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  "name": "SOLAIA TECHNOLOGY, LLC, et al., Plaintiffs-Appellants, v. SPECIALTY PUBLISHING COMPANY et al., Defendants-Appellees (John Doe, Defendant)",
  "name_abbreviation": "Solaia Technology, LLC v. Specialty Publishing Co. ",
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      "SOLAIA TECHNOLOGY, LLC, et al., Plaintiffs-Appellants, v. SPECIALTY PUBLISHING COMPANY et al., Defendants-Appellees (John Doe, Defendant)."
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        "text": "PRESIDING JUSTICE BURKE\ndelivered the opinion of the court:\nPlaintiffs Solaia Technology, LLC (Solaia), the law firm of Niro, Scavone, Haller, & Niro, Ltd., and Raymond Niro (collectively plaintiffs) appeal from an order of the circuit court dismissing with prejudice their claims of defamation per se and tortious interference with prospective economic advantage against defendants Specialty Publishing Company, Peggy Smedley, John Buell and John Doe. On appeal, plaintiffs contend that the trial court erred (1) in dismissing their claim for defamation pursuant to section 2 \u2014 615 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 615 (West 2002)) and section 2 \u2014 619(a)(9) of the Code (735 ILCS 5/2 \u2014 619(a)(9) (West 2002)) because the statements made by defendants fell within the category of statements recognized as defamatory per se, defendants cannot claim the fair report privilege and, alternatively, plaintiffs\u2019 allegations of malice defeated any claim of the fair report privilege and (2) in dismissing their claim for tortious interference with prospective economic advantage pursuant to section 2 \u2014 615 of the Code because plaintiffs adequately pleaded the elements of their claim. For the reasons set forth below, we affirm in part, reverse in part, and remand the cause for further proceedings.\nSTATEMENT OF FACTS\nSolaia owns United States Patent No. 5,038,318 (the \u2018318 patent) and its sole business involves the licensing and enforcement of its patent. The \u2018318 patent \u201crelates to a system for communicating real-time data between a programmable logic controller (PLC) and a program operating in a central controller.\u201d According to plaintiffs, the \u2018318 patent\u2019s technology has \u201cbroad application in the manufacturing industry and is used by virtually every manufacturing company that uses a network of PLCs and a computer for control of a manufacturing operation.\u201d\nOn January 21, 2003, plaintiffs filed a complaint against Specialty Publishing Company, a corporation that publishes Start Magazine (Start); Smedley, the editorial director of Start; Buell, an editor of Start; and John Doe, an author of a letter published in Start. Plaintiffs alleged that certain statements published in various articles of Start defamed plaintiffs per se, constituted tortious interference with prospective economic advantage and, with respect to Raymond Niro, constituted a false light invasion of privacy. One article upon which the complaint was based was printed in Start\u2019s April 2002 issue. The article, entitled \u201cChaos in Manufacturing,\u201d first explained that the \u201cOPC Foundation\u201d was founded by a group of companies that, in 1996, developed and released a common standard interface for communication between process control devices used in manufacturing. The article also noted that this standard became very successful and was adopted by hundreds of products. The article further stated:\n\u201cClearly, on the surface, the goal of this group was to enable the staunchest of competitors to play nice in the sandbox and develop an elusive open [i.e., nonproprietary] standard. In the end, an open standard would mean less expense for vendors and more solutions for users.\nThus, came the birth of what is known as the OPC Foundation today. It all seemed so perfect. *** Sharing data and information that was once was proprietary. Innocent enough. And it was, in the beginning.\n*** [L]ast year, *** a lawsuit was filed against world-class manufacturers, BMW, Jefferson Smurfit, Clorox, and Konica. ***\nSolaia *** filed the lawsuit alleging that all three end user manufacturers are violating a patent that it purchased from Schneider Electric\u2019s Automation Business [(Schneider)]. Schneider sold the rights to its patent to Solaia ***. Now Solaia, aided by the legal firm of Niro, Scavone, Haller & Niro, Chicago, Illinois is on a legal campaign targeting manufacturers who might be infringing on its patent.\nBut that\u2019s not all. *** [T]hree end user companies filed counter lawsuits against their supplier, Rockwell Automation [(Rockwell)]. The suits claim that Rockwell will not indemnify them for use of the technology that Rockwell sold them.\n5*: #\nThe manufacturing mob is baying for blood, and many companies blame Schneider. In fact, just about everyone Start spoke with either on or off the record within the manufacturing community is furious over Schneider\u2019s initial actions. Their anger is only being fanned by Solaia\u2019s lawsuits against leading manufacturers.