Hammons v. Society of Permanent Cosmetic Professionals

ILLINOIS OFFICIAL REPORTS

Appellate Court

Hammons v. Society of Permanent Cosmetic Professionals, 2012 IL App (1st) 102644

Appellate Court SANDI HAMMONS and THE AMERICAN INSTITUTE OF

Caption INTRADERMAL COSMETICS, INC., d/b/a Premier Products and

Premier Pigments, Plaintiffs-Appellants and Cross-Appellees, v. THE

SOCIETY OF PERMANENT COSMETIC PROFESSIONALS, LIZA

SIMS, KARLA KWIST, ELIZABETH FINCH-HOWELL, KATHLEEN

CIAMPI and JUDY NEWDOM, Defendants-Appellees and Cross-

Appellants.

District & No. First District, Second Division

Docket Nos. 1-10-2644, 1-11-1280 cons.

Filed March 20, 2012

Held The trial court erred in dismissing plaintiffs’ action for defamation,

(Note: This syllabus tortious interference with business relationships, consumer fraud, and

constitutes no part of deceptive trade practices based on a blog/message board hosted by

the opinion of the court defendants that was allegedly designed to defame and destroy plaintiffs’

but has been prepared reputations in the permanent makeup industry on the ground that the

by the Reporter of Citizen Participation Act provided defendants with immunity from such

Decisions for the claims, since the blog/message board was not genuinely aimed at

convenience of the procuring favorable government action and the Act was not meant to

reader.)

immunize defamation or other intentional torts.

Decision Under Appeal from the Circuit Court of Cook County, No. 10-CH-1638; the

Review Hon. Lee Preston, Judge, presiding.

Judgment Reversed and remanded.

Counsel on Harrison & Held, LLP, of Chicago (George N. Vurdelja, Jr., of counsel),

Appeal for appellants.

Mandell Menkes, LLC, of Chicago (Steven P. Mandell, Steven L. Baron,

and Sharon R. Albrecht, of counsel), for appellees.

Panel PRESIDING JUSTICE QUINN delivered the judgment of the court, with

opinion.

Justices Connors and Harris concurred in the judgment and opinion.

OPINION

¶1 Plaintiffs, Sandi Hammons and The American Institute of Intradermal Cosmetics, Inc,

d/b/a Premier Products and Premier Pigments, appeal the circuit court’s dismissal of their

complaint of defamation, tortious interference with business relationships, consumer fraud

and deceptive trade practices against defendants, The Society of Permanent Cosmetic

Professionals, Liza Sims, Karla Kwist, Elizabeth Finch-Howell, Kathleen Ciampi and Judy

Newdom, after a finding that the Citizen Participation Act (the Act) (735 ILCS 110/1 et seq.

(West 2008)) provided defendants with immunity from such claims. Plaintiffs submit that

the Act does not apply to the facts of their complaint. Defendants cross-appeal the attorney

fee award, arguing that the circuit court improperly limited their fees.

¶2 BACKGROUND

¶3 This case involves the application and interpretation of the Act, Illinois’s version of an

anti-SLAPP statute. The acronym “SLAPP” stands for “Strategic Lawsuit Against Public

Participation” coined by two law professors when referring to a genre of cases involving

citizens opposing or supporting some action who petition their government regarding the

action only to be sued by the “actor” for defamation and other torts which strain the citizen’s

resources by directing those resources to defend the lawsuit rather than to their

opposition/support efforts. George W. Pring & Penelope Canan, “Strategic Lawsuits Against

Public Participation” (“SLAPPs”): An Introduction for Bench, Bar and Bystanders, 12

Bridgeport L. Rev. 937 (1992); see Mark J. Sobczak, SLAPPED in Illinois: The Scope and

Applicability of the Illinois Citizen Participation Act, 28 N. Ill. U. L. Rev. 559, 559-60

(2008).

¶4 The instant complaint alleges that one of the defendants, on its website entitled “Wake

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Up In Your Makeup,” hosts a blog/message board that was directed and monitored by the

individual defendants. Beginning in 2003 and continuing to the present, defendants are

alleged to have engaged in a campaign to defame and destroy the reputations of the plaintiffs

in the permanent makeup industry by each posting messages on the blog/message board

under the online pseudonym “Not Maggie” accusing plaintiffs of bogus and unsanitary

training, butchering and defacing customers and using industrial paint in their permanent

tattoo pigments, among other comments. Plaintiffs also allege that these blog postings were

republished by defendants directly to clients and potential clients of plaintiffs. Plaintiffs

further allege that defendants routinely referred people to these blog postings about plaintiffs

and defamed plaintiffs in public presentations defendants made at permanent makeup

conferences. In summary, plaintiffs allege the defendants openly represent that plaintiffs, and

specifically Premier Pigments, “is a joke in the industry” and that defendants’ pigments,

unlike Premier Pigments, are safe, approved and trusted.

