Federal Court Examines Illinois’ Savings Clause, Job-Related Per Se Defamation in Warring Yelp.com Posts

Shortly after their business relationship imploded, the parties in Levin v. Abramson, 2020 WL 249649, brought dueling defamation claims in Federal court premised on March 2017 Yelp posts by the parties.

The former client defendant (the “Client”) skewered the plaintiffs lawyer and her law firm (“Lawyer”) on Yelp.com in which he braded the Lawyer, among other things, an incompetent predator who defrauded Client.

The Lawyer responded with a post of her own the same day.  She added some factual context to Client’s screed and portrayed the reason behind Client’s vitriol as a simple billing dispute.  Lawyer also added in her retort that Client had a pattern of suing all of his lawyers.

Lawyer’s Complaint alleged claims for defamation and false light invasion of privacy.  Client counter-sued for defamation, too, and added legal malpractice and breach of fiduciary duty claims based on Lawyer’s Yelp response.

The Lawyer moved to dismiss Client’s counterclaims and both parties filed cross-motions for summary judgment.

Lawyer’s Motion to Dismiss

Rejecting the Lawyer’s argument that the Client’s defamation suit was untimely, the Court examined the interplay between Code Sections 13-201 [735 ILCS 5/13-201], the one-year statute of limitations for defamation suits and 13-207 [735 ILCS 5/13-207], the Illinois “savings” statute that permits otherwise time-barred counterclaims in certain circumstances.

The Court noted that each side’s alleged defamatory Yelp posts were published on March 22, 2017.  So the defamation one-year limitation period would normally expire March 22, 2018.  The Lawyer filed her defamation suit on March 8, 2018 – two weeks before the defamation statute lapsed while Client filed his counter-claim in January 2019 – almost 10 months after the limitations ran.

However, since the Lawyer’s defamation claim accrued before the defendant’s defamation counter-suit lapsed – March 22, 2018 – Section 13-207 preserved or “saved” the defendant’s countersuit even though it wasn’t filed until 10 months later.

The court then focused on whether the Client sufficiently alleged per se defamation against the Lawyer’s Rule 12(b)(6) attack.

Two salient stripes of per se defamation include statements (1) that impute a plaintiff’s inability to perform or want of integrity in the discharge of his duties of office or employment and (2) that prejudice a plaintiff or impute a lack of ability in his or her trade.  These particular per se claims must directly involve a plaintiff’s job performance;  generalized personal attacks on a plaintiff’s integrity and character are non-actionable.

The Court rejected Lawyer’s truth defense argument – that her Yelp retort was substantially true.  The Court found that whether, as Lawyer said in her post, that Client had in fact sued all of his other lawyers, lost his bid to reverse his credit card payment to Lawyer, and that his complaints to ARDC and CBA were rejected, were questions more appropriate for a summary judgment motion and not a dismissal motion.

Next, the Court addressed Lawyer’s argument that Client failed to properly allege in his Counterclaim what his job was and therefore couldn’t make out a claim that Lawyer’s Yelp response prejudiced Client in his work.  The Court held that when considering Client’s Counterclaim exhibits and supporting affidavit [both of which established that client owned a record label] Client plausibly pled Lawyer’s Yelp statements could prejudice him in his role as business owner.  On this point, the Court also credited Client’s argument that plaintiff’s Yelp response could cause the record company to lose current and future clients.

Cross-Motions for Summary Judgment

Both sides moved for summary judgment on plaintiff’s defamation and false light claims.  The Court considered Lawyer’s argument that Client’s Yelp post contained actionable facts as opposed to non-actionable opinions.

Black-letter defamation law cautions that opinions that do not misstate facts are not actionable. Whether a given statement consists of a factual (and therefore actionable) assertion, the court considers (1) whether the statement has a precise and readily understood meaning, (2) whether the statement is verifiable, and (3) whether the statement’s literary or social context signals it has factual content.

The Court found that Client’s Yelp review contained both opinion and factual elements.  The Client’s statements that Lawyer illegally charged Client’s credit card, exceeded a $4,000 ghost-writing budget by nearly $10,000, and that Client’s credit card sided with him in his dispute with Lawyer were all verifiable enough to be factual.  The Court also found that defendant’s branding plaintiff a “con artist” – normally non-actionable name-calling or opinion – rose to the level of actionable fact when viewed in context with other aspects of the Yelp review.

According to the Court, for the Lawyer to win summary judgment on her defamation claim, she must show that no reasonable jury fact could decide that Client’s Yelp statements were substantially true. Conversely, on the Client’s cross-motion, the Court noted that he must establish that a jury could only conclude that his Yelp review statements were substantially true for him to prevail on his cross-motion.

The Court found the record revealed genuine disputed fact questions as to (1) who severed the Lawyer-Client relationship and when, (2) whether the Lawyer agreed to cap her fees at $4,000 [which Lawyer disputed], (3) whether there was in fact a $4,000 budget for Lawyer’s ghost-writing work and (4) whether Lawyer had authority to charge Client’s credit card once the $4,000 retainer was exhausted.  These factual discrepancies led the Court to deny the warring summary judgment motions.


Levin meticulously dissects the governing legal standards that control pleadings and dispositive motion practice in Federal courts.

The case also provides a trenchant analysis of Illinois per se defamation law, particularly the contours of job performance-related per se defamation, the truth defense, and the importance of the fact-versus-opinion analysis inherent in such a claim.



