IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DR. FARRAH HOROWITZ, )

)

Plaintiff, )

)

) Case No. 12 C 2561

v. )

)

ANIMAL EMERGENCY AND )

TREATMENT CENTERS OF CHICAGO, )

LLC, et al., )

 )

Defendants, )

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge: 

On April 6, 2012, Plaintiff Dr. Farrah Horowitz, a veterinarian, brought the present fourcount Complaint against her former employers Defendants Animal Emergency and Treatment

Centers of Chicago, LLC and Animal Emergency Treatment Center of Grayslake, LLC

(collectively “AETC”), along with individual Defendants Dr. Matt Tompkins, Dr. Kristi

Sandman, and Dr. Anthony Coronado based on the Court’s diversity jurisdiction. See 28 U.S.C.

§ 1332. Before the Court is Defendants’ motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6). For the following reasons, the Court denies Defendants’ motion.

LEGAL STANDARD

“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a

claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police of Chicago

Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). Under Rule 8(a)(2), a complaint must include

“a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2). The short and plain statement under Rule 8(a)(2) must “give the defendant fair
notice of what the claim is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550

U.S. 544, 555, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41,

47, 78 S. Ct. 99, 2 L.Ed.2d 80 (1957)). Under the federal notice pleading standards, a plaintiff’s

“factual allegations must be enough to raise a right to relief above the speculative level.” 

Twombly, 550 U.S. at 555. Put differently, a “complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678, 129 S. Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570). 

“In evaluating the sufficiency of the complaint, [courts] view it in the light most favorable to the

plaintiff, taking as true all well-pleaded factual allegations and making all possible inferences

from the allegations in the plaintiff’s favor.” AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th

Cir. 2011). 

BACKGROUND

After completing her surgical residency at Virginia/Maryland Regional College of

Veterinary Medicine, Dr. Horowitz signed an Employment Agreement (the “Agreement”) with

AETC on September 21, 2009, that was for a term of 18 months – ending on February 28, 2011 –

with an annual salary of $155,000. (R. 1, Compl. ¶ 10, Ex. A.) Section 9.A. of the Agreement

states that if either party wanted to renew the Agreement, they would have to inform the other

party in writing “no later than ninety (90) days prior” to the expiration of the Agreement, which

was November 30, 2010. (Id. ¶ 11.) Dr. Horowitz alleges that because neither party so

informed the other by November 30, 2010, her employment with AETC was scheduled to end on

February 28, 2011. (Id.) On December 13, 2010, Dr. Horowitz emailed Defendant Dr.

Coronado to ask about renewing her contract. (Id. ¶ 12.) Dr. Horowitz maintains that Dr.

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Coronado ignored her emails and so she wrote to Bob Renault, who was the Chief Operating

Officer of AETC, to ask with whom she should speak concerning this matter. (Id. ¶ 13.) 

Renault then reported that Dr. Coronado would follow-up with her. (Id.) 

Drs. Coronado and Horowitz met on or around December 28, 2010, at which time Dr.

Coronado told Dr. Horowitz that AETC would not pay her the same amount after her contract

expired. (Id. ¶ 14.) Instead, Dr. Coronado explained that if Dr. Horowitz wanted to renew her

contract, she would have to take a cut in salary from $155,000 to $115,000. (Id.) In response,

Dr. Horowitz told Dr. Coronado that she was not open to a pay cut and that she would leave

AETC when her contract expired. (Id. ¶ 15.) On January 6, 2011, Dr. Coronado gave Dr.

Horowitz a written offer sheet and, under the terms of that offer, AETC would either pay Dr.

Horowitz a fixed amount of $125,000 annually or pay her a percentage of the revenue her work

generated for AETC. (Id. ¶ 16.) Dr. Horowitz further alleges that Dr. Coronado and she met on

or around January 13, 2011 to discuss the January 6, 2011 offer, at which time Dr. Coronado

made it clear that AETC would not offer a guaranteed salary of more than $125,000. (Id. ¶ 18.) 

