Truthful Information Can’t Support An Intentional Interference With Employment Suit – IL Court

 

 

The Illinois First District recently discussed the contours of pre-suit discovery requests in cases that implicate fee speech concerns and whether truthful information can ever support an intentional interference with employment claim.

After relocating from another state to take a compliance role with a large bank, the plaintiff in Calabro v. Northern Trust Corporation, 2017 IL App (1st) 163079-U, was fired after only two weeks on the job for failing to disclose his forced removal from a prior compliance position.

When the defendant refused to identify the person who informed it of plaintiff’s prior firing, plaintiff sued to unearth the informant’s identity.  Plaintiff planned to sue that person for intentional interference with plaintiff’s employment contract.

The trial court dismissed plaintiff’s petition for pre-suit discovery and the plaintiff appealed.

Affirming, the Court construed pre-suit discovery request under Supreme Court Rule 224 narrowly.  That rule allows a petitioner to discover the identity of someone who may be responsible in damages to petitioner.

To initiate a request for discovery under Rule 224, the petitioner files a verified petition that names as defendant the person(s) from whom discovery is sought and states why discovery (along with a description of the discovery sought) is necessary.  An order granting a Rule 224 petition is limited to allowing the plaintiff to learn the identity of the responsible party or to at least depose him/her.

To show that discovery is necessary, the petitioner must present sufficient allegations of actionable harm to survive a Section 2-615 motion to dismiss.  That is, the petition must state sufficient facts to state a recognized cause of action.

But Rule 224 limits discovery to the identity of someone who may be responsible to the petitioner.  A petitioner cannot use Rule 224 to engage in a “vague and speculative quest to determine whether a cause of action actually exists.”

Here, the petitioner didn’t know what was actually said by the third party who alerted defendant to petitioner’s prior compliance role ouster.  The Court viewed this as petitioner’s tacit admission he didn’t know whether he possessed a valid interference claim.

The Court then focused on the veracity of the third-party’s statement.  To be actionable, an intentional interference claim requires the supply of false data about a plaintiff.  Accurate and truthful information, no matter how harmful, cannot underlie an intentional interference action. This is because allowing someone to sue another for imparting truthful information would raise First Amendment problems and discourage dissemination of accurate facts.

Truthful statement immunity is also supported by Section 772 of the Restatement (Second) of Torts which makes clear that one who purposely causes another not to perform a contract or enter into a business relationship is not liable for improper interference where that person gives truthful information.  And while the Court pointed out that the Restatement hadn’t been formally adopted the Illinois Supreme Court, appeals courts still looked to the Restatement for guidance on tortious interference questions.  (¶¶ 18-19).

Afterwords:

This case portrays an interesting application of Rule 224 – a device often employed in the personal injury context instead of in the commercial or employment law arenas.  While the rule provides a valuable tool for plaintiffs trying to identify possible defendants, it doesn’t give a petitioner a blank check to engage in wide-ranging, “fishing expedition” requests.  The discovery petitioner must still state a colorable claim as a precondition to obtaining a pre-suit discovery order from the court.

Calabro also vaunts the importance of free speech in our society.  After all, the petitioner’s intentional interference claim was predicated on a true statement – the petitioner was fired from a former compliance role.  The Court makes clear that a valid interference action requires a false statement and that accurate information isn’t actionable interference.

Clearly, the Court viewed the potential for chilling truthful information as more concerning than an individual’s private contract rights with an employer.

 

 

Avvo’s ‘Sponsored Listings’ Not Commercial Enough to Escape First Amendment Protection in Lawyer’s Publicity Suit – IL ND


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In its decade old existence, Avvo, Inc., an “on line legal services marketplace,” has been no stranger to controversy.  Private attorneys and bar associations alike have objected to Avvo’s business model and practices – some filing defamation lawsuits against the company while others have demanded in regulatory venues that Avvo stop its unconsented “scraping” of attorney data.

