- 13 -
Laboratories, 719 N.E.2d 1101, 1116 (Ill. App. Ct. 1999), where it
was held that plaintiff in such a case would have to prove that the
defendants’ actions were “unjustified and malicious.”

In this case, there was no evidence that Grainger was not
acting in what he thought was the best interest of Laidlaw
Education. Hach argues that Grainger was solely concerned with his
own advancement and gave no thought to the welfare of the
corporation. The problem with this argument is that it lacks
evidence to support it. As the Court stated in Vickers, “once a
defendant has established a qualified privilege, the plaintiff must
come forward with actual evidence creating an issue of fact.” 719
N.E.2d at 1110.

CONSPIRACY TO INTERFERE WITH REASONABLE BUSINESS EXPECTANCY

Count IV of the complaint charges a conspiracy among Grainger,
Peter Widdrington, and Laidlaw Transit, Inc. to interfere with
Hach's reasonable business expectancy. What we have said in regard
to Count III applies here as well: there is no evidence of
improper motive in the termination of Hach. Nor is there any
evidence that Widdrington conspired with Hach. Finally, Laidlaw
Transit, Inc. cannot be found guilty of conspiring with Grainger,
its agent, unless Grainger was acting in his own interest and
outside the scope of his agency. “The acts of an agent are
considered in law to be the acts of the principal. Thus a

conspiracy does not exist between a principal and an agent or


-4-

and general to support an action for defamation as a
matter of law.

Id. at 105.
Another case explaining the opinion rule is Doherty v. Kahn,

682 N.E.2d 163 (Ill. App. Ct. 1997). (T1l. App. Ct. 1997),

abrogated on other grounds by Soh vy. Target Mktg. Sys., Inc., No.
1-03-2745, 2004 WL 2192408, at *4 (Ill. App. Ct. Sept. 30, 2004).
Plaintiff alleged defamation and other claims against his former
employers, who told plaintiff’s prospective employers that they had
discharged plaintiff because he was “incompetent,” “lazy,”
“dishonest,” that he could not “manage a business,” and that he
lacked “the ability to perform landscaping services.” Id. at 170.
The court dismissed the defamation claim and the appellate court
affirmed, holding that the statements were “mere expressions of
opinion” and not mixed expressions of opinion and fact, which would
be actionable. Id. at 172.

Doherty cited the case of Piersall v. SportsVision of Chicago,
595 N.E.2d 103 (Ill. App. Ct. 1992), where the Court held that the
statement that plaintiff was a “liar” was “merely opinion” because
“there are no specific facts at the root of [the] statement,
complete or incomplete, capable of being objectively verified as
true or false.” Id. at 107.

The opinion rule applies as well when the underlying facts are
not in dispute but defendant’s interpretation of those facts is

expressed as an opinion. (As we will see, some of the statements


~9-
correct, or even reasonable. The question is whether it was an
opinion.

If there were evidence that his statement to the Board did not
reflect his actual opinion, and that he was attempting in bad faith
to prejudice Hach in the eyes of the Board, that would present a
different question. But there is no such evidence.

Statement No. 2

‘“Hach’s management forecasts as to Laidlaw
Education’s future performance were weak.”

This is very similar to the “waning results” statement in that
it is a characterization of uncontested facts. It also uses a
relative term, “weak,” which tends to indicate an opinion rather
than a statement of fact. “Weak” is defined as “lacking strength:
not strong ... resulting from or indicating lack of judgment,
discernment, or firmness.” Webster’s Third New International
Dictionary 2588-89 (1971). We have mentioned the actual IBIT
figures for 1999, 2000 and 2001. Hach’s forecasts of what the IBIT
would be for those years were lower: $132.0 million for 1999,
$123.7 million for 2000 and $104.2 million for 2001. One might
argue that the differences between actual and forecast figures were
not so substantial as to justify characterizing the forecasts as
“weak.” But this would be a matter of opinion. It reminds us of
the discussion in Hopewell, 701 N.E.2d at 104-05, about the word
“incompetent.” The Court observed that “[o]ne person’s idea of

when one reaches the threshold of incompetence will vary from the


~6-
poor one, and Lemann drew a natural though not inevitable
inference. [The defendants] did not pretend to have the
inside dope. [They] claim insight, not information that
the plaintiff might be able to prove false in a trial.
Id. at 1227 (citations omitted).
B.

