendants’ motions to dismiss Huon’s second amended complaint. Why Huon did not modify his third or fourth amended complaints accordingly remains a mystery. So the district judge did not err in finding that Huon had ample opportunity to plead his claims, and justice does not require an additional bite of the apple. See Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328, 347-48 (7th Cir. 2012) (finding no abuse of discretion in denying leave to amend where plaintiffs had already had three opportunities to state a claim); Emery v. Am. Gen. Fin., Inc., 134 F.3d 1321, 1322-23 (7th Cir. 1998) (same).

III. CONCLUSION

The judgment of the district court is AFFIRMED in part and Reversed in part, and the case is Remanded for proceedings consistent with this opinion.

      . Following oral argument, we were notified that Defendants Gawker Media LLC and Nick Denton had separately filed petitions for bankruptcy protection under Chapter 11. Counsel for both Defendants tells us that the automatic stays in both bankruptcy proceedings have been modified so as .to permit us to render a decision. We proceed accordingly.

      . The ATL Defendants separately moved to dismiss Huon’s fourth amended complaint. After the district judge granted their motion in part and denied it in part, the ATL Defendants and Huon settled. The ATL Defendants are not parties on appeal,

      . Huon’s fourth amended complaint also alleges defamation per quod. But since Huon does not press this claim on appeal, we consider it forfeited. See, e.g., Milligan v. Bd. of Trs. of S. Ill. Univ., 686 F.3d 378, 386 (7th Cir. 2012); United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991).