2022 IL 126795 

IN THE 

SUPREME COURT 

OF 

THE STATE OF ILLINOIS 

(Docket No. 126795) 

RICHARD L. DENT et al., Appellees, v. CONSTELLATION NEWENERGY, 

INC., et al., Appellants. 

Opinion filed April 21, 2022. 

JUSTICE MICHAEL J. BURKE delivered the judgment of the court, with 

opinion. 

Justices Theis, Overstreet, and Carter concurred in the judgment and opinion. 

Justice Garman dissented, with opinion, joined by Justice Neville. 

Chief Justice Anne M. Burke took no part in the decision. 

OPINION 

¶ 1 Petitioners, Richard L. Dent and RLD Resources, LLC (RLD), filed an Illinois 

Supreme Court Rule 224 (eff. Jan. 1, 2018) petition seeking disclosure from 
 

 

 

respondents, Constellation NewEnergy, Inc.; CNE Gas Supply, LLC; Constellation 

Energy Gas Choice, LLC; and Constellation NewEnergy-Gas Division, LLC. 

Petitioners sought the names and addresses of three unidentified individuals who 

might be responsible in damages to petitioners, alleging that those individuals 

publicized false and defamatory statements about Dent that caused respondents to 

terminate their contractual relationships with petitioners. The Cook County circuit 

court dismissed the petition with prejudice. The Appellate Court, First District, 

reversed and remanded. 2020 IL App (1st) 191652. 

¶ 2 BACKGROUND 

¶ 3 Petitioners were party to several energy supply and marketing contracts with 

respondents. Petitioners were independent contractors, and the contracts were 

terminable at will. On October 18, 2018, respondents informed petitioners that it 

was terminating the at-will consulting agreements with petitioners. 

¶ 4 On March 18, 2019, petitioners filed a verified petition under Rule 224. The 

petition alleged as follows. On September 14, 2018, Grace Speights and Theo 

McKinney III, two attorneys representing respondents, visited Dent at RLD’s 

offices. The attorneys told Dent that certain allegations had been made against him. 

The allegations arose from a Senior-Pro Tour golf outing sponsored by respondents 

in July 2018. Dent was a guest at a pregolf party at the Shedd Aquarium in Chicago, 

Illinois. A woman at the event alleged that Dent groped her. The same woman also 

alleged that, at a similar event in Philadelphia, Pennsylvania, in June 2016, Dent 

told her she had “a butt like a sister.” Dent asked who had made the allegations, but 

the attorneys refused to name her. Petitioners therefore identified the woman as 

“Person A.” 

¶ 5 The attorneys also told Dent that, at the same July 2018 golf outing, a gentleman 

observed Dent collecting his golf outing materials at the Marriott Hotel in Chicago. 

The gentleman described Dent as drunk and disorderly when picking up his 

materials. The attorneys refused to identify the gentleman, so the petition described 

him as “Person B.” 

¶ 6 At the September 14, 2018, meeting, Dent told the attorneys that the allegations 

against him were completely false. The attorneys informed Dent that respondents 

- 2 -
 

would be reviewing their contractual arrangements with petitioners in light of the 

allegations. On or about October 1, 2018, petitioners received a letter from 

respondents terminating all contracts between petitioners and respondents going 

forward. 

¶ 7 The Rule 224 petition also included exhibit B, a letter respondents’ counsel sent 

to petitioners’ counsel on December 19, 2018, responding to petitioners’ claim that 

respondents had impugned Dent’s name and reputation. The December 19, 2018, 

letter stated that Dent had been the subject of an investigation by a third party hired 

by respondents to investigate reports that Dent had engaged in “grossly 

inappropriate behavior during the 2016 and 2018 Pro-Am Tournament events.” The 

letter stated that respondents’ attorneys met with Dent to allow Dent to provide his 

recollection of the events in question. The letter noted that Dent had denied the 

allegations but that the investigators determined that Dent’s denials were not 

credible and that the reports accurately described behaviors that were in violation 

of respondents’ “code of business conduct, completely outside the norms of socially 

acceptable behavior, and demeaning to Constellation employees.” The letter also 

stated that respondents had not disclosed the findings of the investigation to any 

third party, aside from privileged communications with respondents’ attorneys. The 

letter concluded that any claim that respondents had impugned Dent’s name and 

reputation was frivolous, given respondents’ legal obligation to investigate the 

allegations and the protected nature of the findings of the investigation. 

¶ 8 Petitioners’ Rule 224 petition alleged that respondents refused to identify the 

third party hired to investigate the claims against Dent, so the petition referred to 

the third party as “Person C.” The petition asserted that, on information and belief, 

Person C investigated the claims made against Dent prior to respondents’ issuance 

of the October 1, 2018, termination notice. The petition also alleged that, on 

information and belief, Person C published or republished to respondents the 

statements of Person A and Person B concerning Dent. 

¶ 9 The petition then alleged that the statements published by Persons A, B, and C 

were (1) made as statements of fact, (2) false, and (3) not privileged. The statements 

published by Persons A, B, and C imputed acts of moral turpitude and impugned 

Dent’s character, reputation, and good name. Further, respondents admitted in the 

December 19, 2018, correspondence that the statements published by Persons A, 

- 3 -
 

 

 

 

B, and C concerning Dent were both the cause in fact and the proximate cause of 

respondents’ termination of all contractual relationships with petitioners. 

Petitioners alleged that Persons A, B, and C might be responsible in damages to 

them and that petitioners wished to engage in discovery for the sole purpose of 

ascertaining the identities and whereabouts of Persons A, B, and C. The discovery 

sought by petitioners was necessary because respondents refused to provide 

petitioners with the identities and addresses of Persons A, B, and C. 

¶ 10 Respondents moved to dismiss the Rule 224 petition pursuant to section 2-615 

of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2018)). Respondents 

argued that the petition was substantially insufficient because the petition sought 

discovery in support of a prospective lawsuit for defamation but the allegedly 

defamatory statements were, as a matter of law, protected by qualified privilege. In 

addition, petitioners did not, and could not, allege facts sufficient to overcome that 

privilege. For that reason, the discovery sought by petitioners was not necessary to 

pursue a cognizable claim, as required under Rule 224. 

¶ 11 The trial court dismissed the Rule 224 petition with prejudice. In issuing its 

ruling, the trial court sua sponte ruled that Rule 224 is satisfied when a petitioner 

has identified someone who may be sued. In this case, petitioners knew the 

identities of respondents and their attorneys, so petitioners had identified someone 

who may be sued. The trial court cited Low Cost Movers, Inc. v. Craigslist, Inc., 

2015 IL App (1st) 143955, in support of its ruling. 

¶ 12 The court in Low Cost Movers held that a Rule 224 petition may be dismissed 

if the identity of a potential defendant is already known to the petitioner. Id. ¶ 16. 

The Low Cost Movers court explained that “Rule 224 is not intended to permit a 

party to engage in a wide-ranging, vague, and speculative quest to determine 

whether a cause of action actually exists.” Id. ¶ 17. Nor could Rule 224 discovery 

continue “until the identity of the party that engaged in the ‘wrongdoing’ coincides 

with petitioner’s causes of action.” Id. 

¶ 13 Based upon Low Cost Movers, the trial court stated that the respondents might 

be liable for damages to petitioners, so a Rule 224 petition was an inappropriate 

vehicle for petitioners to attempt to learn the names of other, unidentified 

individuals. 