The Defendants’ Statements

The parties disagree about what Grainger actually said to the
Laidlaw Board of Directors. The October 12, 2001 meeting of the
board was held by telephone conference, and Grainger’s statements
were made in explanation of his decision to terminate Hach as
president and CEO of Laidlaw Education. The parties have filed
Local Rule 56 Statements in support of and in opposition to
defendants’ motion for summary judgment. Defendants’ statement
describes Grainger’s statements to the Board as follows:

Grainger advised the Board that he was terminating Hach’s

employment for the following reasons: (1) he believed

that the operating results of Laidlaw Education under

Hach’s management were waning; (2) he believed that

Hach’s management forecasts as to Laidlaw Education’s

future performance were weak; (3) he believed that Hach’s

management of his subordinates had caused disruption over

the issue of centralization; and (4) he believed that

Hach’ s management had negatively impacted the

relationship between Laidlaw Education and Laidlaw

employees located in Burlington, Ontario.
(Defendants’ Rule 56 Statement, @ 28.) In support of this
assertion, the defendants cite the depositions of Grainger and Hach

along with several exhibits. Plaintiff disputes this description

of the statements made by Grainger, but his Rule 56 Statement, and


-5-
at issue in the present case are based on financial information

that is not in dispute.) In Haynes v. Alfred A. Knopf, Inc., 8

F.3d 1222 (7° Cir. 1993), an author, Nicholas Lemann, and a
publisher were sued for making allegedly defamatory statements
concerning the plaintiff husband and wife, Southern sharecroppers
who had moved to the North and were living in poverty. “The charge
of libel is confined to three statements in the book: that Haynes
left his children alone at night when he was supposed to be
watching them; that he lost a job or jobs because of drinking; and
that he spent money on a car that he should have used to buy shoes
for his children.” Id. at 1226. The district court entered
summary judgment for the defendants and the Seventh Circuit
affirmed, observing that the statements would be “nonactionable in
any event as obvious statements of opinion ... rather than of
fact.” The Court explained that,

(I]£ it is plain that the speaker is expressing a
subjective view, an interpretation, a theory, conjecture,
or surmise, rather than claiming to be in possession of
objectively verifiable facts, the statement is not
actionable. The facts about Kevin's condition and about
the respective financial circumstances of Ruby and
Dorothy were uncontested, and Ruby and Lemann were
entitled to their interpretation of them. Luther drank
heavily; the proposition that a man's heavy drinking can,
and that Luther's heavy drinking did, damage a fetus is
represented in the book merely as Ruby's conjecture. A
reasonable reader would not suppose that she had proof,
or even the scientific knowledge that might ground a
reasonable inference. As for Luther's motives for
leaving Ruby for Dorothy, they can never be known for
sure (even by Luther) and anyone is entitled to speculate
on a person's motives from the known facts of his
behavior. Luther Haynes left a poor woman for a less


-~g-
“to decrease in size or extent: dwindle.” It is not a word that
denotes a specific decrease in size, but simply a decrease which
could be of any size.

The evidence shows that there was a factual basis for
Grainger’s statement that the Division results were waning, or
dwindling, which means the same thing. The Division’s Income
Before Interest and Taxes (“IBIT”) declined from $141.8 million in
1999 to $128.7 million in 2000, and to $112.7 million in 2001.
(Defendants’ Memorandum at 5.) However one views these results,
the trend was downward, and by not insignificant amounts. “Waning”
seems a true statement, not a false statement. But apart from the
matter of truth (which would get into Hach’s argument that other
financial measures must be given consideration), it is clear that
Hach’s statement was his conclusion about the significance of the
figures. The facts (the IBIT figures) are not in dispute, and,
like the defendants in Haynes, 8 F.3d at 1227, Grainger was
“entitled to [his] interpretation of them.”