\n\u2756 *!<\n*** Schneider allegedly did not publicly reveal that it had a patent. And what seems to be in dispute today is why Schneider did not reveal it had a patent on technology that might be incorporated in the OPC standard?\nAttorneys from Niro, Scavone, Haller & Niro reiterate that they are just following the law and that its clients should not be punished for taking advantage of the rules.\nIt seems that new patents are issued monthly, if not weekly, granting more and more patents. Some argue that the U.S. Patent And [sic] Trademark Office is not supposed to issue patents on ideas, however, many contend that is what it is doing with software patents. The end result is having a chilling effect on the software industry as more and more companies file lawsuits to defend these so-called patents.\n$ $ ^\nWatergate spawned campaign-finance reform, perhaps the Solaia lawsuits will spawn patent reform.\u201d\nThe January 2003 issue also contained an article entitled \u201cConspiracy of a Shakedown.\u201d The article stated:\n\u201cRockwell, Milwaukee, Wis., turned the tables on Solaia Technology, Chicago, Ill., Schneider Automation, North Andover, Mass., and attorney Raymond Niro, Niro, Scavone, Haller & Niro, Chicago, Ill., filing a lawsuit charging the aforementioned with unfair business practices.\nOn Dec. 10, 2002, Rockwell filed a lawsuit *** claiming that Solaia, Schneider, and Niro\u2019s law firm have conspired in violation of antitrust laws to \u2018shakedown\u2019 Rockwell\u2019s customers with baseless patent infringement claims.\n:\u25a0{ #\n*** [Rockwell\u2019s suit alleges that], as part of the plan to injure Rockwell and disrupt competition, the \u2018conspirators\u2019 have made, \u2018baseless threats and allegations against manufacturing entities that those manufacturers are infringing the [\u2018318 patent] by, among other things, using Rockwell-Allen-Bradley products; have overstated in a reckless and misleading fashion the scope, applicability and importance of the \u2018318 patent to suppliers and users of industrial automation equipment in general; and have instituted repetitive, baseless, sham patent infringement litigation against those manufacturers.\u2019\nRockwell filed its complaint under the federal antitrust laws: the Sherman Antitrust Act, the Clayton Act, and Lanham Act.\nThe Sherman Antitrust Act outlaws all contracts, combinations, and conspiracies that unreasonably restrain interstate and foreign trade. *** The Sherman Act also makes it a crime to monopolize or conspire with any other person or persons to monopolize any part of trade or commerce.\u2019\u2019 (Emphasis added.)\nOn February 20, 2003, defendants Specialty Publishing Company, Smedley and Buell (hereinafter collectively defendants) filed a combined motion to dismiss plaintiffs\u2019 complaint pursuant to section 2 \u2014 619.1 of the Code (735 ILCS 5/2 \u2014 619.1 (West 2002)), arguing that all claims in the complaint should be dismissed pursuant to section 2 \u2014 615 of the Code (735 ILCS 5/2 \u2014 615 (West 2002)) for failure to state a cause of action and that \u201cportion[s] of plaintiffs\u2019 complaint\u201d should be dismissed pursuant to section 2 \u2014 619(a)(9) of the Code (735 ILCS 5/2 \u2014 619(a)(9) (West 2002)) because the title \u201cConspiracy of a Shakedown,\u201d even if actionable, was subject to the fair report privilege.\nOn May 21, the trial court dismissed plaintiffs\u2019 tortious interference claim and false light invasion of privacy claim pursuant to section 2 \u2014 615 of the Code for failure to state a cause of action. The trial court also dismissed plaintiffs\u2019 defamation per se count, finding that the alleged statements did not support claims for defamation per se because each of the statements was either susceptible of innocent construction, protected as expressions of opinion and/or \u201ca fair abridgment of the litigation.\u201d Plaintiffs filed a motion for reconsideration and for leave to file an amended complaint. On May 29, the trial court denied plaintiffs\u2019 motion for reconsideration, hut granted the motion for leave to file an amended complaint with respect to the claim of tortious interference with prospective economic advantage.\nPlaintiffs subsequently filed an amended complaint containing claims for defamation, false light invasion of privacy and tortious interference with prospective economic advantage. On July 10, defendants filed a motion to dismiss the amended complaint, arguing that the defamation and false light invasion of privacy claims had merely been repleaded without changes and that those counts should be dismissed with prejudice. Defendants also argued that the tortious interference claim should be dismissed for failure to state a cause of action. On October 2, the trial court dismissed plaintiffs\u2019 amended complaint with prejudice.\nThis appeal followed.