## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Mauvais-Jarvis v. Wong , 2013 IL App (1st) 120070

Appellate Court Caption FRANCK MAUVAI S-J ARVI S, M.D., P.h.D., Plaintiff-Appellant, v. WI NI FRED P. S. WONG, J OSEPH T. WAL SH, L AUR AN QUAL KENB USH, J ON E. L EVI NE, MI CHEL L E L

. OESER, NORTHWESTERN UNIVERSI TY, and J OHN AND J ANE DOES Nos. 1 throug h 10, Def

endants-A

ppellees.

District & N o. First District, F ourth Division Docke t Nos. 1-12-0070, 1-12- 0237 cons.

Filed Marc h 28, 2013

Held (Not e: Thi s syl lab us

con st i t ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo r t er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) I n an ac t ion for defa mation and conspirac y to defa me arising from alleg ations that defe ndants prese nted claims that plaintiff, a profe ssor of medicine, submitt ed inacc urate data for publication in a scientific paper , the dismiss al of plaintiff’s defamation claims on the g round that defe ndants wer e protec ted by absolute privileg e based o n t h ei r duty to repor t rese arc h misconduct was reve rsed, since plaintiff’s alleg ations that defe ndants acte d rec klessly and wi t h m al i ce wer e not denied by any pleading s and plaintiff would be allowed to proce ed on that issue, but the dismiss al of the conspirac y counts was upheld on the g round that they

wer e barr ed by the one-year statute of limit ations in section 13-201 of the Code of Civil P roce dure.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 11-L -00614; the Hon Michae l R. P anter , J udg e, pre siding.J udg ment Affir med in part and reve rsed in part; rema nded for further proce eding s.

Counsel on Appea l Constantine J ohn Geka s and J ohn C. Geka s, both of Geka s L aw L L P, of Chicag o, for a

ppellant.

Eric S. M at s o n an d Mara h S. McL eod, both of Sidley Austin L L P, of Chicag o, and L isa A. Hausten, o f L aw Of fi ces of L isa A. Hausten, of Wheaton, for a

ppellees.

Panel J US T I C E FI TZ GERAL D SMI TH delivere d the judgme nt of the court, with opinion. Presiding J ustice L avin and J ustice Pucinski concur red in the j udg ment and opinion.

OP INION

¶ 1 The plaintiff, F ranc k Mauvais-Jarvis (her einaf ter Mauvais-Jarvis), filed a c omplaint in the circuit court alleg ing, inter alia
, that the defendants, W inifred P. S. Wong (he re i n afte r Wong), J oseph T. Wa l sh (her einaf ter Walsh), L aura

n Qualkenbush (her einaf ter Q u a lk e n b u s h )
, Jon E. L evine (her einaf ter L evine)
, Michelle L

. Oese r (her einaf ter Oese r), a

n d Northwe stern Univer sity

(her einaf ter Northwe stern or the Unive rsity ), either defa med him

or co n s p i red to defa

me him by formally prese nting to the Northwe stern internal inquiry committee allega t i o n s that Mauvais-Jarvis submitt ed inacc urate data for publication in a scientific paper

. The defe ndants filed motions to dismiss the complaint pursuant to sections 2-615 and 2-619 of the I llinois Code of Civil Procedur e (Civil Procedur e Code) (735 I L CS 5/2-615, 2-619 (West 2008)) and the circ uit court g rante d their motions pursuant to section 2-619 (735 I L CS 5/2-619 (West 2008)). The court dismiss ed the defa mation counts, holding 1 that since the defe ndants acte d under a mandatory

duty to report a

nd investigate s uspecte d

rese arc h misconduct, their st atements were pr otected by absolute privil eg e. The court also dismiss ed th e conspi rac y to defa me counts, finding : (1) that since the statements at issue

We not e tha t in his complai nt, Ma uvais

- J ar vis al so a ll eged de fa m at ion andcon spi ra cy to 1 def ame agains t oth er “un known and unna m ed def end ant s (#1

- 10) .” T he m oti ons to dis m is s did not

re fe r to t hes e def

end ant s and the ci rc uit cou rt ini ti al ly fou nd tha t the cas e “r emain[ ed] pen din g

a ga i n st J ohn and J ane Does #1- 10.” However, on J anu ar y 19
, 2012
, the cou rt ent er ed an “Agre e d Fin al Orde r” wher ei n the par ti es con c u r r e d t hat the ci rc uit cou rt ’s Novem ber 29, 2011
, and Dece m ber 21, 2011
, ord er s, “di spo sed of al l cl ai m s in the cas e even tho ugh the cap ti on inc lud es the def end ant s ‘J ohn and J ane Does #1- 10’ .” T he cou rt the n dis m is sed
, wit h pre j udi ce, al l cl ai m s agains t

suc h un known def

end ant s.

-2-wer e protec ted by absolute privileg e, the plaintiff had failed to alleg e any actionable conduct

( i.e.
, defa mation) underlying the alleg ed conspirac y and (2) that, in any event, the conspirac y counts wer e time-barr ed pursuant to section 13-201 of the Civil Procedur e Code (735 I L CS 5/13-201 (West 2008)). The plaintiff now appea ls, contending that the circ uit court improperly applied absolute privileg e to the defe ndants’ statements when no such privileg e is rec og nized under I llinoi s l aw i n the context of a university rese arc h misconduct
proce eding

. The plaintiff also argues that his civil conspirac y claim is not time-barr ed beca use the applicable statute of limit ations is found in section 13-205 of the Civil Procedur e Code (735 I L CS 5/13-205 (West 2008)), and not sect i o n 13-201 of that Code (735 I L CS 5/13-201 (West 2008)) and permits the filing of such claims within five y ear s

. For the

rea sons that follow, we a ffirm in par t, and re verse and re mand in part.

¶ 2 I . BA CKGROUND ¶ 3 The rec ord reve als the following undispute d fa ct s an d p rocedural history . Def endant Northwe stern University is a specia lly char tere d priv a

te I ll in o is c o r

p oration. As an institution that re ceives fede ral funding for biomedical and behavior al rese arc h it is g overne d by a complex set of fede ral re g ulations with respec t to investigatingrese arc h misconduct.

¶ 4 A. The F eder al Regulations ¶ 5 Pursuant to the Public Hea lth and Welfare Act (42 U.S.C. § 289b (2008)) the Secr etar y of the United States Depa rtment of Hea lth and Human Service s (HHS) has established an ag ency , the Offic e of Resear ch Integ rity (ORI ), within the Public Hea lth Servi ce (P HS ), 2 responsible for investigating all reports of r esea rch misconduc t from institut ions rece iving HH S funding

. The Secre tary has also promulg ated regulations, entitled “Public Hea l t h Service s Polices on Resear ch Misconduct,” requiring instit utions that rec eive such financ ial assistance to establish proce eding s to in v es t iga te g ood-fa ith alleg ations of rese arc h 3 misconduct and to re port all such i nvestig ations to the OR I

. See 42 U.S.C. § 289b (2008);

see a lso 42 C.F.R. § 93 et seq. (2005). ¶ 6 P u rs u an t t o t h es e re gu lations, “[i] nstitut ions and institutional m em b er s h av e an aff irmative duty to p ro t ect PHS funds from misuse” and the “primar y responsibility for responding to and repor

ting alleg ations of rese arc h m i s conduct.” 42 C.F.R. § 93.100(b) (2005) “ Resear ch misconduct” is defined a s: “fa brica tion, falsification, or plag iarism in proposing
, perf orming
, or revie wing rese a r c h, or in repor

ting r esea rch r esults.

We not e t hat PHS i ncl ude s t he Na ti ona l Insti tut e of Heal th (NI H). 2

T he p roc eed ings c ont emplat ed b y thes e r egulat ion s a re def ine d i n t he f

oll owin g m ann er : 3 “Res ear ch m is con duc t pro cee din g m ean s any act ion s re la te d to al le ged re sea rc h

m is con duc t ta ken unde r thi s par t, inc lud ing bu t n o t l i m it ed to, al le gatio n ass ess m ent s, inq uir ie s, inves ti gatio ns, ORI oversi ght re views, hea ri ngs, and adminis tr at ive app eal s.” 42 C.F.R. § 93.2 23 ( 2005 ).

-3-(a) Fa brication is m akingup data or results and re cordingor re porting them. (b) Fa lsification is manipulating rese arc h materia ls, equipm en t , or proce sses, or chang ing or omitti ng data or results such that the rese arc h is not acc urate ly repr esente d in the rese arc h rec ord. (c) Plagia rism is the appropri ation of another person’ s ideas, proce sses, results, or words without g iving a

ppropriate cre dit. (d) Resear ch misconduct does not include honest err or or differ ence s of opinion.” 42 C.F.R. § 93.103 (2005). ¶ 7 The regulations rec og nize that rese arc h misconduct proce eding s are most often initiated by a complainant, i.e.
, a person wh o b ring s forwa rd alleg ations that a rese arc her has

c o mm it ted rese arc h misconduct. The reg ulations there fore require that the compl a in a nt ma k e alleg ations in “g ood faith.” See 42 C.F.R. § 93.203 (2005) (“Complainant means a person who in good

faith makes an alleg ation of rese arc h misconduct.” (Emphasis added.) ). “Good faith” is def

ined as: “having a belief in the truth of one’s alleg ation or testimony that a rea sonable person in the complainant’ s or witness’s position could have ba sed on the i nformation known to the complainant or witness at the time. An alleg ation o r cooper ation with a rese arc h misconduct proce eding is not in good f aith if made with know ing or rec kless disreg ard for information that would neg ate the alleg ation o r t es t i m o n y .” 42 C.F.R. § 93.210 (2005). ¶ 8 The regulations m an d at e t h at an y instit ution rec eiving fede ral funding for r esea rch establish a two-tiere d proce dure for investiga ting alleg ations of rese arc h misconduct: (1) an inquiry and (2) an investig ation. 42 C.F.R. §§ 93.212, 93.307 to 93.309, 93.215, 93.310 to 93.313 (2005). ¶ 9 The “inquiry ,” or the “pre liminary information-g ather ing and preliminary fac t-finding ” stag e (42 C.F.R. § 93.212 (2005))
, is intended as “an initial revie w of the evidenc e” to deter mine whether an al l egation war rants a further investigation, and there fore “does not require a full revie w of all the evidenc e related to the alleg ation.” 42 C.F.R. § 93.307(c)
, (d) (2005). The person acc used of rese arc h misconduct must be place d on notice of an inquiry

. See 42 C.F.R. § 93.307(b) (2005) (“A t the time of or befor e b eginning an inquiry
, an instit ution must make a g ood faith eff ort to notify in writing the presumed respondent, if
any .”). The institution must also timely complete the inquiry “within 60 cale ndar day s of its initiation unless circ umstances clea rly war rant a longer p er iod.” 42 C.F.R. § 93.307(g ) (2005). Once t h e i n q u i ry is completed, the institution must prepa re a written repor

t of the inquiry committee’s decision. 42 C.F.R. § 93.307(e) (2005). I f the inquiry board deter mines that the allegations war

rant a n investigation, the insti tution mus t send the written r eport to the ORI

. 42 C.F.R. § 93.309(a) (2005). I f, howe ver, the inquiry committee deter

mines that it is not nece s sary to proce ed with an investi g ation, it must mere ly reta in its written report and all relev an t ev i d ence collecte d there in on file within the instit ution for the next seven y ear s. 42 C.F.R. § 93.309(c) (2005). ¶ 10 The sec ond, “investig ation” stag e of the proce eding s is defined a s:

“the formal development of a fac tual rec ord and the examination of that rec ord leading

-4-to a decision not to make a finding of rese arc h misconduct or to make a rec ommendation for a finding of rese arc h misconduct which may include a rec ommendation for other
appropr iate ac tions, including administrative a ctions.” 42 C.F.R. § 93.215 (2005)

. During the i nvestig ation, the i nstitut ion must int ervie w witnesses a nd diligently

pursue all leads. 42 C.F.R. §§ 93.310(g ), (h) (2005). The investigation must be commence d “within 30 day s afte r deter

mining that an investigation is w a r r a nted” (42 C.F.R. § 93.310(a) (2005))
, and the acc used must be notified in writing of all alleg ations ag ainst him befor e the investigation beg ins. See 42 C.F.R. § 93.310(c) (2005) ( The institution m ust “[n] otify the re spondent in writing of the alleg ations within a reas o n ab l e am o unt of time afte r deter mining that an investigation is war

rante d, but befor e the investiga tion beg ins.”). The final fi ndings of the investigation committee mu s t be memorialized in a written repor t (42 C.F.R. § 93.313 (2005)) and must be g iven to the acc used for comment (42 C.F.R. § 93.312 (2005))

. The final
repor t must also be sent to the ORI

. 42 C.F.R. § 93.315 (2005). The investigation itself must be completed “within 120 day s of beg inning it, including co n d u cti ng the investigation,
prepa ring the repor

t of finding s, providing the draf t repor t for comment *** and sending the final repor

t to ORI .” 42 C.F.R. § 93.311(a) (2005). I f the instit ution is unable to complete the investigation within 120 day s, it must reque st, in writing
, an extension of time from the ORI

. 42 C.F.R. § 93.311(b) ( 2005). ¶ 11 Af

t er an instit ution completes its two-tiere d investigatory pro ce d u re , t h e OR I m ay become involved by
, inter alia
, revie wing the instit ution’s finding s, making its own finding of rese arc h misconduct and proposing administrative actions to the HHS. 42 C.F.R. § 93.400 (2 0 05). W hen the ORI does choose to g et i nvolved and makes it s own findi ng of re s ea rc h misconduct, it must propose and obtain HHS approva l for “administrative actions,” and must notify the responde nt of these actions in a fo rm al charg e letter. 42 C.F.R. §§ 93.404 to 93.405 (2005). The HHS m ay t hen impose “HHS administrative actions” including, inter alia : (1) clar ification, corr ection or retra ction of the rese arc h rec ord; (2) letters of repr imand; (3) suspensi o n o r t er m ination of a PHS g rant; (4) restric tion on specific activities or expenditures under an active PHS g rant; (5) adver se personne l a ction if the responde nt is a fede ral employ ee; and (6) suspension or debar ment fr o m fut ure g rant funding for the individual respondent. See 42 C.F .R. §§ 93.400(c)( 2), 93.404, 93.407 (2005)