In addition, Dr. Horowitz alleges that Dr. Coronado refused to give her information about the

second option of the January 6, 2011 offer based on production, but he did tell Dr. Horowitz that

there was no chance that this option would enable her to make more than $125,000 a year. (Id.) 

At that time, Dr. Horowitz told Dr. Coronado that she would not stay at AETC at the reduced

salary and that she intended to leave AETC when her contract expired. (Id.) 

Dr. Horowitz further alleges that over the next several weeks, Dr. Coronado repeatedly

tried to asked Dr. Horowitz for information about her job search and made it clear that she could

stay at AETC beyond the Agreement’s expiration date of February 28, 2011 if she wanted. (Id. ¶

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19.) Dr. Horowitz agreed that staying on would be possible if she did not secure new

employment by the time the contract expired, but she also alleges that at no time was there any

agreement that she would continue to work at AETC at a reduced salary. (Id.) In February

2011, Dr. Coronado raised the possibility of Dr. Horowitz signing a 6-month contract. (Id. ¶

20.) On February 23, 2011, Dr. Coronado sent Dr. Horowitz a 6-month contract that included

the same compensation package that Dr. Horowitz had already rejected. (Id.) When they met to

discuss the contract offer, Dr. Coronado offered to insert a clause giving Dr. Horowitz an out

from the contract if she found a new job. (Id.) Dr. Horowitz asserts that she informed Dr.

Coronado that there would be no need for a contract under that scenario. (Id.) According to Dr.

Horowitz, this exchange effectively ended the discussion of a new contract. (Id.) 

After February 23, 2011, Dr. Coronado told Dr. Horowitz that AETC did not want her to

feel like she had to leave AETC as soon as her contract expired and that they wanted her to stay. 

(Id. ¶ 21.) Dr. Horowitz replied that she was happy to remain there until she found a new job. 

(Id.) In addition, Dr. Horowitz alleges that at no point did she ever agree to work at AETC at a

reduced salary nor did Dr. Coronado or anyone else at AETC tell her that the offer for her to

remain beyond February 28, 2011 was contingent on her accepting a salary lower than what she

had received for the previous year and a half. (Id. ¶ 22.) 

On or around March 3, 2011, Dr. Horowitz accepted a position with WestVet Surgical

Center of Chicago (“WestVet”) and asserts that she gave Dr. Coronado notice that she intended

to leave AETC in the beginning of April 2011. (Id. ¶ 23.) Dr. Horowitz alleges that on or

around March 14, 2011, she gave Dr. Coronado formal notice that April 3, 2011 would be her

last day at AETC. (Id. ¶ 27.) At that time, Dr. Coronado informed Dr. Horowitz that she was

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subject to a non-compete agreement. (Id.) Shortly thereafter, Dr. Horowitz emailed Dr.

Coronado to explain that – according to the Agreement – her new position did not violate any

restrictive covenant limiting the geographical area where should could practice because AETC

refused to renew her contract on terms that are “the same or better” than the original contract. 

(Id. ¶ 29.) In addition, Dr. Horowitz alleges that on or around March 16, 2011, Dr. Coronado

assured her that AETC would not seek to enforce the restrictive covenant as long as Dr.

Horowitz did not solicit nurses or clients from AETC. (Id. ¶ 30.) On April 4, 2011, Dr.

Horowitz signed a contract to begin working at WestVet, which is in the Chicago area. (Id. ¶

31.) 

Dr. Horowitz further alleges that four days after she began working at WestVet, AETC,

through its counsel, contacted WestVet by letter and knowingly made the false claim that Dr.

Horowitz was in violation of the restrictive covenants in her contract with AETC. (Id. ¶ 33.) In

particular, Dr. Horowitz alleges that AETC accused her of violating the provision of her contract

that forbade her from working within 20 miles of either the Chicago or Grayslake, Illinois AETC

office. (Id. ¶ 34.) Second, Dr. Horowitz alleges that AETC also accused her of violating the

non-solicitation provision of the Agreement. (Id. ¶ 35.) Upon receiving the letter on or around

April 13, 2011, Dr. Jeff Brourman, the owner of WestVet, showed the letter to Dr. Horowitz and

expressed his concern. (Id. ¶ 39.) On or around April 16, 2011, Dr. Brourman told Dr. Horowitz

that because of the letter, she would have to resign from WestVet, which she did. (Id.) 

