SECOND DIVISION

								March 31, 2005

No. 1-03-3089

SOLAIA TECHNOLOGY, LLC, NIRO,

SCAVONE, HALLER & NIRO, LTD., and

RAYMOND P. NIRO, 

		Plaintiffs-Appellants, 

				v.

SPECIALTY PUBLISHING COMPANY, PEGGY

SMEDLEY, and JOHN BUELL,

		Defendants-Appellees, 

(John Doe,

		Defendant). 	

	)

	)

	)

	)

	)

	)

	)

	)

	)

  )

  )

  )

  )

  )

  )

  )

Appeal from the 

Circuit Court of

Cook County.

Honorable

Paddy H. McNamara, 

Judge Presiding.

	PRESIDING JUSTICE BURKE delivered the opinion of the court:

	Plaintiffs Solaia Technology, LLC (Solaia), the law firm of

Niro, Scavone, Haller, & Niro, Ltd., and Raymond Niro

(collectively, "plaintiffs") appeal from an order of the circuit

court dismissing with prejudice their claims of defamation per se and tortious interference with prospective economic advantage against defendants Specialty Publishing Company, Peggy Smedley,

John Buell and John Doe.  On appeal, plaintiffs contend that the

trial court erred (1) in dismissing their claim for defamation

pursuant to section 2-615 of the Illinois Code of Civil Procedure

(Code) (735 ILCS 5/2-615 (West 2002)) and section 2-619(a)(9) of

the Code (735 ILCS 5/2-619(a)(9)) West 2002)) because the statements made by defendants fell within the category of statements recognized as defamatory per se, defendants cannot claim the fair report privilege and, alternatively, plaintiffs'

allegations of malice defeated any claim of the fair report

privilege and (2) in dismissing their claim for tortious

interference with prospective economic advantage pursuant to

section 2-615 of the Code because plaintiffs adequately pleaded the

elements of their claim.  For the reasons set forth below, we

affirm in part, reverse in part, and remand the cause for further

proceedings.  

STATEMENT OF FACTS

	Solaia owns United States Patent No. 5,038,318 (the '318

patent) and its sole business involves the licensing and

enforcement of its patent.  The '318 patent "relates to a system

for communicating real-time data between a programmable logic

controller (PLC) and a program operating in a central controller." 

According to plaintiffs, the '318 patent's technology has "broad

application in the manufacturing industry and is used by virtually

every manufacturing company that uses a network of PLCs and a

computer for control of a manufacturing operation." 

	On January 21, 2003, plaintiffs filed a complaint against

Specialty Publishing Company, a corporation that publishes Start

Magazine (Start); Smedley, the editorial director of Start; Buell,

an editor of Start; and John Doe, an author of a letter published

in Start.  Plaintiffs alleged that certain statements published in various articles of Start defamed plaintiffs per se, constituted tortious interference with prospective economic advantage and, with

respect to Raymond Niro, constituted a false light invasion of

privacy.  One article upon which the complaint was based was

printed in Start's April 2002 issue.  The article, entitled "Chaos

in Manufacturing," first explained that the "OPC Foundation" was

founded by a group of companies that, in 1996, developed and

released a common standard interface for communication between

process control devices used in manufacturing.  The article also

noted that this standard became very successful and was adopted by

hundreds of products.  The article further stated:

			"Clearly, on the surface, the goal of

this group was to enable the staunchest of

competitors to play nice in the sandbox and

develop an elusive open [i.e., nonproprietary] standard.  In the end, an open standard would

mean less expense for vendors and more

solutions for users.

			Thus, came the birth of what is known as

the OPC Foundation today.  It all seemed so

perfect.  ***.  Sharing data and information

that was once was proprietary.  Innocent enough.  And it was, in the beginning. 

			*** [L]ast year, *** a lawsuit was filed

against world-class manufacturers, BMW, Jefferson Smurfit, Clorox, and Konica. ***

			Solaia *** filed the lawsuit alleging

that all three end user manufacturers are

violating a patent that it purchased from

Schneider Electric's Automation Business

[(Schneider)].  Schneider sold the rights to

its patent to Solaia ***.  Now Solaia, aided

by the legal firm of Niro, Scavone, Haller &

Niro, Chicago, Illinois is on a legal campaign

targeting manufacturers who might be

infringing on its patent.