. ¶ 12 A responde nt has an opportunity to contest the ORI rese arc h misconduct finding s and the HHS administrative ac tions by reque sting an “administrative hear ing” befor e an administrative law judge (AL J ) aff iliated with the HHS within 30 day s of rec eiving an ORI char g e letter. 42 C.F.R. §§ 93.500 to 93.501 (2005). The parties to the hear ing are only the responde nt and the ORI
, and not the instit ution wher e the rese arc h misconduct proce eding s

wer e initiated. 42 C.F.R. § 93.505 (2005). During such an administrative hear ing, the parties

are permitted to, inter alia : (1) be repr esente d by counsel; (2) conduct discovery ; (3) prese nt rele vant evidenc e and cross-e x amine witnesses; (4) agr ee to a stipulation of fac ts; (5) file motions in writing ; and (6) m ak e o ra l arguments. 42 C.F.R. § 93.505 (2005). After the hear ing, the AL J issues a ruling in writing setting forth his proposed finding s of fac t and any conclusions of law. 42 C.F.R. § 93.523(a) (2005). The AL J ’s decision con s t i t u tes a

rec ommended decision to the Assistant Secre tary for Hea lth, who revie ws the AL J ’s

rec ommendations and makes a final decision. 42 C.F.R. § 93.523(b) (2005). The Assistant

-5-Secre tary of Hea lth’s decision is the final HHS action, unless debar ment or suspension is an administrativ e action rec ommended in the decision. 42 C.F.R. § 93.523(b) (2005). I f a decision results in a re commendation for debar ment or suspension, the Assistant Sec reta ry of Hea lth must serve a copy of that decision upon the HHS debar ring officia l. 42 C.F.R. § 93.523(c) (2005). The debar ring officia l then makes the final HHS decision on a debar ment or suspension. 42 C.F.R. § 93.523(c ) (2005)

. ¶ 13 Be ca u s e t h e co n s eq u en ce s o f a rese arc h misconduct proce eding can be dire, th e regulations impose conditions of strict confide ntiality on alleg ations of rese arc h misconduct. As section 93.108 of the regulations states:
“Disclosure of the id en t ity of responde nts and complainants in rese arc h misconduct
proce eding s is limit ed, to the extent possible, to those who need to know, consistent with

a thoroug h, competent, objective and fair rese arc h m i s conduct proce eding
, and as allowed by

law.” 42 C.F .R. § 93.108(a) ( 2005). Disclosure of rec ords or other evidenc e from which rese arc h subjects might be identified is al s o l i m ited to “those who have a need to know to car ry out a rese arc h miscon d u ct proce eding .” 42 C.F.R. § 93.108(b) (2005).

¶ 14 B. N orthwester n’s Interna l Resear ch Misconduct Policy and Proce dures ¶ 15 Pursuant to the afor ementioned fe d er al re g ulations, Northwe stern has set up its own policy and procedure s for reviewing alleg ations of resear ch mi s co n d u ct as well as i ts own offi c e o f r e s e a

r c h in te gr it y ( h e r e in a f

te r Northwe stern’s ORI ). Northwe stern’s ORI is intended

as an “indepe ndent and objective” ag ent responsible for fac ilitating the inqui ry and the investigation processe s. This of fice is he aded by the vice pr esident of r esea rch ( VPR) who appoints the associate vice president for rese arc h integ rity (AVPRI ) to overse e the activities of both the inquiry

and investig ation committees. ¶ 16 Northwe stern’s policy and proce dures clos el y m i rr o r the fede ral regulations in many
aspec ts, in cluding : (1) defining “re sear ch misconduct”; (2) requiring “g ood faith” and “conf identiality ” from all parties involved, including the complainant and the respond ent; (3) cre ating a two-tiere d investigation proce ss, including an inquiry and an investigation; and (4) de fining the scope and time fra me of the inquiry

and investig ation proce eding s. ¶ 17 Northwe stern’s policy advises all o f i t s em p l o y ees that they “ should repor t observed, suspected or appar ent resear ch mi sconduct in rese arc h to [t heir] depar tment chair or dean, and throug h such consultation deter mine whether the matter should be pursued.” (Emphasis added.) The policy also permits employ ees to repor t suspected rese arc h misconduct direc tly to the VPR or the AVPRI , or the provost of the University

. ¶ 18 Nort h we stern’s policy deviates from the federa l reg ulations in other respec ts. For one, it permits the University provost to consult “in confide nce” with the VPR, the AVPRI
, and the direc tor of Northwe stern’s ORI
, as well as the deans and other rele vant university
personne l, in the initial and preliminary assessment of all alleg ations of rese arc h misconduct. Acc ording to the policy
, the purpose of this initial assessment is to deter mine the appropr iate roles and responsibilities of the university
, its personne l and t h e o versig ht ag encie s with
respe ct to evaluating the alleg ations, as well as to identify individuals, information and data

-6-rele vant to the alleg ations. During this consultation, the direc tor of Northwe stern ’s OR I

deter mines whether the alleg ation meets the definitio n o f “re sear ch misconduct” and

war rants further action, i.e.
, an inquiry followed by an investigation. Acc ording to Northwe stern’s policy
, afte r an investigation committee makes it finding s, the p ro v o s t is authorized to deter

mine and invoke appropr iate sanctions or disciplinary actions within the university

.

¶ 19 C. The Parties ¶ 20 Plaintiff, Mauvais-Jarvis, is an associat e p ro fe s s o r o f m ed i ci n e at No rt hwester n University ’s Fe inberg School of Medicine and the rese arc h direc tor of Northwe stern’s Comprehensive Center on Obesity

. He is a l ea d i n g expert in endocr inology and diabetes

rese arc h, having authore d over 50 scientific article s and book chapte rs in this field. MauvaisJ arvis is a member of the prestig ious Americ an Society for Clini cal Investig ation, and the

rec ipient of numerous awa rds including, inter alia
, the Pioneer Awar d from the Institut e for Women’s Hea lth Resear ch at Northwe ste rn and the Innovative Resear ch Gra nt from the Americ an Hea

rt Association. His curr ent rese arc h cente rs on the eff ect of t h e fema le hormone, estrog en, in the protec tion from diabetes mellitus and obesity in humans. MauvaisJ arvis champions t h e d iscovery of estrog en rec eptors’ activation in protec ting insulinproducingpancr eatic â -ce lls in t y pe 1 and ty

pe 2 diabe tes. ¶ 21 As part of his rese arc h at Northwe stern, Mauvais-Jarvis overse es a laboratory wher e he conducts re sear ch funde d, in substantial part, by the NI H, a division of the HHS. ¶ 22 Def

endant, Wong, wo rk ed i n M au v ai s -J ar v i s ’ l aboratory as a postdoctoral fe llow betwee n 2006 and May 201 0

. Defendant Oeser worked in Mauvais-Jarvis’ l aboratory as a

rese arc h technicia

n betwee n 2006 and J un e 2 0 0 8
, when she left to pursue a doctorate in biology at the University of Washington. Def endant L evine is a profe ssor emer itus at Northwe stern. At the t ime of the e vents underly ing this ca

use of a ction, he was a full-tim e profe ssor of neurobiolog y and phy siology at Northwe stern. In 2010, he beca me the direc tor

o f t h e W i sconsin National Primate Resear ch Center at the University of Wis consin in Madison. Def

endant Walsh is Northwe stern ’s VPR and defe ndant Qualkenbush is the direc tor of Nor

thwestern’ s ORI

.

¶ 23 D. The Undisputed Fa cts ¶ 24 Much of the fa ct u al b ackground of this case is in dispute. We will there fore beg in by setting forth the facts that the par ties ag ree upon. The parties ag ree that in 2008, MauvaisJ arvis and his l ab oratory personne l wer e involved in a rese arc h projec t involving the possibili ty

of estrog en amplifying â -ce ll insul in sy nthesis via ex tranuc lear signa ling of the estrog en rece ptor á

. This projec t was funded by an NI H gra nt. As a result of t his rese arc h, in J une 2008, Mauvais-Jarvis, Wong and Oese r submitt ed a manuscript fo r possible publication in the Journal of Biological Chemistry

. Be cause of her doctora l degree and

s en i o rity
, Wong was assig ned as the “first author” on the draf t manuscript. As a lab technicia n, Oese r was responsible for collecting and then mapping ce rt ai n d ata that was included in two fig ures within the manuscript, fig ures 6C and 6H. Tho s e t wo fig ures,

-7-howeve r, contained fabr icated data. The parties disag ree as to who is responsible fo r t h e

fabr ication of the data
, wi t h Oese r alleg ing that it is Mauvais-Jarvis and Mauvais-Jarvis contendingthat it is Oeser. ¶ 25 After leaving Mauvais-Jarvis’ laboratory for g raduate school, Oese r contac ted defe ndant L evine to disc uss the fabr icated data. Oese r knew L evine beca use she had worke d in his in laboratory as a rese arc her, while completing her undergradu ate deg ree at Northwe stern. L evine advised Oese r that the manuscript should be withdrawn. As a result, on J une 23, 2008, Oese r informed Mauvais-Jarvis of the inacc urac y of the submitt ed data and asked that her name be remove d from the manuscript. Mauvais-Jarvis direc ted Wong to run the actua l

ex periments and collect the data. When the paper came back from the revie wers o f t h e Journal o f B i o l o g i cal Chemistry
, the correc ted figure s and data wer e ins erte d in the paper and on J uly 8, 2008, with approva l from Andre a Dunaif, Mauvais-Jarvis’ division chief and direc t supervisor, the manusc ript was re submitt ed for publication. ¶ 26 Soon therea fter, on July 22, 2008, upon rec ommendation from L arr y J ameson, de an of Northwe stern’s Fe inberg School of Medicine (and also coauthor of the manuscript), Mauvais-Jarvis withdrew the paper from revie w by the Journal of Biological Chemistry until the matter could be resolved within the university

. Since then, signific ant chang es have been made to the paper and in J une 2010, it wa s p u b lished in another prestig ious journal, the Procee dings of the Nati onal Academ y of Scienc es

. ¶ 27 On J uly 30, 2008, Northwe stern’s ORI sent Mauvais-Jarvis a letter, notifying him that Oese r and L evine had acc used him of rese arc h misconduct. Specifica lly
, Mauvais-Jarvis was char g ed with “fa lsify ing” fig ures 6C and 6H in the draf t manuscript submitt ed to the Journal of Biological Chemistry in ear ly J une of that y ear

. Soon there afte r, Northwe s t ern officia ls

convene d an inquiry committee of fac ulty members to assess the alleg ations of re s ea rc h misconduct. The committee revie wed the alleg ations and interviewe d various wi t n esses, including Wong. On May 5, 2009, the committee issued its final repor t unanimously concludingthat the cha

rg es by Oese r and L evine we re not c redible a nd did not merit a full investigation. ¶ 28 Soon there afte r, i t b ec am e ap p are nt that other data, in fig ure 4F, of the manuscr ipt submitt ed to the Journal ofBiological Chemistry was inacc urate

. The parties disag ree as to who is responsible for

this incorrec t data, with Wong arguing that it is Mauvais-Jarvis and M auvais-Jarvis pointing the fing er at Wong. As a result, on Dec ember 17, 2010, as Northwe stern’s director of ORI
, Qualkenbush issued a new c harg e letter ag ainst MauvaisJ arvis, alleg ing that Mauvais-Jarvis had: (1) falsified fig ure 4F; (2) falsified fig ures 6C and 6H; and (3) instructed Wong to lie to the inquiry committee in Fe bruar y 2009 and tell them that Oese r wa s responsible for the fa lsified imag es in figures 6C and 6H . The c harg e letter also stated that in an attempt to coer ce Wong into say ing wh at h e wa n t ed her to say , Mauvais-Jarvis told he r that “the lives of the five people in [his] lab depende d on what she told the Comm ittee.” Qua lkenbush sent copies of t his letter to t wo administrative off icials
at the Fe inberg School of Medicine (the dean for rese arc h and the chair of the depar tment of medicine)

. A second inquiry committee was then convene d. On J une 2, 2011, that committee conclude d that sufficie nt evidenc e was prese nted to war rant a full investiga

tion into all of the char g es ag ainst Mauvais-Jarvis. Walsh, Northwe stern’s VPR, then sent a letter to Mauvais-

-8-J arvis listi ng all those alleg ations. Qualkenbush forwa rded copies of this letter to the interim dean and the v i ce dean of the Fe inberg School of Medicine. On J une 13, 2011, MauvaisJ arvis filed this lawsuit.

¶ 29 E. The Complaint ¶ 30 I n his five-c ount complaint, Mauvais-Jarvis alleg es: (1) defa mation per se ag ainst Wong, Walsh, Qualkenbush and Nor thwestern ( counts I

and I I I ); (2) defamation per quod ag ainst Wong, Walsh, Qualkenbush an d No rt hwester n (count I I and I V); and (3) civil conspirac y ag ainst Oeser , Wong and L evine ( count V).

¶ 31 1. Def amation Claim Ag ainst Wong ¶ 32 Wit h respe ct to Wong, Mauvais-Jarvis first alleg es that statements she made in an ema il exchang e with Qualkenbush on J uly 22, 2010, wer e defa matory per se and per quod

. I n that email exchang e, Qua lkenbush initially wrote to Wong : “He llo W innie [W ong ], Thank y ou for taking the time to talk this afte rnoon. I ’m sending the revised languag e for the alleg ations for your re view and a pproval.
DRAFT a lleg ation lang uag e: You instructed Wini fre d Wong to lie on y our behalf in prepa ration for her interview with the I nquiry Commi ttee in Fe bruar y 2009. Specifica lly
, y ou instructed Ms. Wong
to inform the Commi ttee that Michelle Oese r was responsible for the falsified imag es in the manuscript. I n addition, in an attempt to coerce her into say ing what y ou wanted, y ou told Ms. Wong that the lives of the five people in your lab depende d on what she told the Committee. Please let me know if the above statement is corr ect, or if not, ple ase let me know what is incorre ct. Thank you ag ain for your assistance

. L aura n [Qualkenbush]”
I n response , that same da y , Wong ema iled Qualkenbush the following : “Hi L aura n [Qualkenbush], Yes, the state ment below is corr ect. Winni e [W ong ].” 4 ¶ 33 Mauvais-Jarvis alleg es that the statement in Wong’s email was false and that Wong made it with “ill will and malice” and in reta liation beca use Mauvais- J ar vis terminated her

We not e tha t thi s e ma il exc han ge was not at ta che d as an exh ibi t, but tha t ins te ad the 4 pla int if f i n c l u d e d i t in the body of his complai nt. T he par ti es, however
, app ear to agree tha t thi s email exc han ge occ urr ed; the y do not dis put e the suf fi ci enc y of the pla int if

f’ s complai nt on the bas is of his fa il ure to at ta ch t he e m ai l e xch ange as an exh ibi t.