¶5 Defendants filed a joint motion to dismiss the entire complaint pursuant to sections 2-615

and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619(a)(5) (West 2008)) as

time-barred and for failure to state a valid claim. Certain defendants filed individual motions

challenging the court’s personal jurisdiction over them. Defendants also filed a separate joint

motion arguing in favor of dismissal pursuant to the Act (735 ILCS 110/5 (West 2008)).

¶6 In response to defendants’ motions, plaintiffs moved to stay the Illinois proceedings until

plaintiffs’ Miami-Dade County, Florida, lawsuit against the identical defendants for similar

claims is ruled on by that court. Hammons v. Society of Permanent Cosmetic Professionals,

No. 08-69191-CA-20 (Miami-Dade Co. Cir. Ct. 2008). Plaintiffs also moved to voluntarily

dismiss their Illinois lawsuit. Both motions were opposed by the defendants and denied by

the circuit court. The circuit court held all motions other than the Act motion in abeyance.

Plaintiffs, after being allowed limited discovery pursuant to section 10 of the Act (735 ILCS

110/10 (West 2008)), filed their opposition to defendants’ motion to dismiss plaintiffs’

complaint.

¶7 The circuit court granted defendants’ motion without holding whether the comments

complained of were made in furtherance of seeking favorable government treatment of their

permanent makeup industry. The court dismissed all counts of plaintiffs’ complaint based

on its holding that plaintiffs were unable to provide “clear and convincing evidence that the

acts of the [defendants] are not immunized from, or are not in furtherance of acts immunized

from liability under this Act.”

¶8 Defendants collectively moved for over $66,000 in attorney fees pursuant to section 25

of the Act. 735 ILCS 110/25 (West 2008). The circuit court awarded $8,100 in attorney fees,

limiting the defendants’ requests to a reasonable amount for the portion of the case that dealt

with the application of the Act, as there is no provision for attorney fees for the defendants’

many other defensive claims.

¶9 Plaintiffs appeal, seeking reversal of the dismissal of their complaint pursuant to the Act

and reversal of the award of attorney fees. Defendants cross-appeal, seeking larger attorney

fee awards than the $8,100 awarded by the circuit court.

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¶ 10 ANALYSIS

¶ 11 On appeal, plaintiffs submit that the Act does not apply to its complaint. This appeal asks

us to determine if the defendants’ alleged statements made on a blog/message board and at

various conferences are immunized from a defamation and other claims under the Act (735

ILCS 110/1 et seq. (West 2008)). The circuit court found the statements are immune from

suit. For the following reasons, we reverse and remand.

¶ 12 A. Standard of Review

¶ 13 Because the circuit court’s ruling dismissing plaintiffs’ complaint was based on an

interpretation and application of the Act, a question of law is presented and we apply the de

novo standard of review. Wright Development Group, LLC v. Walsh, 238 Ill. 2d 620, 634

(2010).

¶ 14 B. Dismissal Under the Act

¶ 15 Under the Act, a purported victim of a SLAPP lawsuit may file a motion to dispose of

the entire claim under the Act. In the instant case, the defendants, as the moving parties, were

required under section 15 of the Act to show plaintiffs’ complaint of defamation and other

actions are “based on, relate[ ] to, or [are] in response to” acts the defendants made “in

furtherance” of their “rights of petition, speech, association, or to otherwise participate in

government.” 735 ILCS 110/15 (West 2008).

