                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 18-2653
BOARD OF FORENSIC DOCUMENT EXAMINERS, INC., et al.,
                                   Plaintiffs-Appellants,
                                 v.

AMERICAN BAR ASSOCIATION, et al.,
                                               Defendants-Appellees.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
           No. 1:17-cv-1130 — Edmond E. Chang, Judge.
                     ____________________

        ARGUED APRIL 8, 2019 — DECIDED MAY 1, 2019
                 ____________________

   Before WOOD, Chief Judge, SCUDDER and ST. EVE, Circuit
Judges.
    SCUDDER, Circuit Judge. The Board of Forensic Document
Examiners brought a defamation action alleging reputational
harm from an article published in an American Bar Associa-
tion law journal. The district court dismissed the action, con-
cluding that the article did not suﬃciently identify the Board
or any of its members as the subjects of criticism and, even if
it had, expressed nothing more than the author’s opinion.
2                                                 No. 18-2653

Because we agree that the statements are non-actionable,
constitutionally protected expressions of opinion, we aﬃrm.
                              I
    The Board of Forensic Document Examiners is a non-
proﬁt organization that administers a certiﬁcation program
for forensic document examiners. Certiﬁed examiners ana-
lyze and compare handwriting and provide expert testimo-
ny in judicial proceedings. The Board has certiﬁed about a
dozen examiners, including each of the individual plaintiﬀs.
    This dispute centers on an article by Thomas Vastrick, a
forensic document examiner certiﬁed by a diﬀerent, much
larger organization: the American Board of Forensic
Document Examiners, which we will call the American
Board. Vastrick’s article, Forensic Handwriting Comparison
Examination in the Courtroom, appeared in The Judges’ Journal,
a peer-reviewed scholarly journal published by the ABA.
The summer 2015 edition of the journal in which Vastrick’s
article was published focused on topics in forensic science
encountered by judges when qualifying expert witnesses.
Vastrick’s article spanned four pages and oﬀered guidance
for judges in evaluating the qualiﬁcations and credentials of
handwriting experts. Vastrick urged judges to look for
experts certiﬁed by the American Board and warned judges
to “be wary of other certifying bodies.” The article also
included Vastrick’s photo and a brief biography, which
identiﬁed Vastrick as a “board certiﬁed forensic document
examiner out of Orlando, Florida, with over 37 years of
experience,” including service as chairman of the
“Questioned Documents Section of the American Academy
of Forensic Sciences” and participation in a handwriting
study funded by the National Institute of Justice.
No. 18-2653                                                 3

    While the article did not mention the Board of Forensic
Document Examiners by name, the Board believed that
Vastrick nonetheless defamed its members by making false
and misleading statements about how to distinguish
between “true professionals” and “lesser qualiﬁed”
examiners. The Board initially responded by submitting a
rebuttal to Vastrick’s article, but frustrated with the ABA’s
suggested edits, it abandoned the eﬀort and instead ﬁled this
action. The Board’s complaint asserted claims of defamation
per se and invasion of privacy on behalf of all of its members
generally and member Andrew Sulner speciﬁcally on the
basis that he was singled out by Vastrick. The Board also
asserted claims of civil conspiracy, false advertising under
the Lanham Act, and violations of state competition laws.
   The Board amended its complaint and focused on four
speciﬁc statements in Vastrick’s article:
      “An appropriately trained forensic document
      examiner will have completed a full-time, in-
      residence training program lasting a minimum
      of 24 months per the professional published
      standard for training. Judges need to be vigi-
      lant of this issue. There are large numbers of
      practitioners who do not meet the training
      standard.”
      “The American Board of Forensic Document
      Examiners … is the only certiﬁcation board
      recognized by the broader forensic science
      community, law enforcement, and courts for
      maintaining principles and training require-
      ments concurrent with the published training
      standards. Be wary of other certifying bodies.”
4                                                No. 18-2653