- 4 -
 

 

 

 

 

 

 

¶ 14 Petitioners filed a motion to reconsider the dismissal of their Rule 224 petition. 

Petitioners argued the trial court erred in finding that they knew the identity of a 

potential defendant. Petitioners noted that respondents were not the publishers of 

the allegedly defamatory statements about Dent. Rather, respondents were the third 

parties to whom Persons A, B, and C published their allegedly defamatory 

statements. Consequently, no cause of action for defamation could lie against 

respondents. In addition, no cause of action for breach of contract would lie against 

respondents because respondents could terminate at-will contracts for any reason. 

Consequently, any cause of action would lie solely against Persons A, B, and C. In 

contrast to the Low Cost Movers case, no one who engaged in the wrongful conduct 

alleged—the defamation of Dent—had been identified. The circuit court thus erred 

in dismissing the Rule 224 petition with prejudice. 

¶ 15 The circuit court denied petitioners’ motion to reconsider. The circuit court 

stated that claims against respondents were not limited to those elaborated upon in 

the underlying petition. Further, the damages alleged in the petition were based 

upon the termination of contracts. The circuit court characterized the issue before 

it as whether petitioners had identified any of the persons or entities who may be 

the cause of those terminations. The circuit court stated that “Rule 224 has a 

specific, narrow purpose that allows a petitioner to obtain the identity of a potential 

defendant when the petitioner lacks knowledge of anyone who may be liable in 

damages.” (Emphases in original.) The circuit court concluded that petitioners had 

knowledge of an individual or entity that might be liable in damages to them and, 

thus, claims were available to petitioners whether petitioners pursued claims for 

defamation or otherwise. 

¶ 16 The appellate court reversed and remanded. 2020 IL App (1st) 191652. The 

appellate court held that the circuit court abused its discretion when it sua sponte 

dismissed the petition with prejudice based upon its determination that petitioners 

knew the identity of respondents and their attorneys. Id. ¶ 28. The appellate court 

stated that, under the facts alleged by petitioners, respondents and their attorneys 

were not “ ‘individuals or entities who stand in the universe of potential defendants’ 

responsible in damages for defamation or breach of contract.” Id. (quoting Beale v. 

EdgeMark Financial Corp., 279 Ill. App. 3d 242, 252 (1996)). Respondents were 

not the entity or individuals who made the allegedly false and defamatory 

statements about Dent’s conduct. Respondents were merely participants in the 

- 5 -
 

 

 

 

 

 

 

 

subsequent investigation of the allegedly defamatory statements that caused 

respondents to terminate petitioners’ at-will contracts. Id. Petitioners met the 

requirements of Rule 224 in alleging that Persons A and B made false, defamatory 

statements about Dent and then published those statements to Person C and that 

Person C reported the defamatory statements to respondents, who then terminated 

its at-will contracts with petitioners. Id. 

¶ 17 The appellate court then addressed the sufficiency of the Rule 224 petition. 

Petitioners argued that their Rule 224 petition sufficiently alleged all the required 

elements of a defamation claim against Persons A, B, and C. Id. ¶ 36. Petitioners 

noted that they alleged that the statements about Dent were defamatory because 

they imputed to Dent acts of moral turpitude and impugned his character, good 

name, and reputation; the statements were completely false, were made as 

statements of fact, and were not privileged; and the statements caused respondents 

to terminate several contracts with petitioners, who suffered damages as a result. 

Id. 

¶ 18 Respondents denied that petitioners had stated a claim for defamation, so the 

discovery sought by petitioners was not necessary for purposes of Rule 224. Id. 

¶ 38. Respondents claimed that the alleged defamatory statements were all 

qualifiedly privileged and that petitioners failed to overcome that privilege by 

pleading sufficient facts to demonstrate that the privilege was abused. Id. 

Respondents asserted that Person A’s statements were qualifiedly privileged as 

statements by a victim of sexual harassment to an investigator hired by her 

employer. Id. Person B’s statements were qualifiedly privileged because he was a 

witness in the sexual harassment investigation. Person B told the investigator his 

observations of Dent at the same July 2018 golf outing where one of the alleged 

incidents of harassment occurred. Id. The statements of Person C, the investigator 

hired by respondents, were qualifiedly privileged as relating to the findings of the 

sexual harassment investigation. Id. 

¶ 19 In addressing respondents’ argument, the appellate court first observed that, to 

determine whether petitioners satisfied Rule 224’s necessity requirement, the court 

must evaluate whether petitioners presented sufficient allegations of a defamation 

claim to withstand a section 2-615 motion to dismiss. Id. ¶ 41. The appellate court 

concluded that the Rule 224 petition did present sufficient allegations of a 

- 6 -
 

 

 

 

 

 

 

defamation claim to withstand a section 2-615 motion to dismiss. Id. ¶ 47. The 

appellate court then rejected respondents’ claim that the allegedly defamatory 

statements were protected by a qualified privilege for statements made in the 

reporting and investigation of sexual harassment in the workplace. Id. ¶ 42. The 

appellate court held that the defense of qualified privilege is an affirmative defense, 

which should not be considered in resolving a section 2-615 motion to dismiss. Id. 

¶ 44. For that reason, the appellate court reversed the circuit court’s dismissal with 

prejudice of the Rule 224 petition. Id. ¶ 49. 

¶ 20 This court subsequently allowed respondents’ petition for leave to appeal. Ill. 

S. Ct. R. 315 (eff. Oct. 1, 2020). We also allowed a joint amicus brief in support of 

respondents’ position by Women Employed, the American Civil Liberties Union 

of Illinois, the National Women’s Law Center, and 28 additional organizations. Ill. 

S. Ct. R. 345 (eff. Sept. 20, 2010). 

¶ 21 ANALYSIS 

¶ 22 The primary issue in this appeal is whether the appellate court erred in holding 

that a court cannot consider qualified privilege in resolving a section 2-615 motion 

to dismiss a Rule 224 petition. 

¶ 23 Rule 224 provides a means to identify potential defendants prior to the 

commencement of a lawsuit. Ill. S. Ct. R. 224(a)(1)(i) (eff. Jan. 1, 2018). Rule 224 

allows a party to initiate discovery by filing a verified petition. Ill. S. Ct. R. 

224(a)(1)(ii) (eff. Jan. 1, 2018). The rule states that the 

“petition shall be brought in the name of the petitioner and shall name as 

respondents the persons or entities from whom discovery is sought and shall set 

forth: (A) the reason the proposed discovery is necessary and (B) the nature of 

the discovery sought and shall ask for an order authorizing the petitioner to 

obtain such discovery.” Id. 

An order allowing a Rule 224 petition “will limit discovery to the identification of 

responsible persons and entities.” Ill. S. Ct. R. 224, Committee Comments (adopted 

Aug. 1, 1989). 

- 7 -
 

 

 

 

 

 

 

 

¶ 24 Under Rule 224, the unidentified individual or entity does not bear the burden 

of demonstrating that the discovery request does not satisfy the rule. Doe v. 

Catholic Diocese of Rockford, 2015 IL App (2d) 140618, ¶ 16. The petitioner bears 

the burden of showing that his proposed complaint supports a cause of action, even 

if the unidentified individual or entity does not challenge the request. Id. Rule 224 

is intended to assist a petitioner in identifying a currently unidentified party who 

might be liable. Id. In order to employ Rule 224, however, the petitioner must 

demonstrate that the proposed identification is necessary. Id. 