			But that's not all. ***[T]hree end user

companies filed counter lawsuits against their

supplier, Rockwell Automation [(Rockwell)]. 

The suits claim that Rockwell will not

indemnify them for use of the technology that

Rockwell sold them.

***

		[Nonpublishable material under Supreme Court Rule 23 removed here]. 			The manufacturing mob is baying for blood, and many companies blame Schneider.  In

fact, just about everyone Start spoke with

either on or off the record within the

manufacturing community is furious over

Schneider's initial actions.  Their anger is only being fanned by Solaia's lawsuits against

leading manufacturers.

***

			*** Schneider allegedly did not publicly

reveal that it had a patent.  And what seems

to be in dispute today is why Schneider did

not reveal it had a patent on technology that

might be incorporated in the OPC standard?

		***  

			Attorneys from Niro, Scavone, Haller &

Niro reiterate that they are just following

the law and that its clients should not be

punished for taking advantage of the rules.

		***		

			It seems that new patents are issued

monthly, if not weekly, granting more and more

patents.  Some argue that the U.S. Patent And

[sic] Trademark Office is not supposed to issue patents on ideas, however, many contend

that is what it is doing with software

patents.  The end result is having a chilling

effect on the software industry as more and

more companies file lawsuits to defend these

so-called patents.

***

			Watergate spawned campaign-finance reform, perhaps the Solaia lawsuits will spawn

patent reform."   

	[Nonpublishable material under Supreme Court Rule 23 removed here].

	The January 2003 issue also contained an article entitled

"Conspiracy of a Shakedown."  The article stated:

			"Rockwell, Milwaukee, Wis., turned the

tables on Solaia Technology, Chicago, Ill.,

Schneider Automation, North Andover, Mass.,

and attorney Raymond Niro, Niro, Scavone,

Haller & Niro, Chicago, Ill., filing a lawsuit

charging the aforementioned with unfair

business practices.

			On Dec. 10, 2002, Rockwell filed a

lawsuit *** claiming that Solaia, Schneider,

and Niro's law firm have conspired in

violation of antitrust laws to 'shakedown'

Rockwell's customers with baseless patent

infringement claims. 

		***

			*** [Rockwell's suit alleges that], as

part of the plan to injure Rockwell and

disrupt competition, the 'conspirators' have

made, 'baseless threats and allegations against manufacturing entities that those

manufacturers are infringing the ['318 patent]

by, among other things, using Rockwell-Allen-

Bradley products; have overstated in a

reckless and misleading fashion the scope,

applicability and importance of the '318

patent to suppliers and users of industrial

automation equipment in general; and have

instituted repetitive, baseless, sham patent

infringement litigation against those

manufacturers.'

		***

			Rockwell filed its complaint under the

federal antitrust laws: the Sherman Antitrust

Act, the Clayton Act, and Lanham Act.

			The Sherman Antitrust Act outlaws all contracts, combinations, and conspiracies that

unreasonably restrain interstate and foreign

trade. *** The Sherman Act also makes it a

crime to monopolize or conspire with any other

person or persons to monopolize any part of

trade or commerce."  (Emphasis added.)

	On February 20, 2003, defendants Specialty Publishing Company,

Smedley and Buell (hereinafter collectively "defendants") filed a

combined motion to dismiss plaintiffs' complaint pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2002)),

arguing that all claims in the complaint should be dismissed

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

2002)) for failure to state a cause of action and that "portion[s]

of plaintiffs' complaint" should be dismissed pursuant to section

2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2002))

because the title "Conspiracy of a Shakedown," even if actionable,

was subject to the fair report privilege.    

	On May 21, the trial court dismissed plaintiffs' tortious

interference claim and false light invasion of privacy claim

pursuant to section 2-615 of the Code for failure to state a cause

of action.1  The trial court also dismissed plaintiffs' defamation per se count, finding that the alleged statements did not support claims for defamation per se because each of the statements were either susceptible of innocent construction, protected as

expressions of opinion and/or "a fair abridgment of the

litigation."  Plaintiffs filed a motion for reconsideration and for

leave to file an amended complaint.  On May 29, the trial court

denied plaintiffs' motion for reconsideration, but granted the

motion for leave to file an amended complaint with respect to the claim of tortious interference with prospective economic advantage. 