\nANALYSIS\nWith respect to the title \u201cConspiracy of a Shakedown,\u201d we first briefly note that, contrary to the statement in the special concurrence to this opinion that we have not addressed plaintiffs\u2019 argument that the title is \u201cdefamatory on its face,\u201d defendants do not argue in their brief before this court that this statement is not defamatory and conceded, during oral argument before this court, that they are not so arguing on appeal. Instead, defendants maintain only that the statement, contrary to plaintiffs\u2019 argument, is protected by the fair report privilege because the title \u201cConspiracy of a Shakedown\u201d is a fair and accurate summary of the complaint filed in the Rockwell lawsuit and that plaintiffs\u2019 allegations of malice do not defeat the privilege.\nIn the trial court, defendants moved to dismiss plaintiffs\u2019 defamation count with respect to the statement pursuant to section 2 \u2014 619 of the Code, arguing that they were protected by the fair report privilege. Dismissal pursuant to section 2 \u2014 619(a)(9) is proper if \u201cthe claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.\u201d 735 ILCS 5/2 \u2014 619(a)(9) (West 2000). Thus, the movant, while admitting to the legal sufficiency of the complaint, asserts that an affirmative defense or other matter avoids or defeats the claim. Tepper v. Copley Press, Inc., 308 Ill. App. 3d 713, 716, 721 N.E.2d 669 (1999). \u201cAffirmative matter must be supported by affidavit, unless apparent on the face of the pleading attacked [citation], and, in ruling on the motion, the trial court must interpret all pleadings and supporting documents in the light most favorable to the nonmoving party.\u201d Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 383, 808 N.E.2d 957 (2004). This court reviews a trial court\u2019s decision to grant a section 2 \u2014 619 motion to dismiss de novo. Borowiec, 209 Ill. 2d at 383; Tepper, 308 Ill. App. 3d at 717. The question of whether a publication is privileged under the fair report privilege is generally a question of law, particularly where there is no dispute about the content of the document on which the publication is based. 50 Am. Jur. 2d Libel & Slander \u00a7 316, at 626 (1995).\nOrigins of the Fair Report Privilege\nIllinois has adopted a common law privilege to report on judicial proceedings, which is commonly referred to as the fair report privilege. See, e.g., Harrison v. Chicago Sun-Times, Inc., 341 Ill. App. 3d 555, 572 (2003) (defining the fair report privilege as protecting the media from defamation actions when it reports information gathered from governmental proceedings). This privilege was originally embodied in section 611 of the Restatement of Torts. Lulay v. Peoria Journal-Star, Inc., 34 Ill. 2d 112, 115, 214 N.E.2d 746 (1966); Tepper, 308 Ill. App. 3d at 718; Restatement of Torts \u00a7 611 (1938). Section 611 of the Restatement of Torts states that a publication reporting on judicial and government proceedings is privileged so long as the publication (1) is accurate and complete or a fair abridgment of the proceedings, and (2) \u201cnot made solely for the purpose of causing harm to the person defamed.\u201d Restatement of Torts \u00a7 611, at 293 (1938). The basis for this privilege is the public\u2019s interest in having information made available to it as to what occurs in official proceedings. See Restatement (Second) of Torts \u00a7 611, Comment a, at 297 (1977). This privilege is a qualified privilege (53 C.J.S. Libel & Slander \u00a7 99, at 175 (1987)) and is commonly exercised by newspapers, broadcasting stations, and others in the business of reporting news to the public. Restatement (Second) of Torts \u00a7 611, Comment c, at 299 (1977). In 1966, our supreme court, relying on the language set forth in section 611 of the Restatement of Torts, held that \u201c[t]he privilege to report governmental acts or utterances [is] defeated by proving that a particular publication was motivated solely by actual malice.\u201d Lulay, 34 Ill. 2d at 115.\nIn 1977, the Restatement (Second) of Torts was published and contained no requirement that the publication be \u201cnot made solely for the purpose of causing harm to the person defamed\u201d in order for the publication to be privileged. Restatement (Second) of Torts \u00a7 611, at 297 (1977). Section 611 of the Restatement (Second) of Torts states:\n\u201cThe publication of defamatory matter concerning another in a report of an official action or proceeding *** is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.\u201d Restatement (Second) of Torts \u00a7 611, at 297 (1977).\nComment a to the Restatement (Second) of Torts states that an \u201c[a]buse of the privilege takes place, therefore, when the publisher does not give a fair and accurate report of the proceeding.\u201d Restatement (Second) of Torts \u00a7 611, Comment a, at 298 (1977). Comment b to the Restatement (Second) of Torts states:\n\u201cThe privilege stated in this Section permits a person to publish a report of an official action or proceeding *** even though the report contains what he knows to be a false and defamatory statement. The constitutional requirement of fault is met in this situation by a showing of fault in failing to do what is reasonably necessary to insure that the report is accurate and complete or a fair abridgement.