Vrdolyak v. Avvo, Inc. is the latest installment of a lawyer suing Avvo; this time challenging Avvo-pro, the on-line directory’s pay-to-play service.

For about $50 a month, Avvo-pro users can ensure that no rival attorney ads appear on their profile page.  But if the attorney chooses not to participate in Avvo-pro, he will likely see competitor ads on his Avvo page.

The plaintiff, a non-Avvo-pro participant, sued Avvo under Illinois’ Right to Publicity Act.  He argued that by selling competitor ads on his profile page, Avvo usurped plaintiff’s right to monetize his identity.

In effect, according to plaintiff, Avvo was capitalizing on plaintiff’s brand and using it as a platform for rival lawyers to peddle their services to anyone who visited plaintiff’s Avvo page.

The Court granted Avvo’s motion to dismiss on the basis that Avvo’s ads were protected by the First Amendment to the U.S. Constitution.

The key inquiry was whether Avvo’s site constitutes commercial or non-commercial speech.  If speech is non-commercial, it is entitled to expansive First Amendment protection that can only be restricted in extraordinary circumstances.

Commercial speech, by contrast, receives less First Amendment protection.  It can be more easily scrutinized and vulnerable to defamation or publicity statute claims.

The court cited daily newspapers and telephone directory “yellow pages” as prototypical examples of non-commercial speech.

While both sell advertising, a newspaper’s and yellow pages’ main purpose is to provide information.  Any ad revenue derived by the paper or phone directory is ancillary to their primary function as information distributor.

Commercial speech proposes a commercial transaction, including through the use of a trademark or a company’s brand awareness.  If speech has both commercial and non-commercial elements (e.g. where a commercial transaction is offered at the same time a matter of social importance is discussed), the court tries to divine the main purpose of the speech by considering if (1) the speech is an advertisement, (2) it refers to a specific product and (3) the speaker’s economic motivation.

The Court agreed with Avvo that its site was akin to a computerized yellow pages; That the core of Avvo was non-commercial speech: it provides attorney information culled from various sources.

The court distinguished basketball legend Michael Jordan’s recent lawsuit against Jewel food stores for taking out an ad in Sports Illustrated, ostensibly for commending Jordan on his recent basketball hall of fame induction.

The Seventh Circuit there found that Jewel’s conduct clearly aimed to associate Jordan with Jewel’s brand and in the process promote Jewel’s supermarkets.  As a result, Jewel’s actions were deemed commercial speech and subject to a higher level of court scrutiny. Jordan v. Jewel Food Stores, Inc., 743 F.3d 509, 515 (7th Cir. 2014).

In the end, the Avvo case turned on this binary question: was Avvo a non-commercial attorney directory with incidental advertising, or was each Avvo attorney profile an advertisement for the competitors’ “Sponsored Listings” (the name ascribed to competing attorneys who paid for ads to be placed on plaintiff’s profile page).

Since not every attorney profile contained advertisements and none of the challenged ads used plaintiff’s name, the Court found Avvo was like a newspaper or yellow pages directory entitled to free speech protection.

The Court likened Avvo to Sports Illustrated – a publication that features ads but whose main purpose is non-commercial (i.e. Providing sports news).  Like SI, Avvo publishes non-commercial information – attorney stats – and within that information, places advertisements.

To hold otherwise and allow plaintiff’s publicity suit to go forward, “any entity that publishes truthful newsworthy information about….professionals, such as a newspaper or yellow page directory, would risk civil liability simply because it generated ad revenue” from competing vendors.

Afterword:  This case presents an interesting application of venerable First Amendment principles to the post-modern, computerized context.

A case lesson is that even if speech has some obvious money-making byproducts, it still  can garner constitutional protection where its main purpose is to impart information rather than to attract paying customers.

 

 

 

 

Jane Austen You Ain’t! Guidance Counselor Loses First Amendment Suit

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In Craig v. Rich Township High School District 227, et al. (12.3.13), a tenured high school guidance counselor and basketball coach pled himself out of court in his Section 1983 action alleging retaliation for self-publishing a book on relationship advice.  The coach claimed the defendant School District violated his First Amendment right to free expression by terminating him because of the book’s provocative themes.  The Seventh Circuit upheld the Illinois Northern District’s dismissal of the plaintiff’s lawsuit.