¶ 25 To determine whether a petitioner has satisfied Rule 224’s necessity 

requirement in a claim for defamation, a court must evaluate whether the petitioner 

presented sufficient allegations to overcome a section 2-615 motion to dismiss. 

Hadley v. Doe, 2015 IL 118000, ¶ 26. A section 2-615 motion tests the legal 

sufficiency of the complaint, asking whether the allegations of the complaint, 

construed in the light most favorable to the petitioner, state sufficient facts to 

establish a cause of action upon which relief may be granted. Id. ¶ 29. A court will 

consider all facts apparent from the face of the complaint, including any attached 

exhibits. Id. A complaint should not be dismissed pursuant to section 2-615 unless 

it is clearly apparent that no set of facts can be proved that would entitle the plaintiff 

to recovery. Id. The standard of review is de novo. Id. 

¶ 26 To state a claim for defamation, a plaintiff must allege facts showing that (1) the 

defendant made a false statement about the plaintiff, (2) the defendant made an 

unprivileged publication of that statement to a third party, and (3) the publication 

caused damages. Id. ¶ 30. As noted, respondents challenged petitioners’ Rule 224 

petition on the basis that the alleged defamatory statements were subject to 

qualified privilege and that petitioners failed to overcome that privilege by pleading 

sufficient facts to demonstrate abuse of that privilege. The appellate court declined 

to consider that argument, finding that “[p]rivilege is an affirmative defense that 

may be susceptible to resolution by a motion for summary judgment or a motion to 

dismiss under section 2-619 of the Code [citations], but privilege should not be 

considered when resolving a section 2-615 motion to dismiss.” 2020 IL App (1st) 

191652, ¶ 44. The appellate court thus held that petitioners’ Rule 224 allegations 

were “sufficient to withstand dismissal under a section 2-615 analysis, which does 

not consider affirmative defenses like the alleged existence of a qualified 

privilege.” Id. ¶ 47. 

- 8 -
 

 

 

¶ 27 Respondents challenge the appellate court’s finding in this court, arguing first 

that a defamation claim is subject to dismissal under section 2-615 when the petition 

pleads facts establishing a qualified privilege. In the alternative, respondents ask 

this court to find that a Rule 224 respondent may file a motion to dismiss under 

section 2-619 if affirmative matter is needed to establish the qualified privilege. 

¶ 28 We need not consider respondents’ argument concerning section 2-619, 

because we find that respondents can raise qualified privilege in their section 2-615 

motion. As respondents argue, this court has held that an “affirmative defense may 

be raised in a section 2-615 motion where the defense is ‘established by the facts 

apparent on the face of the complaint’ and no other facts alleged in the complaint 

negate the defense. 3 R. Michael, Illinois Practice § 27.2, at 492 (1989).” (Emphasis 

in original.) K. Miller Construction Co. v. McGinnis, 238 Ill. 2d 284, 292 (2010). 

As stated, all facts apparent from the face of the complaint must be considered, 

including any attached exhibits. Hadley, 2015 IL 118000, ¶ 29. 

¶ 29 Exhibit B to the Rule 224 petition is the letter from respondents’ counsel to 

petitioners’ counsel, dated December 19, 2018. That letter stated, in pertinent part: 

“Mr. Dent has been the subject of an investigation conducted by a third-party 

hired by Constellation to investigate reports that Mr. Dent engaged in grossly 

inappropriate behavior during the 2016 and 2018 Pro-Am Tournament events 

where Mr. Dent was a guest of Constellation. The reports regarding Mr. Dent’s 

behavior include among other things that Mr. Dent engaged in an inappropriate 

and unwanted touching of a Constellation employee and that Mr. Dent made 

unwelcome comments of a sexual nature to a Constellation employee. As you 

note in the PGN [(petitioners’ counsel)] October Letter, on September 14, 2018, 

there was a meeting between Richard L. Dent, Grace Speights, Theos 

McKinney and Timothy W. Wright. That meeting was to allow Mr. Dent an 

opportunity to provide his recollection of the events described above. The law 

requires Constellation to investigate reports of such behavior and the EEOC 

directs employers to conduct effective investigations. Although Mr. Dent 

denied the allegations, his denials were not credible and the investigation 

concluded that the reports accurately described behaviors that were, at a 

minimum, in violation of Exelon’s code of business conduct, completely 

outside the norms of socially acceptable behavior, and demeaning to 

- 9 -
 

 

 

 

 

Constellation employees. To date, neither Exelon nor Constellation has 

disclosed the findings of the investigation to any third-party, other than in 

privileged communications with its lawyers. Given Constellation’s legal 

obligation to investigate such allegations and the protected nature of its 

findings, any claim that Constellation has ‘impugn[ed] Mr. Dent’s ... name and 

reputation’ is frivolous.” 

¶ 30 Qualified privilege in Illinois defamation law is based on a policy of protecting 

honest communications of misinformation in certain favored circumstances in 

order to facilitate the availability of correct information. Kuwik v. Starmark Star 

Marketing & Administration, Inc., 156 Ill. 2d 16, 24 (1993). A privileged 

communication is one that might be defamatory and actionable except for the 

occasion on which, or the circumstances under which, it is made. Id. Qualified 

privilege enhances a defamation plaintiff’s burden of proof. Id. In the absence of 

qualified privilege, a plaintiff need only show that the defendant acted with 

negligence in making the defamatory statements in order to prevail. Id. Once a 

defendant establishes a qualified privilege, however, a plaintiff must show “ ‘ “a 

direct intention to injure another, or *** a reckless disregard of [the defamed 

party’s] rights and of the consequences that may result to him.” ’ [Citation.]” Id. at 

30. Stated otherwise, “an abuse of a qualified privilege may consist of any reckless 

act which shows a disregard for the defamed party’s rights, including the failure to 

properly investigate the truth of the matter, limit the scope of the material, or send 

the material to only the proper parties.” Id. 

¶ 31 This court has adopted the approach of the Restatement (Second) of Torts to 

determine whether a qualified privilege exists. Id. at 28-29. Under that approach, 

conditionally privileged occasions are divided into three classes. Id. at 29. Those 

classes are: 

“ ‘(1) situations in which some interest of the person who publishes the 

defamatory matter is involved 

(2) situations in which some interest of the person to whom the matter is 

published or of some other third person is involved 

- 10 -
 

 

 

 

 

 

(3) situations in which a recognized interest of the public is concerned.’ (S. 

Harper, F. James & O. Gray, The Law of Torts § 5.25, at 216 (2d ed. 1986).” 

Id. 

¶ 32 In addressing a claim of qualified privilege in the context of a defamation claim 

arising from allegations of sexual harassment, our appellate court has concluded 

that the three interests set forth above were implicated. Vickers v. Abbott 

Laboratories, 308 Ill. App. 3d 393, 402 (1999). The plaintiff in Vickers filed suit 

against Abbott Laboratories and certain employees alleging defamation and other 

claims, based upon an Abbott investigation into allegations that the plaintiff 

exhibited sexually harassing behavior. Id. at 395-96. The circuit court granted the 

defendants’ motion for summary judgment and dismissed the plaintiff’s suit with 

prejudice. Id. at 396. The plaintiff appealed, arguing, inter alia, that the circuit court 

erred in entering summary judgment on the plaintiff’s claim for defamation because 

no qualified privilege existed and, if it did exist, the defendants abused it. Id. 