\u201d Restatement (Second) of Torts \u00a7 611, Comment b, at 298 (1977).\nIn the instant case, as stated above, defendants do not argue that the statement is not defamatory but, rather, contend that the statement is protected by the fair report privilege. Thus, we must determine whether defendants can avail themselves of the privilege, i.e., whether the statement is accurate and a fair abridgment of the proceedings. The Rockwell complaint contains express allegations that there was a \u201cshakedown scheme\u201d on behalf of Solaia and its law firm of Niro, Scavone, Haller, & Niro, Ltd., and that Solaia and its law firm engaged in a \u201ccampaign of baseless and repetitive threats *** and suits *** in an apparent effort *** to \u2018shakedown\u2019 manufacturers through threats of potential business interruption or catastrophic damages.\u201d Moreover, the Rockwell complaint contains the word \u201cconspiracy,\u201d or a form thereof, over 30 times when referring to Solaia and its law firm. We therefore find the statement accurate.\nPlaintiffs contend, however, as is echoed by the special concurrence, that the title is not a fair abridgment of the occurrence. Comment f to section 611 of the Restatement (Second) of Torts, cited both by plaintiffs and in the special concurrence, states:\n\u201cNot only must the report be accurate, but it must be fair. *** [Although it is unnecessary that the report be exhaustive and complete, it is necessary that nothing be omitted or misplaced in such a manner as to convey an erroneous impression to those who hear or read it, as for example *** the use of a defamatory headline in a newspaper report, qualification of which is found only in the text of the article.\u201d Restatement (Second) of Torts \u00a7 611, Comment 7 at 300-01 (1977).\nSee also Restatement of Torts \u00a7 611 Comment d, at 295 (1938). According to the special concurrence:\n\u201cThere is nothing in the text of the headline that would leave the reader with an impression that the underlying article reports on a complaint alleging unfair business practices and conspiracy. Without reference to the official proceeding, the reader is left with only one conclusion: plaintiffs entered into an illegal conspiracy.\u201d 356 Ill. App. 3d at 16.\nPlaintiffs, in support of their argument, give as an example an article reporting an indictment of \u201cJones\u201d for the murder of \u201cDoe,\u201d in which, instead of having a headline entitled \u201cJones Indicted,\u201d the article\u2019s headline read \u201cJones a Murderer\u201d or \u201cJones Murdered Doe,\u201d and liken this example to the headline at issue here. However, we find the argument in the special concurrence and plaintiffs\u2019 example readily distinguishable from the headline in the instant case.\nHere, the headline does not read \u201cSolaia and Law Firm Engaged in Conspiracy of a Shakedown\u201d or \u201cSolaia and Law Firm Conspiring to Shakedown Industry,\u201d the qualification of which could only be found in the article below. Rather, the title reads only \u201cConspiracy of a Shakedown,\u201d and the reader cannot in any way assume, from the title of the article, that Solaia or its law firm was engaged in any such activity. In fact, readers could not determine, from the headline alone, who was engaged in a \u201cConspiracy of a Shakedown.\u201d Thus, contrary to the statement in the special concurrence that \u201cthe reader is left with only one conclusion [that] plaintiffs entered into an illegal conspiracy\u201d (356 Ill. App. 3d at 16) there is nothing misplaced or omitted in the headline of the article that would convey the impression that Solaia or its law firm engaged in a \u201cConspiracy of a Shakedown\u201d to those who read it, and, accordingly, we find that the headline was a fair abridgment of the proceedings. Because the title here is an accurate and fair abridgement of the Rockwell complaint, the remaining issue to be decided in this case is whether Illinois law still allows allegations of actual malice to defeat any claim of protection by the fair report privilege.\nApplication of Section 611 to the Case at Bar\nBefore addressing the issue of whether Illinois law still allows allegations of actual malice to defeat the fair report privilege, we briefly note that plaintiffs argue that the privilege set forth in \u201c [section 611 of the Restatement, by its own terms, does not apply\u201d to the allegedly defamatory title \u201cConspiracy of a Shakedown\u201d because a comment to the Restatement states that \u201c[t]he publication *** of the contents of preliminary pleadings such as a complaint *** before any judicial action has been taken *** is not within the [privilege] stated in this Section.