      The article cautioned judges “to look out for”
      examiners “[c]ertiﬁed by [a] board other than
      the American Board of Forensic Document Ex-
      aminers.”
      The article also cautioned against any
      “[m]ember of American Academy of Forensic
      Sciences but not the Questioned Document
      Section.”
    The Board alleged that these statements misled readers
about the qualiﬁcations of Board-certiﬁed examiners. As to
the ﬁrst statement, the Board asserted that Vastrick falsely
suggested that to satisfy “the professional standards for
training,” a forensic document examiner must complete a 24-
month “full-time, in-residence training program,” whereas
the professional standards require only the equivalent of a
24-month full-time training program. The Board also alleged
that the second and third statements, which identiﬁed the
American Board of Forensic Document Examiners as the on-
ly reputable certifying body, falsely implied that its mem-
bers were unqualiﬁed, even though, like the American
Board, the Board is accredited by the Forensic Specialties
Accreditation Board. As to the fourth statement, the Board
contended that Vastrick harmed Andrew Sulner’s reputation
by warning judges about forensic examiners who are mem-
bers of the American Academy of Forensic Sciences general-
ly but not the American Academy’s Questioned Document
Section speciﬁcally, as Sulner apparently is the only examin-
er who ﬁts this description.
   The ABA and other defendants moved to dismiss the
complaint, arguing that the challenged statements did not
identify the Board (or any of its members) as the target of
No. 18-2653                                                       5

criticism and, regardless, reﬂected only Vastrick’s opinion,
not veriﬁable facts. The district court agreed and dismissed
each of the Board’s claims. The court also denied the Board’s
motion for reconsideration and request to ﬁle a second
amended complaint, concluding that any amendment would
be futile in light of the ruling that the article contained only
non-actionable opinion.
                                 II
   On appeal the Board challenges the district court’s
decision to grant the defendants’ motion to dismiss and,
separately, to deny leave to ﬁle a second amended
complaint. The Board also argues that the court erred by
applying Illinois law to each claim (except for the claim
speciﬁc to plaintiﬀ Andrew Sulner, to which the district
court properly applied New York law). We review a
dismissal for failure to state a claim de novo, Santana v. Cook
County Bd. of Review, 679 F.3d 614, 620 (7th Cir. 2012), and a
denial of leave to amend for abuse of discretion, Dubicz v.
Commonwealth Edison Co., 377 F.3d 787, 792 (7th Cir. 2004).
                                 A
     Beginning with the choice of law issue, we turn to the
law of the forum state, Illinois. See West Side Salvage, Inc. v.
RSUI Indemnity Co., 878 F.3d 219, 223 (7th Cir. 2017). Illinois
law tells us that the law of the state with the “most signiﬁ-
cant relationship to the occurrence and the parties” applies
in the event of a conﬂict. Barbara's Sales, Inc. v. Intel Corp., 227
Ill. 2d 45, 61 (2007). In defamation cases, the plaintiﬀ’s home
state often has the “most signiﬁcant relationship” because
that location is where the plaintiﬀ suﬀers the most reputa-
6                                                    No. 18-2653

tional harm. See Kamelgard v. Macura, 585 F.3d 334, 341 (7th
Cir. 2009).
    Each individual plaintiﬀ lives in a diﬀerent state, and the
district court agreed with the Board that, in the event of a
conﬂict of laws, the law of the aﬀected plaintiﬀ’s home state
would apply to the claim in question. From there, however,
the district court identiﬁed only one conﬂict with Illinois
law: for the defamation per se claim brought by Andrew
Sulner, New York law (unlike Illinois) permits a plaintiﬀ to
rely on extrinsic evidence to establish that he is the target of
a challenged statement. Compare Bryson v. News America
Publications, Inc., 174 Ill. 2d 77, 118–19 (1996) (explaining that
statements are not defamatory per se if “additional facts are
required to show the identity of the allegedly defamed
person”) with Hinsdale v. Orange County Publications, Inc., 17
N.Y.2d 284, 290 (1966) (holding that extrinsic facts may be
considered in determining whether a written statement is
libelous per se if the extrinsic facts are “presumably known to
[the] readers” of the challenged statement). As a result, the
district court applied New York law to Sulner’s claim, but
seeing no other conﬂicts, applied Illinois law to the Board’s
remaining claims.
    The Board now argues that the district court should have
applied the law of each plaintiﬀ’s home state in assessing
their defamation claims. We disagree. A district court is re-
quired to engage in a choice of law analysis only “if there is
a conﬂict between Illinois law and the law of another state
such that ‘a diﬀerence in law will make a diﬀerence in the
outcome.’” West Side Salvage, 878 F.3d at 223 (citing Townsend
v. Sears, Roebuck & Co., 227 Ill. 2d 147, 155 (2007)). And it was
incumbent on the Board, as the party seeking a choice of law
No. 18-2653                                                    7