¶ 33 The appellate court held that the communications at issue were conditionally 

privileged based upon the three interests. Id. at 402. First, the female defendants 

had an interest in stopping harassment and abuse by the plaintiff. Id. Second, the 

employer and its agents had an interest in investigating the employees’ concerns 

and taking action to prevent further harassment. Id. Third, there was a definite 

general public interest in eradicating sexual harassment in the workplace. Id. 

¶ 34 The Vickers court also noted that a United States Supreme Court case, Faragher 

v. City of Boca Raton, 524 U.S. 775, 806 (1998), had made clear that there is a 

compelling interest in ridding workplaces of sexual harassment. Id. The Faragher 

Court noted that the Code of Federal Regulations specifically obliged employers to 

“ ‘take all steps necessary to prevent sexual harassment from occurring’ ” (id. 

(quoting 29 C.F.R. § 1604.11(f) (1997)) and “to establish a complaint procedure 

‘designed to encourage victims of harassment to come forward’ ” (id. (quoting 

Policy Guidance on Current Issues of Sexual Harassment, U.S. Equal Emp. 

Opportunity Comm’n (Mar. 19, 1990), https://www.eeoc.gov/laws/ 

guidance/policy-guidance-current-issues-sexual-harassment [https://perma.cc/ 

26TR-CWAN])). Vickers concluded that the qualified privilege in the defamation 

context promotes the social policy recognized in Faragher and “provides protection 

for the victims, witnesses and investigators of sexual harassment.” Vickers, 308 Ill. 

- 11 -
 

App. 3d at 402. Vickers explained that, if “no privilege existed, then victims of 

harassment and companies with a goal of preventing harassment would be 

‘handcuffed’ by a fear of defamation liability.” Id. 

¶ 35 We agree with the Vickers court that a qualified privilege exists in cases alleging 

defamation in the context of workplace sexual harassment allegations. Petitioners’ 

Rule 224 petition, including exhibit B to the petition, establishes that respondents 

hired Person C to investigate sexual harassment claims concerning Dent’s behavior 

when Dent was respondents’ guest at their 2016 and 2018 Pro-Am golf 

tournaments. Exhibit B states that the behavior included, “among other things,” that 

Dent engaged in an “inappropriate and unwanted touching” of respondents’ 

employee. Exhibit B also states that the law required respondents to “investigate 

reports of such behavior and the EEOC directs employers to conduct effective 

investigations.” The statements of Persons A and B were part of Person C’s 

investigation into those claims. We agree with respondents that the Rule 224 

petition and exhibit B thus raise an affirmative defense of qualified privilege as to 

Persons A, B, and C, as the statements at issue were made in the context of 

respondents’ investigation of Dent’s alleged sexual harassment of respondents’ 

employee. 

¶ 36 Petitioners claim that no qualified privilege applied to Person B, however, 

because the Rule 224 petition does not allege that Person B was an employee of 

respondents or that Person B was a witness to any sexual harassment by Dent. The 

petition alleges only that Person B saw Dent acting “drunk and disorderly” at the 

Marriott Hotel. Further, exhibit B does not mention Person B at all. 

¶ 37 Although there are no allegations that Person B witnessed any sexual 

harassment on the part of Dent, it is clear from the Rule 224 petition that Person 

B’s statement was made as part of Person C’s investigation of the allegations of 

sexual harassment. Further, although Person B’s statements were not expressly 

referenced in exhibit B, exhibit B does state that Dent’s behavior included, “among 

other things,” that Dent engaged in sexual harassment. Person B’s statements would 

fall within the “among other things” reference. In any event, because Person B’s 

statements were made in connection with the investigation of the sexual harassment 

claims, those statements also fell within the qualified privilege surrounding that 

investigation. The qualified privilege protects the investigation of sexual 

- 12 -
 

 

 

 

 

 

harassment claims. An investigation might cast a broad net in investigating and 

interviewing witnesses in order to gather information concerning those claims. 

Person B’s report to Person C was made as part of Person C’s investigation of the 

sexual harassment claims. Person B should not lose his privilege based solely upon 

the content of his report to the investigator. To hold otherwise might deter 

individuals from participating in investigations of sexual harassment. For that 

reason, we find that Person B, as well as Persons A and C, was protected by the 

qualified privilege for investigation of workplace sexual harassment claims. 

¶ 38 As noted, once a party has demonstrated a qualified privilege, the plaintiff must 

show an abuse of that privilege, which consists of any reckless act showing a 

disregard for the defamed party’s rights, including the failure to properly 

investigate the truth of the matter, limit the scope of the material, or send the 

material to only the proper parties. Petitioners assert that their Rule 224 petition 

“states facts sufficient to show the actual malice” of Persons A and B and 

“overcame any qualified privilege pertaining” to Persons A and B. Petitioners note 

that their Rule 224 petition alleges that the statements of Person A and Person B 

“were completely false” and that the fact that Person A and Person B had 

knowledge of the falsity of her statements about Dent is obvious and 

incontrovertible from the face of the Rule 224 petition. According to petitioners, 

Dent’s averment in the verified petition, that the statements published by Person A 

and Person B were false, defeats any qualified privilege. 

¶ 39 We disagree. Allowing a conclusory denial to overcome qualified privilege 

would, in essence, eviscerate the privilege. The allegations of the petition, including 

exhibit B, fail to establish any reckless act showing a disregard for Dent’s rights. 

Construing the allegations of the Rule 224 petition, including the attached exhibits, 

in the light most favorable to petitioner, we find that there is no set of facts which 

would show an abuse of the qualified privilege with regard to the statements of 

Persons A, B, and C. For that reason, we find that the appellate court erred in 

refusing to consider the affirmative defense of qualified privilege with regard to 

Persons A, B, and C. Because qualified privilege applied to the allegations against 

Persons A, B, and C, the appellate court erred in finding that the allegations in the 

Rule 224 petition were sufficient to withstand dismissal under a section 2-615 

analysis. 

- 13 -
¶ 40 The dissent disagrees that respondents can raise qualified privilege in their 

section 2-615 motion to dismiss. The dissent contends that, without the identity of 

the publisher, a Rule 224 petitioner cannot allege facts demonstrating that the 

publisher directly intended to injure him or acted with reckless disregard for the 

petitioner’s rights and of the resulting consequences to the petitioner. The dissent 

states that the factual allegations necessary to overcome qualified privilege focus 

on the intent and actions of the publisher, which presuppose that the Rule 224 

petitioner knows the identity of the publisher. 

¶ 41 Under the circumstances of this case, however, petitioners did not need to know 

the identity of the publisher in order to allege facts sufficient to overcome qualified 

privilege. Exhibit B to the Rule 224 petition establishes that respondents’ attorneys 

met with Dent on September 14, 2018, “to allow Mr. Dent an opportunity to provide 

his recollection of the events described” by Persons A and B. Although petitioners 

did not know the identity of Persons A and B, petitioners had enough information 

concerning the specific events and the circumstances described by Persons A and 

B to assert more than a bare allegation that the statements published by Persons A, 

B, and C were “false” and “not privileged.” Petitioners had enough information to 

allege facts showing why those allegations were false, particularly given that the 

alleged conduct occurred at public events, with a large number of guests present. 