\u201d (Emphasis added.) Restatement of Torts \u00a7 611, Comment c, at 294-95 (1938); Restatement (Second) of Torts \u00a7 611, Comment e, at 300 (1977). We note that comment e of the Restatement (Second) of Torts states that the purpose of the above comment is to prevent schemes in which a person files a complaint solely for the purpose of establishing a privilege to publish its content and then immediately drops the action. Restatement (Second) of Torts \u00a7 611, Comment e, at 300 (1977).\nIn Newell v. Field Enterprises, Inc., 91 Ill. App. 3d 735, 415 N.E.2d 434 (1980), this court addressed the issue of whether the fair report privilege should attach only after some form of judicial action has taken place. Newell, 91 Ill. App. 3d at 745. The Newell court chose to join the trend adopting \u201cthe minority view, [that] the common law privilege to report on judicial proceedings attaches not at the point of judicial action, but rather when the complaint is filed.\u201d (Emphasis added.) Newell, 91 Ill. App. 3d at 746. The Newell court gave several reasons for its adoption of the minority view. First, the public\u2019s interest in knowing what is transpiring in the judicial system compelled that the entire judicial system be exposed to the light of public scrutiny. Newell, 91 Ill. App. 3d at 746. Second, the reasoning set forth by the states adopting the majority view, that such a limitation on the privilege reduces the potential for defamation, was unconvincing because, inter alia, the mere fact that \u201ca suit has proceeded to the point where judicial action of some kind has taken place does not necessarily mean that the suit is less likely to be groundless and brought in bad faith.\u201d Newell, 91 Ill. App. 3d at 747. Third, today\u2019s society is aware of the one-sidedness of a complaint and can evaluate the actual worth of the information contained therein. Newell, 91 Ill. App. 3d at 747-48. Fourth, a pleading filed in a legal proceeding is a public record and should be open to the public\u2019s inspection at all times. Newell, 91 Ill. App. 3d at 748. Thus, based on the Newell court\u2019s decision, we find that the fair report privilege set forth in section 611 attaches at the point when the complaint is filed and, accordingly, also find that the privilege is applicable to the allegedly defamatory title \u201cConspiracy of a Shakedown\u201d in the instant case.\nCatalano\nSince the Restatement (Second) of Torts was published, only one Illinois Supreme Court decision, Catalano v. Pechous, 83 Ill. 2d 146, 419 N.E.2d 350 (1980), has addressed the issue of whether Illinois law still allows malice to defeat the privilege to report on judicial proceedings, or the fair report privilege, as set forth in section 611. In Catalano, seven aldermen on the city council brought actions for defamation against the city clerk, a newspaper reporter and a publisher after an allegedly defamatory statement made by the clerk about the aider-men at the city council meeting was repeated several months later to the reporter, who quoted the defamatory statement in a published article. Catalano, 83 Ill. 2d at 149. Counts I and II of the plaintiffs\u2019 complaint alleged that the statements by the city clerk were made falsely and maliciously. Catalano, 83 Ill. 2d at 151. Count III alleged that the statement was reported by the reporter and publisher with knowledge of its falsity and with reckless disregard as to its truth or falsity. Catalano, 83 Ill. 2d at 152. Each of the defendants filed motions for summary judgment, and each of the plaintiffs filed cross-motions for summary judgment. Catalano, 83 Ill. 2d at 149. The trial court ultimately granted each of the defendants\u2019 motions. Catalano, 83 Ill. 2d at 149. On appeal, the appellate court reversed the trial court\u2019s grant of summary judgment in favor of the clerk, but affirmed its grant of summary judgment in favor of the reporter and publisher. Catalano v. Pechous, 69 Ill. App. 3d 797, 812, 387 N.E.2d 714 (1978). Our supreme court granted the petitions for leave to appeal filed by the clerk and the plaintiffs. Catalano, 83 Ill. 2d at 150.\nOn appeal to the supreme court, the clerk argued that the plaintiffs, as public officials, had not proven that his statements concerning them were made with actual malice as required by New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964). The Catalano court only briefly covered the \u201cNew York Times line of cases\u201d and found that the plaintiff had proven that the clerk had acted with malice when issuing the defamatory statement. Catalano, 83 Ill. 2d at 165-66.\nThe Catalano court next considered the claims against the reporter and publisher, stating:\n\u201cWith respect to [the reporter and publisher defendants] there remain for consideration two questions not already disposed of. The first of these is whether the newspaper article involved was privileged as a report of governmental proceedings ***.\nThe defendants rely principally on [Lulay], [Lulay] ***, following section 611 of the Restatement of Torts, (1938), stated that a privilege to report government proceedings existed. [Citation.]