	Plaintiffs subsequently filed an amended complaint containing

claims for defamation, false light of invasion of privacy and tortious interference with prospective economic advantage.  On July

10, defendants filed a motion to dismiss the amended complaint,

arguing that the defamation and false light invasion of privacy

claims had merely been repleaded without changes and that those

counts should be dismissed with prejudice.  Defendants also argued

that the tortious interference claim should be dismissed for

failure to state a cause of action.  On October 2, the trial court

dismissed plaintiffs' amended complaint with prejudice. 

[Nonpublishable material under Supreme Court Rule 23 removed here]. 	This appeal followed.

	ANALYSIS

[Nonpublishable material under Supreme Court Rule 23 removed here].

	With respect to the title "Conspiracy of a Shakedown," we first briefly note that, contrary to the statement in the special

concurrence to this opinion that we have not addressed plaintiffs'

argument that the title is "defamatory on its face," defendants do

not argue in their brief before this court that this statement is

not defamatory, and conceded, during oral argument before this

court, that they are not so arguing on appeal.  Instead, defendants

maintain only that the statement, contrary to plaintiffs' argument,

is protected by the fair report privilege because the title

"Conspiracy of a Shakedown" is a fair and accurate summary of the

complaint filed in the Rockwell lawsuit and that plaintiffs'

allegations of malice do not defeat the privilege. 

	In the trial court, defendants moved to dismiss plaintiffs'

defamation count with respect to the statement pursuant to section

2-619 of the Code,2 arguing that they were protected by the fair report privilege.  Dismissal pursuant to section 2-619(a)(9) is

proper if "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 2000).  Thus, the movant,

while admitting to the legal sufficiency of the complaint, asserts

that an affirmative defense or other matter avoids or defeats the

claim.  Tepper v. Copley Press, Inc., 308 Ill. App. 3d 713, 716, 721 N.E.2d 669 (1999).  "Affirmative matter must be supported by affidavit, unless apparent on the face of the pleading attacked

[citation], and, in ruling on the motion, the trial court must interpret all pleadings and supporting documents in the light most

favorable to the nonmoving party."  Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 383, 808 N.E.2d 957 (2004).  This court reviews a trial court's decision to grant a section 2-619 motion to dismiss de novo.  Borowiec, 209 Ill. 2d at 383; Tepper, 308 Ill. App. 3d at 717.  The question of whether a publication is privileged under the fair report privilege is generally a question of law, particularly

where there is no dispute about the content of the document on

which the publication is based.  50 Am. Jur. 2d Libel & Slander §316 at 626 (1995).

Origins of the Fair Report Privilege

	Illinois has adopted a common law privilege to report on

judicial proceedings, which is commonly referred to as the fair

report privilege.  See, e.g., Harrison, 341 Ill. App. 3d at 572 (defining the fair report privilege as protecting the media from

defamation actions when it reports information gathered from

governmental proceedings).  This privilege was originally embodied in section 611 of the Restatement of Torts.  Lulay v. Peoria Journal-Star, Inc., 34 Ill. 2d 112, 115, 214 N.E.2d 746 (1966); Tepper, 308 Ill. App. 3d at 717.  Section 611 of the Restatement of Torts states that a publication reporting on judicial and

government proceedings is privileged so long as the publication (1)

is accurate and complete or a fair abridgment of the proceedings,

and (2) "not made solely for the purpose of causing harm to the

person defamed."  Restatement of Torts, §611, at 293 (1938).  The

basis for this privilege is the public's interest in having

information made available to it as to what occurs in official

proceedings.  See Restatement (Second) of Torts, §611, comment a, at 297 (1977).  This privilege is a qualified privilege (53 C.J.S. Libel & Slander, §99, at 175 (1987)) and is commonly exercised by newspapers, broadcasting stations, and others in the business of

reporting news to the public.  Restatement (Second) of Torts, §611,

comment c, at 299 (1977).  In 1966, our supreme court, relying on the language set forth in section 611 of the Restatement of Torts,

held that "the privilege to report governmental acts or utterances [is] defeated by proving that a particular publication was

motivated solely by actual malice."  Lulay, 34 Ill. 2d at 115.