¶ 42 The dissent also distinguishes the decision in Hadley v. Doe and the two 

appellate court cases that the Hadley court found persuasive—Maxon v. Ottawa 

Publishing Co., 402 Ill. App. 3d 704 (2010), and Stone v. Paddock Publications, 

Inc., 2011 IL App (1st) 093386. The dissent points out that Hadley and the appellate 

court decisions it relied upon involved anonymous speech that was argued to be 

constitutionally protected by the first amendment and did not involve qualified 

privilege. The dissent again maintains that the showings and concomitant factual 

allegations necessary to overcome qualified privilege in this case presuppose that 

the Rule 224 petitioner knows the identity of the publisher. 

¶ 43 We do not find Hadley, Maxon, and Stone to be so limited. In fact, the Stone 

court expressly stated that, “[w]hile the Maxon court correctly found that this 

standard protects an anonymous individual’s constitutional rights in the context of 

a defamation claim, we add that the appropriateness of this standard is not limited 

to speech-based claims.” (Emphasis added.) 2011 IL App (1st) 093386, ¶ 18. 

- 14 -
 

 

 

 

 

 

Hadley found the reasoning of the Maxon and Stone courts to be persuasive and 

thus held that, to “ascertain whether a petitioner has satisfied Rule 224’s necessity 

requirement, the court must evaluate a defamation complaint to determine whether 

it will withstand a section 2-615 motion to dismiss.” 2015 IL 118000, ¶ 27. We do 

not read Hadley as limiting its holding to first amendment defamation cases. 

¶ 44 Finally, the dissent claims that our opinion effectively elevates what is supposed 

to be a qualified privilege into an absolute privilege, because “there is no realistic 

way for a Rule 224 petitioner to sufficiently allege that the publishers of the 

allegedly defamatory statements directly intended to injure him or acted with 

reckless disregard for the petitioner’s rights and of the resulting consequences to 

the petitioner.” Infra ¶ 70. The dissent states that Dent did not know his accuser, 

the witnesses, or the evidence against him. Infra ¶ 72. 

¶ 45 This is incorrect. Although Dent did not know his accuser or the witness, Dent 

did know that he was accused of groping a woman at a large gathering on the patio 

of the Shedd Aquarium and that he was drunk and disorderly while picking up his 

golf materials at the Marriott Hotel. In petitioners’ Rule 224 petition, they allege 

that Dent was one of a “large number” of guests at the events where the alleged 

conduct occurred. Nonetheless, Dent did not allege any facts showing that 

respondents failed to investigate the truth of the matter, for example, by 

interviewing other guests, nor did Dent allege that other guests at the event could 

verify that he was not drunk or disorderly and did not otherwise exhibit grossly 

inappropriate behavior. Under these circumstances, we find that petitioner’s bare 

allegations that the statements of Person A and Person B “were completely false” 

is not sufficient to defeat the qualified privilege in this case. 

¶ 46 In summary, then, we find that the appellate court erred in holding that a section 

2-615 motion to dismiss cannot consider affirmative defenses apparent on the face 

of the petition, such as the existence of qualified privilege. We further find that the 

existence of qualified privilege on the part of Persons A, B, and C was apparent 

from the face of the petition and that respondents, having raised nothing more than 

a conclusory denial, failed to sufficiently allege an abuse of that privilege. For that 

reason, we find that the Rule 224 petition should be dismissed in its entirety based 

upon qualified privilege. 

- 15 -
 

 

 

 

 

 

 

¶ 47 CONCLUSION 

¶ 48 For all the foregoing reasons, the judgment of the appellate court, which 

reversed the judgment of the circuit court, is reversed. The Rule 224 petition is 

dismissed with prejudice, pursuant to section 2-615. 

¶ 49 Appellate court judgment reversed. 

¶ 50 Circuit court judgment affirmed. 

¶ 51 JUSTICE GARMAN, dissenting: 

¶ 52 I respectfully dissent for the following reasons. First, I disagree that, in this 

context, respondents can raise qualified privilege in their motion to dismiss 

pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 

2018)). Second, I believe that the majority erroneously accepts respondents’ 

somewhat obscured representation that a qualified privilege protects not only 

statements but also identity. Finally, I am concerned that the majority opinion 

essentially treats the qualified privilege as an absolute privilege, which in turn 

endows a private company and its third-party investigators with quasi-judicial 

status and impermissibly deprives a class of individuals of the ability to restore their 

reputations following investigations that arguably lack procedural safeguards. 

¶ 53 To begin, the majority opinion avoids a meaningful analysis of whether 

respondents can raise qualified privilege in their section 2-615 motion to dismiss. 

The majority simply concludes this is permissible where an affirmative defense is 

established by the facts apparent on the face of the complaint and where the defense 

is not negated by any other facts in the complaint. For this proposition the majority 

cites K. Miller Construction Co. v. McGinnis, 238 Ill. 2d 284, 292 (2010). See supra 

¶ 28. 

¶ 54 At issue in McGinnis was whether a home remodeling contractor who violated 

section 15 of the Home Repair and Remodeling Act (815 ILCS 513/15 (West 

2006)) could nevertheless enforce an oral contract or recover in quantum meruit 

against a homeowner who refused to pay for a completed home remodeling project. 

McGinnis, 238 Ill. 2d at 286. Section 15 of that act stated that, “ ‘[p]rior to initiating 

- 16 -
 

 

 

 

home repair or remodeling work for over $1,000, a person engaged in the business 

of home repair or remodeling shall furnish to the customer for signature a written 

contract or work order.’ ” Id. (quoting 815 ILCS 513/15 (West 2006)). The 

complaint in part alleged that the plaintiff construction company entered into an 

oral contract with the defendants to complete a remodeling project for the sum of 

$187,000. Id. at 287. The defendants subsequently asked for modifications, which 

raised the cost of the project to roughly $500,000. Id. at 287-88. Ultimately, the 

defendants refused to pay a substantial amount, and the plaintiff filed a three-count 

complaint against the defendants. Id. at 288. 

¶ 55 Relevant here, count II of the complaint alleged a breach of contract. Id. The 

defendants filed a section 2-615 motion to dismiss. Id. As to count II, defendants 

asserted that the oral contract between the parties was in violation of Illinois law, 

i.e., section 15 of the Home Repair and Remodeling Act, and thus was not 

enforceable. Id. at 289. At the time plaintiff filed its complaint, section 15 

additionally stated that it was “ ‘unlawful’ ” to engage in home remodeling prior to 

“ ‘obtaining a signed contract or work order over $1,000.’ ” Id. (quoting 815 ILCS 

513/30 (West 2006)). The defendants observed that the complaint itself alleged that 

the contract was not in writing and was for work totaling over $1000. Id. 

¶ 56 The McGinnis court first noted that “[a] section 2-615 motion to dismiss 

challenges the legal sufficiency of a complaint based on defects apparent on its 

face.” Id. at 291 (citing Pooh-Bah Enterprises, Inc. v. County of Cook, 232 Ill. 2d 

463, 473 (2009)). The plaintiff asserted that the motion to dismiss instead should 

have been brought under section 2-619(a)(9) because it raised an affirmative 

defense. Id. In response to this argument, the McGinnis court explained: 

“section 2-619(a)(9) speaks in terms of affirmative matter, not affirmative 

defenses: ‘If the grounds do not appear on the face of the pleading attacked the 

motion shall be supported by affidavit: *** (9) That the claim asserted against 

defendant is barred by other affirmative matter avoiding the legal effect of or 

defeating the claim.’ 735 ILCS 5/2-619(a)(9) (West 2006). An affirmative 

defense may be raised in a section 2-615 motion where the defense is 

‘established by the facts apparent on the face of the complaint’ and no other 

facts alleged in the complaint negate the defense.” (Emphases in original.) Id. 