\nUnder section 611, as it then read, the privilege was defeasible if the statement was made with malice, in the common law sense of the term. When Lulay was decided that limitation had of course been rendered obsolete by New York Times Co. v. Sullivan. Section 611 of the Restatement (Second) of Torts (1977) now reads [as set forth above].\nComment a to the section states that the privilege is lost if the report is not accurate, but the plaintiffs raise no question on that score. They do point out, however, that [the reporter] did not attend the council meeting, that the article was not published until five months later, that its report of the meeting was based on the account given by [the clerk], and that not all of the statements by [the clerk] which appear in the article were made at the meeting. These points raise questions not addressed in Lulay. We need not decide them, however, for we hold that actual malice on the part of these defendants has not been shown.\u201d Catalano, 83 Ill. 2d at 167-68.\nThe Catalano court then affirmed the grant of summary judgment in favor of the reporter and publisher. Catalano, 83 Ill. 2d at 170.\nSince the Catalano decision, our appellate courts have struggled to determine whether, under Illinois law, actual malice still defeats the fair report privilege. See Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 272 (7th Cir. 1983) (stating that \u201cIllinois law is in disarray on the question whether actual malice defeats the privilege of fair summary\u201d); Gist v. Macon County Sheriff\u2019s Department, 284 Ill. App. 3d 367, 376, 671 N.E.2d 1154 (1996) (noting that Catalano appeared \u201cto have caused confusion in the appellate courts as to whether actual malice might still be raised to defeat this privilege\u201d). As a result, the appellate courts have been split over this issue. Compare Myers v. The Telegraph, 332 Ill. App. 3d 917, 923-24, 773 N.E.2d 192 (5th Dist. 2002) (finding that Catalano adopted section 611 of the Restatement (Second) of Torts and that actual malice does not defeat a claim of privilege under that section); Hurst v. Capital Cities Media, Inc., 323 Ill. App. 3d 812, 817-18, 754 N.E.2d 429 (5th Dist. 2001) (finding that Catalano adopted the Restatement (Second) of Torts and that actual malice does not defeat the fair report privilege); Tepper, 308 Ill. App. 3d at 718 (2nd Dist.) (finding that Catalano adopted section 611 of the Restatement (Second) of Torts and that malice does not defeat the privilege set forth in that section); Gist, 284 Ill. App. 3d at 375 (4th Dist.) (finding that Catalano modified the privilege in accordance with the Restatement (Second) of Torts and that malice does not defeat the privilege); with Lykowski v. Bergman, 299 Ill. App. 3d 157, 166, 700 N.E.2d 1064 (1st Dist. 1998) (stating that the fair report of judicial proceedings privilege is limited to situations in which the statements are not made solely for the purpose of causing harm to the defamed person and that \u201csection 2 \u2014 619 relief is properly granted on the basis of qualified privilege *** only when there are no allegations of actual malice made by the plaintiff\u2019); Rosner v. Field Enterprises, Inc., 205 Ill. App. 3d 769, 791, 564 N.E.2d 131 (1st Dist. 1990) (noting that the privilege to report on judicial proceedings is lost upon proof of actual malice); Tunney v. American Broadcasting Co., 109 Ill. App. 3d 769, 775, 441 N.E.2d 86 (1st Dist. 1982) (noting that Catalano referred to what the Restatement (Second) of Torts now states, but that the privilege recognized in Lulay still retains its validity, and citing Catalano for the proposition that the privilege can be lost upon a showing of actual malice); Newell, 91 Ill. App. 3d at 744 (1st Dist.) (stating that \u201ca communication reporting the contents of a judicial proceeding is privileged, although it contains defamatory statements, if it is (a) accurate and complete as a fair summary of such proceedings, and (b) not made solely for the purpose of causing harm to the person defamed\u201d). See also Emery v. Kimball Hill, Inc., 112 Ill. App. 3d 109, 112, 114, 445 N.E.2d 59 (2nd Dist. 1983) (stating that a communication reporting the contents of a judicial proceeding is privileged if it is \u201cnot made solely for the purpose of causing harm to the person defamed,\u201d and noting that the plaintiff had, in fact, alleged malice in the complaint, but nonetheless holding that the complaint still failed as a matter of law because the communication \u201cwas a true reflection of a judicial and public record\u201d).