"They're Bad-Mouthing the Business": Suing for and Related Claims on Behalf of a Corporation and its Officers

Your business wants r our client is a large corporation. The client's you to respond to lies competitor has made negative comments about your client and its CEO, and the client is enraged. being told by competitors y The client now seeks your advice. or others. What can you What claims do the client and its CEO have against the competitor? What do? This article reviews the remedies are available to each of them? Can the competitor be enjoined from making similar negative comments in the future? These are questions you'll various theories under which need to answer. This article includes an introduction to general Illinois defamation law and you might sue on behalf then looks at special rules governing corporate plaintiffs. It also discusses defa- of businesses and their mation-oriented variants, some of which are available to corporate plaintiffs but not natural persons. principals. Suing on behalf of the CEO: a primer on general defamation law The first thing to understand about your hypothetical client's situation is that there are two different plaintiffs: the client itself, which is a corporation, and the client's CEO, who is a natural person. The claims and remedies avail- able to each are different and must be analyzed separately. This section will briefly canvass Illinois defamation law as it applies to natu- ral persons, which will also provide a backdrop for the analysis of corporate defamation claims. Defamation law is the subject of multi-volume treatises, By Joseph J. Siprut of course, so this is merely an introduction that raises some of the key issues. To state a cause of action for defamation, a plaintiff must allege (1) the de- fendant made a false statement about the plaintiff, (2) there was unprivileged publication of the defamatory statement to a third party with fault by the

Joseph Siprut is an attorney with Schopf & Weiss LLP, a Chicago-based business litigation boutique.