- 17 -
 

 

 

 

 

 

at 291-92 (quoting 3 Richard A. Michael, Illinois Practice § 27.2, at 492 

(1989)). 

Critically, the McGinnis court explained that “the factual basis of defendants’ 

affirmative defense is found in plaintiff’s own allegations that the remodeling 

contract was oral and was for work totaling more than $1,000.” (Emphasis added.) 

Id. at 292. Accordingly, the plaintiff’s own complaint admitted facts that 

established the defendant’s affirmative defense.1 

¶ 57 Here, we have vastly different circumstances. Unlike in McGinnis, petitioners 

represent that they do not know the identities of the allegedly responsible parties— 

thus leading to petitioners filing the instant petition pursuant to Illinois Supreme 

Court Rule 224 (eff. Jan. 1, 2018). I do not disagree with the majority recognizing 

that statements made in the context of a workplace sexual harassment investigation 

are subject to a qualified privilege. However, as described in more detail below, I 

am troubled by the majority’s lack of concern regarding how a party seeking to sue 

for defamation in this context is realistically expected to allege concrete facts to 

overcome the qualified privilege. Under the majority’s holding, a Rule 224 

petitioner—who does not know the identity of the publisher—must allege facts 

demonstrating that the publisher directly intended to injure him or acted with 

reckless disregard for the petitioner’s rights and of the resulting consequences to 

the petitioner. See Kuwik v. Starmark Star Marketing & Administration, Inc., 156 

Ill. 2d 16, 30 (1993) (noting that “an abuse of a qualified privilege may consist of 

any reckless act which shows a disregard for the defamed party’s rights, including 

the failure to properly investigate the truth of the matter, limit the scope of the 

material, or send the material to only the proper parties”). Yet, in the Rule 224 

context, “ ‘the focus is on identity and not on the determination of the responsibility 

of those identified.’ ” Kamelgard v. American College of Surgeons, 385 Ill. App. 

3d 675, 685 (2008) (quoting Roth v. St. Elizabeth’s Hospital, 241 Ill. App. 3d 407, 

414 (1993)). However, the majority opinion necessarily requires petitioners to 

establish the responsibility of Persons A, B, and C. 

1

Respondents also cite several appellate court cases in support of their argument that an Illinois 

Supreme Court Rule 224 (eff. Jan. 1, 2018) petitioner must overcome the qualified privilege at issue. 

In every case, the defamation plaintiff knew the identities of the defendants. See Pompa v. Swanson, 

2013 IL App (2d) 120911, ¶¶ 30-31; Dobias v. Oak Park & River Forest High School District 200, 

2016 IL App (1st) 152205, ¶ 1; O’Callaghan v. Satherlie, 2015 IL App (1st) 142152, ¶ 1. 

- 18 -
 

 

 

 

 

 

 

¶ 58 Here, not only do petitioners not know the identities of Persons A and B, but 

exhibit B to the Rule 224 petition—the letter from respondents’ counsel to 

petitioners’ counsel—states that “neither Exelon nor Constellation has disclosed 

the findings of the investigation to any third-party, other than in privileged 

communications with its lawyers.” Though this statement goes to whether the 

publication was limited to the proper parties, it also demonstrates that the only 

context petitioners have for attempting to overcome the qualified privilege with 

factual allegations is petitioners’ attendance at two presumably very large outings 

in 2016 and 2018. Exhibit B and the complaint establish that the third-party 

investigators met one time with Richard Dent to allow him “an opportunity to 

provide his recollection of the events.” 

¶ 59 In their briefs, respondents also cite Hadley v. Doe, 2015 IL 118000, in support 

of their argument that presuit discovery is unnecessary where the underlying 

defamation claim is subject to dismissal under section 2-615 because Dent’s Rule 

224 petition failed to allege facts to overcome the qualified privilege. In Hadley, 

this court found persuasive two lower courts’ conclusions that, in ascertaining 

“whether a petitioner has satisfied Rule 224’s necessity requirement, the court must 

evaluate a defamation complaint to determine whether it will withstand a section 2-

615 motion to dismiss.” Id. ¶ 27. The Hadley appellate court likewise relied on 

those two cases and held that, 

“ ‘[i]n ordering the disclosure of a potential defendant’s identity pursuant to 

Rule 224, a court must balance the potential plaintiff’s right to redress for 

unprotected defamatory language against the danger of setting a standard for 

disclosure that is so low that it effectively chills or eliminates the right to speak 

anonymously and fails to adequately protect the chosen anonymity of those 

engaging in nondefamatory public discourse.’ ” Id. ¶ 26 (quoting Hadley v. 

Doe, 2014 IL App (2d) 130489, ¶ 17). 

However, Hadley and the appellate court decisions it relied upon dealt with a 

different scenario. It was necessary to show that the allegations could withstand a 

motion to dismiss under section 2-615 so as “to protect any first amendment interest 

possessed by the online commentator to engage in nondefamatory, anonymous 

speech.” Id. ¶ 9. In Hadley, the defendant anonymously posted defamatory 

statements in the comments section of a newspaper website. Id. ¶ 1. The Hadley 

- 19 -
 

 

 

 

 

 

court rejected the defendant’s argument that the statements were not actionable 

because they were reasonably capable of an innocent construction. See id. ¶¶ 31-

42. Instead, the comments “conveyed the idea that Hadley was a pedophile or had 

engaged in sexual acts with children and, thus, had committed criminal conduct.” 

Id. ¶ 37. No qualified privilege was at issue in Hadley. 

¶ 60 Furthermore, the two appellate court cases relied upon by Hadley likewise 

involved anonymous speech that was argued to be constitutionally protected by the 

first amendment. See Maxon v. Ottawa Publishing Co., 402 Ill. App. 3d 704, 706 

(2010); Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386, ¶¶ 17-18, 

26 (observing that “our supreme court has recognized that there are three types of 

actions in which an allegedly defamatory statement has been held to be protected 

by the first amendment in the absence of a showing that the statement is factual: 

(1) actions brought by public officials; (2) actions brought by public figures; and 

(3) actions brought against media defendants by private individuals” (emphasis in 

original)). The main thrust of this inquiry necessarily focuses on the contents of the 

statements themselves. See Stone, 2011 IL App (1st) 093386, ¶ 26; see also 

Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 227 Ill. 2d 381, 398 (2008) 

(explaining that “[t]he test for determining whether a statement is protected from 

defamation claims under the first amendment is whether it can reasonably be 

interpreted as stating actual fact” and noting that the courts consider “(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 that it has factual content”). 

¶ 61 By contrast, to overcome a qualified privilege in the instant context, a Rule 224 

petitioner would have to allege facts showing that the publisher directly intended 

to injure him or acted with reckless disregard for the petitioner’s rights and of the 

resulting consequences to the petitioner. See Kuwik, 156 Ill. 2d at 30. These 

showings and concomitant factual allegations instead focus on the intent and 

actions of the publisher—which presuppose that the Rule 224 petitioner knows the 

identity of the publisher. 