Plaintiff argues that other financial figures concerning the
Division’s performance indicate that the Division was doing well,
so that Grainger’s statement that the results were “waning” was in
fact untrue. But it is immaterial whether other financial data
indicate a trend that could be considered not to be “waning,”

because the question is not whether Grainger’s conclusion was


Minvte Order Form (06/97)

4

United States District Court, Northern District of Illinois

y
Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge John F. Grady than Assigned Judge
CASE NUMBER 02 C 996 DATE November 22, 2004
CASE Hach v Laidlaw, et al.
TITLE
[In the Following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due _.
(3) 0 Answer brief to motion due. . Reply to answer brief due.
(4) im} Ruling/Hearing on set for at
(5) im] Status hearing[held/continued to] [set for/re-set for] on set for __at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) oO Trial[set for/re-set for] on at
(8) a (Bench/Jury trial] [Hearing] held/continued to at
(9) (a) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) (CiGeneral Rule2i OFRCP41(a)(1) OO FRCP41(a)(2).
do) «Wf [Other docket entry] The motion of the defendants Laidlaw Transit, Inc.,
Peter Widdrington and John R. Grainger for summary judgment on all
remaining claims [ ] is allowed, and judgment will be entered in
favor of the defendants and against the plaintiff Robert E. Hach
dismissing this cause with prejudice. ENTER MEMORANDUM OPINION.
(11) [For further detail see order (on reverse side offattached to) the original minute order.]
No notices required, advised in open court. ... Document ”
No noti ined «oy, Number’
io notices required. amber of notices igbics
x | Notices MAILED by judge’s staff, NOV 94 2004
Notified counsel by telephone.
Docketing to mail notices.
Mail AO 450 form.
Copy to __ __
ate maited notog
courtroom
KAM deputy’s KAM
initials Date/time received in
central Clerk's Office nailing deputy initials

(Reserved for use by the Court)


~1l-
Statement No. 4

“Hach’s management had negatively impacted
the relationship between Laidlaw Education and Laidlaw
employees located in Burlington, Ontario.”

“Negatively impacted” is another phrase that lacks precision.
It is a characterization that is obviously a statement of opinion.
In our memorandum opinion denying in part the defendants’ motion to
dismiss, we relied on the language of the complaint that attributed
to Grainger the statement that Hach’s management “destroyed the
previously healthy working relationship between Laidlaw Education
and the company personnel located in Burlington, Ontario.” We
stated that “the word ‘destroyed’ is specific enough to be capable
of proof or disproof.” (Mem. Op., Nov. 5, 2002 at 9.) Grainger’s
answers to interrogatories, incorporated in paragraph 28 of
Defendants’ Rule 56 Statement, use the phrase “negatively
impacted.” But defendants’ memorandum in support of their motion
for summary judgment relies on Grainger’s notes of his telephone

conversation (set out at Defendants’ Rule 56 Statement, 4 32),

which has the words “Alienated Burlington staff.”. Defendants
memorandum argues that “alienated” is an opinion rather than a
statement of fact capable of proof or disproof. (Defendants’

Memorandum at 6-7.) We agree, and whether the actual words used by
Grainger were “negatively impacted” or “alienated” (there is no
evidence that he said “destroyed”), the result is the same. It was

a nonactionable opinion he was expressing. Moreover, it was an


~ 10 -
next person’s.” Id. at 104. We believe the same can be said of
the “weak” forecasts in this case.

Statement No. 3

‘“Hach’s management of his subordinates had
caused disruption over the issue of centralization.”

The most relevant dictionary definition of “disrupt” is to
“throw into disorder or turmoil.” Webster’s Third New
International Dictionary 656 (1971). “Disruption” is “the act or
process of disrupting: the state of being disrupted.” Id. It is
a word that does not signify a precise condition, but, rather, a
condition that could vary in extent. It follows that one person's
opinion as to whether a relationship has been disrupted might
differ from another person’s opinion. In this case, the evidence
shows that several employees complained to Grainger about
disagreements with Hach concerning efforts to centralize
operations. (Defendants’ Rule 56 Statement, If 17, 18.) Whether
“disruption” might have been too strong a word is not the issue.
The point is that it was not a statement of fact that could be
objectively verified as true or false. It was, to use the words of
the Court in Hopewell, 701 N.E.2d at 104, “too broad, conclusory,

and subjective to be objectively verifiable.”


-7-
his Statement of Additional Facts, do not raise a genuine issue.?
Therefore, we accept defendants’ version of what Grainger said to
the Board of Directors.