528 1 ILLINOIS BAR JOURNAL I OCTOBER 2010 I VOL. 98 defendant, and (3) the publication dam- made with actual malice, the plaintiff (1st D 1986). aged the plaintiff. Each is dis- 2. O'Donnell at 1040, 491 NE2d at 1218. must prove by clear and convincing evi- 3. This multifactor test was developed by the Dis- cussed below. dence that the defendant published de- trict of Columbia Court of Appeals in Oilman v Ev- False statement about the plaintiff. famatory statements with knowledge ans, 750 F2d 970, 984-85 (DC Cir 1984), and cited with approval by the Illinois Supreme Court in Mittel- Opinions generally do not constitute def- that the statements were false or with man v Witous, 135 III 2d 220, 243-44, 552 NE2d 973, amation, but an opinion that "implies reckless disregard for truth or falsity."' 984 (1989). undisclosed defamatory facts" can be ac- Reckless disregard for the truth exists 4. American Intl Hospital v Chicago Tribune Co, 136 Ill App 3d 1019, 483 NE2d 965. See also Ill Const tionable.' Moreover, whether a statement only where the shows that the art I, § 4 ("In trials for libel, both civil and criminal, is fact or opinion is a question of law to defendant entertained serious doubts the truth, when published with good motives and for be decided based on about the truth of the statements.' justifiable ends, shall be a sufficient ."). 5. Kessler v Zekman, 250 Ill App 3d 172, 180, 620 [a] whether the statement has a precise Limited purpose public figures need NE2d 1249, 1254-55 (1st D 1993). core of meaning for which a consensus only establish actual malice in defama- 6. See New York Times Co v Sullivan, 376 US 254 (1964). of understanding exists, or conversely, tion actions involving controversies in whether the statement is indefinite and 7. Kessler at 174-75, 181, 620 NE2d at 1251, "which they have chosen to accept a lead- 1255. ambiguous; [b] whether the statement is ership role."" If the defamation action is 8. Pease v Intl Union of Operating Engineers, 208 verifiable, i.e., capable of being objectively Ill App 3d 863, 872, 567 NE2d 614,620 (2d D 1991). characterized as true or false; [c] whether unrelated to those controversies, the lim- 9. Id. the literary context of the statement would ited purpose public figure need not prove 10. Kessler at 180, 181, 620 NE2d at 1255. actual or York malice, and is 11. Id. influence the average reader's readiness to New Times 12. Troman v Wood, 62 Ill 2d 184, 198, 340 NE2d infer that a particular statement has fac- instead held to the less stringent private 292, 299 (1975) ("[I]n a suit brought by a private in- tual content; and [d] whether the broader person standard." Illinois law requires dividual to recover actual damages for a defamatory publication whose substantial danger to reputation is only that a private plaintiff apparent, recovery may be had upon proof that the establish "negligent" defa- publication was false, and that the defendant either mation." This is true even knew it to be false, or, believing it to be true, lacked reasonable grounds for that belief. We hold further Though common law defamation if the statement involves a that negligence may form the basis of liability regard- matter of public interest:3 less of whether or not the publication in question actions can be brought by One other related to a matter of public or general interest."); Privileges. Edwards v Paddock Publications, Inc, 327 Ill App 3d corporations, they are deemed factor in determining the 553, 763 NE2d 328 (1st D 2001). relevant standard of fault 13. Troman at 198, 340 NE2d at 299. Accord Im- perial Apparel, Ltd v Cosmos' Designer Direct, Inc, to have no personal reputation is whether any privilege 227 In 2d 381, 395, 882 NE2d 1011, 1020 (2008) and to be incapable of applies to protect the de- ("In contrast to a plaintiff's status, the content of the fendant. In Illinois, certain challenged speech, specifically, whether it addresses a matter of public concern, does not determine the sustaining emotional injury. types of statements enjoy standard of liability."); Rosner v Field Enterprises, "absolute privilege" status, Inc, 205 Ill App 3d 769, 564 NE2d 131 (1st D 1990). while others are condition- However, the second district recently wrote that "be- cause the statements at issue are a matter of public ally privileged. Whether concern, punitive damages may not be imposed absent an absolute or conditional a showing of actual malice." Green v Rogers, 384 social context or setting in which the state- App 3d 946, 963, 895 NE2d 647, 664 (2d D 2008). ment appears signals a usage as either fact privilege applies is decided as a matter of 14. Zych v Tucker, 363 Ill App 3d 831, 844 NE2d or opinion.' law, and the defendant has the burden of 1004 (1st D 2006). establishing the privilege:4 15. Id. Practitioners should note that whether a pro- In addition, truth — or more specifi- ceeding qualifies as "quasi-judicial" is itself a complex cally, "substantial truth" — is a defense to Statements that might otherwise be issue, for which caselaw should be consulted. See, for defamation.' defamatory are protected by an abso- example, id. lute privilege if made during legislative, 16. Id. Unprivileged publication of the de- 17. Illinois's statute — titled the "Citizen Participa- famatory statement to a third party with judicial, or, in some cases, "quasi-judi- tion Act" (CPA) — applies to: s fault by the defendant. The applicable cial" proceedings.' An absolute privilege [A]ny motion to dispose of a claim in a judicial proceeding on the grounds that the claim is based standard of "fault" depends on whether provides complete immunity from civil on, relates to, or is in response to any act or acts your CEO client is a private individual or action even if the statements are made of the moving part in furtherance of the moving with malice: 6 Practitioners should also party's rights of petition, speech, association, or to public figure. It is much harder for a pub- otherwise participate in government. lic figure to sue for defamation. carefully consider Illinois' new "anti- Acts in furtherance of the constitutional right to Private versus public figures. A person SLAPP" statute, which appears to afford petition, speech, association, and participation in a new, absolute privilege for any defama- government are immune from liability, regardless may be deemed to be a public figure if of intent or purpose, except when not genuinely he or she receives such fame and notori- tory statements communicated while at- aimed at procuring favorable government action, tempting to procure "favorable govern- result, or outcome. ety as to become a public figure in all cir- 735 ILCS 110/15. cumstances. Alternatively, a person may ment action." As commentators have It is beyond the scope of this article to analyze the become a "limited purpose" public fig- pointed out, this standard is extremely scope and implications of the CPA. For a recent and broad — notably broader than the anti- thorough analysis of this statute, see Eric M. Madiar ure by voluntarily injecting himself into and Terrence J. Sheahan, Illinois' New Anti-SLAPP a controversy.' SLAPP statutes of other states.'' Statute, 96 Ill Bar J 620 (Dec 2008). For additional General purpose public figures must analysis, see Mark J. Sobczak, Slapped in Illinois: The 1. Vickers v Abbott Labs, 308 Ill App 3d 393, 400, Scope and Applicability of the Illinois Citizen Partici- always establish actual ("New York 719 NE2d 1101, 1107 (1st D 1999). Distinctions be- pation Act, 28 NIU L Rev 559 (Summer 2008); Deb- Times" 6 ) malice to prevail in a defama- tween libel and slander have been abolished in Illinois, bie L. Berman and Wade A. Thomson, Illinois' Anti- SLAPP Statute: A Potentially Powerful New Weapon tion action.' "In order to establish that so this article uses the term "defamation" to refer to libel and slander jointly. See, for example, O'Donnell v for Media Defendants, 26 Comm Lawyer 13 (March the alleged defamatory statements were Field Enterprises, 145 Ill App 3d 1032, 491 NE2d 1212 2009).