-9-em p l o y m ent in April 2010. I n the complaint, Mauvais-Jarvis alleg es that beg inning i n Fe bruar y 2009, he beg an documenting Wong’s substandard perf ormanc e in the laboratory , including, inter alia : permitting important animal protocols to expire; g iving improper
prese ntations at wee kly lab meetings ; failing to follow instructions reg arding bree ding
proce dures and then ly ing about her animal bree ding strateg y ; sloppily editing manuscripts; making serious m istakes i n plotting data; g iving samples from Mauvais-J arv i s ’ l aboratory to another laboratory without his authorization and in violation of the applicable instit utional rules; mix ing u p d i ff

er ent g enes; and leaving work ear ly in the middle of important experiments. ¶ 34 Mauvais-Jarvis also documented W o n g’s “i n ex cusable mistakes” with respe ct to the manuscript that was submitt ed to the Journal of Biological C h em istry

. Specifica lly
, acc ording to the complaint, in ear ly 2009, Wong came to Mauvais-Jarvis informing him that J oe Tiano, a

Ph.D. student in his laboratory , had dis cover ed that there was a problem with fig ure 4F, which had been included in the manuscript submitt ed to the Journal of Biological Chemistry in 2008, but which had since been withdrawn. At a brief meeting
, with Tiano and Wong, Mauvais-Jarvis discuss ed t h e p ro blem–an inversion of some data from one or two columns to others. Both Tiano and Wong told Mauvais-Jarvis they d i d n o t k n ow how the inversion had occur

red. Acc ording to the complaint, since T i an o was responsible for the
expe ri m en t s an d the rec ording of the data, and Wong, as first author, was responsible for

re v i ew ing the data and putting it into proper final form, Mauvais-Jarvis immedia t el y suspected that Wong had made “s o m e k i n d of car eless err or.” Mauvais-Jarvis there fore instructed Wong to fix the problem and “make abso l u t el y s ure that the data and fig ure 4F

wer e corr ecte d rig ht awa

y .” Severa l months later, on October 14, 2009, Mauvais-Jarvis, who

was re viewingthe manuscr ipt, wrote the followingemail to Wong:
“I am working on y our paper

. So far looks g ood. As we discussed you need to verify with J oe whether the experiment of E2 induction o f R I P -l u c i s in its corr ect format (I don’t

re m ember but some condition was inverted? ) And espec ially if we need anot h er confirmation beca

use it is one of the critica l experiments o f t h e p aper

. I t is the mecha nism with t he Ne ruoD1 data. Thanks.”
On November 24, 2009, Mauvais-Jarvis was revie wing the paper ag ain and rea liz ed that the old err oneous figure was sti ll in the network subdirector y that should have co n t ained only the final version

. He
, there fore
, emailed Wong stating: “[T] his fig ure should have been finalized a month ag o and y ou told me that it wa s done. It is y our re sponsibili ty as the fir st author to finalize all fig ures. Please update this fig ure today .” (Emphasis in orig inal.) Wong emailed back that the old file was s t i l l i n t h e location for final files, so Mauvais-Jarvis responde d with the following instruction: “All final files should be final to avoid mistakes. Wit hdrawthe old fig ure a nd put it in an old file.” ¶ 35 Ac cording to the complaint, as a result of these serious inadequa cies, in April 2 0 1 0
, Mauvais-Jarvis fired Wong. The complaint alleg es that befor e leaving the laboratory , Wong

came into Mauvais-Jarvis’ office
, ang rily confr onted him about her t er m i nation, and “thre atene d to destroy his car eer .” Soon there afte r, she chang ed her story reg arding Oese r’s “inade quate perf

ormanc e” with respe ct to fig ures 6C and 6H, and spoke to Qualkenbush

acc using Ma

uvais-Jarvis of falsifying data in fig ures 6C, 6H a nd 4F.

-10-¶ 36 2. Def amation Claim Ag ainst Walsh and Qualkenbush ¶ 37 Wit h respe ct to Walsh and Qualkenbush, Mauvais-Jarvis alleg es that they made sever al
per se and per quod defa matory statements ag ains t h i m i n reta liation beca use he soug ht redr ess direc tly from the University ’s provost to end the “unwa rra nted rese arc h misconduct
p r o cee dings ag ainst him,” acc using Northwe stern’s ORI of violating both fede ral regulatio n s and its own policies. ¶ 38 Acc ording to the complaint, on J une 14, 2010, Mauvais-Jarvis sent a letter to the provost seeking his dire ct “interve ntion” in the matter. Mauva is-J arvis wr ote to the provost that he

was accuse d of resear ch mi sconduct b y a former lab technicia n (Oe ser)
, who had failed to perf orm essential duties related to a rese arc h projec t, a nd then conce aled this mistake from him. The letter to the provost stated that the lab technicia n had acte d “at the urg ing of a

rese arc h competitor at the University” (L evine)
, and that Mauvais-Jarv i s was exonerated fr o m any char g es afte r a full scale inquiry

. The letter also acc used Northwe stern’s ORI o f committing at least fou r documented violations of his rig hts and the applicable HHS
regulations during that inquiry (including
, inter alia , failing to notify him of the beg inning of the inquiry proce eding s on time and failing to complete the inquiry proce eding s as quickly

as mandated by the fede ral regulations). In addition, the letter acc used Walsh of ignor ing the committee’s re commendations, stating : “Su b s eq u en tly
, the matter was revie wed by Vice President Walsh who ignor ed the Commi ttee rec ommendations and raised a new, basele ss and t ri vial char g e that the I nquiry Commi ttee had reje cted and which did not constitute rese arc h misconduct in any event. Throug h the University ’s Offic e of Gene ral Counsel that new char g e matured into

a threat of a formal investigation unless I agree d to admit wrong doing as to t h at n ew basele ss char g e that I did not commit. When I proposed a compromise on the matter and
reque sted that Dr. Walsh close the investigation, Dr. Walsh and the University ’s lawy er went silent for months, leavingthis matter hang ing ove r my head, a s it is t oday .” The letter further acc used the University ’s counsel of ref using Mauvais-Jarvis’ reque st to be reimburse d for his leg al expenses pursuant to the Unive rsity ’s indemnification policy

. 5 ¶ 39 Acc ording to the complaint, on the s ame day that he contacted the Univer s i t y p rovost, and as a direct result of his plea to the provost, defe ndant Walsh retaliated by sending him the following letter:
“You wer e contac ted by the [ORI ] beca use new alleg ations of rese arc h misconduct have been r aised a g ainst y ou. Specifica lly that:
1. y ou falsified fig ure 4F in a draf t manuscript *** which was submitt ed for publication to the Journal of Biological Chemistry in 2008; and
2. You instructed Wini fre d Wong to lie on y our beha lf in prepa ration for her interview

On Apri l 22, 2011
, over the Unive r s i t y’ s o bj ect ion
, the ci rc uit cou rt grant ed Ma uvais

5 J ar vis’ m oti on re qui ri ng the Univer si ty to advanc e/ ind emnify his le gal exp ens es and at tor ney fe es. On Ma y 15
, 2011
, the ci rc uit cou rt ent er ed a pre li m ina r y inj unc ti on ord er ing the Univer si ty to do

so.

-11-with the I nquiry Commi ttee in Fe bruar

y 2009.” ¶ 40 The complaint alleg es that Walsh’s letter set in motion a series of further investigations
ag ainst Mauvais-Jarvis. Specifica lly
, on Dec ember 17, 2010, Qualkenbush issued a second ch arge letter ag ainst Mauvais-Jarvis, alleg ing that he: (1) falsified fig ure 4F; (2) falsifie d fig ures 6C and 6H; and (3) instructed Wong to lie to the inquiry committee in Fe bruar y 2009. Acc ording to the complaint, this char g e letter is defa matory per se and per quod
, beca use it is false and beca

use, for no appar ent rea son and “in violation of both the fede ral regulations and Northwe stern’s ORI policies and proce dures,” it was sent to Rex Chisholm
, the dean for

rese arc h at the Fe inberg School of Medicine
, an d Do u gl as E. Vaug hn, the chair of the depar tment of medicine. ¶ 41 The complaint also alleg ed that afte r the second inquiry committee repor ted its findings
to Walsh, deter

mining that the char g es ag ainst Mauvais-Jarvis war rante d a full investigation, W al s h s ent a letter containing those char g es t o Mauvais-Jarvis. For “no sufficient rea so n ” and “in violation of both the fede ral regulations and Northwe stern’s ORI policies and
proce dures,” Qualkenbush then forwa rded that letter to Chisholm and J eff rey Glassroth, the interim dean of

the Fe inbergSchool of Medicine.

¶ 42 3. Def amation Claim Ag ainst Northweste rn ¶ 43 Wit h respe ct to No rt h we s t er n ’s re s p o n s i b i l ity for the afor ementioned de famatory statem en t s, the complaint alleg es that at all rele vant times, Oese r, Wong, Walsh and Qualkenbush “committed the acts and omissions alleg ed in the complaint as employ ees and
ag ents of the university and acting in the scope of that employ ment and ag ency .” There fore
, under the doctrine of respondeat superior , Northwe stern was responsible for their ac tions.

¶ 44 4. Civil Conspiracy Claim Aga inst W ong , Oese r and L evine ¶ 45 Finally
, with respe ct t o the civil conspirac y count, t he complaint alleg es t hat, ac ting in “sec ret a g ree ment,” Oe ser, Wong and L evine eng ag ed in a conspirac y

to destroy

MauvaisJ arvis’ profe ssional car eer by making false and defa matory acc usations ag ainst him in 2008. Acc ording to the complaint, Oese r failed to conduct the experiments in fig ures 6C a nd 6H, but in order t o make it appea r t hat s he had completed them, she used templates developed within Mauvais -Jarvis’ laboratory as part of is routine prac tice and then inserted made- up data into those templates. The complaint alleg es that Wong was awa re of Oese r’s neg lige nce, beca use Oeser contacted her about it afte r she lef t the laboratory . Neither

Oese r nor Wong
approa ched Mauvais-Jarvis about t he falsified data or took any st ep s t o corr ect it. Instead,

acc ording to the complaint, Oese r contac ted Mauvais-Jarvis’ leading competitor in the field, L evine, to tell him what had occur red. The complaint alleg es that Oese r and L evine t h en conspired to shift the blame onto Mauvais-Jarvis and acc use him of rese arc h misconduct. The c omplaint further a lleg es that in doing so, they communicated w ith W ong

. ¶ 46 The complaint further alleg es that both Oese r and L evine wer e motivated by ill-will and malice toward Mauvais-Ja rvi s. Acc ording to the complaint, unknown to Mauvais-Jarvis, Oese r “harbore d deep resentment” ag ainst him beca use he had reprimanded her for taking
too much leave
, which h ad i n terfe red with her completion of important experiments, and

-12-beca use she i n co rr ectly believed that he did not intend to g ive her a rec ommendation for
g raduate school. Simi larly
, the complaint alleg es that, at least since 2006, Mauvais-Jarvis’ 6

rese arc h direc tly competed with L evine’ s, particula rly in obtaining fede ral g rant money

. As

a result, L evine routinely attempted to interfe re with Mauvais-Jarvis’ experimen t s and to preve nt his publi cations. ¶ 47 I n support of these alleg ations, Mauvais-Jarvis attache d: (1) his curriculum vitae and (2)

a transcr ipt of Wong’s testimon y befor e Northwe stern’s first inquiry committee, which exonerated him of all char g es of rese arc h misconduct. That transcr ipt reve als that during the hear ing befor e the inquiry committee, Wong testified that it was stand ar d p ra ct ice in the laboratory to use t emplates. S he testi fied that the day befor e the manu s cript was supposed
to be subm itted to the Journal of Biological Chemistry , Oese r mentioned to her in passing that she did not believe that the data in fig ures 6C and 6H was rea l. Wong testified that Oese r

was re sponsible for authe nticating the data in those fig ures and that she did not know why Oese r did not authenticate the data or speak with Mauvais-Jarvis about i t i f she did not believe it to be a ccur ate. As Wongtold the committee: “[I ]f it rea lly bothere d her all that much, why didn’t she g o to my boss and sort it out there and then–bef

ore it was submitt ed. But, obviously
, it bothere d her a lot beca use she knowing ly

worke d on incorre ct data, rig ht, be cause she actua lly put in the leg ends, she put in the A, B, C’s and she put in the scale bars and ever y thing, so she knowing ly knew that the data was inacc urate , so she was responsible for the authenticity of the data, and if she had a problem with it, a lot of problems obviously
, then she should a ctually have spoken t o the bos s ab o u t i t. So I ’m not sure what went on, I don’t understand why she didn’t do that.” ¶ 48 W o n g al s o t est ified that afte r Oese r left the labora tory for gra d u at e s ch o o l
, s h e telephoned Wong and told her that she had spoken to L evine and that L evine had advised her
to ask Wong to confr ont Mauvais-Jarvis about the falsified data. Wong, howeve r, did not fee l comforta ble doing this, beca

use she herse lf had not compiled the data, and beca use Oese r had not confronte d Mauvais-Jarvis while she wa s still workingat the labor atory

. ¶ 49 Wong ex plained th at al t houg h she t rusted that Oese r was a good lab technicia n, Oese r “may have had s ome i nterpe rsonal problems with Mauvais-Jarvis.” W ong told the i nquiry committee that in J anuar

y 2008 she saw Oese r cry

ing in the women’s bathroom. When Wong confr onted her, Oese r told he r that Mauvais-Jarvis said that if she did not complete cer tain experiments by a certain time he would not g ive her a refer ence letter for g raduate s chool. Oese r then asked Wong to act as a proxy re fe re e, and Wong draf ted a ref ere nce letter and sent it to the University

of Washington on Oe ser’ s behalf. ¶ 50 Wong also testified that Mauvais-Jarvis is a very focuse d and demanding individual who require s hard work and discipline from his employ ees and sets deadlines for himself and for

ever y one else in the lab. Wong admitted that she often “fe lt pr essure ” while working in his laboratory . Wit h respe ct to the 2008 manuscript submission, W ong testified that Mauva isAcco rdi ng to th e c o mp l ai nt, Ma uvais

- J ar vis, had wri tt en “a glowing le tt er of 6

re comm end at ion ” f

or Oese r’ s a cce pta nce to th e Uni versi ty of Wa shi ngton.