\nWhether Actual Malice Defeats the Fair Report Privilege\nAn examination of the Catalano decision reveals that it is ultimately unclear as to whether the supreme court chose to adopt section 611 of the Restatement (Second) of Torts because the court never expressly so stated. However, regardless of whether our supreme court adopted the Restatement (Second) of Torts\u2019 approach, we read Catalano as holding that allegations of actual malice defeat the privilege set forth in section 611, i.e., the fair report privilege. Our conclusion is premised on the fact that the Catalano court expressly stated that it was addressing \u201cwhether the newspaper article *** was privileged as a report of governmental proceedings\u201d and acknowledged the rule originally expressed in the Restatement of Torts, and later set forth in Lulay, that allegations of actual malice defeat a claim of privilege. Catalano, 83 Ill. 2d at 167. The Catalano court then stated that comment a to section 611 of the Restatement (Second) of Torts states that \u201cthe privilege is lost if the report is not accurate, but the plaintiffs raise no question on that score.\u201d Catalano, 83 Ill. 2d at 168. The court then noted that it did not need to address any other \u201cpoints\u201d raised by the plaintiffs regarding the inapplicability of the fair report privilege to the defendants, i.e, that the privilege did not apply because the reporter did not attend the meeting where the allegedly defamatory statement was made, the report was not published until five months after the meeting and allegedly defamatory statement had been made, etc., because it \u201c[was holding] that actual malice on the part of these defendants has not been shown.\u201d Catalano, 83 Ill. 2d at 168. Thus, we read Catalano as requiring allegations of inaccuracy or malice before the fair report privilege can be defeated.\nIn finding that Illinois law still allows allegations of actual malice to defeat the fair report privilege, we join the line of cases handed down from the First District, as set forth above, which have so found. We also note that, as stated above, Illinois has adopted the minority view that allows the fair report privilege to attach to a complaint before any judicial action has taken place, and we believe that our finding that allegations of actual malice defeat the fair report privilege will aid in preventing schemes in which a person files a complaint solely for the purpose of establishing a privilege to publish its content and then immediately drops the action, which is a concern set forth in the Restatement (Second) of Torts. Restatement (Second) of Torts \u00a7 611, Comment e, at 300 (1977).\nWhether Defendants Pleaded Actual Malice\nApplying our finding to the instant case, we must determine whether plaintiffs here sufficiently pleaded facts to establish actual malice. In order to allege actual malice, a plaintiff must plead \u201cthat the statement was made with knowledge of its falsity or in reckless disregard of whether it was false or true.\u201d Colson v. Stieg, 89 Ill. 2d 205, 214, 433 N.E.2d 246 (1982). Here, plaintiffs alleged, in paragraph 18 of their amended complaint, that \u201c[djefendants published the false statements with knowledge of the truth, in reckless disregard for the truth, and in possession of facts that should have led defendants to doubt the false statements.\u201d Thus, we find that plaintiffs adequately pleaded actual malice. See Krueger v. Lewis, 342 Ill. App. 3d 467, 473, 794 N.E.2d 970 (2003) (actual malice was sufficiently alleged where the complaint stated that the statements were made by the defendant \u201cin full knowledge that they were untrue or in reckless disregard of their truth or falsity\u201d). Accordingly, we conclude that the trial court erred in finding that the title \u201cConspiracy of a Shakedown\u201d did not support a claim for defamation under Illinois law because plaintiffs\u2019 allegations of actual malice defeated defendants\u2019 claim of the fair report privilege as a basis for dismissing plaintiffs\u2019 defamation count.\nWhether Defendants Can Claim the Privilege\nPlaintiffs contend in their reply brief before this court that defendants cannot claim the fair report privilege case because (1) they were \u201cactively assisting Rockwell\u201d and (2) defendants\u2019 reporting \u201ccarried a greater sting than Rockwell\u2019s civil complaint.\u201d We need not address this issue for two reasons. First, plaintiffs have waived their argument that defendants cannot claim the fair report privilege because they improperly raised it for the first time in their reply brief. Todt v. Ameritech Corp., 327 Ill. App. 3d 359, 369, 763 N.E.2d 389 (2002) (arguments raised for the first time in a reply brief will not be addressed by the appellate court). Second, our above holding that Illinois law still adheres to the proposition that allegations of actual malice defeat the fair report privilege dispels the issue of whether defendants can claim the privilege because, even if defendants were able to claim the privilege, plaintiffs\u2019 allegations of malice defeat that privilege.\nCONCLUSION\nFor the reasons stated, we reverse the judgment of the circuit court of Cook County dismissing plaintiffs\u2019 count for defamation with prejudice, affirm the dismissal of plaintiffs\u2019 count for tortious interference with prospective economic advantage, and remand the cause for proceedings consistent with this opinion.