VOL. 98 I OCTOBER 2010 I I LLINOIS BAR JOURNAL I 529 DEFAMATION I Continued

In addition, a qualified privilege may is involved, and (c) a recognized interest If a defamatory statement is action- apply if the occasion for the statement of the public is concerned: 9 To prove an able per se, the plaintiff need not plead or "created some recognized duty or interest abuse of (and thus to negate) a qualified prove actual damage to her reputation to to make the communication [statement] privilege, a plaintiff must show "a direct recover. Statements that fall within these intention to injure another.," actionable per se categories are deemed or a "reckless disregard of to be so obviously and materially harm- the [plaintiff's] rights and ful to the plaintiff that malice is implied of the consequences that and injury to reputation is presumed." One advantage to asserting claims may result to him."2° However, if the per se defamatory state- The publication dam- ment relates to a matter of "public con- for defamatory statements under aged the plaintiff. Illinois cern," then damages cannot be presumed the Illinois Deceptive Trade distinguishes between two absent a showing of actual malice:' categories of defamation: If a defamatory statement does not Practices Act is that it specifically per se and per quod. The fall within one of the limited categories authorizes injunctive relief. first is easier to recover for of statements that are actionable per se, than the second. then the claim should be pled per quod. Per se and per quod. A A defamation per quod claim is appro- statement is defamatory priate where the defamatory character per se if it imputes (a) the of the statement is not apparent on its so as to make it privileged." 8 commission of a criminal defense, (b) in- face and extrinsic circumstances are nec- Generally speaking, a conditional fection with a communicable disease, (c) essary to demonstrate the defamatory privilege may apply when (a) some inter- an inability to perform or a want of in- meaning." est of the person who publishes the de- tegrity in the discharge of duties of office To pursue a per quod action in such famatory matter is involved, (b) some in- or employment, (d) a lack of ability in circumstances, a plaintiff must plead and terest of the person to whom the matter is the plaintiff's trade, profession, or busi- prove extrinsic facts to explain the de- published or of some other third person ness, or (e) adultery or .2' famatory meaning of the statement. A per quod action is also appropriate, how- ever, where a statement is defamatory on its face, but does not fall within one of Sizing up a defamation claim the limited per se categories. In those cases, the plaintiff need not plead extrin- Heres a summary of issues you should consider when advising your clients sic facts, because the defamatory charac- CEO about the potential strength of his or her defamation claim. ter of the statement is (theoretically) ap- • Is the statement at issue a "fact" or simply an opinion? parent on its face!' o Even a statement of opinion can be defamatory if it implies "the existence To recover for defamation per quod, of undisclosed facts." the plaintiff must plead and prove actual • Is the statement true or "substantially true?" damage to her reputation and pecuniary o If yes, truth is a defense to defamation. loss resulting from the defamatory state- • Is the plaintiff a private individual or a public figure? 18. Kuwik v Starmark Star Marketing and Admin, o If the plaintiff is a public figure, he or she must establish malice to recover. Inc, 156 III 2d 16, 27, 619 NE2d 129, 134 (1993). o If the plaintiff is a private individual, does the plaintiff qualify as a "limited 19. Id. The conditional privilege standard set forth purpose public figure?" by Kuwik superceded the prior Illinois standard. 20. Id at 30, 619 NE2d at 136 (further nothing that • If so, and the defamatory statement relates to a matter in which the "an abuse of a qualified privilege may consist of any plaintiff has voluntarily assumed a "leadership role," the plaintiff will have reckless act which shows a disregard for the defamed party's rights, including the failure to properly inves- to establish malice to recover. tigate the truth of the matter, limit the scope of the o If the plaintiff is a private individual and not a limited purpose public figure, material, or send the material to only the proper par- the negligence standard applies, subject to the additional exceptions identified ties."). The test for abusing a qualified privilege is thus slightly different than the general malice test. below. 21. Bryson v News America Publications, Inc, 174 • Is the statement protected by an absolute privilege? Ill 2d 77, 88, 672 NE2d 1207, 1214-15 (1996). o If so, then the plaintiff cannot recover, even with a showing of malice. 22. Id. However, the first district court of appeals recently held that the plaintiff is not entitled to an ir- • Is the statement protected by a qualified privilege? rebuttable presumption of damages, and that evidence o If so, has the privilege been abused? of the plaintiff's reputation may be introduced as part of the damages calculus. Knight v Chicago Tribune • If the privilege has not been abused, then the plaintiff cannot recover. Co, 385 III App 3d 347, 895 NE2d 1007 (1st D 2008). • Does the statement constitute defamation per se? 23. Note that Illinois law is not expressly clear on o If so, does the statement involve a matter of public interest? this point. Mittelman at 235, 552 NE2d at 980 ("Fed- eral authority would allow presumed damages, even • If yes, the plaintiff needs to establish malice. absent a showing of actual malice, where no public o If so, is the statement susceptible to an innocent construction? figures or matters of public concern are involved."); • If yes, then like any other statement constituting defamation per quod, Mullen v Solber, 271 Ill App 3d 442, 445, 648 NE2d 950, 953 (1st D 1995) (special damages need not be special damages must be established. proven in connection with defamation per se "where o If not, then malice is implied and damages are presumed. the defamation involves a purely private matter"). 24. Bryson at 87, 672 NE2d at 1214. 25. Id.