	In 1977, the Restatement (Second) of Torts was published, and

contained no requirement that the publication be "not made solely

for the purpose of causing harm to the person defamed" in order for

the publication to be privileged.  Restatement (Second) of Torts,

§611, at 297 (1977).  Section 611 of the Restatement (Second) of

Torts states:

			"The publication of defamatory matter

concerning another in a report of an official

action or proceeding *** is privileged if the

report is accurate and complete or a fair

abridgment of the occurrence reported." 

Restatement (Second) of Torts, §611, at 297

(1977). 

Comment a to the Restatement (Second) of Torts states that an "[a]buse of the privilege takes place, therefore, when the

publisher does not give a fair and accurate report of the

proceeding."  Restatement (Second) of Torts, §611, comment a, at 298 (1977).  Comment b to the Restatement (Second) of Torts states:

		"The privilege stated in this Section permits

a person to publish a report of an official

action or proceeding *** even though the

report contains what he knows to be a false

and defamatory statement.  The constitutional

requirement of fault is met in this situation

by a showing of fault in failing to do what is

reasonably necessary to insure that the report

is accurate and complete or a fair

abridgement."  Restatement (Second) of Torts,

§611, comment b, at 298 (1977).

	In the instant case, as stated above, defendants do not argue

that the statement is not defamatory, but, rather, contend that the

statement is protected by the fair report privilege.  Thus, we must

determine whether defendants can avail themselves of the privilege,

i.e., whether the statement is accurate and a fair abridgment of the proceedings.  The Rockwell complaint contains express

allegations that there was a "shakedown scheme" on behalf of Solaia

and its law firm of Niro, Scavone, Haller, & Niro, Ltd., and that

Solaia and its law firm engaged in a "campaign of baseless and

repetitive threats *** and suits *** in an apparent effort *** to

'shakedown' manufacturers through threats of potential business

interruption or catastrophic damages."  Moreover, the Rockwell

complaint contains the word "conspiracy," or a form thereof,  over

30 times when referring to Solaia and its law firm.  We therefore find the statement accurate. 

	Plaintiffs contend, however, as is echoed by the special

concurrence, that the title is not a fair abridgment of the

occurrence.  Comment f to section 611 of the Restatement (Second) of Torts, cited both by plaintiffs and in the special concurrence,

states:

			"Not only must the report be accurate,

but it must be fair. *** [A]though it is

unnecessary that the report be exhaustive and

complete, it is necessary that nothing be

omitted or misplaced in such a manner as to

convey an erroneous impression to those who

hear or read it, as for example *** the use of

a defamatory headline in a newspaper report,

qualification of which is found only in the

text of the article."  Restatement (Second) of

Torts, §611, comment f, at 300-01.  See also Restatement of Torts, §611, comment d, at 295. 

According to the special concurrence, 

		"[t]here is nothing in the text of the

headline that would leave the reader with an

impression that the underlying article reports

on a complaint alleging unfair business

practices and conspiracy.  Without reference

to the official proceeding, the reader is left with only one conclusion:  plaintiffs entered

into an illegal conspiracy."  

Plaintiffs, in support of their argument, give as an example an

article reporting an indictment of "Jones" for the murder of "Doe,"

in which, instead of having a headline entitled "Jones Indicted,"

the article's headline read "Jones a Murderer" or "Jones Murdered

Doe," and liken this example to the headline at issue here. 

However, we find the argument in the special concurrence and

plaintiffs' example readily distinguishable from the headline in

the instant case.  