Illinois Motion Standards – A Case Note

Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139 reads like a mini-compendium of Illinois pleadings rules for its detailed discussion of Code Section 2-615, 2-619, and 2-1005 motion practice.  

Facts: The plaintiff motorcyclist sustained serious injuries when he was hit by a Jimmy John’s delivery driver in Springfield, Illinois.  The plaintiff brought negligence claims against the Jimmy John’s franchisor (Jimmy Johns, LLC) and the franchisee (JThree) alleging negligent training and negligent supervision claims. 

Plaintiff’s claimed the sandwich shop’s ubiquitous  “freaky fast” delivery slogan encouraged reckless driving that placed a premium on delivery speed over traffic safety.  Defendants filed separate section 2-615 and 2-619(a)(9) motions asserting that defendants weren’t responsible for the driver’s actions.

The trial court granted the defendants’ motions and plaintiff appealed.

Result: Reversed in part: the dismissal of plaintiff’s negligence claims against the franchisor and franchisee is reversed. 

Reasons: Defendants’ motions to dismiss are procedurally and substantively improper under Illinois pleading rules.  

Section 2-619.1 Motions (“Combined Motions”)

– A Section 2-619.1 motion must be in parts, must specify which section the motion is made under and clearly show the points or grounds relied upon under each section;

– Section 2-619.1 does not permit a movant to submit evidentiary material that contests the truth of the plaintiff’s allegations – both section 2-615 and 2-619 motions concede the truth of well-pled facts

(¶¶ 20-22)

Section 2-615(a) Motions (Complaint fails to state a cause of action)

– Section 2-615(a) motions are based on defects apparent on the face of a complaint;

– The movant is saying “so what? the facts plaintiff alleges don’t state a cause of action against me”;

– The court only considers (1) facts on the face of the pleadings; (2) matters subject to judicial notice; and (3) judicial admissions in the record;

– A movant’s use of deposition testimony to support a section 2-615 motion is improper;

– Section 2-615(a) is the proper vehicle for a motion to strike and should be used only where the allegation attacked is irrelevant and prejudicial to the movant.

(¶¶ 25, 26, 41)

Section 2-619(a)(9) Motions – Content and ‘Affirmative Matter’

– Purpose: to provide litigants with a way to dispose of issues of law and easily proved issues of fact – relating to affirmative matter – early in the litigation;

– The 2-619(a) motioning party is basically saying “yes, the complaint is legally sufficient but an affirmative matter exists that defeats the claim”;

– “affirmative matter” = a defense that is not a negation of the essential allegations of the plaintiff’s claim but that defeats the cause of action completely (examples: tort immunity, lack of standing);

– affirmative matter must be apparent on the face of the complaint.  If it’s not, the defendant should support his motion with affidavits or other evidence;

– “affirmative matter” does not include evidence the defendant expects to contest an ultimate fact stated in the complaint.  Example: if the plaintiff’s complaint says “the light was green” and defendant files a motion with a supporting affidavit or deposition that says “the light was red!”, this is not a proper 2-619 basis.  It is however a proper summary judgment (2-1005) basis though since it contests plaintiff’s version of facts;

– “affirmative matter” is not the defendant’s version of events since this merely negates the essential factual allegations of the complaint;

– Section 2-619(a)(9) does not permit a defendant to submit affidavits or evidentiary material for the purpose of contesting plaintiff’s facts (“plaintiff is wrong”) and presenting defendant’s version of the facts (“I am right”);

– the 2-619 movant has the burden of producing evidence in support of the affirmative matter which defeats plaintiff’s claim;

– Section 2-619(a)(9) should not be used to contest plaintiff’s factual allegations (see above);

A summary judgment motion under 2-1005 is the proper motion to file if you want to dispute plaintiff’s version of facts (Ex: plaintiff alleges his last day of work was 12.31.12.  Defendant disputes this.  In a summary judgment motion, defendant could attach an affidavit or other document that asserts/shows that plaintiff’s last day was 11.30.12 (or some other date));

( ¶¶ 33-34, 37)

Section 2-1005 Motions (summary judgment motions)

– a section 2-1005 assumes that a cause of action has been stated but challenges the plaintiff’s facts;

– A section 2-1005 summary judgment motion goes beyond the pleadings to determined if the case presents an issue of fact;

– A summary judgment motion is similar to a 2-619(a)(9) motion: both motions use affidavits and other evidentiary materials; BUT

– a section 2-619(a)(9) motion is not a substitute for a summary judgment motion;

– a section 2-1005 summary motion should be used where (a) defendant uses material to support its version of the facts; (b) defendant points out factual deficiencies in plaintiff’s case; or (c) where defendant is asserting that plaintiff can’t prove his case;

– if defendant mislabels a summary judgment motion by calling it a 2-619 motion, the court may treat the motion as a section 2-1005 summary judgment motion.

¶¶ 51-54.

Application: Since the defendants alternately used deposition testimony (plaintiff was deposed before plaintiff filed his amended complaint) and a supporting affidavit to contest the veracity of plaintiff’s allegations, they didn’t offer proper affirmative matter on their Section 2-619 motions. (¶¶ 37-42)


Jimmy John’s provides a thorough and nuanced discussion of the common pleadings motions utilized in Illinois and describes the key features and differences between them.