-13-J arvis wanted the experiments and the draf t completed by a cer

tain date beca

use a competing laboratory in Spain was doing simil ar rese arc h and intending to submit a simil ar publication.

¶ 51 F. The Def endants’ Motions to Dismiss ¶ 52 On Aug ust 31, 2011, the defe ndants filed two combined s ec t i o n 2 -6 1 9

. 1 m otions to dismiss (735 I L CS 5/2-619.1 (West 2008)). In t h ese motions, they arg ued that MauvaisJ arvis’ defa

mation claims wer e barr ed by absolute privileg e and by the I llinois Citi zen Pa r ti c ipation Act (735 I L CS 110/1 et seq. (West 2008)). Def endants Oese r, Wong and L evin e also argued that the civil conspirac y claims ag ainst them wer e barr ed by the one-year statute of limit ations in section 13-201 of the Civil Procedur e Code (735 I L CS 13-201 (West 2008)). They pointed out that the underly ing tortious acts, i.e.
, the alleg ed defa matory statements by Oese r and L evine in fabr icating the rese arc h misconduct alleg ations ag ainst Mauvais-Jarvis,

we re m ad e in 2008, more than three y ear s befor e the lawsuit was filed. In addition, Wong
argued that the conspirac y count ag ainst her should be dismiss ed pursuant to se ction 2-615 of the Civil Procedure Code (735 I L CS 5/2-615 (West 2008)) be cause Mauvais-Jarvis had insufficiently pleade d her knowledg e and voluntary ag ree ment to be part of any alleg ed conspirac y

. ¶ 53 I n s u p p o rt o f t h ei r m o t i o n s t o dismiss
, the defe ndants attache d copies of: (1 ) Northwe stern ORI ’s policy and proc edure s for re viewingalleg ed re sear ch misconduct; (2) the HHS and the ORI sample policy and proce dures for responding to alleg ations of rese arc h misconduct; and (3) an aff idavit from Oese r aver

ring that an email she sent to L evine on J une 22
, 2 0 0 8
, wa s accura

te. A copy of that email was attache d to Oese r, Wong and L evine’ s motion to di smiss and states in full: “Jon,
I spoke to Winnie [W ong ] once more a nd we’ ve dec ided on the following series of actions to g et us to the desire d endpoint (re trac tion of the pape r) most quickly

. Fi rs t , I ’d like to send y ou an email with an attachme nt detailing how the immunocy

tochemistry imag es in question we re put toge ther. That way , y ou have it available when you contac t Dr. Duna if. Next, I ’l l s end an email to Fr anck [Mauvais-J arvis], cc- ing both y ou and Winni e [W ong ], st ating the following :

a. I am uncomforta

ble with the curr ent misrepre sentation of my imag es on the curr ent submissi on of the pa

per. b. I would like my name remove d fro m t h e p u blication until the experiments in question have be en done a nd the ac tual data a

re inc luded in the pape r. c. I have spoke n to y

ou and that you have a dvised me that re trac tion of the pape r is the cor rec t action to take at this poi nt. Winni e [W ong ] and I fee l that t h i s approa ch (cc -ing both of y ou) will g ive Fr anck [Mauvais-J arvis] the least amount of time to chang e his story or shift blame. At this point

we think it would be g ood for y ou to inform Dr. Dunaif (if y ou see fit), so that Fr anck has absolutely

no choice but to call the pape r bac k.

-14-Once he retra cts the paper , Winni e [W ong ] will ensure that all nece ssary experiments

are completed a

nd all data a

re sc rutiniz ed bef

ore r esubmitting. Both the email with the attachme nt (to you only) and the email to Fr anck [MauvaisJ arvis] (cc -ing y o u an d Winni e [W ong ]) will probably be sent from my Northwe stern email addr ess; as fa

r as I know it is sti ll functional. What do y ou think about this? Please let me knowas soon as you can. Thanks for

all of y our help in this, Michelle [Oeser ].” ¶ 54 On October 11, 2013, Mauvais-Jarvis filed his response to th e m o tions to dismiss . He
argued that the defe ndants’ defa matory statements wer e not protec ted by the I llinois Citi zen Participation Act (735 I L CS 110/1 et seq. (West 2008)) nor entitled to absolute privileg e. At best, Mauvais-Jarvis argued, the statements could be protec ted by qualified privileg e. Wit h
respe ct to the conspirac y claim, Mauvais-Jarvis argued that it was g overne d by the five-year statute of limit ations in s ection 13-205 of the Civil Procedur e Code (735 I L CS 5/13-205 (West 2008)) and not the one-year statute of limit ations in section 13-201 of that Code (735 I L CS 5/13-201 (West 2008)). He further argued that he sufficie ntly pleade d Wong’s
ag ree ment and participation in the conspirac y by pointing out that the afor ementioned emails betwee n Oese r and L evine in 2008 reve al that despite Wong’s knowledg e of Oese r’s mistake in falsify i n g the data in fig ures 6C and 6H, instead of speaking with Mauvais-Jarvis, she communicated with Oese r and L evine and ag ree d on a course of action to acc use MauvaisJ arvis of falsifying the data. I n addition, in support of his arguments, Mauvais-Jarvis attache d copies of: (1) fede ral regulations reg arding rese ar ch m i sconduct (42 C.F.R. pt. 93 et seq. (2005)) ; (2 ) No rthwester n ORI ’s policies and proce dures for revie wing alleg ed rese arc h misconduct; and (3) two documents establishing that Northwe stern is a private university (an April 22, 2011, sworn cer tificati2on of Northwe stern University Deputy Ge n eral Counsel Stephanie M. Gra

ham, and Nor

thwestern’ s 1851 char

ter by the I llinois leg islature). 7

¶ 55 D. The Circ uit Court’s Rul ing ¶ 56 I n response to the motions to dismiss
, the circ uit court issued two separ ate order s. In its fi rs t order
, the court denied the defe ndants’ motions to dismiss on the basis of the I llin o i s Citi zen Participation Act (735 I L CS 110/1 et seq. (West 2008)). In light of the I llinois Supreme Court’s rec ent decision in Sandholm v. Kueck er , 2012 I L 1 1 1 443, limit ing the scope of that Act, the de fenda

nts have not cha lleng ed this ruling on a ppeal. ¶ 57 I n its sec ond order
, the circ uit court held that the defe ndants enjoy ed absolute privileg e under I llinois common law. The court e x plained:
“F eder al reg

ulations promulg ated by the U.S. Depa rtment of [HHS] cre ate an aff irmative duty for health instit utions and their members to repor t alleg ations o f re s earch misconduct in order to pr otect public health service funds from misuse by ensuringthe integ rity of all fede rally funded work. [C itation.] *** There is n o d i s p u te that

On ap pea l, t he p ar ti es do n ot dis put e t hat Nor thwe st er n i s a pr ivate ent it y. 7

-15-Northwe stern is requir ed to comply with these re gulations.” ¶ 58 The court held that Oese r, Wo n g a n d L e v ine wer e protec ted by absolute privileg e bec ause under the Northwe stern policy for repor ting rese arc h misconduct, as employ ees of the university they “had an aff irmative duty to repor

t alleg ations of rese arc h misconduct to Northwe stern.” The court simil arly held that Walsh and Qualkenbush wer e pro tected by absolute privileg e on the basis of their obligations as Northwe stern officia ls responsible for investigating r esea

rch misconduc t. As the court e x plained:
“As employ ees direc tly responsible for prese rving the rese arc h integ rity of th e in s ti tu tion, they wer e require d to provide their superiors with written notice of the deter mination that an inqui ry was needed to investigate charg es of rese arc h misconduct ag ainst MauvaisJ arvis. There fore
, they had an aff ir ma ti v e d uty th r o u gh th e ir employ

ment relationship and under f eder al law to re publish the charg es.” The court also conclude d that since the claims ag ainst Northwe stern wer e derivative of the claims ag ainst Walsh and Qualkenbush, they too had to be dismissed. ¶ 59 I n coming to this decision, the court reje cted Mauvais-Jarvis’ argument that the privileg e ap p l i ca b l e to this situation is only qualified and limit ed to statements and alleg ations of misconduct made in “ g ood faith.” A s the court noted: “The re is no basis to find defe ndants went to the [ORI ] with a desire to cause MauvaisJ arvis harm. There is no alleg ation they deviated from established protocol in repor ting their alleg ations. There is no alleg ation they told anyone else at Northwe stern other than the people to whom they wer e obligated to repor t. Oese r, L evine and Wong put t h emselves under revie w by repor ting suspected rese arc h misconduct. They put t h ei r work at issue before the [ORI ] and potentially involved themselves. The ir ac tions may have neg ative conseque nces for them. *** There are no alleg ations and no showing that they acte d in bad faith and no basis to find that they should be deprive d of the protec tion aff orded by privileg e.” ¶ 60 The court also found that the one-year statute of l i m i t at i o n s fo r defa mation claims pursuant to section 13-201 (735 I L CS 5/13-201 (West 2008)) had expired with respe ct to any statements made by Oe s er and L evine in 2008. Acc ording ly
, the court dismiss ed the “def amation cha

rg es” a g ainst Oeser

and L evine. 8 ¶ 61 Wit h respect t o t he civil conspirac y claims ag ainst Oese r, W ong and L evine, the court found t hat s ince the claims wer e predicate d on t h e co mmissi on of t he underlying tort, i.e.
, the publis h i n g of defa

matory statements ag ainst Mauvais-Jarvis, which wer e absolutely privileg ed, there could be no conspirac y

. In addition, the court found th at the conspirac y claim ag ainst Wong wa s flawe d beca use it lacke d the nec essar y element of

ag ree ment. ¶ 62 T h e p l ai ntiff now appea ls contending that the circ uit court err ed in d i s m i s s i n g h i s

We not e tha t Ma uvais

- J ar vis did not ra is e a cl ai m of def amatio n agains t Oese r and Levine
, 8 but ra the r a cl ai m of con spi ra cy to def ame, bas ed on st at ements m ade by the m in 2008

. Acco rdi ngly, the ci rc uit cou rt m is spo ke when it dis m is sed the cha rges of “de fa m at ion ” a ga i n s t t h ese two def end ant s.

-16-complaint pursuant to section 2-619.1 of the Co d e of Civil Procedur e (735 I L CS 2-619.1

(West 2008)).

¶ 63 I I . ANALYSI S ¶ 64 Section 2-619.1 of the Code of Civil Procedur e allows a party to file a motion combining

a section 2-615 motion to dismiss with a section 2-619 motion to dismiss

. 735 I L C S 5 / 2

- 619.1 (West 2008). A sect i o n 2-615 motion to dismiss attacks the leg al sufficie ncy of a complaint by asser

ting that it fails to state a cause of action upon which relief can be g rante d. Ol i ve i r a v. Amoco Oil Co.
, 201 I ll. 2d 134, 147 (2002); see also 735 I L CS 5/2-615 (Wes t 2008). A section 2-619 motion to dismiss
, on the other ha nd, admits the s ufficie ncy of t he complaint, but asser

ts an aff irmative matter that acts to defe at the claim. Patrick Engineering, Inc. v. Ci t

y of Naperville
, 2012 I L 113148, ¶ 31; King v. First Capital Financial Servic es Corp.
, 215 I ll. 2d 1, 11-12 (2005); W allace v. Smyth
, 203 I ll. 2d 441, 447 (2 0 0 2 ); see 735 I L CS 5/2-619(a) (9) (West 2008) (allowing dismiss al when “the claim

asser ted ag ainst defe ndant is ba rre d by other aff

irmative matter avoiding the leg al eff ect of or defeating the claim”). When ruling on either moti o n to dismiss
, a reviewing court must construe the pleading s and supporting documents in the light most favor able to the nonmoving party and acc ept as true all well-plea ded fac ts in the complaint and all infere nces that may rea sonably be drawn in the plaintiff’s favor

. Sandholm v. Kueck er , 2012 I L 111443, ¶ 55. Under either section, our review i s de n o vo

. Solaia Technology, LLC v. Specialty Publishing Co. , 221 I ll. 2d 558, 579 (2006).

¶ 65 A. Def amation ¶ 66 I n the prese nt case , the circ uit court dismiss ed Mauva is

- Ja r v is ’ d e f a mation claims ag ainst Wong, Qua lkenbush, Walsh a nd Northwe stern pursuant to se ction 2-619(a )(9) of the Civil Procedur e C o d e (7 3 5 I L CS 5/2-619(a) (9) (West 2008)), finding that they wer e barr ed by absolute privileg e. ¶ 67 To establish defa mation, a plaintiff must prese nt fac ts showing that the defe ndant made

a defa matory statement about the plaintiff, the defe ndant made an unprivileg ed publication of t hat s tatement to a thi rd party
, and the publicati on cause d damag es. Solaia Technology
, 221 I ll. 2d at 579. “A defa matory statement is a statement that harms a pe rson’s re putation
to the extent it lowers the person in the ey es of the community or deter s the community from associatingwith her or him.” Solaia , 221 I ll. 2d at 579. ¶ 68 There are two ty pes of defa

matory statements: defa

mation per se an d d ef

amation per quod

. Brennan v. Kadner
, 351 I ll. App. 3d 963, 968 (2004). In an action for defa mation per quod
, the plaintiff must plead and prove actua l d am age s i n order to rec over. Impe rial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc.
, 227 I ll. 2d 381, 390 (2008). I f a defa matory statement is actionable per se , howeve r, the plaintiff need not plead or prove actua l damag e to his or her reputation to rec over. Bryson v. News America Publications, Inc.
, 174 I ll. 2d 77, 87 (1996). “Rather
, statements that fall within *** actionable per se cate g ories are thought
t o b e so obviously and materia lly harmful to [t he plaintiff] that injury to [t he plain t i ff’s ] reputation may

be pre sumed.” Bryson , 174 I ll. 2d at 87.