	Here, the headline does not read "Solaia and Law Firm Engaged

in Conspiracy of a Shakedown" or "Solaia and Law Firm Conspiring to

Shakedown Industry," the qualification of which could only be found

in the article below.  Rather, the title reads only "Conspiracy of a Shakedown," and the reader cannot in any way assume, from the title of the article, that Solaia or its law firm was engaged in any such activity.  In fact, readers could not determine, from the

headline alone, who was engaged in a "Conspiracy of a Shakedown."3  Thus, contrary to the statement in the special concurrence that

"the reader is left with only one conclusion [that] plaintiffs

entered into an illegal conspiracy," there is nothing misplaced or

omitted in the headline of the article that would convey the impression that Solaia or its law firm engaged in a "Conspiracy of

a Shakedown" to those who read it, and, accordingly, we find that

the headline was a fair abridgment of the proceedings.  Because the

title here is an accurate and fair abridgement of the Rockwell

complaint, the remaining issue to be decided in this case is

whether Illinois law still allows allegations of actual malice to

defeat any claim of protection by the fair report privilege.

Application of Section 611 to the Case at Bar

	Before addressing the issue of whether Illinois law still

allows allegations of actual malice to defeat the fair report

privilege, we briefly note that plaintiffs argue that the privilege

set forth in "[s]ection 611 of the Restatement,4 by its own terms, does not apply" to the allegedly defamatory title "Conspiracy of a

Shakedown" because a comment to the Restatement states that "[t]he

publication *** of the contents of preliminary pleadings such as a complaint *** before any judicial action has been taken *** is not within the [privilege] stated in this Section."  (Emphasis added). 

Restatement of Torts, §611, comment c, at 293 (1938); Restatement (Second) of Torts, §611, comment e, at 300 (1977).  We note that comment e of the Restatement (Second) of Torts states that the purpose of the above comment is to prevent schemes in which a

person files a complaint solely for the purpose of establishing a

privilege to publish its content and then immediately drops the

action.  Restatement (Second) of Torts, §611, comment e, at 300 (1977). 

	In Newell v. Field Enterprises, Inc., 91 Ill. App. 3d 735, 415 N.E.2d 434 (1980), this court addressed the issue of whether the

fair report privilege should attach only after some form of

judicial action has taken place.  Newell, 91 Ill. App. 3d at 745.  The Newell court chose to join the trend adopting "the minority view [that] the common law privilege to report on judicial

proceedings attaches not at the point of judicial action, but

rather when the complaint is filed." (Emphasis added.)  Newell, 91 Ill. App. 3d at 746.  The Newell court gave several reasons for its adoption of the minority view.  First, the public's interest in

knowing what is transpiring in the judicial system compelled that

the entire judicial system be exposed to the light of public

scrutiny.  Newell, 91 Ill. App. 3d at 746.  Second, the reasoning set forth by the states adopting the majority view, that such a

limitation on the privilege reduces the potential for defamation,

was unconvincing because, inter alia, the mere fact that "a suit had proceeded to the point where judicial action of some kind has

taken place does not necessarily mean that the suit is less likely

to be groundless and brought in bad faith."  Newell, 91 Ill. App. 3d at 747.  Third, today's society is aware of the one-sidedness of a complaint and can evaluate the actual worth of the information

contained therein.  Newell, 91 Ill. App. 3d at 747-48.  Fourth, a pleading filed in a legal proceeding is a public record and should

be open to the public's inspection at all times.  Newell, 91 Ill. App. 3d at 748.  Thus, based on the Newell court's decision, we find that the fair report privilege set forth in section 611

attaches at the point when the complaint is filed and, accordingly,

also find that the privilege is applicable to the allegedly

defamatory title "Conspiracy of a Shakedown" in the instant case.

Catalano

	Since the Restatement (Second) of Torts was published, only

one Illinois Supreme Court decision, Catalano v. Pechous, 83 Ill. 2d 146, 419 N.E.2d 350 (1980), has addressed the issue of whether

Illinois law still allows malice to defeat the privilege to report

on judicial proceedings, or the fair report privilege, as set forth

in section 611.  In Catalano, seven aldermen on the city council brought actions for defamation against the city clerk, a newspaper

reporter and a publisher after an allegedly defamatory statement

made by the clerk about the aldermen at the city council meeting

was repeated several months later to the reporter, who quoted the

defamatory statement in a published article.  Catalano, 83 Ill. 2d at 149.  Counts I and II of the plaintiffs' complaint alleged that

the statements by the city clerk were made falsely and maliciously. 

Catalano, 83 Ill. 2d at 151.  Count III alleged that the statement was reported by the reporter and publisher with knowledge of its

falsity and with reckless disregard as to its truth or falsity. 

