Tag Archives: Slapp

High School Basketball Coach Loses Defamation SLAPP Suit

On October 18, 2010, the Illinois Appellate Court affirmed the dismissal of a high school basketball coach’s lawsuit for defamation, false light invasion of privacy and tortious interference with prospective economic advantage. The defendants had urged that plaintiff be removed from his positions as athletic director and coach in petitions to the school board, on the internet and in  radio broadcasts. The court found that the lawsuit violated the Illinois Citizen Participation Act (“CPA”) (735 ILCS 110/1 et seq.) and constituted a strategic lawsuit against public participation (“SLAPP”). Sandholm v Kuecker, et al. The statements at issue referred to Sandholm as “excessively abusive” and that he routinely bullied, humiliated and badgered players. The statements emanated from the defendants as the “Save Dixon Sports Committee.” One posting described plaintiff as a “psyco [sic]nut [who]talks in circles and is only coaching for his glory.” The post continued: “It is his twisted pshyco [sic] babble and his abuse of power that we have had enough of.”

In finding that the CPA barred plaintiff’s lawsuit, the court applied a two-part analysis emanating from City of Columbia v. Omni Outdoor Advertising, Inc., to determine whether the defendants’ acts were “genuinely aimed at procuring favorable government action.”  First, whether objective persons could have reasonably expected to procure a favorable government outcome through the campaign at issue. If so, the court does not consider defendants’ subjective intent. If, however, the objective inquiry is answered in the negative, the court considers whether defendants’ subjective intent was not to achieve a government outcome, but to interfere with plaintiff by using the governmental process itself.

The court found that the record demonstrated defendants’ repeated efforts to lobby the school board to remove plaintiff as athletic director and coach, even after the board initially denied their petition (the board ultimately reconsidered its ruling and removed plaintiff based upon the campaign).  The court referred to defendants’ internet postings and radio presentations as “part of the process of influencing the government to make a decision in petitioner’s favor” and described the campaign to remove plaintiff as “classic political speech.” Therefore, the court found that plaintiff did not disprove that objective persons in defendants’ position could reasonably believe that they could succeed in achieving their desired government outcome and it was unnecessary to consider the defendants’ subjective intent: “As the Act states, defendants are immune from liability, regardless of intent or purpose, except when not genuinely aimed at procurring favorable government action.” 735 ILCS 110/15. Significantly, the court found, that to constitute citizen participation protected by the CPA, the statements “did not need to be made within a petition or during a hearing, but needed only to be made within defendants’ participation in the government process, which includes acts of gaining public support to influence favorable government action.” Thus, the court affirmed the trial court’s dismissal of plaintiff’s lawsuit and award of attorneys’ fees to the defendants.

Sandholm demonstrates that the Illinois Citizen Participation Act continues to be applied broadly to encompass not only direct requests for governmental action, but also statements directed to the public at large which may influence government action. The scope of the Act continues to develop on a case-by-case basis.

Breach of Fiduciary Duty Claim Dismissed as SLAPP Suit

On October 20, 2010, the Illinois Appellate Court upheld the dismissal of company’s lawsuit against a former employee for breach of fiduciary duty and fraud as a SLAPP suit. Hytel Group, Inc. v. Butler.  The lawsuit was filed nearly six months subsequent to the employee’s firing, and four months after the employee filed a wage claim against the company.  The employee argued that after she was terminated she repeatedly tried to secure her last paycheck and was told that if she filed a wage claim, the company would “sue [her] ass.”  She further argued that the company’s lawsuit was, in fact, in retaliation of her pursuit of the wage claim, in violation of the Illinois Citizen Participation Act (Illinois’ anti-SLAPP statute).

The company countered that a wage claim was a purely private matter to which the Citizen Protection Act did not apply.  However, the court found that the Act was to be construed liberally and that the employee’s wage claim was “an exercise of her right to petition for redress of grievances.”  The company also argued that its claims were unrelated to the employee’s wage claims and therefore did not impinge the employee’s First Amendment right to petition for redress of her grievance.  However, the court held that the focus was whether the company’s claims were in retaliation for the wage claims, rather than whether they were directly related.

Finally, the company argued that applying the Act is such a way would have the unintended consequence of eliminating all counterclaims, because every counterclaim filed after a movant’s initial claim would be deemed a response to the initial claim. The court rejected this argument as well, noting that the court has a role in determining whether a counterclaim is brought with “retaliatory intent.”  For example, “retaliatory intent may be inferred when a claim lacking merit is filed shortly after the exercise of protected rights” but if a counterclaim “states a potentially valid cause of action and seeks damages within the ordinary range recoverable  . . . and there are no other facts suggesting an intent to chill the other party’s exercise of first amendment right to seek redress, then the later claim has not been brought ‘in response to’ the other party’s exercise of first amendment rights within the meaning of the Act.”

Hytel demonstrates the sweeping protections of the Citizen Participation Act and how the Act may be used outside the traditional parameters of defamation actions resulting in the dismissal of retaliatory lawsuits.  The Illinois Act is one of the broadest of its kind in the country, and the interpretation and scope of the Act are likely to be the subject of further judicial opinion.  Whether the court’s determination of a party’s “intent” in bringing a claim or counterclaim can be clearly established remains to be seen, as well as how courts will handle scenarios where a party may have mixed motives.

Illinois Court SLAPPs Condo Association in Mezuzah Case

On September 30, 2010, in Shoreline Towers Condominium Association v. Gassman, the Illinois Appellate Court held that a condominium association’s lawsuit against a unit owner for defamation and other counts violated the Illinois Citizen Participation Act (anti-SLAPP Law).  The unit owner, Debra Gassman, had challenged a condominium bylaw which precluded residents from placing personal objects in common areas.  Pursuant to the bylaw, the association removed a mezuzah Gassman attached to the doorpost of her condominium. While Gassman filed various civil rights petitions to challenge the rule, maintaining that it constituted religious discrimination, she also provided information to the Jewish Star newspaper and engaged in other conduct criticizing the rule as anti-Semitic and made disparaging comments regarding the President of the association. The condominium association’s lawsuit sought injunctive relief and  damages.  The trial court dismissed the counts of the association’s lawsuit brought in its own name, finding it to be a strategic lawsuit against public participation.  It denied the motion to dismiss the counts of the suit that sought relief on behalf of the condominium president.  In affirming the dismissal of the association’s counts, the Appellate Court held: “Contrary to Shoreline’s argument, the Act does not protect only public outcry regarding matters of significant public concern, nor does it require the use of a public forum in order for a citizen to be protected.  Rather, it protects from liability all constitutional forms of expression and participation in pursuit of favorable government action.”  The Court also affirmed an award of attorney’s fees to Gassman.

Shoreline Towers demonstrates that claims of defamation against individuals exerting their speech rights to participate in or petition government are immune from liability unless the plaintiff  produces clear and convincing evidence that the acts of the moving party are not in furtherance of such rights. Particularly, where there is evidence of  underlying claims challenging laws as unconstitutional or other petitions for government action, there is a great burden on parties seeking to silence such citizen participation through lawsuits. As Shoreline demonstrates, because most anti-SLAPP statutes provide for attorneys’ fees in the event of meritorious claims, there is a heavy price to pay for retaliatory lawsuits seeking to penalize persons for exercising their constitutional rights.