¶ 62 The appellate court case of Mauvais-Jarvis v. Wong, 2013 IL App (1st) 120070, 

aptly illustrates, among other things, how knowing the identity of alleged 

publishers of defamatory statements enables the Rule 224 petitioner to overcome a 

- 20 -
 

 

 

 

 

 

qualified privilege by sufficiently alleging facts that go to the publishers’ intent and 

actions. There, the plaintiff sued several individual defendants and Northwestern 

University for either defamation or conspiracy to defame by “formally presenting 

to the Northwestern internal inquiry committee allegations that Mauvais-Jarvis 

submitted inaccurate data for publication in a scientific paper.” Id. ¶ 1. The plaintiff 

appealed from the circuit court’s dismissal of the defamation counts due to the 

court’s finding that the statements were protected by absolute privilege. Id. 

¶ 63 On appeal, the appellate court noted at the outset that, because Northwestern 

University “receives federal funding for biomedical and behavioral research[,] it is 

governed by a complex set of federal regulations with respect to investigating 

research misconduct.” Id. ¶ 3. Of note, “the regulations impose[d] conditions of 

strict confidentiality on allegations of research misconduct.” Id. ¶ 13 (providing 

that “ ‘[d]isclosure of the identity of respondents and complainants in research 

misconduct proceedings is limited, to the extent possible, to those who need to 

know, consistent with a thorough, competent, objective and fair research 

misconduct proceeding, and as allowed by law’ ” (quoting 42 C.F.R. § 93.108(a) 

(2005))). Furthermore, the regulation limited disclosure of records or other 

evidence from which research subjects could be identified to “ ‘those who have a 

need to know to carry out a research misconduct proceeding.’ ” Id. (quoting 42 

C.F.R. § 93.108(b) (2005)). Northwestern University’s own policy and procedures 

closely mirrored the federal regulations. Id. ¶¶ 15-16. 

¶ 64 Nevertheless, the plaintiff knew the identities of at least a few individuals who 

had accused him of research misconduct. Id. ¶ 27. This was because Northwestern’s 

office of research integrity had sent the plaintiff a letter notifying him of who had 

accused him of the misconduct. Id. After an inquiry committee reviewed the 

allegations and interviewed witnesses, it issued a final report unanimously 

concluding that the charges were not credible and did not merit a full investigation. 

Id. However, a second inquiry committee was thereafter convened after it became 

apparent that other data contained in a manuscript was inaccurate. Id. ¶ 28. The 

committee concluded that sufficient evidence was presented to warrant a full 

investigation into the charges, and the plaintiff filed suit. Id. 

¶ 65 The appellate court in Mauvais-Jarvis analyzed in detail whether the circuit 

court had properly held that the statements made by certain individuals were 

- 21 -
 

 

 

 

 

 

 

 

absolutely rather than conditionally privileged. Id. ¶¶ 65-103. As the court noted, 

“[w]here absolute privilege is granted, no cause of action for defamation lies against 

the person making the statement even if it is made with malice.” Id. ¶ 71 (citing 

Starnes v. International Harvester Co., 141 Ill. App. 3d 652, 653-54 (1986)); see 

also id. (stating that “ ‘[a]n absolute privilege provides a complete immunity from 

civil action even though the statements were made with malice because public 

policy favors the free and unhindered flow of such information’ ” (quoting Zych v. 

Tucker, 363 Ill. App. 3d 831, 834 (2006))). The court explained that the category 

of defamatory statements protected by absolute privilege is very narrow and “has 

generally been limited to legislative, judicial and some quasi-judicial proceedings 

and ‘other acts of State,’ including ‘communications made in the discharge of a 

duty under express authority of law.’ ” Id. ¶ 74 (quoting Busch v. Bates, 323 Ill. 

App. 3d 823, 833 (2001)). 

¶ 66 After rejecting several cases cited in support of respondents’ argument that the 

statements were absolutely privileged, the Mauvais-Jarvis appellate court noted 

that it had not discovered “any Illinois case that has found a quasi-judicial 

proceeding or a ‘necessarily preliminary’ step toward one in a proceeding before a 

private entity (which the parties concede[d] Northwestern is) rather than one 

involving a governmental agency or another type of state actor.” Id. ¶ 91. The court 

noted that, even if a private entity could be considered a quasi-judicial entity, 

Northwestern’s office of research integrity lacked the requisite powers necessary 

to act as such an entity. See id. ¶¶ 92-97. The court observed that “jurisdictions that 

have explicitly addressed the applicability of absolute privilege to university 

research misconduct proceedings have refused to define such proceedings as quasijudicial, noting that they lack the requisite procedural safeguards to protect those 

accused of research misconduct.” (Emphasis added.) Id. ¶ 96 (citing Arroyo v. 

Rosen, 648 A.2d 1074, 1077-78 (Md. Ct. Spec. App. 1994) (holding that statements 

were not absolutely privileged because the complaint commencing the 

investigatory committee’s proceedings was not made under oath, the proceedings 

were not public, the witnesses were not sworn under oath nor subject to crossexamination, and no discovery was available)). 

¶ 67 Still, the defendants in Mauvais-Jarvis maintained that public policy warranted 

application of absolute privilege, asserting that 

- 22 -
 

 

 

 

 

 

“because society has a vital interest in the soundness of scientific research and 

because the ‘need for protection is greater in the educational setting where the 

subject of the complaint—the educator—is in a position of authority over the 

student, so fear of retaliation presents a potential obstacle to open airing of 

grievances.’ ” Id. ¶ 98. 

Again, the court rejected this attempt by the respondents to extend absolute 

privilege to their statements. Id. The court noted that Northwestern’s policies, 

which were modeled after the federal regulations, “recognize[d] the need for and 

str[uck] a balance between protecting complainants and whistleblowers.” Id. ¶ 99. 

Furthermore, the court explained that “[p]ublic policy is *** better served by the 

rule of qualified privilege, since it encourages open communications on matters of 

research misconduct while not shielding the use of such communications for an 

individual’s malicious purposes.” Id. 

¶ 68 Finally, the Mauvais-Jarvis appellate court considered whether the allegedly 

defamatory statements in that case were protected by qualified privilege. Id. ¶ 101. 

Because the defendants did not alternatively argue that the statements were 

protected by qualified privilege, the court noted that it had no basis upon which to 

determine that they were protected by qualified privilege. Id. ¶ 103. Still, the court 

held that the complaint set forth detailed allegations of ill will and malice by the 

three defendants subject to the defamation count. Id. The complaint alleged that 

one defendant had acted in retaliation for being fired by the plaintiff and the other 

two defendants acted in reprisal after the plaintiff sought redress with 

Northwestern’s provost and accused its office of research integrity of violating his 

rights under its policies and federal regulations. Id. Accordingly, the court reversed 

the circuit court’s dismissal of the plaintiff’s defamation claims and allowed the 

case to proceed to discovery. Id. 

¶ 69 The Mauvais-Jarvis case—though dealing with a different type of internal 

investigation—illuminates several facets of the instant case. First, the case 

demonstrates how knowledge of one’s accusers enables a Rule 224 petitioner to 

sufficiently allege facts to overcome the qualified privilege. For example, the 

plaintiff alleged that one of the complainants had retaliated against him because he 

had terminated her employment after documenting what he dubbed “substandard 

performance in the laboratory” and mistakes she had made with respect to the 

- 23 -
 

 

 

 

 

 

 

manuscript at issue. See id. ¶¶ 33-35. She also allegedly had threatened to destroy 

his career. Id. ¶ 35. Obviously, knowledge of one’s accuser enables a petitioner to 

draw upon his or her experience in dealing with that individual, which necessarily 

informs the question of whether the accuser had acted with malice or reckless 

disregard. See Kuwik, 156 Ill. 2d at 30. 