-17-¶ 69 T h e I llinois Supreme Court rec og nizes only five cate g ories of st at em en t s t h at ar e

defa matory per se : (1) words that impute a person has commit t ed a crime; (2) words that impute a person is infec ted with a loathsome communicable disease; (3) words that impute

a person is unable to perf

orm or lacks integ rity in perf orming his or her employ

ment duties; (4) words that impute a person lacks ability or otherwise prejudice s that person in his or her profe ssion; and (5) words that impute a person has enga g ed in adulter y or for nication. See Solaia , 221 I ll. 2d at 579-80. ¶ 70 Even statements that are defa matory per se , h o we v er , ar e not actionable if they are protec ted by privileg e. Anderson v. Beac h
, 386 I ll. App. 3d 246, 249 (2008) (citing Zych v. Tucker
, 363 I ll. App. 3d 831, 834 (2006))

. “As a matter of public poli cy , cer tain ty pes of defa matory statements are deemed privil eg ed so that the per son making the statement will
not be deter

red from speaking by the threat of civil liability .” Sta r nes v. International Harve ster Co.
, 141 I ll. App. 3d 652, 653 (1986). There are two ty pes of privileg e available : absolute and qua lified privileg e. Starnes , 141 I ll. App. 3d at 653-54. ¶ 71 W h ere absolute privileg e is g rante d, no cause of action for defa mation lies ag ainst the
person making the statement even if it is made with malice. Starnes
, 141 I ll. App. 3d at 653- 54; see also Zych v. Tucker
, 363 I ll. App. 3d 8 3 1
, 8 3 4 (2 006) (“A n absolute privileg e provides a complete immunit y from civil action even though the statements wer e made with malice beca

use public policy favor s the fre e and unhindere d flow of such information.”) ; see also Wil liam L

. Prosser, Torts § 114, at 777 (4th ed. 1971) (Absolute immunit y is extended
to communications “w h ere there is an obvious policy in favor of permitting complete fre edom of e x pression, without any inquiry as to the def

endant’ s motives.”). ¶ 72 On the other hand, wher e only qualified privileg e is g ranted t h e p er s o n making the
statement is immune from liability unless some element such as malice is prese nt. Starnes
, 141 I ll. App. 3d at 653-54; see also Zych
, 363 I ll. App. 3d at 834; see also Prosser, supra , at 785-86 (“The re rema in a g roup of situat i o n s in which the interest which the defe ndant is seeking to vindicate is reg arde d as having an intermediate deg ree of importance
, so that the immunit y confe rre d is not absolute, but is conditioned upon public at i o n in a rea sonable

manner and for a proper purpose. The pri v i l ege is there fore spoken of as ‘qualified,’ ‘conditional’ or ‘def

easible’

. *** [W ith qualified privileg e] the publication is p ri v i leg ed when it is ‘fa irly made by a person in the discharg e of some public or private duty
, whether leg al or moral, or in the conduct of his own aff airs, in matters wher e his in t erest is

conce rned.’ ” (quoting Toogood v. Spyring
, 149 E n g. Rep. 1044 (1834)) ). A qualified privileg e exis ts when the following elements are prese nt: “ ‘(1) g ood faith by the defe ndant in making the statement; (2) an interest or duty to uphold; (3) a statement limit ed in its scope to that purpose; (4) a proper occa sion; and (5) publication in a proper manner and to proper parties only .’ ” Zych
, 363 I ll. App. 3d at 834 (quoting Kuwik v. Starmark Star Marke ting & Administrati on, Inc.
, 156 I ll. 2d 16, 25 (1993))

. T h e protec tion provided by a qualified privileg e is lost if: “(1) false statements are made with malice or a rec kless disreg ard for their truth, (2) the state ments are not limi ted in scope, or (3) publication is not limited to proper
p ar t i es.” Zych
, 363 I ll. App. 3d at 835 (citing Kuwik
, 156 I ll. 2d at 27). The questi o n o f whether privileg e is absolute or qualified is a matter of law to be decide d by the court. Anderson , 386 I ll. App. 3d at 249 (citingZych , 363 I ll. App. 3d at 834).

-18-¶ 73 On appea l, Mauvais-Jarvis contends that only qualified privileg e can apply to a lleg edly

defa matory statements made in the context of a university rese arc h misconduct proce eding

. The defe ndants, on the other hand, contend that the circ uit court proper ly extended absolute
p rivileg e to such statements. The parties conce de, and our rese arc h has reve aled, t h at n o I llinois case has spec ifically addre ssed this issue. Accor dingly , we are fac ed with a case of first impression in I llinois

. For the reasons t h at fo l l o w, we are compelled t o find that only qualified privileg e applies. ¶ 74 The class of occa sions wher e defa matory statements are absolutely privileg ed in I llinois is very narr ow and has g ener ally been limit ed to leg islative, judicial and some quasi-judicial
proce eding s and “other acts of State,” including “communications made in the discharg e of

a duty under express authority of law.” Busch v. Bates
, 323 I ll. App. 3d 823, 833 (2001); see also Zych
, 363 I ll. App. 3d at 834 (“The class of occa sions wher e defa matory statements are absolutely privileg ed is narr ow and g ener ally limit ed to leg islative, judicial and some quasijudicial proce eding s.”); see also Parillo, W eiss & Moss v. Cashion
, 181 I ll. App. 3d 920, 928 (1989); see also W

eber v. Cueto
, 209 I ll. App. 3d 936, 942 (1991) (“The class of absolutely privileg ed communications is narr ow and is prac tically limit ed to leg islative and judicial
proce eding s and other acts of State, including communications made in the d i s ch arge of a duty under express authority of law.”) ; Anderson v. Beac h
, 386 I ll. App. 3d 246, 249 (2008) (“A bsolutely privileg ed communications are rar e.”) ; Thomas v. Petrulis
, 125 I ll. App. 3d 415, 418 (1984) (“The class of occa sions whe re libelous w ords are absolutely privileg ed is

narr ow.”) ; Prosser, supra , at 777 (“A bsolute immunit y has been confin ed t o a very few situati ons wher e there is an obvious policy in favor o f p er m itting complete fre edom of expression, without any inquiry as to t h e d ef endant’ s motives.” (Emphasis added.) ). The Restatement (Sec ond) of Tor ts § 592A (1977) provides that “[o] ne who is re quired by law
to publish defa

matory matter is absolutely privileg ed to publish it.” The comment to section 592A states that the rule provided therein “will apply whene ver the one who publishes the defa matory matter acts under leg al compulsion in so doing.” Restatement (Second) of Torts § 592A, cmt. b, at 258 (1977)

. ¶ 75 The defe ndants first argue that beca use they wer e requir ed t o re p o rt an d i n vestig ate

rese arc h misconduct under the fede ral regulations and Northwe stern’s ORI pol icies they should be protec ted by

absolute privileg e. We disag ree

. ¶ 76 Althou gh t he defenda nts are corr ect in asser

ting that the federa l regulations impose an “af firmative duty ” on all “instituti ons and instit utional members” rec eiving fede ral funding for medical and scientific rese arc h to protec t g overnme nt “funds from misuse” by “re sponding to and repo rt i n g alleg ations of rese arc h misconduct” (42 C.F.R. § 93.100(b) (2005))
, that duty is expli citly qualified by the require ment of “g ood faith” both in repor ting and investigating rese arc h misconduct. See 42 C.F.R. § 93.203 (2005) (“Complainant means

a person who in good

faith ma kes an alleg ation of rese arc h misconduct.” (Emphasis added.) );

see also 42 C.F.R. § 93.210 (2005) (“G ood fa i t h as applied to a complainant or witness

means having a belief in the truth of one’s alleg ation or testimony that a rea sonable person in the complainant’s or witness’s position could have based on the information known to the complainant or witness at the time. An alleg ation or cooper ation with a rese arc h misconduct
proce eding is not in g ood faith if made with know ing or rec kless disreg ard for information

-19-that would neg ate the alleg ation or testimony

. Good faith as applied to a committee member

means cooper ating with the rese arc h m i s co nduct proce eding by car rying out the duties assig ned impartially for the purpose of helping an instit ution meet its responsibilities under this part. A committee member does not act in g ood faith if his/her acts or omissions on the committee are dishon es t or influence d by persona l, profe ssional or financ ial conflicts of interest with those involved in the re sear ch misconduct proc eeding .”). ¶ 77 Consist ent with the fede ral regulations, Northwe stern’s ORI policy conditions reporting of rese ar ch m i s co nduct on “g ood faith.” A complainant, who is define d as “an individual who submits an alleg ation of re sear ch misconduct,” is “responsible f or making alleg ations in good faith .” (Empha sis added.) “ Good fa ith” alleg ations are define d as: “alleg ation[s] made with the honest belief that rese arc h misconduct may have occur red. An alleg ation is not in g ood fa i t h if it is made in rec kless disreg ard for or willful ignor ance of fa cts that would disprove the a lleg ation.”
I n addition, in delineating the responsibility to repor t rese arc h misconduct, the p o l i cy provides that Northwe stern will protec t “those individuals who provide information in good faith about questionable conduct ag ainst repr isals.” The policy further provides that just a s it aims to protec t complainants ag ainst reta liation, Northwe stern is “equa lly conce rned about malicious or friv o lous alleg ations made ag ainst our rese arc h community ” and there fore “per forms a car eful assessment of all alleg ations broug ht t o t h e at t ention of instit utional officia ls.” ¶ 78 Taking into acc ount the “g ood faith” languag e of the fe d er al re gu l ati ons, which wa s adopted by Northwe stern’s ORI policy
, we believe that only qualified priv ileg e protection is contemplated for statements made in the context of a university resear ch m i s conduct
proce eding

. See Lee v. John Dee re Insurance Co.
, 208 I ll. 2d 38, 43 (2 0 0 3 ) (t he plain lang uag e of a

statute or re g ulation is the best indicator of its intended mea ning)

. ¶ 79 We find direc t support for this conclusion in a 1993 position paper of the ORI
, the fede ral
ag ency direc tly responsible for enfor cing the afor ementioned regulations. That position 9
paper , titled, “The Whis tleblower’ s Conditi onal Privilege to Report Alleg ations of Scientific Misconduct” spe cifica lly

states:

We not e tha t nei the r par ty has ci te d thi s pos it ion pap er in the ir bri ef s. Wh en que st ion ed 9 abo ut the pap er dur ing ora l ar gum ent s, cou nse l for Ma uvais

- J ar vis st at ed tha t he “t hought the pap er had bee n re m oved or wit hdr awn.” Couns el
, however
, did not ci te any aut hor it y, nor poi nt thi s cou rt to any eviden ce what soe ver to sup por t thi s pos it ion

. Couns el for the def end ant s, on the oth er han d,

re m ai ned si le nt, off

er ing no ar gum ent or ci ta ti on to aut hor it y t o ei the r sup por t or negate the

re li abi li ty of t h e o p ini on pap er

. Sin ce the pap er re m ai ns on ORI ’s webs it e and our re sea rc h has

r eveal ed not hin g tha t woul d sugg est tha t it has bee n wit hdr awn or re m oved, we wil l tr eat it a s per sua si ve aut hor it y. See Pic ket t v. She ri dan Heal th Care Cent er , 664 F.3d 632, 648 (7t h Cir

. 2011 ) (ho ldi ng tha t a cou rt m ay ta ke j udi ci al not ic e of gov er nm ent webs it es, as lon g as the par ti es ar e giv en

an oppo rt uni ty to be hea rd on the is sue ). I n ei the r event, our dec is ion doe s not res t on the pres enc e

or abs enc e of the ORI pos it ion pap er ; ra the r, for the re aso ns fur the r dis cus sed i n our opi nio n,

re gardl ess of tha t posi ti on pape r, we con cl ude th at abs olu te pr ivil ege doe s no t a ppl y to st at ements

m ade in th e c ont ext of

a p ri vate u niver si ty’s re sea rc h miscon duc t p roc eed ings.