530 I IlliNOIS BAR TOIJRNAI I OCTORER 2010 I VOT 95 ment ("special damages")." Interference with publication are the most serious and The "innocent construction" rule. and other claims the least tolerable infringement on First Amendment rights.'" n However, that However, even if a statement falls into Practitioners should also consider case involved an to restrain a one of the per se categories, it will not what claims other than defamation may lobbying campaign voicing opposition be found actionable per se if it is reason- be available to their clients. As is always ably capable of an "innocent construc- to proposed legislation — a far cry from true, the same conduct may give rise to the usual business context. tion." The innocent construction rule several different . requires courts to consider a written Although analyzing the full spectrum or oral statement in context, giving the of potential claims is beyond the scope of 26. Id. 27. Id at 90, 672 NE2d at 1215, quoting Chapski v words, and their implications, their nat- this article, practitioners should consider Copley Press, 92 Ill 2d 344, 352, 442 NE2d 195, 199 ural and obvious meaning. "If, so con- whether a defamatory statement might (1982) (emphasis added). See also Bryson at 84, 672 strued, a statement 'may reasonably be NE2d at 1215 ("Only reasonable innocent construc- also constitute interference with contract, tions will remove an allegedly defamatory statement innocently interpreted, or reasonably be interference with prospective economic from the per se category.") (emphasis in original). interpreted as referring to someone other advantage, statutory or common law un- 28. Id. 29. Mittelman at 233, 552 NE2d at 979 (citations than the plaintiff, it cannot be actionable fair competition, statutory or common omitted). For a recent analysis of the innocent con- per se.'"27 law deceptive practices, false light inva- struction rule, see Helen Gunnarsson, Lawpulse, "In- nocent construction" libel rule — still standing but bat- Whether a statement is reasonably sion of privacy, trademark infringement, tered, 95 Ill Bar J 121 (2007). susceptible to an innocent interpreta- or breach of contract. 30. Note that the statute of limitations for defama- tion claims is one year. 735 ILCS 5/13-201 (defama- tion is a question of law." Illinois' inno- tion actions must be "commenced within one year cent construction rule applies only to per Injunctive relief next after the cause of action accrued"). The discov- ery rule also applies to defamation claims. The cause se actions, for which damages are pre- Your client's CEO may want to know of action accrues when the plaintiff "knew or should sumed." whether the competitor can be enjoined have known" of the defamatory statement. See, for ex- ample, Tom Olesker's Exciting World of Fashion, Inc Be sure to consider the statute of limi- from making similar defamatory state- v Dun & Bradstreet, Inc, 61 111 2d 129,334 NE2d 160 tations, too, an issue beyond the scope of ments. As one recent federal court put (1975). this article.'" See the sidebar for a basic the point: "[T]he Supreme Court has 31. Ameritech v Voices for Choices, Inc, 2003 WC 21078026 (ND III), quoting Nebraska Press Assn v defamation checklist. held that 'prior restraints on speech and Stuart, 427 US 539, 559 (1976).