Catalano, 83 Ill. 2d at 152.  Each of the defendants filed motions for summary judgment, and each of the plaintiffs filed cross-

motions for summary judgment.  Catalano, 83 Ill. 2d at 149.  The trial court ultimately granted each of the defendants' motions. 

Catalano, 83 Ill. 2d at 149.  On appeal, the appellate court reversed the trial court's grant of summary judgment in favor of

the clerk, but affirmed its grant of summary judgment in favor of

the reporter and publisher.  Catalano v. Pechous, 69 Ill. App. 3d 797, 812, 387 N.E.2d 714 (1978).  Our supreme court granted the

petitions for leave to appeal filed by the clerk and the

plaintiffs.  Catalano, 83 Ill. 2d at 150.  

	On appeal to the supreme court, the clerk argued that the

plaintiffs, as public officials, had not proven that his statements

concerning them were made with actual malice as required by New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964).5  The Catalona court only briefly covered the "New York Times line of cases" and found that the plaintiff had proven

that the clerk had acted with malice when issuing the defamatory

statement.  Catalano, 83 Ill. 2d at 166.  

	The Catalona Court next considered the claims against the reporter and publisher, stating:

			"With respect to [the reporter and

publisher defendants] there remain for

consideration two questions not already

disposed of.  The first of these is whether

the newspaper article involved was privileged

as a report of governmental proceedings ***.  

			The defendants rely principally on

[Lulay]. [Lulay], following section 611 of the Restatement of Torts, (1938), stated that a

privilege to report government proceedings

existed. [Citation.]

			Under section 611, as it then read, the

privilege was defeasible if the statement was

made with malice, in the common law sense of

the term.  When Lulay was decided that limitation had of course been rendered

obsolete by New York Times Co. v. Sullivan.  Section 611 of the Restatement (Second) of

Torts (1977) now reads [as set forth above].

			Comment a to the section states that the

privilege is lost if the report is not

accurate, but the plaintiffs raise no question

on that score.  They do point out, however, that [the reporter] did not attend the council

meeting, that the article was not published

until five months later, that its report of

the meeting was based on the account given by

[the clerk], and that not all of the

statements by [the clerk] which appear in the

article were made at the meeting.  These

points raise questions not addressed in Lulay.  We need not decide them, however, for we hold

that actual malice on the part of these

defendants has not been shown."  Catalano, 83 Ill. 2d at 167-68.

The Catalano court then affirmed the grant of summary judgment in favor of the reporter and publisher.  Catalano, 83 Ill. 2d at 170. 

	Since the Catalano decision, our appellate courts have struggled to determine whether, under Illinois law, actual malice

still defeats the fair report privilege.  See Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 272 (7th Cir. 1983) (stating that "Illinois law is in disarray on the question whether

actual malice defeats the privilege of fair summary"); Gist v. Macon County Sheriff’s Department, 284 Ill. App. 3d 367, 376, 671 N.E.2d 1154 (1996) (noting that Catalano appeared "to have caused confusion in the appellate courts as to whether actual malice might

still be raised to defeat this privilege").  As a result, the

appellate courts have been split over this issue.  Compare Myers v. The Telegraph, 332 Ill. App. 3d 917, 923-24, 773 N.E.2d 192 (5th Dist. 2002) (finding that Catalano adopted section 611 of the Restatement (Second) of Torts and that actual malice does not

defeat a claim of privilege under that section); Hurst v. Capital Cities Media, Inc., 323 Ill. App. 3d 812, 817-18, 754 N.E.2d 429 (5th Dist. 2001) (finding that Catalano adopted the Restatement (Second) of Torts and that actual malice does not defeat the fair report privilege); Tepper, 308 Ill. App. 3d at 718 (2nd Dist.) (finding that Catalano adopted section 611 of the Restatement (Second) of Torts and that malice does not defeat the privilege set

forth in that section); Gist, 284 Ill. App. 3d at 375 (4th Dist.) (finding that Catalano modified the privilege in accordance with the Restatement (Second) of Torts and that malice does not defeat

the privilege) with Lykowski v. Bergman, 299 Ill. App. 3d 157, 166, 700 N.E.2d 1064 (1st Dist. 1998) (stating that the fair report of