\nAffirmed in part and reversed in part; cause remanded.\nIn its dismissal, the trial court did not state whether these claims were dismissed with or without prejudice.\nWe note that it is unclear from the trial court\u2019s memorandum and order whether the court dismissed this statement under section 2 \u2014 615 or 2 \u2014 619 of the Code: the trial court stated that the remark was a \u201cfair abridgment of the litigation,\u201d implying that the remark was to he dismissed pursuant to section 2 \u2014 619, but also stated that the remark could be \u201cinnocently construed when taken in context and read in its entirety,\u201d which implies that plaintiffs failed to state a cause of action and that the remark should have been dismissed pursuant to section 2 \u2014 615.\nMoreover, before readers learned, by reading the article, that Solaia and its law firm were engaged in any such activity, they would know that such activity was merely alleged in a complaint filed by Rockwell.\nIt is unclear from plaintiffs\u2019 argument whether plaintiffs are referring to the Restatement of Torts or the Restatement (Second) of Torts. However, because both Restatements contain the comment relied upon by plaintiffs in support of their argument, it is unnecessary to distinguish between the Restatements for purposes of this specific issue.\nThe New York Times Co. Court held that the constitutional provisions protecting free speech and press required a rule that prohibits public officials from recovering damages for defamatory falsehoods relating to their official conduct unless they can prove that the statement was made with \u201cactual malice.\u201d New York Times Co., 376 U.S. at 279-80, 11 L. Ed. 2d at 706, 84 S. Ct. at 726.",
        "type": "majority",
        "author": "PRESIDING JUSTICE BURKE"
      },
      {
        "text": "WOLFSON, J.,\nconcurs.\nJUSTICE CAHILL,\nspecially concurring:\nI concur with the disposition of this case, but I disagree with the majority\u2019s application of the fair reporting privilege to Start Magazine\u2019s January 2003 article headline \u201cConspiracy of a Shakedown.\u201d There is nothing in the text of the headline that would leave the reader with an impression that the underlying article reports on a complaint alleging unfair business practices and conspiracy. Without reference to the official proceeding, the reader is left with only one conclusion: plaintiffs entered into an illegal conspiracy. The point is made by comment f to section 611 of the Restatement (Second) of Torts. Comment f reads:\n\u201cNot only must the report be accurate, but it must be fair. *** [Although it is unnecessary that the report be exhaustive and complete, it is necessary that nothing be omitted or misplaced in such a manner as to convey an erroneous impression to those who hear or read it, as for example *** the use of a defamatory headline in a newspaper report, qualification of which is found only in the text of the article.\u201d (Emphasis added.) Restatement (Second) of Torts \u00a7 611, Comment f, at 300-01 (1977).\nThe headline in this case is known as a \u201ccatcher\u201d or \u201ceye-stopper\u201d in the media trade. Though sometimes misleading, such headlines carry the reputational weight, for whatever it is worth, of the media outlet. That is why the headline in this case, if run in a newspaper or magazine with no axe to grind, would have read \u201cConspiracy of a Shakedown, Complaint Alleges.\u201d It is of little solace to plaintiffs that their names are not identified in the headline or that the reader later learns that the allegation comes from a privileged legal document. The reputation of the media source is hound to the \u201ceye-stopper.\u201d\nTo the extent the majority finds that the \u201cConspiracy of a Shakedown\u201d headline is the type of reporting that section 611 of the Restatement protects, I respectfully disagree. I would have reversed the trial court\u2019s finding that the headline is privileged under section 611 of the Restatement. I see no reason in this case to decide whether actual malice defeats the fair reporting privilege.",
        "type": "concurrence",
        "author": "WOLFSON, J., JUSTICE CAHILL,"
      }
    ],
    "attorneys": [
      "Niro, Scavone, Haller & Niro, of Chicago (Paul K. Vickrey, of counsel), for appellants.",
      "Schiff Hardin, L.L.E, of Chicago (Frederick J. Sperling, Sondra A. Hemeryck, and Anne H. Burkett, of counsel), for appellees."
    ],
    "corrections": "",
    "head_matter": "SOLAIA TECHNOLOGY, LLC, et al., Plaintiffs-Appellants, v. SPECIALTY PUBLISHING COMPANY et al., Defendants-Appellees (John Doe, Defendant).\nFirst District (2nd Division)\nNo. 1-03-3089\nOpinion filed March 31, 2005.\nCAHILL, J., specially concurring.\nNiro, Scavone, Haller & Niro, of Chicago (Paul K. Vickrey, of counsel), for appellants.\nSchiff Hardin, L.L.E, of Chicago (Frederick J. Sperling, Sondra A. Hemeryck, and Anne H. Burkett, of counsel), for appellees."
  },
  "file_name": "0001-01",
  "first_page_order": 17,
  "last_page_order": 32
}