Plaintiff penned “It’s Her Fault”, an ostensible how-to book on adult relationships geared towards young women.  But much of the book consists of the author’s graphic depictions of his own sexual proclivities and exploits.

“It’s Her Fault” is complete with excruciatingly detailed anatomical references and sage (and paradoxical) advice like women should be submissive to their men yet also wield sex as a power source in their relationships.  The author also cautions women not to “go hoeing around” (we can’t have that now!!) but to experience some um, “variety” in their opposite sex encounters.

Plaintiff has his demons, though.  For while he modestly describes himself as “beyond the highest caliber of men!”, he still confesses a tendency to objectify women and a perpetual weakness for cleavage (cue ‘Debbie Downer’ ‘wah wah’ sound).

In his tract, the author also makes the sweeping generalization that women are too emotional and not logical enough for workable relationships.

I suppose it was no surprise then, that when the school board caught wind of plaintiff’s salacious literary offering, it fired him.  Plaintiff sued, claiming the school fired him in retaliation for exercising his First Amendment rights.

The Seventh Circuit upheld the Northern District’s dismissal of plaintiff’s claims and found that the school’s interest in serving its students in a non-sexualized atmosphere trumped the plaintiff’s right to free expression.

The Book Touches On a Matter of ‘Public Concern’

The court first found that Plaintiff’s book involved a matter of public concern under the First Amendment.  A First Amendment plaintiff must show his expression touches a matter of public concern.

“It’s Her Fault”‘s subject matter – adult relationship dynamics – does interest a large enough segment of society to merit First Amendment protection, the   Court said.

How so? Well, the public concern test doesn’t require the challenged speech to rise to the level of a profound life-and-death subject, such as the secrets of the universe or the nature of God (or something “orthonological” as the late David Foster Wallace might say).

All that’s required is that the topic appeal to some segment of society and be one that people might be interested in.

Here, the Court found that the book’s  adult relationships subject matter met the test and for proof pointed to the glut of relationship advice columns and self-help books that permeate our culture.

The School’s Interest in Restricting Speech Outweighs Plaintiff’s Interest in Publishing His Book

But the court ultimately found that the school was justified in firing plaintiff based on policy concerns.

A government defendant can restrict speech that involves a matter of public concern if the government can prove that the employee’s interest in commenting on the matter is “outweighed by the government’s interest in promoting effective and efficient public service.” 

An employer’s assessment of the possible havoc reeked by an employee’s challenged speech must be supported by tangible evidence and be more than mere speculation.

The Court found defendant’s concerns that plaintiff’s book would create an intimidating educational environment were well-founded.  As a coach and guidance counselor, the plaintiff held a position of trust and authority in relation to the students which made it likely the students would feel uncomfortable seeking advice from him.

The Court also noted that plaintiff’s blatant objectification of women in his book would likely make female students apprehensive about seeking  counseling services.

Because plaintiff’s book created such a sexually charged atmosphere, the court wrote,  it impeded the school’s ability to educate its students.  As a result, the defendants’ interest in avoiding a likely disruption in its services outweighed plaintiff’s free expression rights.

The Court also rejected plaintiff’s claim that the book’s content was protected because it had nothing to do with plaintiff’s employment and was done on plaintiff’s own time.  The Court noted the book made multiple references to plaintiff’s guidance counselor role, the book’s foreword was written by another teacher at the school and the acknowledgements section was replete with praise for specific students.

Since plaintiff directly linked himself  to the school,  his “my own time” argument failed.

Take-aways: Craig describes in detail the kind of expression that qualifies for public concern protection and the government interest that will override a public employee’s right to free expression.

Where a public school’s learning climate could be compromised due to a book’s inflammatory and hypersexual content, a person’s right to express himself can be curtailed.