judicial proceedings privilege is limited to situations in which

the statements are not made solely for the purpose of causing harm

to the defamed person and that "section 2-619 relief is properly

granted on the basis of qualified privilege *** only when there are

no allegations of actual malice made by the plaintiff"); Rosner v. Field Enterprises, Inc., 205 Ill. App. 3d 769, 791, 564 N.E.2d 131 (1st Dist. 1990) (noting that the privilege to report on judicial proceedings is lost upon proof of actual malice); Tunney v. American Broadcasting Co., 109 Ill. App. 3d 769, 775, 441 N.E.2d 86 (1st Dist. 1982) (noting that Catalano referred to what the Restatement (Second) of Torts now states, but that the privilege

recognized in Lulay still retains its validity, and citing Catalano for the proposition that the privilege can be lost upon a showing of actual malice); Newell, 91 Ill. App. 3d at 744  (1st Dist.) (stating that "a communication reporting the contents of a judicial

proceeding is privileged although it contains defamatory

statements, if it is (a) accurate and complete as a fair summary of

such proceedings, and (b) not made solely for the purpose of

causing harm to the person defamed").  See also Emery v. Kimball Hill, Inc., 112 Ill. App. 3d 109, 112-14, 445 N.E.2d 59 (2nd Dist. 1983) (stating that a communication reporting the contents of a judicial proceeding is privileged if it is "not made solely for the

purpose of causing harm to the person defamed," and noting that the

plaintiff had, in fact, alleged malice in the complaint, but

nonetheless holding that the complaint still failed as a matter of

law because the communication "was a true reflection of a judicial

and public record").

Whether Actual Malice Defeats the Fair Report Privilege

	An examination of the Catalano decision reveals that it is ultimately unclear as to whether the supreme court chose to adopt section 611 of the Restatement (Second) of Torts because the court

never expressly so stated.  However, regardless of whether our

supreme court adopted the Restatement (Second) of Torts' approach,

we read Catalano as holding that allegations of actual malice defeat the privilege set forth in section 611, i.e., the fair report privilege.  Our conclusion is premised on the fact that the Catalano court expressly stated that it was addressing "whether the newspaper article *** was privileged as a report of governmental

proceedings" and acknowledged the rule originally expressed in the Restatement of Torts, and later set forth in Lulay, that allegations of actual malice defeat a claim of privilege.  The

Catalano court then stated that comment a to section 611 of the Restatement (Second) of Torts states that "the privilege is lost if

the report is not accurate, but the plaintiffs raise no question on

that score."  The court then noted that it did not need to address

any other "points" raised by the plaintiffs regarding the

inapplicability of the fair report privilege to the defendants,

i.e, that the privilege did not apply because the reporter did not attend the meeting where the allegedly defamatory statement was

made, the report was not published until five months after the

meeting and allegedly defamatory statement had been made, etc.,

because it "[was holding] that actual malice on the part of these

defendants had not been shown."  Catalano, 83 Ill. 2d at 167.  Thus, we read Catalano as requiring allegations of inaccuracy or malice before the fair report privilege can be defeated.   

	In finding that Illinois law still allows allegations of actual malice to defeat the fair report privilege, we join the line

of cases handed down from the First District, as set forth above,

which have so found.  We also note that, as stated above, Illinois has adopted the minority view that allows the fair report privilege to attach to a complaint before any judicial action has taken

place, and we believe that our finding that allegations of actual

malice defeat the fair report privilege will aid in preventing

schemes in which a person files a complaint solely for the purpose

of establishing a privilege to publish its content and then

immediately drops the action, which is a concern set forth in the

Restatement (Second) of Torts.  Restatement (Second) of Torts,

§611, comment e, at 300 (1977). 