In her Complaint, Dr. Horowitz brings the following state law claims: (1) a common law

defamation per se claim against AETC in Count I; (2) a common law tortious interference of

contract claim against AETC in Count II; (3) a common law tortious interference with

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prospective economic advantage against AETC in Count III; and (4) a violation of the Illinois

Wage Payment and Collection Act (“IWPCA”), 820 ILCS 115/1, et seq., in Count IV. In the

present motion, Defendants seek to dismiss all four claims.

 ANALYSIS

I. Agency Allegations

Before determining whether Dr. Horowitz has sufficiently alleged her tortious

interference, defamation per se, and IWPCA claims, the Court turns to Defendants’ argument

that they cannot be held liable for the intentional torts of their attorney, Rita Garry. More

specifically, Defendants argue that because Dr. Horowitz’s intentional tort claims are based on

Garry’s demand letter that she sent to Dr. Horowitz’s new employer at WestVet, the Court must

dismiss Dr. Horowitz’s Complaint because she failed to allege that the letter was drafted in the

scope of an agency relationship or that Garry’s assertions were ratified or approved by AETC

before she sent the letter.

In support of their argument, Defendants rely on an Illinois Appellate Court’s decision

concerning a plaintiff’s failure to properly allege respondeat superior claims pursuant to the

Illinois Code of Civil Procedure, 735 ILCS 5/2-603. See Webb by Harris v. Jewel Co., Inc., 137

Ill.App.3d 1004, 1007-08, 92 Ill.Dec. 598, 485 N.E.2d 409 (1st Dist. 1985). It is wellestablished, however, that in diversity cases, federal law governs procedure, not state law. See

Gacek v. American Airlines, Inc., 614 F.3d 298, 301-02 (7th Cir. 2010) (“Under the Erie

doctrine, federal courts in diversity cases (and any other cases in which state law supplies the

rule of decision) apply state ‘substantive’ law but federal ‘procedural’ law.”). As such, the

Illinois Appellate Court’s decision in Webb does not lend any guidance as to whether Dr.

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Horowitz has properly alleged her intentional torts claims under the federal notice pleading

standards.

Moreover, under Illinois substantive law concerning the attorney-client relationship,

“clients are generally bound by their attorneys’ acts or omissions during the course of the legal

representation that fall within the apparent scope of their attorneys’ authority.” Horwitz v.

Holabird & Root, 212 Ill.2d 1, 9, 287 Ill.Dec. 510, 816 N.E.2d 272 (Ill. 2004); see also Wade v.

Soo Line R.R. Corp., 500 F.3d 559, 564 (7th Cir. 2007) (“Attorneys’ actions are imputed to their

clients, even when those actions cause substantial harm. A litigant bears the risk of errors made

by his chosen agent.”). Pursuant to federal pleading standards – under which the Court must

accept all well-pleaded facts as true and draw all permissible inferences in Dr. Horowitz’s favor

– she has sufficiently alleged that Defendants’ attorney was acting within the scope of the

attorney’s authority in representing AETC as shown by the April 8, 2011 demand letter attached

to Dr. Horowitz’s Complaint. See Reger Dev., LLC v. National City Bank, 592 F.3d 759, 764

(7th Cir. 2010) (federal courts “consider documents attached to the complaint as part of the

complaint itself”). More specifically, Garry explains in the first sentence of the letter that she

represents AETC and that the letter serves as notice to WestVet and Dr. Horowitz of Dr.

Horowitz’s continuing obligations under the September 2009 Employment Agreement with

AETC. (R. 3, Compl., Ex B, 4/8/11 Garry letter.) Accordingly, Defendants’ first argument is

without merit.