-20-“Co n s i s t en t with PHS regulations, ORI believes that whistleblowers possess a conditional [or qualified] privileg e to dis cl o se, i n g ood faith t o the proper i nstitut ional

or ORI officia ls, alleg ations of scientific misconduct. Such a conditional privileg e would protec t whistleblowers fr o m d efa mation claims even wher e the alleg ations ultimately
prove to be untrue. Howeve r, whi stleblowers who abuse the privileg e by making bad faith alleg ations or by intentionally violating the confide ntiality of acc used parties may not be protec ted from de famation claims.” 1 0
There can be no clea

rer statement of an age ncy ’s i ntent than t his. See Chevron U.S.A. Inc.

v. Natural Resource

s Defense Council, In c. , 4 6 7 U.S. 837, 843 (1984) (holding that if a statute or regulation is silent or ambig uous with respe ct to specific issue, a revie wing court should defe r to an ag ency ’s interpre tation of that regulation or statu t e, so long as the interpre tation is reasona

ble); Cotter & Co. v

. Property Tax Appeal Board , 277 I ll. App. 3d 538, 542-43 (1995) (a revie wing court should overturn an ag ency ’s interpre tation of its own regulation only if the interpre tation is “ ‘cle arly err oneo u s

. ’ ” (quoting LaBelle v. State Employe es Retirem ent System of Illinois , 265 I ll. App. 3d 733, 735-36 (1994)) ). ¶ 80 Our co n cl u s i o n i s further supported by decisions of other jurisdictions, which have specific ally addre ssed the applicability of privileg e to defa mation claims r a is e d in the context of rese arc h misconduct proce eding s, and have consistently and exclusively applied qualified privileg e. S ee, e.g. , Arroyo v. Rosen
, 648 A.2d 1074 (Md. C t. Spec. App. 1994) (rejec ting

a university rese arc h associate ’s reque st to extend absolute privileg e to statements he made about the depa

rtment cha irman’s a lleg ed fa brication of data in a published sc ientific pape r to the investigatory committees of the university and later the Veter ans’ Ad m i n i stration (which had funded the chair man’s position); holding that only qualified privileg e applied to statements made in the context of a university rese arc h misconduct proce eding ); see also Chao v. Mount Sinai Hospital
, No. 10-CV 2869(HB ), 2010 WL 5222118 (S.D.N.Y Dec

. 17, 2010) (re fusing to consider whether absolute privileg e attache d to s t at em en t s made by a postdoctoral student acc using her employ er and assistant profe ssor of medicine of misrepre sent i n g d at a on a manuscript about to be submitt ed for publication beca use the
statements wer e subjec t to qualified privileg e and qualified privileg e provided g rounds for dismiss al), aff’d , 476 Fe d. Appx. 982 (2d Ci r. 2012) ( finding that the l ower court prope rly applied qualified privileg e to statements made during the course of an investi gat i o n and disciplinary proce eding s related to alleg ations of rese arc h misconduct in the context of a former profe ssor’s action ag ainst the medical school and fac ulty members for defa mation); Chandok v. K

l essig
, 632 F.3d 803 (2d Cir. 2011) (apply ing only qualified privileg e to statements made by direc tor of a medical laboratory about postdoctoral fellow’s alleg ed scientific rese arc h misconduct ). We ag ree with these decisions and are disinclined to 1 1

See ht tp: // ori .hhs .gov

/i m ages/ ddbl ock/whi st le blo wer _co ndi ti ona l.p df

. 1 0

W e not e tha t, asi de fr om Ma uvais

- J ar vis’ ci ta ti on to Chand ok
, 632 F.3d 803, and the 1 1 def end ant s’ bri ef re spo nse to it
, nei the r par ty ci te s to or add re sse s any of the af ore m ent ion ed cas es. I nst ead
, the def

end ant s ci te to dec is ion s fr om oth er j uri sdi ct ion s whic h have app li ed abs olu te pri vilege to st at ements al le ging poor te ach er per for m anc e in the edu cat ion al set ti ng. See W ei ssma n

-21-broade n the scope of absolute privileg e immunit y to include statements made in the context

of a pr ivate univer sity ’s re sear ch misconduct proc eeding s. ¶ 81 The defe ndants never theless cite to W

eber
, 209 I ll. App. 3d at 942-48, Bus ch
, 3 23 I ll. App. 3d at 832-34, Anderson
, 386 I ll. App. 3d at 247-50, and Goldberg v. Brooks , 409 I ll. App. 3d 106, 112-13 (2011), for the proposition that statements mad e d u ri ng the rese arc h misconduct proce eding s must be protec ted by absolute privileg e beca use they wer e mad e pursuant to an “af

firmative duty to repor

t.” We have revie wed those case s, howeve r, and find them inapposite. ¶ 82 I n both W

eber and Busch
, the court extended absolute privileg e to statements made “in the discharg e of a duty under express authority of law.” W eber
, 2 0 9 I l l

. Ap p

. 3d at 942, Busch
, 323 I ll. App. 3d at 833. In W eber
, absolute privileg e was extended to a letter sent by

an attorney to the chief judge of the circ uit court and then published to the county board alleg ing improper use of funds by the State’s Attorney beca use the at torney was under an absolute duty to repor

t such violations pursuant to the disci p linary rules of the Code of Professional Responsibili ty

. W eber
, 209 I ll. App. 3d at 942-48. In Busch
, the court applied absolute privileg e to statements made by four police office rs ag ainst a crime scene technicia n, alleg ing that the technicia n had acte d outside the scope of his employ ment when he threatened a suspect in a homicide investigation, beca use th e s tatements wer e made during

an internal police disciplinary investigation and the office rs wer e leg ally obligated to repor t such beha vior pursuant to a State Police dire ctive. See Busch , 323 I ll. App. 3d at 833-34. ¶ 83 I n extending absolute privileg e to these situations, both the W eber an d B u s ch co u rt s noted that their “g reatest conce rn was ‘the mandat o r y nature of the [defendant’ s] duty to repor t.’ ” (Emphasis added.) Busch
, 323 I ll. App. 3d at 834 (quoting W eber
, 209 I ll. App. 3d
at 946). I n W

eber the court noted that “[i] f a lawyer fail[ed] to co m p l y with [t he rules requiring disclosure of another attorney ’s violation of the Code of Professional Conduct], he

or she fac [ed] profe ssional discipline.” W eber
, 209 I ll. App. 3d at 946. Simi larly
, in Busch
, the court noted that pursuant to the rele vant State Police direc tive “ ‘[f]ailure [by the police office rs] to cooper ate with a proper ly conducted internal investigation [could] result in

v. Mo gol
, 462 N.Y.S.2d 383 (N.Y. Sup. Ct. 1983 ) (a ppl ying abs olu te pri vilege to par ent s’ complai nts to the boa rd of edu cat ion al le ging poor per for m anc e by a j uni or high sch ool te ach er ); see al so Ma rt in

v. Kear ney , 124 Cal

. Rptr

. 281 (Ca l. Ct. A p p

. 1 9 7 5 ) ) ( app lying abs olu te pri vilege to le tt er s fr om par ent s complai nin g abo ut publ ic sch ool te ach er ’s per for m anc e t o her sup er visor ). We fi nd no

ana logy bet ween evalua ti ons of a te ach er ’s per for ma n ce and al le gatio ns of re sea rc h m is con duc t. Wh at is m ore , con tr ar y to the def end ant s’ ass er ti ons , our sup re m e cou rt has spe ci fi cal ly hel d, al bei t ta ngenti al ly, tha t st at ements m ade wit hin a uni versi ty set ti ng abo ut a pro fe sso r’ s poor per for m anc e

ar e to be pro te ct ed onl y by qua li fi ed, and not abs olu te , pri vilege. See Cols on v. Sti eg , 89 I ll

. 2d 205, 209 (19 82) (ho ldi ng tha t s t a t e me n ts m ade by a uni versi ty dep ar tment cha ir m an abo ut a for m er

ass is ta nt pro fe sso r to a uni versi ty per son nel comm it te e , tha t he had inf ormati on tha t re fl ect ed advers el y on the pr ofe sso r’ s pe rf ormance as a t eac her , wer e pr ote ct ed o nly by qual if ie d pr ivil ege; not ing “[ t] he ci rc um st anc es sur rou ndi ng the m aking of the st at ements in que st ion ar e not suc h as to

re qui re the pro te ct ion of an abs olu te pri vilege, but ins te ad, come wit hin the acc ept ed ar eas to whic h
a qu al if ie d pr ivil ege has bee n ex te nde d”)

.
-22-discipline and even separ ation from the depar tment.’ ” Busch
, 323 I l l

. App. 3d at 834 (quoting I llinois State Police Direc tive PER-30, 92-52, ¶ V(c )). ¶ 84 Unlike in W

eber
, and Busch
, in the prese nt case , the defe ndants would not have incurre d
any neg ative conseque nces as a result of their failure to repo rt o r i n v estig ate the alleg ed

res ea rc h misconduct. Although the fede ral regulations impose an “af firmative duty ” upon instit utional members to repor t and investigate misconduct (42 C.F.R. § 93.100 (2005))
, and Northwe stern’s ORI policy states that all employ ees “should repor t” such misconduct, nothing in eit h er the fede ral regulations or Northwe stern’s ORI policy compels an individual’s disclosure. The fede ral regulations, themselves, extend only as far as the instit utions re ceiving the fede ral funds, by conditioning the rec eipt of those funds upon the

cre ation and implementation of policie s a n d p r o c e d ures to repor

t and investigate misconduct. The fe dera l regulations, however
, do not ha ve any rea ch over individuals. B y their explicit lang uag e they do not purport to have enfor ceme nt power over an individual’s choice to repor t scientific misconduc t. Northwe stern, si milarly
, has no rea ch over its employ ees. A lthough it advises all of its employ ees that they “should” repor t rese arc h misconduct, it provides Northwe stern’s ORI with no authority to either compel or enfor ce individual repor ting or to punish those who fail to repor t. Acc ording ly
, th e duty to repor t here is not mandatory

. Cf. South 51 Devel o

pment Corp. v. Vega
, 335 I ll. App. 3d 542, 560-61 (2002) (“N o universal formula exis ts for differ entiating betwee n mand at o ry and direc tive statutory provisions. [C itation.] Whil e use of the word ‘shall’ ordinarily denotes a mandatory obligation [citation]
, the term may take on a permissive or direc tive meaning depending on the leg islature’s intent. [C itations.] Gene rally if a statute imposes duties and by express terms provides that the omission to perf

orm the duties rende rs the proce eding void, then courts are bound to construe those provisions as mandatory

. Where, howeve r, the statute provides that cer tain acts are to be done in a particula

r time and a particula

r manner and does not decla re their perf

ormanc e to be essential to the va lidity of a pr ocee ding, the n the statute is direc tory . [C itations.] ”). ¶ 85 There fore
, a repor t of rese arc h misconduct is not an act done “in the discharg e of a duty under express authority of law” (see W eber
, 209 I ll. App. 3d at 942; Busch
, 323 I ll. App. 3d
at 833), but rathe r one car ried out in further ance of a moral obligati o n , which, we find, is

more suitable for qualified privileg e protec tion. See Prosser, supra , at 785 (not i n g t h at qualified privileg e req u i re s t h at the protec ted statements be made by a person in “the discharg e of some public or private duty whether legal or moral ” (empha sis added) (interna l quotation marks om i t t ed)) ; Zych
, 363 I ll. App. 3d at 834 (holding that qualified privileg e require s: “ ‘(1) g ood faith by the defe ndant in making the statement; (2) an interest or duty
to uphold ; (3) a statement limit ed in its scope to that purpose; (4) a proper occa sion; and (5) publication in a proper manner and to proper parties only ’ ” (empha sis added) (quoting Kuwik , 156 I ll. 2d at 25)). ¶ 86 We simil arly find t h e d ef en d an t s ’ relianc e on Anderson
, 386 I ll. App. 3d at 247-50, misplaced. Cont rar

y to the de fe n d an t s’ pos ition, the central i ssue i n Anderson was not the applicability of absolute privileg e. See Anderson
, 386 I ll. App. 3d at 247-50. Rather, in that

case , the parties ag ree d that absolute privil eg e applied to a female poli ce office r’s letter to her superintende nt acc using a male office r of misconduct and sexual hara ssment beca use she

was under a duty to re p o rt m i sconduct. Anderson
, 386 I ll. App. 3d at 249-50. The parties

-23-disag ree d, h o we v er , as to whether absolute privileg e also applied to the office r’s later

dis s emination of that letter to her peer s. Anderson
, 386 I ll. App. 3d at 250. The court in Anderson declined to extend absolute privileg e to that situation, noting that the office r “wa s not acting within the scope of her officia l duties or authority when she reve aled the letter and its contents to officer s outside her c hain of c ommand.” Anderson , 386 I ll. App. 3d at 250. ¶ 87 We a lso r ejec t the defe ndants’ relianc e on Goldberg
, 409 I ll. App. 3d at 112-13. In that

case , the court extended absolute privil eg e to stat em en t s m ade by a teaching assistant to a public school principal that the school bus driver drove her ag ainst her will to three differ ent locations befor e starting the bus route, and the principal’s later statements to the school bus driver’ s employ er that the bus driver was not a suitable person to work with children beca use he had hara ssed the teac hing assistant and had threatened to run over two children crossing slowly in front of his bus. Goldberg , 409 I ll. App. 3d at 112-13. In extending the pr ivilege to both statements, the court found that in r eportingthe misconduct, both the principal and the teac her had “ac ted within the scope of their public employ ment.” Goldberg
, 409 I ll. App. 3d at 112. Since the prese nt case does not involve public employ ees acting within the scope of their duties, but rather a private unive rsity
, Goldberg is not analog ous. ¶ 88 Fo r these same rea sons, we reje ct the defe ndant’s relianc e on Hartman v. Ke r i
, 8 8 3 N.E.2d 774 (Ind. 2008). I n Hartman
, the Indiana Supreme Court extended absolute privileg e to complaints of sexual hara ssment by two Purdue University students ag ainst their profe ssor pursuant to the univer sity ’s antiharassment policy and throug h the university ’s af firmative action office

. Hartman
, 883 N.E.2d at 777-7 9

. Har tman , howeve r, is inapplicable since it involved a public university and not a private instit ution, like Northwe stern. See Hartman
, 883 N.E.2d at 775. Hartman is also fac tually distinguishable beca use Purdue’s antihara ssment policy
, which details the university ’s proce ss for repor ting and investigating alleg ations of sexual h arassment, signific antly differ s from Northwe stern’s rese arc h misconduct proce eding s. That policy expli citly provides that a student who makes false alleg ations of sexual hara ssment is “subjec t to aca demic discipline for abuse of the proce ss.” Hartman
, 883 N.E.2d at 778. In extending ab s o l ute privileg e to alleg ations of sexual hara ssment in the university context, the In d i an a S u p reme Court relied on this prec ise provision of Purdue’s antihara ssment policy
, not i ng that “[i] n prac tical terms [i t] is a substantial deter

rent to false repor

ting.” Hartman
, 883 N.E.2d at 778. As alre ady explained above, there is no eq u i v al en t punishment for a rese arc her who falsely repor ts scientific misconduct, either under Northwe stern’s ORI policy or the fede ral regulations, so as to make the rese arc h misconduct proce eding s analog ous to Purdue’s proce ss for investigating sexual hara ssment claims. Acc ording ly
, we find the d e f e n d a nts ’ c it a ti o n to H a r tm a n , u n p e r s u a sive. 1 2 ¶ 89 The defe ndants never theless argue that we should extend absolute p rivilege to statements made in the context of a university ’s rese arc h misconduct proce eding beca use such a

T his same re aso nin g app li es to our re fus al to be per sua ded by the dec is ion of the Ma rylan d 1 2
sup re m e cou rt in Rei cha rdt v. Fly nn , 823 A.2d 566, 567 (M d. 2003 ), whic h si mi l ar ly ext end ed abs olu te pri vilege to al le gatio ns of sex ual har ass m ent m ade by publ ic high schoo l stu den ts agains t the ircoa ch.

