Many people file libel lawsuits simply in retaliation against those who acted or spoke out against them. For this reason, once a libel lawsuit has been filed, the first thing the court does under Illinois new SLAPP statute, if the speech at issue involves petitioning the government, is give the defendant a chance to prove that the lawsuit is simply retaliatory and without merit.
Such was recently the case in a lawsuit between two lawyers, one the former employer of the other. The defendant, Clinton Krislov, is the sole shareholder of Krislov & Associates and former employer of Robert J. Stein. Stein worked for Krislov’s firm from 1994 to 2001 before going to work for a new firm. The new firm happened to be one of three firms representing the plaintiffs in a motion for class certification in an unrelated class action lawsuit.
One of the requirements for attaining class certification is proof that the attorneys representing the plaintiffs are competent in class action lawsuits. In order to prove this, attorneys frequently list their history and qualifications as part of the motion for class certification. Krislov happened upon this motion for class certification while conducting unrelated research and took interest in the section describing Stein’s legal experience. In June 2005, Krislov sent a letter to the judge in the case, claiming that Stein’s statements referring to his experience were
“simply misstatements, known to the filers to be untrue.”
The judge then contacted Stein and his fellow attorneys in the case and provided them with a copy of Krislov’s letter. Stein responded by disputing Krislov’s claims and providing documentation to support his experience. Krislov then sent a letter to the judge in reply to Stein’s letter and Stein filed an amended complaint against Krislov, alleging libel and libel per se. Stein also alleged that Krislov owed him vacation and bonus pay from when he had worked as an employee of Krislov & Associates. Krislov argued that the letter to the judge had been privileged information and, initially, the trial court agreed and dismissed the libel lawsuit.
Stein moved to reconsider though, and the trial court reversed its decision. Krislov filed another motion to reconsider, but the court held firm this time. In its decision, the court found that only communication which called into question professional acts could be considered privileged. As it is, the court argued that, “[a]bsolute privileges must be narrowly construed, and where an attorney has injected himself into litigation with which he has absolutely no connection, we do not find that any kind of absolute privilege exists’ and that Krislov had absolutely no duty under the Illinois Rule of Professional Conduct to report misconduct elsewhere.”
Krislov then filed another motion to reconsider, arguing that he was immune to the libel lawsuit under the Citizen Participation Act (CPA). The CPA was designed to prevent Strategic Lawsuits Against Public Participation (SLAPP). SLAPP lawsuits are lawsuits without merit which are filed by the plaintiff without any intention of winning the case. Rather, the aim is to distract or discourage defendants from participating in behavior which the plaintiff might view as threatening. SLAPP lawsuits are known for sucking time and resources from the defendants and from the courts so it is in everyone’s best interest to stop them at an early stage.
The court agreed with Krislov’s motion to reconsider on these grounds and awarded almost $100,000 to Krislov for attorney fees and costs. Stein filed a motion to reconsider, arguing that Krislov’s actions were not protected under the CPA and that the court should have considered the libel claims separately from the wage claims. The court disagreed and Stein appealed the decision.
The appellate court looked first at the question of whether the letter sent from Krislov to the judge was privileged. Communications between lawyers about other lawyers may be privileged in certain instances, particularly since lawyers have a duty to report unethical behavior of other lawyers when they are aware of it. Actions which lawyers undertake to report these actions are protected from legal retaliation but the appellate court found that the unsigned letter that Krislov sent to the judge did not qualify for this protection. The court cited Restatement of Second Torts in its decision, pointing out that
“An attorney of law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel.”
Since Krislov was not in any way involved the case at issue, he is ineligible for this protection.
The court then considered the CPA claims. A defendant filing under the CPA is responsible for proving that the lawsuit has no merit and is merely a retaliatory move. According to the appellate court, Krislov failed to do this. Instead, the court acknowledged both the legitimacy of the libel lawsuit as well as wage allegations. The court remanded the case.
You can view the Appellate Court’s opinion here.
Our Chicago libel attorneys concentrate in this area of the law. We have defended or prosecuted a number of defamation and libel cases, including cases representing a consumer sued by a large luxury used car dealer in federal court for hundreds of negative internet reviews and videos which resulted in substantial media coverage of the suit; one of Loyola University’s largest contributors when the head basketball coach sued him for libel after he was fired; and a lawyer who was falsely accused of committing fraud with the false allegation published to the Dean of the University of Illinois School of Law, where the lawyer attended law school and the President of the University of Illinois. One of our partners also participated in representing a high profile athlete against a well-known radio shock jock.
Our Chicago defamation lawyers defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. Our Chicago Cybersquatting attorneys also represent and prosecute claims on behalf of businesses throughout the Chicago area including in Oak Park and River Forest, who have been unfairly and falsely criticized by consumers and competitors in defamatory publications in the online and off line media. We have successfully represented businesses who have been the victim of competitors setting up false rating sites and pretend consumer rating sites that are simply forums to falsely bash or business clients. We have also represented and defended consumers First Amendment and free speech rights to criticize businesses who are guilty of consumer fraud and false advertising.
Super Lawyers named Chicago and Oak Brook business trial attorneys Peter Lubin a Super Lawyer in the Categories of Class Action, Business Litigation and Consumer Rights Litigation. Lubin Austermuehle’s Oak Brook and Chicago business trial lawyers have over a quarter of century of experience in litigating complex class action, consumer rights and business and commercial litigation disputes. We handle emergency business law suits involving injunctions, and TROS, defamation, libel and covenant not to compete, franchise, distributor and dealer wrongful termination and trade secret lawsuits and many different kinds of business disputes involving shareholders, partnerships, closely held businesses and employee breaches of fiduciary duty. We also assist businesses and business owners who are victims of fraud or defamatory attacks on their business and reputations.
Lubin Austermuehle’s Naperville and Orland Park litigation attorneys have more than two and half decades of experience helping business clients unravel the complexities of Illinois and out-of-state business laws. Our Chicago business, commercial, class-action and consumer litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. From offices in Oak Brook, near Elgin and Naperville, we serve clients throughout Illinois and the Midwest.
If you are the victim of a defamatory attack on your business or a consumer who has been sued to stop you from posting criticism of a business on line at Yelp or anywhere else, contact one of our Oak Brook and Chicago defamation lawyers for a free consultation at 630-333-0333 or online by filling out our contact us form.