II. Absolute Litigation Privilege

Next, Defendants maintain that the absolute litigation privilege bars Dr. Horowitz’s

defamation claim against them. Illinois courts have adopted Sections 586 and 587 of the

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Restatement (Second) of Torts, which protect attorneys and their clients from liability for

“communications preliminary to a proposed judicial proceeding.” See Atkinson v. Affronti, 369

Ill.App.3d 828, 832, 308 Ill.Dec. 186, 861 N.E.2d 251 (1st Dist. 2006); Medow v. Flavin, 336

Ill.App.3d 20, 31-32, 270 Ill.Dec. 174, 782 N.E.2d 733 (1st Dist. 2002) (citation omitted). 

“[T]he proposed proceeding must be ‘contemplated in good faith and under serious

consideration.’” Medow, 336 Ill.App.3d at 32 (citation omitted). “The interest at issue in

privileging statements made in judicial proceedings is the public interest in granting all

individuals the ‘utmost freedom of access’ to courts for resolution of their disputes.” Kurtz v.

Hubbard, No. 1-11-1360, 2012 WL 2308140, at *3, ___ N.E.2d ___ (1st Dist. May 17, 2012)

(citing Malevitis v. Friedman, 323 Ill.App.3d 1129, 1132, 257 Ill.Dec. 209, 753 N.E.2d 404

(2001)). 

Viewing Dr. Horowitz’s well-pleaded allegations and permissible inferences as true, her

allegations that AETC knowingly made false statements about the alleged breach of her

employment agreement establish that the threatened litigation in AETC’s demand letter was not

“contemplated in good faith.” See Medow, 336 Ill.App.3d at 32. In addition, because plaintiffs

are not required to plead facts that anticipate and defeat affirmative defenses, the Court denies

Defendants’ motion to dismiss based on the absolute litigation privilege. See Richards v.

Mitcheff, ___ F.3d ___, 2012 WL 3217627, at *2 (7th Cir. Aug. 9, 2012) (“Judges should respect

the norm that complaints need not anticipate or meet potential affirmative defenses.”). 

Defendants’ argument is best left for a summary judgment motion under Rule 56(a). See id.

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III. Defamation Claim – Count I

In Count I of her Complaint, Dr. Horowitz alleges a defamation per se claim under

Illinois common law. Under Illinois law, “[d]efamation is the publication of a false statement

that ‘tends to harm a person’s reputation to the extent that it lowers that person in the eyes of the

community or deters others from associating with that person.’” Lott v. Levitt, 556 F.3d 564, 568

(7th Cir. 2009) (citation omitted). There are two types of defamation under Illinois law –

defamation per se and defamation per quod. See Giant Screen Sports v. Canadian Imperial

Bank of Commerce, 553 F.3d 527, 532 (7th Cir. 2009). “Statements are considered defamatory

per quod if the defamatory character of the statement is not apparent on its face, and extrinsic

facts are required to explain its defamatory meaning.” Kolegas v. Heftel Broad., Corp., 154

Ill.2d 1, 10, 180 Ill.Dec. 307, 607 N.E.2d 201 (Ill. 1992); see also Madison v. Frazier, 539 F.3d

646, 653 (7th Cir. 2008). “When a defamation claim is one for defamation per quod, [] a

plaintiff must show special damages, i.e., actual damages of a pecuniary nature, to succeed.” 

Hukic v. Aurora Loan Serv., 588 F.3d 420, 438 (7th Cir. 2009). “Some statements, however, are

so obviously harmful that injury to the plaintiff’s reputation can be presumed and are considered

actionable per se.” See Lott, 556 F.3d at 568. Illinois recognizes five categories of statements

that are actionable per se, including “(1) those imputing an inability to perform or want of

integrity in the discharge of one’s duties of office or employment; and (2) those that prejudice a

party, or impute lack of ability, in his or her trade, profession or business.” Giant Screen Sports,

553 F.3d at 532. 

In her Complaint, Dr. Horowitz alleges that four days after she began working at her new

employer WestVet, AETC, through its counsel, contacted WestVet by letter and knowingly

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made the false claim that Dr. Horowitz was in violation of the restrictive covenants in her

contract with AETC. Dr. Horowitz maintains that in the letter, AETC accused her of violating

the provision of her contract that forbade her from working within 20 miles of either the Chicago

or Grayslake AETC office. She also contends that AETC accused her of violating the nonsolicitation provision of the Agreement. As a result of these allegedly false statements, Dr. Jeff

Brourman, the owner of WestVet, asked Dr. Horowitz to resign. Viewing these well-pleaded

facts as true, Dr. Horowitz has sufficiently alleged defamation per se because these statements

impute that Dr. Horowitz cannot perform her job based on the restrictive covenants. In other

words, her allegations that Defendants’ false accusations concerning the breach of contract go to

her lack of integrity in her profession. 