¶ 16 The essence of plaintiffs’ defamation and other claims is the alleged false statements

defendants posted to a blog/message board run by one of the defendants concerning

plaintiffs’ “lousy” permanent makeup practices and pigment products. The statements are

alleged to have been repeated at conferences and to potential customers looking for

permanent makeup procedures. The statements do not appear to have been made about any

governmental matter or in furtherance of the defendants’ right to petition any governmental

body. The statements were not made in response to any public official nor do they address

any public meeting concerning any governmental action, let alone action that may affect the

permanent makeup industry. We fail to see how defendants, as the moving party, met their

burden under section 15 of the Act to show the complaint is “based on, relates to, or is in

response to” defendants’ acts in furtherance of their constitutional rights. Not only did the

defendants not meet their burden when they filed their motion, but the circuit court did not

acknowledge that defendants had any burden other than to allege that their statements and

acts were covered by the Act.

¶ 17 Before the trial court and in their brief before this court, defendants relied heavily on the

appellate court decision in Sandholm v. Kuecker, 405 Ill. App. 3d 835 (2010), which was

reversed while this case was pending. Sandholm v. Kuecker, 2012 IL 111443. The appellate

court held that the Act changes the common law rules of defamation by protecting otherwise

defamatory speech when it is made while exercising one’s right to petition the government.

It further held that defendants’ defamatory remarks were privileged under the Act where they

criticized a coach and demanded he be removed as both coach and as the school’s athletic

director. However, after this case was fully briefed, but before oral argument, the appellate

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court’s decision was reversed by our supreme court. Sandholm v. Kuecker, 2012 IL 111443.

Defendants’ arguments to this court even after our supreme court reversed the appellate court

in the Sandholm case place the initial burden of proof on the plaintiffs to defeat a motion

brought under the Act. While it is true that the Act requires the plaintiff to produce clear and

convincing evidence that the defendants’ acts were not genuinely aimed at procuring

favorable government action, their burden is not triggered until defendants, as movants, show

that their complained-of acts actually were in furtherance of their right to participate in

government. Sandholm v. Kuecker, 2012 IL 111443, ¶ 56.

¶ 18 In enacting the Act, the legislature created a new category of lawsuits subject to early

dismissal for claims related to a defendant’s exercise of first amendment rights. U.S. Const.,

amend. I. The Act provides for dismissal where (1) the defendants’ acts were in furtherance

of their right to petition, speak, associate, or otherwise participate in government to obtain

favorable government action; (2) the plaintiffs’ claims are solely based on, related to, or in

response to the defendants’ “acts in furtherance”; and (3) the plaintiffs fail to produce clear

and convincing evidence that the defendants’ acts were not genuinely aimed at solely

procuring favorable government action. Sandholm v. Kuecker, 2012 IL 111443, ¶¶ 53-57.

Our supreme court clearly held that “[i]f a plaintiff’s complaint genuinely seeks redress for

damages from defamation or other intentional torts and, thus, does not constitute a SLAPP,

it is irrelevant whether the defendants’ actions were ‘genuinely aimed at procuring favorable

government action, result or outcome’ ” and plaintiff’s suit may not be properly dismissed

under the Act. Sandholm v. Kuecker, 2012 IL 111443, ¶ 53 (quoting 735 ILCS 110/15 (West

2008)). In other words, the Act only applies to meritless, retaliatory SLAPP lawsuits, as those

suits have traditionally been defined. Sandholm v. Kuecker, 2012 IL 111443, ¶¶ 42, 44-45,

47, 51. “SLAPPs are by definition, meritless.” Id. ¶ 34.

¶ 19 Defendants argue that they publicized their concerns about plaintiffs’ practices and

products in an effort to draw attention to consumer harm caused by activities like plaintiffs’.

According to defendants, these statements published anonymously on a blog/message board

and repeated at conferences are worthy of protection under the Act because anyone, including

any governmental body trolling the Internet, may read these statements and it may provide

information and commentary to assist them in their enforcement efforts regarding consumer

protection laws and possible regulations for permanent makeup practices and pigment

products. However, this argument stretches the Act beyond even its admittedly broad

intended purpose. It is disingenuous to claim that defendants were attempting to influence

government action or gain support by anonymously authoring and publishing critical

comments aimed directly at a competitor and available to consumers and potential consumers

on a blog/message board. Dismissal as a matter of law on these grounds is improper as it is

not an uncontested fact that the action of creating a blog/message board posting of this type

constitutes an act of participation in any governmental process or a reasonable expectation

that these cryptic, critical remarks about a competitor would influence the electorate to take

some unspecified action with their government with regard to consumer protection in the

permanent makeup industry. See Sandholm v. Kuecker, 2012 IL 111443, ¶ 55. The only

position being advocated was clearly that plaintiffs’ practices and pigment products were

“lousy.”