-24-proce eding is quasi-judicial in nature , or in the very least, “nec essar ily preliminary” to a

quasi-judicial proc eeding . For the re asons that follow, we disag ree

. ¶ 90 We acknow ledg e that in I llinois
, absolute p ri v i l ege protec ts statements made dur ing leg islative, judicial and some quasi-judicial proc eeding s, as well as a ctions and statements that are “nec essar ily

preliminary” to such proc eeding s. Zych , 363 I ll. App. 3d at 835. ¶ 91 Howeve r, the defe ndants do not cite, nor has our rese arc h reve aled, any I llinois case that has found a quasi-judicial proce eding o r a “nec essar ily preliminary” step toward one in a proce eding befor e a private entity (whi ch t h e parties concede Northwe stern is ) rather than

one involving a g overnme ntal ag ency or another ty pe of state actor

. See W

eber v. Cueto
, 209 I ll. App. 3d 936, 942 (1991) (“The class of absolutely privileg ed communications is narr ow

an d i s prac tically limit ed to leg islative and judicial proce eding s and other acts of State
, including communications made in the discharg e of a duty under express authority of law.” (Emphasis added.) ); see also Richardson v. Dunbar
, 95 I ll. App. 3d 254, 257 (1981) (“The [absolute] privileg e adher ing to testimony g iven in quasi-judicial proce eding s encompa sses testimony g iven before administrati ve agencie s or other governm en t a l bodies when such
ag encie s or bodies are perf orming a judicial function. [C itations.] ” (Emphasis added.) ); see also, e.g. , Allen v. Ali
, 105 I ll. App. 3d 887 (1982) (apply ing absolute privileg e to statements made befor e the I llinois Attorney Reg istration and Disciplinary Commi ssion (ARDC) since it acte d as a quasi-judicial body); see also Kalish v. Illi nois Education Ass’n , 157 I ll. App. 3d 969 (1987) (a p p l y i ng absolute privileg e to a letter to the I llinois Supreme Court’s Charac ter and Fitness Commi ttee for admission to the I llinois Ba r beca use it acte d in a quasijudicial capa city

); Parker v. Kirkland
, 298 I ll. App. 340 (1939) (apply ing absolute privileg e to statements m ade before the Board of Appea ls of C ook County
, s i n ce the board acte d in

a quasi-judicial capa city

); Kimball v. Ryan
, 2 8 3 I ll. App. 456 (1936) (apply ing absolute privileg e to communications befor e the Chicag o Boa rd of Election Commi ssioners beca use it is a quasi-judicial body

); Krumin v. Bruknes
, 255 I ll. App. 503 (1930) (apply ing absolute privileg e to sta

tements made to the Natura liz ation Bur eau of the United States Depa rtment of L abor since it perf

orms quasi-judicial functions); Thomas
, 125 I ll. App. 3d 415 (applying absolute privileg e to a char g e of sexual discrimination filed with the Equ al E m p l oy ment Opportunity Commi ssion (EEOC) beca use the EEOC is a quasi-judicial body ); Starnes
, 141 I ll. App. 3d 6 5 2 (a p ply ing absolute privileg e to a letter attacking the integ rity of a circ uit
court judge sent to the I llinois J udicial Inquiry Boa rd (JI B) since it acte d in a quasi-judicial
capa city ); Adco Servic es, Inc. v. Bullard
, 256 I ll. App. 3d 655 (1993) (apply i n g ab solute privileg e to letters to the Central Midwest I n terstate L ow-L evel Radioactive Waste Commi ssion and I llinoi s De p ar t m ent of Nuclea r Safety as they are quasi-judicial bodies); Parrillo, W

eiss & Moss
, 181 I ll. App. 3d 920 (applying a bsolute privileg e to a letter to the I l l i n o i s Depa

rtment of I nsuranc e since the letter was a preliminary step to a quasi-judicial
proce eding ); but see Allen v. Ali
, 105 I ll. App. 3d 887 (re jecting plaintiff’s reque st to extend absolu te privileg e to letters written to the Chicag o Ba r Association and Americ an Ba r Association beca

use the two private organizations did not perf orm quasi-judicial functions). ¶ 92 Even if a private entity could be considere d a quasi-judicial body
, which we cer tainly do
not conce de, in the prese nt case , Northwe stern’s ORI does not possess the requisite power s

nece ssary to act as such a body

. In I llinois courts have identified six power s that differ entiate

-25-a quasi-judicial body from one perf orming mere ly an administrative function. See Starnes
, 141 I ll. App. 3d at 655. These are : (1) the power to exercise judgme nt and discretion; (2) the
power to hear and deter

mine or asce rtain fac ts and decide ; (3) the power t o m ak e binding order s and judge ments; (4) the power to aff ect persona l or proper

ty rig hts of private persons; (5) the power to examine witnesses, to compel witness attendanc e and to hear the litigation of issues o n a h earing ; and (6) the power to enfor ce decisions or impose penalties. See Starnes
, 141 I l l

. Ap p

. 3 d at 655. A quasi-judicial body need not possess all six power s; howeve r, the more power s it possesses the more likely it is acting in a quasi-judicial manner

. See Starnes , 141 I ll. App. 3d at 655. ¶ 93 Although N orthwester n’s ORIhas the power to e x erc ise judg ment and dete rmine fa cts in investigating rese arc h misconduct throug h the inquiry and investigation committees, it is
not authorized to compel witnes s at t endanc e during those proce eding s. Nor does Northwe stern’s ORI posses the power to make binding order s and judgme nts that aff ect the
persona l or proper

ty rig hts of those found to have committed rese arc h misconduct. Whil e it is true that upon a f

inding of rese arc h misconduct, the provost may “dete rmine and invoke
appropr iate sanctions or disciplinary actions,” those sanctions may be imposed only “within [t he confine s of] the university .” For these rea sons, we cannot find that Northwe stern’s ORI
possesses the requisite power s of a quasi-judicial body

. See Starnes
, 141 I ll. App. 3d at 655. ¶ 94 Nor can we hold that the proce eding s befor e Northwe stern’s ORI are a step “nec essar ily preliminary” to a qu as i -j u d icial proce eding
, particula rly since the fede ral ORI must, of its

own acc ord, choose to become involved by making its own finding of rese arc h misconduct, filing a formal char g e letter and proposing and obtaining HHS approva l for “administrative actions” ag ains t the responde nt (42 C.F.R. §§ 93.400, 93.404 to 93.405, 93.500 to 93.501 (2005))

. See Zych
, 363 I ll. App. 3d at 836 (holding that only qualified, rathe r than absolute,

1 3 privileg e applied to a defa matory letter that an arreste e sent to the office of internal a ffa irs (OIA) of the sheriff

’s depar tment, acc usin g the arr esting office r of using excessive forc e; finding that a complaint to the OI A was not ne cessa rily preliminary to a proce eding befor e the sheriff

’s merit board, which was authorized by statute to suspend a member of the police forc e, beca

use the OI A was not char g ed with the duty to file char g es ag ainst an office r with the merit board and beca use “[n] othing in the rec ord support[ed] the conclusion t h at [i t] ha[d] any power other than to investigate complaints ag ainst a member of [the police] and make recommendations to the s heriff who, in turn, [was authorized to] deter mine whether to suspend a member

*** or file wr itten char g es with the B oard” ). ¶ 95 I n that respe ct, we a re mindful that the ORI
, the fede ral ag ency direc tly responsible for

cre ating and implement i n g the regulations conce rning the repor ting and investigation of

rese arc h misconduct, expli cit ly r e c o gn iz e s th a t in s ti tu ti o n a l r e s e a

r c h mi s conduct proce eding s gen er all y do not rise to the level of judicial or quasi-judicial proce eding s. See Offic e o f

I n that re spe ct , we al so not e tha t the fe der al re gulat ion s exp li ci tl y st at e tha t the par ti es to 1 3
any “ad m ini st r a t i ve h ear ing” ini ti at ed by a re spo nde nt see king to cha ll enge an ORI fi ndi ng of

re sea rc h m is con duc t or any HHS adminis tr at ive act ion ar e onl y the re spo nde nt and the ORI and not the ins ti tut ion wher e the r e s e a r c h misc ondu ct pro cee din gs we re ini ti at ed. See 42 C.F.R. § 93.5 05 (20 05)

.
-26-Resear ch I nteg rity
, Posit ion Paper #1, The Whis tleblower’ s Conditi onal Privilege to Report

A l l e g a t i o n s o f S c i e n t i f i c M i s c o n d u c t ( D e c

. 1 9 9 3 )
, http : //ori.hhs.gov/imag es/ddblock/whistleblower_c onditional.pdf (“A n absolute privileg e applies only in leg islative and judicial proce eding s. Allegat i ons of scientific misconduct usually occur in a pre- adjudicator y context, and thus do not trigger an absol ute privileg e. Neve rtheless, the whistleblower may claim a co n d it io n a l p r iv il e g e.” (Emphasis in orig inal.)). ¶ 96 I n ad d i t i o n , we n o t e t h at t h o s e j u ri s dictions that have expli citly addre ssed the applicability of absolute privileg e to university rese arc h misconduct proce eding s have ref used to define such proce eding s as quasi-judicial, noting that they lack the requisite
proce dural safe guards to protec t those acc used of rese arc h misconduct. See, e

. g

. , A r royo , 648 A.2d at 1077-78 (holding that statements that a university rese arc h associate made about the depar tment ch ai rm an ’s alleg ed fabr ication of data in a published scientific paper to the investigatory committee of the university wer e not absolutely privileg ed for purposes of the chair man’s defa

mation action ag ainst the associate ; holding that the proce eding s lacke d the requisite safeguards to qualify as j udici al or quasi-judicial, since, inter alia
, the complaint commencing the proce eding s was not made under oath, the proce eding s wer e not public, the witnesses wer e not under oath or subject to cross-e x amination, and discovery was not available ). ¶ 97 I n the prese nt case , Northwe stern’s ORI proce dures, formulated o n t h e b as i s o f t he fede ral reg

ulat i ons, establish only minimal due proce ss protec tion for individuals acc used of rese arc h misconduct, both during the inquir y an d i n vestig ation stag es. Although the
proce dures require that the responde nt be place d on notice of the char g es and the results of

eac h step in the proce ss, a s well as g iven an opportunity to comment, they do not gr ant the responde nt the rig ht to subpoena witnesses or otherwise g ather evidenc e, or the opportunity
to co n fr o n t or cross-e x amine their acc users. See 42 C.F.R. §§ 93.310 to 93.313 (2005). Rather, those kinds of safe g uards become available only afte r the fede ral ORI decide s to g et involved by making its own finding of rese arc h misconduct, filing a formal char g e letter
ag ainst the responde nt, and proposing and o b t ai ning HHS approva l for “administrative actions” ag ainst the responde nt. See 42 C.F.R. §§ 93.400, 93.404 to 93.405 (2005); see also 42 C.F.R. §§ 93.500, 93.501, 93.505 (2005) (a responde nt c an contest the ORI ’s finding of

rese arc h misconduct and the HHS administrative ac t i o n s by reque sting an “administrative hear ing” befor e an AL J ; the parties at that hear ing will be the responde nt and the ORI ; during such an administrative hea ring , the par

ties are permitted to: (1) be repr esente d by counsel; (2) conduct discovery ; (3) prese nt rele vant evidenc e and cross-e x amine witnesses; (4) agree to a stipulation of fac ts (5) file motions in writing and (6) make oral a rguments). For

all of these rea sons, we are disincli n ed t o define Northwe stern’s internal rese arc h misconduct
proce eding s as quasi-judicial or preliminary

to a quasi-judicial pr ocee ding. ¶ 98 The defe ndants never theless contend t h at p u b l i c p o licy nece ssitates the extension of absolute privileg e to statements made about rese arc h misconduct beca use society has a vital interest in the soundness of scientific rese arc h and beca use the “nee d for protec tion is g reater in the educatio n al s etting where the s ubject of the complaint–t he educator–is in a posi tion of authority over the student, so fea r of reta liation prese nts a potential obstacle to open airing of g rieva nces.” We disag ree

.