THE GEORGE N. LEIGHTON FELLOWSHIP for the STUDY of

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VOL. 98 I OCTOBER 2010 I ILLINOIS BAR JOURNAL I 531 DEFAMATION I Continued

Illinois law is very sparse on this issue. tion. The same considerations relating to trict denied the plaintiff's request for an Research conducted for this article re- the standard of fault and any absolute or injunction under the Act to prevent fu- vealed no Illinois cases granting injunc- conditional privilege apply to corpora- ture disparaging statements because: tions based on a common law defama- tions as they do to natural persons." [P]laintiff's complaint does not allege, be- tion claim. In one Illinois case involving yond the two allegedly defamatory state- an attempt to stop picketing, the court The Illinois Deceptive Trade ments of defendants Bork and Krause and rejected the defendants' First Amend- Practices Act the stricken allegations of , a ment assertions and affirmed the issu- Consider whether to bring a cause of ance of a preliminary injunction, hold- action for commercial disparagement on 32. Dugan Oil Co, Inc v Coalition of Area Labor, ing that due to the defendants' picketing, 98 Ill App 3d 126, 134, 423 NE2d 1373, 1379 (4th D behalf of the corporation as opposed to 1981). irreparable and substantial damage was (or in addition to) common law defama- 33. Tyler Enterprises of Elwood, Inc v Shafer, 214 being inflicted upon the plaintiffs by the Ill App 3d 145, 148,573 NE2d 863, 865 (3d D 1991); tion. To state a cause of action for com- Wilson v Wilson, 217 III App 3d 844, 849, 577 NE2d loss of customers, loss of potential cus- mon law commercial disparagement, a 1323, 1326-27 (1st D 1991). tomers, and loss of goodwill. However, plaintiff must show that the "defendant 34. This does not include municipal corporations, the underlying claim was for tortious in- however. See City of Chicago v Tribune Co, 307 III made false and demeaning statements re- 595, 139 NE 86 (1923). terference with business expectancy, not garding the quality of another's goods 35. Brown & Williamson Tobacco Corp v Jacobson, defamation." and services."" 827 F2d 1119 (7th Cir 1987) (applying Illinois law). In any event, aside from the first 36. Id. DTPA basics. There is confusion in Il- 37. Chicago Conservation Center v Frey, 40 Fed amendment issues inherent to any at- linois regarding whether this cause of ac- Appx 251, 255 (7th Cir 2002) (discussing Illinois tempt to enjoin speech, the plaintiff must law). tion has been supplanted by the Illinois 38. Bryson, 174 Ill 2d 77, 672 NE2d 1207 (1996). also satisfy the usual requirements for Deceptive Trade Practices Act (DTPA). 39. Barry Harlem Corp v Kraff, 273 III App 3d 388, a preliminary injunction. The plaintiff The most recent case to address this issue 396, 652 NE2d 1077, 1083 (1st D 1995). must demonstrate that he (a) possesses 40. Fedders Corp v Elite Classics, 268 F Supp 2d held that the DTPA "codifies the com- 1051, 1064 (SD Ill 2003). a clearly ascertainable right in need of mon-law of commercial disparage- 41. First Health Group Corp v United Payors & protection, (b) will suffer irreparable in- ment."4° United Providers, Inc, 2000 WL 549723 "2 (ND Ill). jury without an injunction, (c) has no ad- The court further noted that if Illinois does recognize But that is the conclusion of a federal the tort of commercial disparagement, then: equate legal remedy, and (d) is likely to court, not an Illinois state court. An ear- [T]he application of the penumbra of issues succeed on the merits. In addition, the surrounding defamation claims is also unclear: lier Illinois federal case also noted that it whether or not the distinction between per se plaintiff must also generally establish is "unclear" whether Illinois recognizes and per quod applies; whether there is a qualified that the need for temporary relief out- the tort of commercial disparagement, privilege when the remarks are in furtherance of weighs any potential injury that the de- a public or legal interest; and whether or not the then decided the claims were not "false innocent construction rule applies. The concept fendant might suffer from the issuance of or misleading" in any event. 4 ' Earlier Il- does live on in any event in the Uniform Decep- an injunction." linois state cases have both held on the tive Trade Practices Act in 815 ILCS 510/2(8), but even there, except for a relaxation in proof of spe- one hand that commercial disparage- Defamation claims on behalf cial damages, the application of the defamation ment is no longer a viable cause of ac- penumbra remains unclear. of the corporation (Citations omitted). tion in light of the Illinois Act, and on the 42. See also Prefatory Illinois Notes, Ill Rev Ann Determining what claims your corpo- other hand, that the Act merely "supple- Star 1991 ch 121 1/2, TT 311 et seq (Act generally rate client may bring on its own (as op- mented" Illinois common law and that complements, but does not eliminate, common law remedies). Note that at least one Illinois court has posed to the CEO's) behalf requires addi- commercial disparagement remains a vi- held that "defamation and commercial disparagement tional analysis. In general, common law able cause of action.4' protect different interests. Defamation protects inter- defamation actions can be brought by a Because of the confusion on this issue, ests of personality. Commercial disparagement pro- 34 tects property interests. As such, there is a 'clear line corporation. However, the law deems the better practice for pleading purposes of demarcation' between the two causes of action." corporations to have no personal repu- would be to include both the common Allcare, Inc v Bork, 176 Ill App 3d 993, 1000, 531 NE2d 1033, 1038 (1st D 1988). However, that same tation and to be incapable of sustaining law and statutory claims for disparage- court also held that a particular statement could theo- 35 emotional injury. Accordingly, a cor- ment. retically "simultaneously constitute defamation and porate plaintiff generally is limited to Under the Illinois DTPA, "A person commercial disparagement." Id. 43. 815 ILCS 510/2(8). See also Associated Under- claims based on injury to its business or engages in a deceptive trade practice writers of America Agency, Inc v McCarthy, 356 III financial reputation." when, in the course of his or her busi- App 3d 1010, 826 NE2d 1160 (1st D 2005) (defen- Unlike natural plaintiffs, there are ness, vocation, or occupation, the per- dant engages in a deceptive trade practice when he dis- parages the services or business of another by a false only three types of per se defamation for son... .disparages the goods, services, or or misleading representation of fact); M & R Printing corporations: (1) statements imputing business of another by false or mislead- Equipment, Inc v Anatol Equipment Mfg Co, 321 F Supp 2d 949 (ND Ill 2004). In M&R Printing, the the commission of a criminal offense, (2) ing representation of fact."43 plaintiff's competitor stated to mutual customers that statements imputing inability to perform Injunctive relief. One advantage to as- the plaintiff was in bankruptcy. The plaintiff filed suit or want of integrity in the discharge of serting claims for defamatory statements for disparagement under the Illinois Deceptive Trade Practices Act, and argued the statements were false. duties of office or employment, and (3) under the DTPA is that it specifically au- The court held: "[T]he statement at issue in this case statements prejudicing the plaintiff in its thorizes injunctive relief:" However, the impugns the quality of M & R's business and services. profession or trade.3' case law in this area is scant. Research Stating that M & R is bankrupt directly attacks the quality of M & R's business and indirectly under- However, even a statement that fits conducted for this article did not reveal mines the quality of M & R's services-an insolvent into one of the per se categories is not any cases authorizing injunctions under company cannot reliably deliver on-going services. Accordingly, we find that count four properly states a defamatory per se if it is susceptible to the DTPA to enjoin future disparage- UDTPA claim." Id at 952. an innocent, non-defamatory construc- ment. In Allcare, Inc v Bork, the first dis- 44. 810 ILCS 510/3.