determination, to “establish the existence of an outcome-
determinative conﬂict.” Id. It failed to do so. While the
Board, in its response to the ABA’s motion to dismiss, “re-
serve[d] [the] right to argue the application of the laws of a
particular state should a conﬂict of laws arise with respect to
certain issues,” the Board did not identify any speciﬁc con-
ﬂict in the laws of the pertinent states. So the district court
committed no error in applying the law of the forum state,
Illinois, to each of the Board’s claims. See id. (“If the party
fails to establish the existence of [] a conﬂict, the court ap-
plies the law of the forum state.”).
                               B
     That brings us to the merits of the Board’s claims. To
state a claim for defamation under Illinois law, a plaintiﬀ
must allege that “the defendant made a false statement
about the plaintiﬀ, that the defendant made an unprivileged
publication of that statement to a third party, and that [the]
publication caused damages.” Green v. Rogers, 234 Ill. 2d 478,
491 (2009). If a statement’s “defamatory character is obvious
and apparent on its face,” it is considered defamation per se,
with the law then presuming damages. Tuite v. Corbitt, 224
Ill. 2d 490, 501 (2006). Illinois recognizes ﬁve categories of
statements that are considered defamatory per se, two of
which are relevant here—statements “imputing an inability
to perform or want of integrity in the discharge of duties of
oﬃce or employment” and statements that “prejudice a par-
ty, or impute lack of ability, in his or her trade.” Van Horne v.
Muller, 185 Ill. 2d 299, 307 (1998).
    The Board contends that the four statements highlighted
in its amended complaint are defamatory per se because they
falsely imply that its experts do not meet the published pro-
8                                                   No. 18-2653

fessional training standards for forensic examiners. But not
all statements that doubt or impugn an individual’s profes-
sional abilities are actionable. To the contrary, opinions that
do not misstate facts are protected not only by Illinois law
but also by the First Amendment, and that is so even when
the opinions concern one of the ﬁve defamation per se cate-
gories under Illinois law. See Huon v. Denton, 841 F.3d 733,
743 (7th Cir. 2016).
     In determining whether a statement is one of opinion or
one of fact, Illinois law—in keeping with Supreme Court
precedent—draws no ﬁrm dividing line. See Solaia Tech., LLC
v. Specialty Publishing Co., 221 Ill. 2d 558, 581 (2006) (citing
Illinois cases and Milkovich v. Lorain Journal Co., 497 U.S. 1,
18–19 (1990)). Courts consider “whether the statement has a
precise and readily understood meaning; whether the
statement is veriﬁable; and whether the statement's literary
or social context signals that it has factual content.” Id.; see
also Gross v. New York Times Co., 82 N.Y.2d 146, 153 (1993)
(articulating similar factors). Context is key, as it matters not
only what was said, but who said it, where it was said, and
the broader setting of the challenged statements. See, e.g.,
Brennan v. Kadner, 351 Ill. App. 3d 963, 969–70 (2004)
(employing similar factors).
    The context of Vastrick’s statements supports the district
court’s conclusion that his article expressed his opinion, not
veriﬁable facts. The article appeared in a scholarly law
journal—the ABA’s The Judges’ Journal—and even more
speciﬁcally in an edition devoted (as the front cover stated)
to Forensic Sciences—Judges as Gatekeepers. Anyone reading
this edition of The Judges' Journal would know that the
primary audience was judges, with Vastrick’s article
No. 18-2653                                                      9

reﬂecting but one practicing expert’s view on how judges
should attend to their gatekeeping obligations under Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) or
state-law analogues. Nobody reading the article in this
context could reasonably have seen Vastrick’s statements as
assertions of fact subject to falsiﬁcation. To the contrary, the
article was what it purported to be: one practitioner’s
commentary on how judges should attend to the admission
of expert opinion in the area of handwriting analysis. See,
e.g., Lott v. Levitt, 556 F.3d 564, 570 (7th Cir. 2009) (explaining
that in the scholarship context “it is natural to read [the
allegedly defamatory] statement as a critique on [the
plaintiﬀ’s] theory, rather than an accusation of falsifying
data”); Dilworth v. Dudley, 75 F.3d 307, 310 (7th Cir. 1996)
(considering statements in a “work of scholarship” and
stating that “judges are not well equipped to resolve
academic controversies” and the appropriate remedy is “the
publication of a rebuttal”).
    This interpretation is particularly reasonable as The
Judges’ Journal warned readers that “[a]rticles represent the
opinions of the authors alone” and “provide opposing
views” for readers to consider. Vastrick likewise highlighted
the subjective nature of his article, presenting his views as
suggestions and not facts: “I, as a practicing forensic
document examiner, would like to respectfully suggest ways
to diﬀerentiate between the true professional and the lesser-
qualiﬁed practitioners.” To be sure, neither the ABA nor
Vastrick could avoid liability simply by labeling the
challenged statements as opinions. See Milkovich, 497 U.S. at
19. But these warnings are relevant to our assessment of the
broader context of Vastrick’s statements and to our
10                                                  No. 18-2653