-27-¶ 99 As alre ady articulated above, Northwe stern’s ORI p o l i cy , m o d el ed afte r the fe dera l

regulations, rec og nizes the need for and strikes a balanc e betwee n protec ting complainants and whistleblowers, by enfor cing strict rules of confide ntiality and maintaining the integ rity and reputation of its scholars by requiring “g ood faith” in repor ting misconduct. The policy provides sufficie nt protec tion to whistleblowers by broadly encour ag ing repor ts of any “obser ved, suspected or appar ent resear ch mi sconduct,” and by specific ally providing that Northwe stern will aff

ord protec tion ag ainst repr isals to any individual who “provide [s] information in g ood faith about questionable conduct.” On the other hand, the policy states that Northwe stern is “equa lly conce rned about malicious o r f r iv o lo u s a ll eg ation made ag ainst [i ts] rese arc h community ” and there fore “per forms a car eful assessment of all all eg ations broug ht to the attention of institutional of ficials.” Acc ording ly
, contra ry to the defe ndants’

asser tions, absolute privileg e is not nece ssary in the context of a private university rese arc h misconduct proce eding . I n fac t, the extension of such privileg e to protec t those statements not made in g ood faith would only hinder investiga t i o n i nto and preve ntion of scientific misconduct, since it would burden the university ’s ORI with investigations into b as el ess complaints by disgr

untled or malicious parties. Public policy is there fore better serve d by the rule of qualified privileg e, since it encour ag es open communications on matters of rese arc h misconduct while not shielding the use of such commu n ic a ti o n s f o r a n individual’ s malicious
purposes. See Prosser, supra , at 777 (“ Absolute immunit y has been confine d to a very few situations wher e there is an obvious policy in favor of permitting complete fre edom of expression, without any

inquiry as to the def

endant’ s motives.”). ¶ 100 Acc ording ly
, for all of the afor ementioned rea sons, we reje ct the defe ndants’ invitation
to extend absolute privileg e to statements made in the context of a university ’s rese arc h misconduct proce eding s. I nstead, we fi nd that such statements can only be protec ted by qualified privileg e. See Arroyo v. Rosen
, 648 A.2d 1074; see also Chao
, 2010 WL 5222118, aff’d , 476 Fe d. Appx. 982; Chandok , 632 F.3d 803. ¶ 101 We now apply this holding to the facts of t his case to deter m i n e wh et h er the alleg edly defa matory statements made by the defe ndants during the rese arc h misconduct proce eding s

are in fac t protecte d by

qualified privileg e so as to justify the dismissal of Mauvais-Jarvis’ claims. The parties ag ree that there are only three alleg edly defa matory per se statements at i s s u e: (1) Wong’s J uly 22, 2010, statement in an email to Qualkenbush confirming t h at Mauvais-Jarvis told her that the lives of five people in his laboratory depende d on what she told the first inquiry committee and that he instructed her to lie to the committee that Oese r

wa s responsible for the falsified imag es in figures 6C and 6H of the manuscri p t ; (2 ) Qualkenbush’ s second char g e letter ag ainst Mauvais-Jarvis, acc using him of making up data in fig ure 4F and instructing Wong to lie to the initial inquiry committee reg arding figures 6C and 6H, which was “published” on Dec ember 17, 2010
, t o two senior medical school administrators; and (3) Walsh’s J une 3, 2011, letter to Mauvais-Jarvis containing those same alleg ations, written af

t er the second inquiry committee conclude d that the alleg ations

w a r r a nte d a full investigation, which Qualkenbush “published” by forwa rding it to tw o s e n io r administrators in the medica l school. ¶ 102 We note, with some surprise, that the defe ndants do not argue in the alternative, nor did they befor e the circ uit court, that if we reje ct their invitation to extend absolute privileg e to

-28-the alleg edly defa matory statements, they shoul d n o n et h eless be protec ted by qualified privileg e. Nor do they offe r any argument whatsoeve r as to why the three al l ege d l y defa matory statements are in fac t protec ted by qualified privileg e so as to permit us to aff irm the j udg ment of t he circuit court on that g round. It is well s ettled t hat “issues not raised in the trial court are d ee m ed fo rf ei t ed and may not be raised for the first time on appea l.” Martinez v. River Park Place, LLC
, 2012 I L App (1st) 111478, ¶ 29; People v. Phillips
, 215 I ll. 2d 554, 565 (2005). ¶ 103 Although it is axi o m at i c t h at we review the judgme nt of the lower court, and not its

rea soning and there fore may uphold the court’s judg ment on any g rounds ca lled for by the

rec ord ( Lane v. Kalcheim
, 394 I ll. App. 3d 32 4
, 3 3 1 (2009))
, in revie wing a motion to dismiss we must, never

theless, acc ept all the well-plea ded alleg ations and reas onable infere nces there from in the light most favor able to the nonmoving party –here
, MauvaisJ arvis. See Sandholm v. Kueck er , 2012 I L 111443, ¶ 55. Since the rec ord befor e us contains

no answe r to the complaint or any other pleading s by the d efe ndants denying Mauvais-Jarvis’ detailed alleg ations of rec klessness and malice by Wong, Walsh and Qualkenbush in making the afor ementioned statements, we have no basis upon which to deter mine that they wer e in fac t protecte d by

qualified privileg e. See, e.g. , People v. Universal Publi c Transportati on, Inc. , 2012 I L

App (1st) 073303-B , ¶ 50 (a revie wing court “ is not a repository” into which

a party “may foist the burden of argument and rese arc h” (interna l quotation marks omitted)); People v. Universal Public Transportation, Inc. , 2012 I L App (1st) 073303-B
, ¶ 50 (nor is it the function or obligation of this court to act as an advocate or sear ch the rec ord for err or). I n that respe ct, we disag ree with the circ uit court’s assessment that “ther e is no basis to find defe ndants went to [Northwestern’ s ORI ] wi th a desire t o cause Mauvais-Jarvis harm,” or that there we re “no allega tions and knowing that they acte d in bad faith.” Mauvais-Jarvis’ complaint sets forth detailed alleg ations of “ill-will” and “malice ” by all three defe ndants to the defa mation count. Specifica lly
, the complaint alleg es: (1) that Wong acte d in reta liation for be ing te rminated; and ( 2) that Walsh and Qualke nbush acte d in reprisa l afterMauvaisJ arvis soug ht redr ess with the University provost and acc used Northwe stern ’s OR I o f violating his rig hts both under Northwe stern’s ORI policies and the fede ral regulat i o n s. Under this rec ord, we are co m pelled to reve rse the circ uit court’s dismiss al of MauvaisJ arvis’ de famation claims and permit the ca se to proce ed with discover y on that issue.

¶ 104 B. Civil Conspiracy ¶ 105 We next addre ss whether the circ uit court proper ly di s m i s s ed M au v ai s -J arvis’ c ivil conspirac y counts ag ainst Wong, Oese r, and L evine on the basis of it being time-barr ed. The parties ag ree that the conspirac y to defa me claim ag ainst these three defe ndants is based upon statements they made in 2008, when the initial rese arc h misconduct alleg ations wer e broug ht
to the attention of Northwe stern’s ORI by L evine and Oese r. The parties also ag ree that Mauvais-Jarvis did not file his complaint until three y ear s later, in 2011. The parties dispute, howeve r, which statute of limit ations applies to this cause of action. ¶ 106 The defe ndants contend th at t h e one-year statute of limit ations for defa mation claims found i n sectio n 1 3 -2 0 1 of t he C ivil Procedur e C ode (735 I L CS 5/13-201 (West 2008)) is

-29-applicable . That sec tion provides in full:
“De famation–Privacy

. Actions for slander, libel or for publication of matter violating the rig ht of pri v ac y , s h all be commence d within one y ear next afte r the cause of action

acc rued.” 735 I L CS 5/ 13-201 (West 2008). ¶ 107 Mauvais-Jarvis, on the other hand, argues that since the Civil Procedur e Code does not contain a distinct statu t e of limit ations provision for civil conspirac y claims, such claims should neces s ar ily fall under the five-year “catch-a ll” limit ations period provided for in section 13-205 of the Code (735 I L CS 5/13-205 (West 2008)). That section provides in full:
“F ive y ear limit ation. *** [A] ctions on unwritten contra cts, expressed or implied, or on

awa rds of arbitra

tion
, o r t o rec over damag es for an injury done to proper ty , rea l or persona l, or to rec over the possession of persona l proper ty or damag es for the detention

or conver sion there of, and all civil a ct i o ns not otherwise provided for
, shall be

co m m ence d within 5 y ear s next afte r the cause of action acc rued.” (Emphasis ad d ed

. ) 735 I L CS 5/ 13-205 (West 2008). ¶ 108 For the rea sons that follow, we disag ree with Mauvais-Jarvis and fi n d t h at h is civil conspirac y claim ag ainst Wong, Oese r and L evine was proper l y d i s missed as time-barr ed pursuant to section 13-201 of the Civil Procedur e Code (735 I L CS 5/13-201 (West 2008) ). ¶ 109 I t is well settled that conspirac y , standing alone, i s n o t a s eparate and distinct tort in I llinois

. See W

eber v. Cueto
, 253 I ll. App. 3d 509, 518 (1993) (citing Olsen v. Karwoski
, 68 I ll. App. 3d 1031, 1037 (1979)) ; Thomas v. Fuerst
, 34 5 I ll. App. 3d 929, 936 (2004) (“Conspirac y is not an independe nt tort.”); see also Il l i n o i s Traff ic Court Driver Improve ment Education Foundation v. Peoria Journal Star, Inc.
, 144 I ll. App. 3d 555, 562 (1986) (“ [ T ] h e m er e alleg ation of a conspirac y does not in and of itself constitute an alleg ation of wrong ful acts upon which liability may be predic ated

. R ather, it is the act perf ormed in pursuanc e of the ag ree ment that may cre ate l i ab i l i t y .”); see also Adcoc k v. Brakegate

, Ltd. , 164 I ll. 2d 54, 63 (1994) (“An ag ree ment to commit a wrong ful act is not

a tort, even if it might be a crime. [C itation.] A cause of action for civil conspirac y exis ts only if one of the parties to the ag ree ment commits some act in further ance of the ag ree ment, which is itself a tort.”)

. ¶ 110 Be cause it is the underly ing tortious acts perf

ormed pursuant to the ag ree ment that g ive rise to a claim for civil conspirac y , it is logic al that a conspirac y claim itself be g overne d by the statute of limit ations for the underly ing tort. See 15 C.J .S. Conspiracy § 26, at 1 043 (2013) (U n l es s a jurisdiction provides an independe nt statute of limit ations for civil conspirac y , “[t] he statute of limit ations for a civil-conspira cy claim is determ i n ed b y the
nature o f the underlying conduct on which the claim of conspirac y is based. *** A claim alleg ing civil conspirac y is thus time-barr ed if the substantive tort underly ing it was timebarr ed.”)

. Otherw ise, a plaintiff could evade the applicable statute of limit ations for the underlying tor

t by simply rec asting his or her c laim as a “ conspirac y ” to per form that tort. ¶ 111 What is more, the few I llinois decisions that h av e ad d re ssed the appropr iate statute of limit ations for a conspirac y to defa me action have applied the one-year statute of limit ations for defa mation pursuant to section 13-201 of the Civil Procedur e Code (735 I L CS 5/13-201 (West 2008)). See, e.g. , W eber
, 253 I ll. App. 3 d at 5 2 2 (u pholding the dismiss al of a civil

-30-co n spiracy claim wher e the one-year statute of limit ations had expired on the under l y i n g,

alleg edly defa

matory statements); Zielinski v. Schmalbec k
, 269 I ll. App. 3d 572, 581 (1995) (applying the one-year statute of limit ations for defa mation to both the plaintiff’s defa mation and civil conspira cy

to defame counts). ¶ 112 I n reje cting Mauvais-Jarvis’ reque st to apply the five-year catc h-all statute of limitations,

we have revie wed W

akat v. Harlib
, 253 F.2d 59 (7th C i r. 1 9 5 8), and Breitenberge r v. Schmidt , 38 I ll. App. 168 (1890), cited to by him, and find them inapposite. ¶ 113 W

akat involved a ca

use of a ction broug ht pursuant to the fe dera l Civi l Rights Act, and
not a state law conspirac y claim. The court in W akat held that beca

use the civil rig hts action

was b as ed upon the fede ral Civil Rights Act, it was a statutory rig ht of action and thus a “civil ac t i o n not otherwise provided for” within the meaning of the five-year statute of limit ations pursuant to section 13-205 of the Civi l P ro ce d ure Code (735 I L CS 5/13-205 (West 2008)). ¶ 114 Unlike W

akat , the pre sent ca se does not involve a statutory rig ht, but rather a

common law conspirac y claim. Whil e there is no question that the rig hts and liabiliti es of the parties
to a fede ral civ i l ri gh t s action derive solely from the statute that cre ates it, the rig hts and liabiliti es of the parties to a civil co n s p i racy action, do not derive either from a statute or from a stand-alone comm o n l aw tort. Rather, an action for conspirac y is derivative of the underlying tort. See Employe rs Insurance of W aus a u v. E h l co Liquidat ing Trust
, 309 I ll. Ap p. 3d 730, 747-48 (1999) (re fusing to apply the 5-y ear “catch-a ll” statute of l imit at i o n s to an action for decla

ratory judgme nt by an insured’s liquidating trust reg arding the duty to defe nd under an insurance contra ct, and instead applying the 10-y ear limit ations statute for actions on written contra cts; d i s t i n gu i s hing W akat on the basis that the parties’ rig hts and liabiliti es did not derive from the statute cre ating the decla ratory judgme nt action, but rathe r from the c ontrac t which cr eate d them). ¶ 115 We simil arly find Mauvais-Jarvis’ reliance on Breitenberge r misplaced. That decision

was published in 1890 and there fore car ries no prec edential weig ht. See, e.g. , R eichert v. Court of Claims
, 203 I ll. 2d 257, 2 6 2 n

. 1 (2003) (noting that “appe llate court decisions issued prior to 1935 are persua sive authority only ”); Bryson v. News America Publications, Inc.
, 174 I ll. 2d 77, 95 (1996) (noting that “[a]ppellate court decisions issued prior to 1935 ha[ve] no binding authority ”). Fur thermore
, contra

ry to Mauvais-Jarvis’ contention that case does not stand for the proposition that a conspirac y to defa me claim is g overne d by the “catch-a ll” five-year statute of l imi t ati ons. Rather, Breitenberge r involved a conspiracy to deprive the plaintiff of his interest in a partne rship and the related claim of action to trespass. See Breitenberge r , 38 I ll. App. at 175-76. The court there in held that conspirac y as a cause of action was not inclu d ed i n t h e s t at ute limit ing time for suit to two y ear s, but “ might be held to be within the clause ‘and all civil actions not otherwise provided for,’ in the section which fix es the limit ation at five y ear s.” (Emphas i s ad d ed

. ) Breitenberge r , 38 I ll. App. at 177. Considering the court’s use of the conditional languag e in applying the five-year statute of limitations, we find this case unpe rsuasive. ¶ 116 For all of the afor ementioned rea sons, we conclude that the circ uit court proper ly applied the one-year statute of limit ations in section 13-201 of the Civil Procedur e Code (735 I L CS

-31-5/13-201 (West 2008)) to Mauvais-Jarvis’ civil conspirac y claims ag ainst Wong, Oese r and

L evine.

¶ 117 I I I . CONCL USI ON ¶ 118 Acc ording ly
, we aff irm that part of the circ uit c ourt’s order dismiss ing, as time-bar red, Mauvais-Jarvis’ civil conspirac y claims. We, howeve r, reve rse that part of the circ uit court’s order dismiss ing Mauva i s-J arvis’ defa mation actions ag ainst Wong, Qualkenbush, Walsh and Nor thwestern a

nd rema nd for f urther pr ocee dings on those c laims.

¶ 119 Affir

med in part a

nd reve rsed in par

t; remande d for f

urther pr ocee dings.

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