Whether Defendants Pleaded Actual Malice

	Applying our finding to the instant case, we must determine

whether plaintiffs here sufficiently pleaded facts to establish

actual malice.  In order to allege actual malice, a plaintiff must

plead "that the statement was made with knowledge of its falsity or

in reckless disregard of whether it was false or true."  Colson v. Stieg, 89 Ill. 2d 205, 214, 433 N.E.2d 246 (1982).  Here, plaintiffs alleged, in paragraph 18 of their amended complaint,

that "[d]efendants published the false statements with knowledge of

the truth, in reckless disregard for the truth, and in possession

of facts that should have led defendants to doubt the false

statements."  Thus, we find that plaintiffs adequately pleaded

actual malice.  See Krueger v. Lewis, 342 Ill. App. 3d 467, 473, 794 N.E.2d 970 (2003) (actual malice was sufficiently alleged where

the complaint stated that the statements were made by the defendant

"in full knowledge that they were untrue or in reckless disregard

of their truth or falsity").  Accordingly, we conclude that the trial court erred in finding that the title "Conspiracy of a

Shakedown" did not support a claim for defamation under Illinois

law because plaintiffs' allegations of actual malice defeated

defendants' claim of the fair report privilege as a basis for

dismissing plaintiffs' defamation count. 

Whether Defendants Can Claim the Privilege

	Plaintiffs contend in their reply brief before this court that

defendants cannot claim the fair report privilege case because (1)

they were "actively assisting Rockwell" and (2) defendants'

reporting "carried a greater sting than Rockwell's civil

complaint."  We need not address this issue for two reasons. 

First, plaintiffs have waived their argument that defendants cannot

claim the fair report privilege because they improperly raised it

for the first time in their reply brief.  Todt v. Ameritech Corp., 327 Ill. App. 3d 359, 369, 763 N.E.2d 389 (2002) (arguments raised

for the first time in a reply brief will not be addressed by the

appellate court).  Second, our above holding that Illinois law

still adheres to the proposition that allegations of actual malice

defeat the fair report privilege dispels the issue of whether

defendants can claim the privilege because, even if defendants were

able to claim the privilege, plaintiffs' allegations of malice

defeat that privilege.  [Nonpublishable material under Supreme Court Rule 23 removed here]. 

CONCLUSION

	For the reasons stated, we reverse the judgment of the circuit

court of Cook County dismissing plaintiffs' count for defamation

with prejudice, affirm the dismissal of plaintiffs' count for

tortious interference with prospective economic advantage, and

remand the cause for proceedings consistent with this opinion.

	Affirmed in part and reversed in part; cause remanded.

	WOLFSON, J., concurs.

	CAHILL, J., specially concurring:

	PRESIDING JUSTICE CAHILL, specially concurring:

	I concur with the disposition of this case, but I disagree

with the majority's application of the fair reporting privilege

to Start Magazine's January 2003 article headline "Conspiracy of

a Shakedown."  There is nothing in the text of the headline that

would leave the reader with an impression that the underlying

article reports on a complaint alleging unfair business practices

and conspiracy.  Without reference to the official proceeding,

the reader is left with only one conclusion: plaintiffs entered

into an illegal conspiracy.  The point is made by comment f to section 611 of the Restatement (Second) of Torts.  Comment f reads:

		"Not only must the report be accurate, but it must

be fair. ***  [A]lthough it is unnecessary that the

report be exhaustive and complete, it is necessary that

nothing be omitted or misplaced in such a manner as to

convey an erroneous impression to those who hear or read it, as for example *** the use of a defamatory headline in a newspaper report, qualification of which

is found only in the text of the article."  (Emphasis added.)  Restatement (Second) of Torts §611, Comment f, at 300-01.

The headline in this case is known as a "catcher" or "eye-stopper" in the media trade.  Though

sometimes misleading, such headlines carry the reputational weight, for whatever it is worth, of

the media outlet.  That is why the headline in this case, if run in a newspaper or magazine with no

axe to grind, would have read "Conspiracy of a Shakedown, Complaint Alleges."  It is of little

solace to plaintiffs that their names are not identified in the headline or that the reader later learns

that the allegation comes from a privileged legal document.  The reputation of the media source is

bound to the "eye-stopper."

	To the extent the majority finds that the "Conspiracy of a Shakedown" headline is the type

of reporting that section 611 of the Restatement protects, I respectfully disagree.  I would have

reversed the trial court's finding that the headline is privileged under section 611 of the

Restatement.  I see no reason in this case to decide whether actual malice defeats the fair

reporting privilege.