Defendants nevertheless argue that because Dr. Horowitz’s inability to perform her job

and her lack of integrity were not based on her competence as a veterinarian – but on her

breaching a contract – her defamation claim must fail. First, Defendants’ argument asks the

Court to view the facts and all permissible inferences in Defendants’ favor, which is not

appropriate under the federal notice pleading standards. See Zemeckis v. Global Credit &

Collection Corp., 679 F.3d 632, 634 (7th Cir. 2012). Second, the allegations support a claim that

the letter’s content disparaged Dr. Horowitz’s professional integrity and character as they relate

to her ability to carry out her job, and thus the allegations sufficiently state a defamation per se

claim. See Cody v. Harris, 409 F.3d 853, 857-58 (7th Cir. 2005).

Next, Defendants argue that counsel’s letter is not defamation per se under the innocent

construction rule. “Although a statement may fit into one of these [per se] categories, this fact,

standing alone, ‘has no bearing on whether the alleged defamatory statement is actionable,

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because certain factors may render defamatory statements non-actionable as a matter of law.’”

Giant Screen Sports, 553 F.3d at 532 (citation omitted). One of these factors includes the

innocent construction rule. See Lott, 556 F.3d at 568 (“a statement that is reasonably capable of

an innocent construction is not per se defamatory”). “Whether a statement is reasonably capable

of an innocent construction is a question of law for the court to decide.” Madison, 539 F.3d at

654. Under Illinois’ innocent construction rule, a “statement ‘reasonably’ capable of a

nondefamatory interpretation, given its verbal or literary context, should be so interpreted. 

There is no balancing of reasonable constructions.” Green v. Rogers, 234 Ill.2d 478, 500, 334

Ill.Dec. 624, 917 N.E.2d 450 (Ill. 2009) (citation omitted). The innocent construction rule

“requires a court to consider the statement in context and give the words of the statement, and

any implications arising from them, their natural and obvious meaning.” Madison v. Frazier,

539 F.3d 646, 653-54 (7th Cir. 2008) (quoting Solaia Tech., LLC v. Speciality Publ’g Co., 221

Ill.2d 558, 304 Ill.Dec. 369, 852 N.E.2d 825, 839 (2006)). Courts “are to interpret the words of

the statement as they appear to have been used and according to the idea they were intended to

convey to a reader of reasonable intelligence.” Seith v. Chicago Sun-Times, Inc., 371 Ill.App.3d

124, 135, 308 Ill.Dec. 552, 861 N.E.2d 1117 (1st Dist. 2007).

Here, construing Dr. Horowitz’s allegations and permissible inferences as true, Dr.

Horowitz alleges that AETC’s attorney sent her new employer a demand letter threatening

litigation because Dr. Horowitz breached a restrictive covenant with AETC, which Dr. Horowitz

alleges she did not breach. In particular, the letter stated that Dr. Horowitz engaged in prohibited

conduct in breaching her employment agreement by accepting a position with WestVet and that

she solicited AETC clients. Also, the demand letter unequivocally states that AETC would

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enforce its rights and pursue all equitable and legal remedies against Dr. Horowitz and WestVet. 

(Compl, Ex. B, 4/8/11 Letter, at 1-2.) Meanwhile, Dr. Horowitz alleges that she did not breach

her employment agreement, and therefore, AETC’s statements in the letter are false.

On the other hand, Defendants argue that the April 8, 2011 demand letter can be

innocently construed because it reflects their attorney’s bias as to AETC’s potential legal

dispute. Thus, Defendants maintain, they cannot be liable because they did not draft the letter. 