conclusion that the article could not reasonably be
interpreted as stating facts. See Solaia, 221 Ill. 2d at 581.
    A closer look at the content of Vastrick’s statements
reinforces our conclusion. In the ﬁrst challenged statement,
for example, Vastrick discussed the qualiﬁcations of “an
appropriately trained forensic document examiner.” This
express qualiﬁcation—“appropriately trained”—signaled
that Vastrick was oﬀering his own view on adequate
qualiﬁcations for a forensic examiner, not describing factual,
objective standards for qualiﬁcations. Vastrick’s assertion
that the American Board “is the only certiﬁcation board
recognized by the broader forensic science community, law
enforcement, and courts,” likewise reﬂects the expression of
a viewpoint, as the statement is so broad as to lack objective,
veriﬁable meaning. See Haynes v. Alfred A. Knopf, Inc., 8 F.3d
1222, 1227 (7th Cir. 1993) (“[I]f it is plain that the speaker is
expressing a subjective view, an interpretation, a theory,
conjecture, or surmise, rather than claiming to be in
possession of objectively veriﬁable facts, the statement is not
actionable.”).
    While we agree with the district court that the better
course would have been for Vastrick to disclose (somewhere
in the article) his aﬃliation with the American Board—
thereby allowing readers to see that he was showering praise
on an organization to which he belonged—none of his
statements were defamatory. Indeed, though the Board may
disagree with Vastrick’s assessment of who is properly qual-
iﬁed and what credentials district judges should look for
when considering proﬀered experts, the appropriate avenue
for expressing a contrary point of view was through a re-
No. 18-2653                                                    11

buttal article, not a defamation lawsuit. See, e.g., Lott, 556
F.3d at 570–71.
    Because we conclude Vastrick’s article contained only
non-actionable opinion, we need not consider other aspects
of the district court’s reasoning that informed the dismissal
of the Board’s claims.
                               III
    The Board also challenges the district court’s dismissal of
its Lanham Act claims. But here too the opinion-based na-
ture of Vastrick’s statements is dispositive.
    To establish a deceptive advertising claim under
§ 1125(a)(1) of the Lanham Act, a plaintiﬀ must show that
“(1) the defendant made a material false statement of fact in
a commercial advertisement; (2) the false statement actually
deceived or had the tendency to deceive a substantial seg-
ment of its audience; and (3) the plaintiﬀ has been or is likely
to be injured as a result of the false statement.” Eli Lilly & Co.
v. Arla Foods, Inc., 893 F.3d 375, 381–82 (7th Cir. 2018). As
with Illinois defamation law, opinions are non-actionable
under the Lanham Act because the statute prohibits only
misrepresentations “of fact.” 15 U.S.C. § 1125(a)(1). Because
Vastrick’s article reﬂected only his opinion, none of the chal-
lenged statements can form the basis of a Lanham Act claim.
                               IV
    Finally, the Board argues that the district court abused its
discretion in failing to grant leave to amend its complaint.
The district court oﬀered two reasons for this denial: delay
and futility. Because we agree that each of the challenged
statements reﬂects Vastrick’s opinion—and there was noth-
ing the Board could do to change that reality in a new
12                                                No. 18-2653

amended complaint—the district court acted within its dis-
cretion in denying the Board’s request for leave to ﬁle a sec-
ond amended complaint. See Runnion ex rel. Runnion v. Girl
Scouts of Greater Chicago & Nw. Ind., 786 F.3d 510, 520 (7th
Cir. 2015) (explaining that leave may be denied when it is
“clear that the defect cannot be corrected so that amendment
is futile”).
     For these reasons, we AFFIRM.
