Law360 Article About Disciplinary Charges Against Lawyer Was a Fair Report of Official Proceedings

From Mogan v. Portfolio Media, Inc., decided today by Seventh Circuit Judges Michael Brennan, Candace Jackson-Akiwumi, and Joshua Kolar:

Michael Mogan appeals the district court's dismissal of his suit against Portfolio Media, the owner of Law360, for defamation and false light. Because Mogan fails to show that any statement by Law360 falls outside the fair report privilege, we affirm the district court.

Mogan, who is an attorney, sued Airbnb in California state court on behalf of a client named Veronica McCluskey in 2018. After that case went to arbitration, Mogan sued Airbnb on his own behalf, also in California state court, for abuse of process and unfair business practices that he alleged Airbnb committed in the McCluskey case. The state court dismissed the case and imposed sanctions against Mogan for filing a frivolous lawsuit. When he refused to pay the sanctions, the California State Bar filed disciplinary charges against him. Law360, a legal news website, detailed these legal battles in three articles published between 2022 and 2023.

That brings us to the present case. Displeased with the news coverage, Mogan sued Portfolio Media, the owner of Law360, for defamation and false light in federal district court…. The district court … dismissed the complaint …. As the court correctly explained, under Illinois law, statements of official proceedings that are "complete and accurate or a fair abridgement" are protected by the fair report privilege and thus cannot support a defamation or false light claim. The court concluded that Mogan failed to explain how the articles were not a fair abridgment of statements from official proceedings:

[Mogan] has not explained whether and how he contends the Law360 articles misrepresented the official proceedings that are the subjects of those articles. In other words, Mogan has not identified any inconsistencies between the facts as described by Law360 and the facts as described by the court decisions at issue. The availability of the fair report privilege turns on whether the statements accurately recount judicial proceedings, not on the underlying truth of any facts found by the courts in those proceedings.

Mogan appealed, and the Seventh Circuit affirmed the district court:

[W]e consider whether Mogan shows that any statement is not a fair abridgement of official proceedings ….

First, Mogan argues that Law360's coverage "falsely stated" that he was facing sanctions for a baseless and frivolous lawsuit. But that description accurately reflects the sanctions order, which described Mogan's suit as "baseless," and quoted a prior court order "admonish[ing] Mogan personally for his 'baseless and unprofessional' accusations." He also takes issue with Law360 reporting on a court hearing instead of waiting for a final court order. But the fair report privilege applies equally to court hearings.

Mogan next argues that Law360 gave an erroneous impression to readers by not covering certain information, including his allegations that Airbnb lied to the court and the California State Bar discriminated against him. But his argument—effectively that Law360 should have provided additional background—does not address how Law360's statements inaccurately summarized the court proceedings it chose to cover.

Finally, Mogan points out that Law360 inaccurately described his legal theory. But the inaccuracy—that Law360 said he requested the sanctions be lifted instead of declared invalid—carries the same "gist or sting of the alleged defamation" and so is still protected by the fair report privilege….

Elizabeth A. McNamara (Davis Wright Tremaine LLP) and William E. Walsh (Benesch Friedlander Coplan & Aronoff LLP) represent defendant.