Again, Defendants are asking the Court to construe the demand letter and all permissible

inferences in their favor. Moreover, the Court has already rejected their attempt to evade

liability by attributing the alleged defamation to their attorney, as discussed in detail above. See

also Independent Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 935 (7th Cir. 2012) (“a

plaintiff is not required to plead facts in the complaint to anticipate and defeat affirmative

defense”). The Court therefore denies Defendants’ motion to dismiss Dr. Horowitz’s defamation

claim as alleged in Count I of the Complaint.

IV. Tortious Interference Claims – Counts II and III

In Count II of her Complaint, Dr. Horowitz alleges a tortious interference with contract

claim. To establish a tortious interference with contract claim under Illinois law, a plaintiff must

show: “(1) the existence of a valid and enforceable contract between the plaintiff and another;

(2) the defendant’s awareness of the contract; (3) the defendant’s intentional and unjustified

inducement of a breach of the contract; (4) a subsequent breach by the other, caused by the

defendant’s conduct; and (5) damages.” Hess v. Kanoski & Assoc., 668 F.3d 446, 454 (7th Cir.

2012) (citation omitted). In Count III of her Complaint, Dr. Horowitz alleges a tortious

interference with prospective economic advantage claim. Under Illinois law, “to prevail on a

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claim for tortious interference with a prospective economic advantage, a plaintiff must prove: (1)

his reasonable expectation of entering into a valid business relationship; (2) the defendant’s

knowledge of the plaintiff’s expectancy; (3) purposeful interference by the defendant that

prevents the plaintiff’s legitimate expectancy from ripening into a valid business relationship;

and (4) damages to the plaintiff resulting from such interference.” Fellhauer v. City of Geneva,

142 Ill.2d 495, 511-12, 154 Ill.Dec. 649, 568 N.E.2d 870 (Ill. 1991); see also Botvinick v. Rush

University Med. Ctr., 574 F.3d 414, 417 (7th Cir. 2009).

In their motion to dismiss, Defendants argue that because Dr. Horowitz has not properly

alleged a defamation claim, her tortious interference claims necessarily fail. More specifically,

they contend that both tortious interference claims “hinge on whether attorney Garry’s letter is

actionable as defamatory.” (R. 24, Opening Brief, at 11.) As discussed above, Dr. Horowitz has

alleged sufficient facts, accepted as true, that state a plausible defamation claim. See Twombly,

550 U.S. at 570. Meanwhile, Defendants do not argue that Dr. Horowitz has failed to

sufficiently allege her tortious inference claims under Twombly and Iqbal. The Court therefore

denies Defendants’ motion to dismiss Counts II and III of the Complaint. 

V. IWPCA Claim – Count IV

In Count IV of her Complaint, Dr. Horowitz alleges an IWPCA claim. In support of her

IWPCA claim, Dr. Horowitz alleges that in early April 2011 she realized that her final two

AETC paychecks were lower than they should have been and that one of her pay stubs included

a notation mentioning a change in rate. (Compl. ¶ 42.) Dr. Horowitz further alleges that she

then emailed Dena Hein, Business Office Support for AETC, to ask about the underpayment

after which Ms. Hein reported that Dr. Coronado had told her that Dr. Horowitz’s salary was

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being reduced. (Id. ¶ 43.) Dr. Horowitz then emailed Dr. Coronado to point out that she never

agreed to a change in salary and requested that he adjust the final paycheck accordingly. (Id.) In

response, Dr. Coronado told Dr. Horowitz that he had “made clear” that Dr. Horowitz’s salary

was going to drop to $125,000 after March 1, 2011. (Id. ¶ 44.) Further, Dr. Horowitz alleges

that if AETC had insisted that they would pay her at the reduced rate after the expiration of her

written employment agreement, she would not have agreed to stay past the expiration date. (Id.

¶ 45.) In addition, she alleges that the parties had agreed to extend her employment arrangement

– with a salary of $155,000 per year – past the expiration date of her written agreement. (Id.) 

