Tag: defamation

Recovering Court Costs In Illinois Litigation – What’s Covered?

a-very-upset-aol-salesperson-just-called-us (photo credit: www.businessinsider.com)

 Huang v. CNA, 2012 Ill. App. 1st 1112243-U provided a useful discussion of recoverable court costs in the context of a malicious prosecution suit.

To prove malicious prosecution, a plaintiff must show (1) the commencement or continuance of a criminal or civil proceeding; (2) the proceeding terminated in the plaintiff’s favor; (3) absence of probable cause; (4) malice; and (5) damages.

If the defendant had probable cause to sue or to file criminal charges, regardless of whether the suit or charges was successful, this will completely defeat a malicious prosecution claim.

“Probable cause” in the context of dropped criminal charges means a state of facts that would lead a person of ordinary caution and prudence to believe – or to have a strong suspicion – that the person committed a crime.

The key inquiry is on the state of mind of the one commencing the prosecution, not the actual facts of the case or whether the accused was guilty or innocence, that determines probable cause. As long as there is a an “honest belief” that the accused is probably guilty of an offense, the probable cause standard is met (and a malicious prosecution claim will fail). ¶ 40.

Here, the evidence reflected the defendant’s probable cause for charging the plaintiff with trespassing: He refused to leave the premises after his employer fired him.  The Illinois Criminal Code defines trespassing as a person remaining on the land of another, after receiving notice from the owner or occupant to depart. 720 ILCS 5/21-3(a)(3).

Based on the evidence that the plaintiff was belligerent and insistent (on staying), the court found the defendant had a reasonable basis to charge the fired employee plaintiff. ¶¶ 42-45.

The next issue grappled with by the court concerned what costs could the defendant employer recover after defeating plaintiff’s claims. Code Section 5-108 and 109 (735 ILCS 5/5-108, 5-109) work in tandem to govern recoverable costs in litigation.

Code Section 5-109 allows the winning party to recover costs. Case law interprets Section 5-108’s “court costs”  to encompass filing fees, subpoena fees and statutory witness fees. While court costs are recoverable, “litigation costs” (e.g. photocopying, research costs, etc.) generally are not.

Supreme Court Rule 208(d) also gives the trial court discretion to tax deposition costs where the deposition is “necessarily used at trial.” But where a case is disposed of before trial (like on a motion for summary judgment or dismissal), deposition costs aren’t properly taxed to the losing party. ¶¶ 49-50.

Here, the court affirmed the filing fees and subpoena fees but reversed the cost award for defendant’s depositions. Since there was no trial, the defendant’s deposition costs shouldn’t have been assessed against the plaintiff.

Take-aways:

– To establish probable cause in a malicious prosecution case, a defendant only needs to show an objective, honest belief that the plaintiff committed a crime;

– Deposition costs can be recovered by a winning litigant but only where the deposition is necessarily and actually used at trial;

– If a case is disposed of on a summary judgment or dismissal motion, the winner only can recover court filing fees, service/sheriff fees and subpoena costs.

 

Illinois Defamation Law: The Quick and Dirty

Defamation is a false, factual statement published to a third party reader or listener.  Illinois recognizes two types of defamation – libel (written) and slander (oral) and the same rules apply to both.

A defamation plaintiff must present sufficient facts establishing (1) a false statement about the plaintiff, (2) that’s not privileged, (3) to a third party; and (4) that caused damages.

A defamatory statement is per se (meaning no proof of specific damages are required)  defamatory when it’s harmful on its face.  Defamatory per se statements are those that (1) impute that a plaintiff committed a crime; (2) impute a plaintiff is unable to perform or lacks integrity in his employment; or (3) statements that plaintiff lacks ability or that otherwise prejudices the plaintiff in her profession.

Only statements that are factual (“he stole $1,000 from me”) – capable of being proven true or false – are actionable; opinions are not (“I think he’s a nut job!”).  Calling someone a crook, a traitor, trashy, a rip-off artist are examples of non-defamatory statements of opinion under prior Illinois cases.