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¶ 20 In addition to the appellate court opinion in Sandholm which was reversed after briefing

but just before oral argument in this case, defendants rely on the holdings of Wright

Development Group, LLC v. Walsh, 238 Ill. 2d 620 (2010), and Shoreline Towers

Condominium Ass’n v. Gassman, 404 Ill. App. 3d 1013 (2010). This case is vastly different

from Wright, where the defendant’s statements were made to a reporter immediately after a

public meeting held by an alderman to discuss problems with a condominium developer and

potential legislation. Clearly, defendant Walsh’s comments to the press were protected under

the Act as the timing and content dealt specifically with what he just proposed at the public

meeting. Wright Development Group, LLC v. Walsh, 238 Ill. 2d at 635-36. The statements

and complaints made by the defendants in Shoreline were valid efforts to attempt to change

certain policies regarding display of religious objects. Shoreline Towers Condominium Ass’n

v. Gassman, 404 Ill. App. 3d at 1022. In the instant case, however, attempting to fit

defendants’ alleged actions into the Act’s protection goes far beyond the purpose of

promoting public participation in government even though we acknowledge that Illinois’s

anti-SLAPP legislation, the Act, is broader than most anti-SLAPP acts enacted by other

states across the country. See Hytel Group, Inc. v. Butler, 405 Ill. App. 3d 113, 126 n.3

(2010).

¶ 21 At oral argument, defendants asserted that we should read the supreme court’s holding

in Sandholm v. Kuecker, 2012 IL 111443, that the Act applies only to meritless lawsuits

should be read as applying to lawsuits that are subject to dismissal under section 2-615 for

failure to state a claim or under section 2-619(a)(5) as being filed beyond the statute of

limitations. 735 ILCS 5/2-615, 2-619(a)(5) (West 2008). Defendant invited this court to

affirm the dismissal of plaintiffs’ lawsuit on one of these grounds. We disagree. The Act

provides for an expedited procedure for review of defendant’s motion. See 735 ILCS

110/20(a) (West 2008) (hearing and decision on such motions must occur within 90 days).

Additionally, discovery is suspended during the pendency of the motion with limited

discovery, only with leave of court, on the issue of whether the defendants’ acts are not

immunized from liability under the Act. 735 ILCS 110/20(b) (West 2008). A party is entitled

to an expedited appeal of an order denying the motion or from a trial court’s failure to rule

within 90 days. 735 ILCS 110/20(a) (West 2008). If the case is dismissed, the defendants

may recoup attorney fees. 735 ILCS 110/25 (West 2008). None of these procedures applies

to other dismissals entered pursuant to section 2-615 or 2-619 motions.

¶ 22 Allowing this suit to go forward will not chill, in any way or diminish by one iota, citizen

participation in any public affairs. This case does not have the necessary hallmark of a

SLAPP lawsuit which is that defendants’ actions must be genuinely aimed at procuring

favorable government action, even the most remote type. The Act defines the word

“government,” in part, with the word “electorate.” 735 ILCS 110/10 (West 2008). An

electorate is simply a body of qualified voters from a particular district or territory. See, e.g.,

Carver v. Sheriff of La Salle County, 203 Ill. 2d 497 (2003). The defendants argue that

because the blog/message board readers may also be part of the “electorate,” the defendants

are validly pursuing whatever the stated goal in the posted messages may be with the

government. This argument is similar to a warning published in the Illinois Bar Journal not

long after the Act was enacted which stated that readers of any defamatory written statements

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are also the electorate and, therefore, protection under the Act should apply. Eric M. Madiar

& Terrence J. Sheahan, Illinois’ New Anti-SLAPP Statute, 96 Ill. B.J. 620, 625 (2008). This

court is unconvinced of this overly broad interpretation of the Act’s scope and that this was

the intent of the state legislature. We echo the recent ruling by our supreme court in

Sandholm v. Kuecker, 2012 IL 111443, ¶ 42, that the Act was not meant to immunize

defamation or other intentional torts.

¶ 23 CONCLUSION

¶ 24 For the foregoing reasons, the circuit court’s order granting Citizen Participation Act

protection to the defendants and dismissing plaintiffs’ lawsuit is reversed. The award of

attorney fees pursuant to the Act is vacated. This cause is remanded for further proceedings

consistent with this judgment and opinion.

¶ 25 Reversed and remanded.

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