532 I II MOTS BAR IOIJRNAI I OCTORER 2010 1 VOI _ 98 long standing and persistent pattern by cally noted that "in the proper circum- those available to individual officers. The defendants of defaming plaintiff or of dis- stances equity has recognized the need remedies available to a corporation may paraging its products or services. In fact, to enjoin unfair competitive practices be more limited than those available to a plaintiff does not allege any facts from which employ disparagement." However, natural person, but some claims can be which such conduct or the threat of fu- the court struck down the trial court's in- ture or disparagements may brought by a corporation but not a natu- reasonably be assumed. As such, plaintiff's junction because it was overbroad." ral person. complaint fails to demonstrate a need for The key takeaway point for practitio- In addition, one advantage to bring- injunctive relief.4' ners is that in order to justify injunctive ing claims under the Illinois Deceptive Allcare refers to Streif v Bovinette," relief, the plaintiff must establish repeated Trade Practices Act in particular is that which dealt with a common law dispar- defamatory and disparaging communica- the Act specifically authorizes injunctive agement claim, not a DTPA claim. In tions by the defendant, which creates a relief. This may be particularly helpful that case, as Allcare points out, the alle- real threat of future disparagements. when attempting to enjoin defamatory gations related to "defendant's repeated speech by a business competitor. • complaints, allegedly over a three-year Conclusion period, to various governmental agencies When counseling corporate clients on 45. AlIcare at 1001, 531 NE2d at 1038. of violations of State and Federal stat- defamation claims, practitioners should 46. Streif, 88 III App 3d 1079, 411 NE2d 341 (5th D 1980). utes and by the plaintiff's bus distinguish claims that may be brought 47. Allcare at 1001, 531 NE2d at 1038. company."" In Streif, the court specifi- on behalf of the corporation itself from 48. Streif at 1082, 411 NE2d at 344.

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