Even per se defamatory statements are not actionable if they are reasonably capable of an innocent construction.  Under the innocent-construction rule, a court considers a statement in context and gives words their natural and ordinary meaning.  If a statement in context is reasonably susceptible to a nondefamatory meaning, it should be given that meaning.

Truth is a defense to defamation.  The challenged statement doesn’t have to be completely true; it’s enough that it’s ‘substantially true’.  A defamatory statement is also not actionable where it’s subject to a privilege.  Two privileges the law recognizes are absolute and qualified privileges.

Qualified privilege applies where as a matter of law and general policy, the defendant has an interest in or duty to make the communication such that it’s privileged.  A classic example of a qualified privilege statement involves a corporation’s statement made while  investigating an employee’s conduct.

Once a qualified privilege attaches, the plaintiff must prove that the defendant intentionally published the material knowing it was false or displaying a reckless disregard as to it truth.  “Reckless disregard” means the speaker made a statement aware that it’s probably false with serious doubts as to its truth.

Source: Coghlan v. Beck (http://www.state.il.us/court/opinions/AppellateCourt/2013/1stDistrict/1120891.pdf

Employees’ Facebook Gripe Session Is Protected ‘Concerted’ Activity: Retaliation Firing Violates NLRA

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It’s against a cultural backdrop of social media ubiquity and nonexistent online anonymity that today’s post vividly illustrates the tricky intersecting legal issues involving employee free speech rights and online privacy concerns.

In Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31 (August 22, 2014), a Facebook on-employee group gripe session turned ugly for two of the participants when their boss – a sports bar owner – fired them after he found out they trashed him in a group message.

Seems the employees were upset that their employer miscalculated their income tax withholding amounts so they decided to air their grievances on Facebook.  One employee (a claimant in the NLRB proceeding) blasted her employer (“what an asshole!”) while the other claimant said nothing: all she did was  “like” another participant’s (an ex-employee) hostile comment about the tax mishap.

The National Labor Relations Board (NLRB or “Board” ) found that the employer violated the National Labor Relations Act (NLRA or “Act”) by firing the employees for their Facebook activity.  The Board held the employees’ discussion was protected “concerted activity” that involved improving employment conditions.  By firing the employees for protected activity, the employer violated the Act.

Reasons:

Section 7 of the NLRA protects employees’ rights to engage in concerted activity for their “mutual aid or protection.”  29 U.S.C. s. 157.  This Section extends to social media comments that address improving workplace conditions or that vocalize legitimate employment concerns.

NLRA Section 8 outlaws an employer’s attempt to interfere with an employee’s exercise of concerted activity rights.  29 U.S.C. s. 158.

An employee’s concerted activity rights aren’t unlimited, though.  The law recognizes that where an employee disparages an employer’s products or services or defames an employer, the employee’s conduct loses the Act’s protection.

For an employee communication to meet the defamation or disparagement test, the challenged statement must be false, malicious (knowingly or recklessly false) and it must cause damage.

The Board ruled that the employee comments were part of an conversation involving  a legitimate workplace concern – employee tax liability.

The Board also found the simple act of “liking” a group member’s derisive comments about the boss merited Federal protection since it involved the other Facebook participants’ work-related concerns and opinions.

The Board rejected the employer’s argument that the “what an asshole” comment was defamatory and unprotected as a result.  The Board stated that while the comment was certainly rude, it was protected as rhetorical hyperbole.

The Facebook invective wasn’t factual enough (after all, how do you objectively verify if someone is an a-hole?) to constitute  defamation.  And since neither employee claimant disparaged the sports bar’s services, the activity was protected.

The Board also struck the employer’s Internet policy on the basis that it encroached on employees’ protected rights under the NLRA.  An employer social media policy violates the NLRA when it chills an employee’s concerted activity rights.

Here, the employer’s Web policy outlawed, among more specific items, “inappropriate” Internet use.  The Board found the policy’s reference to “inappropriate” social media discussions was too vague and overbroad and could reasonably be viewed as punishing protected activity.

Afterwords:

– The Board extends concerted employee activity to social media communications;

– An argument can be made in the wake of this decision that as long as an employee couches his inflammatory rhetoric beneath a veneer of legitimate workplace concerns, an employee’s comments are protected from employer retaliation.