¶ 70 Because the majority buys into the respondents’ representations that accusers 

and witnesses in a sexual harassment investigation are entitled to anonymity even 

outside the company’s internal investigation, the majority effectively elevates what 

is supposed to be a qualified privilege to an absolute privilege. Unless we presume 

that a Rule 224 petitioner in this context did what he or she was accused of, already 

knows who the accusers and witnesses are, or has a verifiable alibi, there is no 

realistic way for a Rule 224 petitioner to sufficiently allege that the publishers of 

the allegedly defamatory statements directly intended to injure him or acted with 

reckless disregard for the petitioner’s rights and of the resulting consequences to 

the petitioner. See id.; see also Mauvais-Jarvis, 2013 IL App (1st) 120070, ¶ 71 

(explaining that a defamation defendant’s malice or motive in making a defamatory 

statement are irrelevant where an absolute privilege applies). This is an alarming 

notion when one considers that this setup will easily enable false reporting of sexual 

misconduct. 

¶ 71 For example, if several employees would like to get their supervisor fired, they 

could simply concoct a story that the supervisor inappropriately touched Employee 

A and maintain a consistent description of the event. Maybe Employee A resents 

the supervisor for criticizing her work product. Perhaps Employee B knows that, if 

the supervisor is fired, he or she will receive a promotion and thus has sufficient 

motive. Such behavior will be emboldened where the employees know that their 

identities will remain confidential not only in the workplace investigation but even 

if the supervisor tries to sue for defamation because the supervisor will not be able 

to sufficiently plead around the qualified privilege. Though I make clear that I do 

not cast doubt upon the believability of accusers and victims of sexual harassment 

or the findings of internal sexual harassment investigations—I will not vote in favor 

of a holding that makes it impossible for a class of individuals to seek relief from 

what may very possibly be an unjustified injury to their reputation. 

- 24 -
 

 

 

 

 

 

 

 

¶ 72 Unlike in Mauvais-Jarvis, where the appellate court detailed the numerous 

federal regulations and policies that were aimed at ensuring some semblance of 

procedural safeguards for the accused, here, we have no idea of the depth and 

breadth of the investigation undertaken by the third-party investigators in this case 

or about the specifics of Exelon’s own workplace policies or investigation 

procedures. We do know that Dent knew not his accuser, the witnesses, or the 

evidence against him, nor did he have an ability to confront or cross-examine the 

accuser or witnesses. See Mauvais-Jarvis, 2013 IL App (1st) 120070, ¶ 97. Yet, the 

effect of elevating the qualified privilege to an absolute privilege also effectively 

treats Constellation and its third-party investigators as though they are a quasijudicial body. See id. ¶ 92. I am not content depriving potential defamation 

plaintiffs who do not know the identities of their accusers or witnesses, nor the 

evidence against them, of the ability to fight for their reputations by placing them 

in a position where they must allege sufficient facts to establish malice or reckless 

acts against shadows. 

¶ 73 Nor do I believe that barring consideration of qualified privilege in a section 2-

615 motion will inhibit employers’ interest in ridding the workplace of sexual 

harassment by handcuffing victims, witnesses, and investigators by a fear of 

defamation liability.

2 See Vickers v. Abbott Laboratories, 308 Ill. App. 3d 393, 402 

(1999). That is what the qualified privilege guards against—statements made in the 

course of a sexual harassment investigation will not be actionable unless the 

defamation plaintiff can meet his heightened burden of proof. See Kuwik, 156 Ill. 

2d at 24. Were it not for the qualified privilege, the defamation plaintiff would only 

have to show that the statements were negligently made. Id. The qualified privilege 

assures participants that they will not be unnecessarily subjected to defamation 

liability—not that they will not be sued for defamation. Furthermore, we have been 

2

In their brief, respondents assert that 

“[t]he appellate court’s decision, if upheld, would strongly undermine the State’s policy against 

sexual harassment by making it effectively impossible for employers to ensure victims and 

witnesses that their identities will be kept confidential. *** The use of Rule 224 to compel 

disclosure of their identities to the harasser, so as to enable a retaliatory defamation claim, will 

only increase that reluctance and hamper employers’ ability to address sexual harassment in the 

workplace.” (Emphasis added.) 

Again, respondents ask this court to accept without question the conclusion that the third-party 

investigation produced a correct finding or that accusers and witnesses are entitled to blanket 

anonymity. 

- 25 -
 

 

 

 

provided with zero authority to support the idea that accusers and witnesses 

partaking in a private company’s sexual harassment investigation are legally 

entitled to have their identities remain confidential once before a judicial forum. In 

the one case cited by respondents dealing with such a sexual harassment 

investigation, the defamation plaintiff knew the identities of the accuser(s) and the 

witness(es). See Vickers, 308 Ill. App. 3d at 395-96. Certainly, companies and their 

third-party investigators must abide by various rules in undertaking their 

investigations into workplace sexual harassment claims and must undertake to 

protect witnesses’ identities or may themselves be subject to liability. Of critical 

distinction is the fact that the publisher’s identity is confidential by virtue of a 

private corporation’s internal investigatory procedures and related rules—not due 

to the qualified privilege itself or constitutional protection. Accordingly, I disagree 

with the majority’s statement that “[a]llowing a conclusory denial to overcome 

qualified privilege would, in essence, eviscerate the privilege.” Supra ¶ 39. The 

statement assumes that a qualified privilege goes to identity rather than a 

defamation plaintiff’s heightened burden. 

¶ 74 Because the publishers’ identities are kept confidential by virtue of a private 

company’s and their third-party investigators’ obligations in the sexual harassment 

investigation context—I do not believe that a Rule 224 petitioner must allege 

sufficient facts establishing that the publishers abused the qualified privilege to 

meet the rule’s necessity requirement. This is because, for all practical purposes, 

this is next to impossible, such that it deprives an individual of the ability to attempt 

to restore his reputation. A section 2-615 motion to dismiss should not be granted 

“unless it is clearly apparent that no set of facts can be proved that would entitle 

the plaintiff to recovery.” (Emphasis added.) Marshall v. Burger King Corp., 222 

Ill. 2d 422, 429 (2006). It is not clearly apparent that petitioners could not prove 

any set of facts demonstrating that the statements are not qualifiedly privileged 

where petitioners are without requisite knowledge of the publishers’ intents and 

actions. See Kuwik, 156 Ill. 2d at 30. This is circular and self-defeating. As a result, 

it is unsurprising that petitioners only set forth conclusory allegations in support of 

their claim for defamation. See Colson v. Stieg, 86 Ill. App. 3d 993, 998 (1980) 

(noting that “bare allegations of knowledge of falsity without underlying supporting 

facts are not legally sufficient” to overcome a qualified privilege in a case where 

the plaintiff knew the identity of the defendant); Coghlan v. Beck, 2013 IL App 

(1st) 120891, ¶ 56 (holding that the plaintiffs failed to sufficiently plead malice in 

- 26 -
a case where the plaintiffs knew the identity of the defendant). Accordingly, I 

believe that the majority prematurely holds that the statements of Persons A, B, and 

C are qualifiedly privileged. I express no opinion on the underlying merits of 

petitioners’ defamation claim. For these reasons, I respectfully dissent. 

¶ 75 JUSTICE NEVILLE joins in this dissent. 

¶ 76 CHIEF JUSTICE ANNE M. BURKE took no part in the consideration or 

decision of this case. 

- 27 -