To prevail on her IWPCA claim, Dr. Horowitz’s allegations must show that she had a

valid contract or employment agreement at the time of the violation. See Hess, 668 F.3d at 452.

Under the IWPCA, “an ‘agreement’ is broader than a contract and requires only a manifestation

of mutual assent on the part of two or more persons; parties may enter into an ‘agreement’

without the formalities and accompanying legal protections of a contract.” Zabinsky v. Gelber

Group, Inc., 347 Ill.App.3d 243, 249, 283 Ill.Dec. 61, 807 N.E.2d 666 (1st Dist. 2004). Under

the federal notice pleading standards, Dr. Horowitz has sufficiently alleged an agreement under

the IWPCA by stating that after her written agreement expired, the parties agreed to extend her

current employment arrangement providing for a salary of $155,000 a year. (Compl. ¶ 45.) The

allegations that Dr. Coronado attempted to negotiate a lower salary do not defeat Dr. Horowitz’s

IWPCA claim at this procedural posture where the Court views Dr. Horowitz’s well-pleaded

facts and permissible inferences as true. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct.

2197, 167 L.Ed.2d 1081 (2007).

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Next, Defendants argue that the Court must dismiss Drs. Tompkins and Sandman as

Defendants from Count IV because an IWPCA claim is only actionable against an “employer” – 

which is defined as a corporate officer and agent who is personally liable, namely, an agent who

knowingly permitted the corporation to violate the Act. See 820 ILCS 115/13; Andrews v. Kowa

Printing Corp., 217 Ill.2d 101, 110, 298 Ill.Dec. 1, 838 N.E.2d 894 (Ill. 2005). 

In her Complaint, Dr. Horowitz alleges that Drs. Tompkins and Sanders are members and

agents of AETC. (Compl. ¶¶ 5, 6.) She further alleges that on April 2, 2012, through counsel,

she sent a written demand to all named Defendants for her unpaid compensation, but that

Defendants declined the demand. (Id. ¶ 49.) In addition, Dr. Horowitz alleges that “Defendants

were employers of Dr. Horowitz within the meaning of the Illinois Wage Payment Collection

Act in that, among many other things, she performed labor services for AETC, and Defendants

controlled whether and how much Dr. Horowitz was paid.” (Id. ¶ 72.) Furthermore, she alleges

that she “sent a demand for payment of wages to Defendants on April 2, 2012, pursuant to

Attorney Fees in Wage Actions Act, 705 ILCS 225/1, but Defendants failed to honor the

demand.” (Id. ¶ 74.) In short, Dr. Horowitz alleges that Drs. Tompkins and Sandman knew

about her IWPCA claim, that they controlled her pay, and that they failed to honor her demands. 

Construing these allegations and reasonable inferences as true, Dr. Horowitz has sufficiently

alleged that Drs. Tompkins and Sandman knowingly permitted AETC to violate the IWPCA by

reducing her pay at the end of her tenure with AETC. See Limestone Dev. Corp. v. Village of

Lemont, Ill., 520 F.3d 797, 803 (7th Cir. 2008) (amount of factual allegations required to state a

plausible claim for relief depends on complexity of legal theory); see, e.g., McGreal v. Semke,

836 F.Supp.2d 735, 741 (N.D. Ill. 2011). Therefore, the Court denies Defendants’ motion to

15
dismiss in this respect.

On a final note, the Court did not address Defendants’ arguments made in footnotes or

for the first time in their reply brief. See Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 571

(7th Cir. 2012) (“arguments raised for the first time in a reply brief are waived”); Long v.

Teachers’ Retirement Sys. of Ill., 585 F.3d 344, 349 (7th Cir. 2009) (cursory arguments made in

footnotes are waived). “The underlying concern is to ensure that the opposing party is not

prejudiced by being denied sufficient notice to respond to an argument.” Hernandez v. Cook

County Sheriff’s Office, 634 F.3d 906, 913 (7th Cir. 2011). 

CONCLUSION

For the these reasons, the Court denies Defendants’ motion to dismiss.

Date: August 20, 2012

ENTERED 

_______________________________

AMY J. ST. EVE

United States District Court Judge

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