We will now consider each of the four statements.

Statement No. 1

“[Tlhe operating results of Laidlaw
Education under Hach’s management were waning.”

According to Webster’s Third New International Dictionary

(1971), “waning” is the present participle of “wane,” which means

4 No one remembers the exact words Grainger used in his telephonic report
to the Board members. He made some notes during the conversation, and they read
as follows:

(1) “Division results waning;” (2) “Forecasts weak;” (3) Alienated
Burlington staff;” and (4) “Subordinates centralized organization.”

(Defendants’ Rule 56 Statement, @ 32.) Grainger referred to these notes in
formulating his answers to plaintiff's interrogatories, where he described his
statements to the Board as set forth in 4 28 of his Rule 56 Statement.

Hach refers us to his Statement of Additional Facts, 4 68, where he offers a
different version of three of the statements: the operating results, instead of
“waning,” were “dwindling;” Hach’s estimates as to Laidlaw’s future performance
were “fragile and weak” rather than “weak;” and Hach’s management had “destroyed”
the relationship between Laidlaw Education and Laidlaw employees located in
Burlington, Ontario, rather than having “negatively impacted the relationship.”
The differences seem minor, with the exception of the difference between
“destroyed” and “negatively impacted,” which is more substantial.

Hach’s record references in support of his version of Grainger’s statements do
not bear out his version. His primary reference is to pages of Grainger’s
deposition which reflect that when Grainger was asked whether he made certain
statements to the Board, he consistently replied that he did not believe so, that
his best recollection of what he told the Board was set out in his Answers to
Interrogatories. Plaintiff's other reference is to pages of his own deposition
in which he testified about what Jack Edwards, a member of the Board, had told
him Grainger had said. This hearsay statement of Edwards did not describe any
particular language Grainger had used and certainly does not support Hach’s Rule
56 statement as to what Grainger had said. Moreover, the hearsay of Edwards is
no more admissible on a summary judgment motion than it would be at atrial. See
Boyce v. Moore, 314 F.3d 884, 889 (7 Cir. 2002).

It is for these reasons that we have rejected Hach’s version of the allegedly
defamatory statements and have decided to rely instead on Grainger’s version as
set forth in his Rule 56 Statement.


~3-
has factual content” — is of no particular help in the present
case, but what the court said about the first and third tests is
relevant to our determination. Applying the first test to
defendants’ statement that plaintiff “was fired for incompetence,”
the Court noted:

First, the statement does not have a precise and readily
understood meaning. Regardless of the fact that
"jncompetent" is an easily understood term, its broad
scope renders it lacking the necessary detail for it to
have a precise and readily understood meaning. There are
numerous reasons why one might conclude that another is
incompetent; one person's idea of when one reaches the
threshold of incompetence will vary from the next
person's. Without the context and content of the
statement to limit the scope of "incompetent," we cannot
say that there is a precise meaning relating to the
alleged defamatory statement.

In regard to the third test, the Court observed:

Lastly, the veracity of the statement cannot be verified.
Although the public might infer undisclosed and unassumed
facts that support Vitullo's opinion, the statement is so
ambiguous and indefinite that any inferable facts flow
from numerous possible facts that might conceivably
support the conclusion that Hopewell was "incompetent."

Thus, we find that the statement is too broad,
conclusory, and subjective to be objectively verifiable.

Id. at 104.
The Court concluded with the following comments:

In conclusion, we note that in one sense all opinions
imply facts; however, the question of whether a statement
is actionable is one of degree. Illinois Tort Law § 5.02,
at 5-5. “The vaguer and more generalized the opinion the
more likely the opinion is non~-actionable as a matter of
law. To say that a businessman is guilty of ‘poor
management’ is, therefore, not defamatory." Illinois
Tort Law § 5.02, at 5-5. In light of the authority
reviewed above, we conclude that the alleged defamatory
statement--"fired because of incompetence"--is too vague


-14-

servant.” Salaymeh v. Interqual, Inc., 508 N.B.2d 1155, 1158 (Ill.

App. Ct. 1987); see also Bilut v. Northwestern Univ., 692 N.E.2d

1327, 1332-33 (Ill. App. Ct. 1998).

Because there is no genuine issue as to whether Grainger was
acting in the interest of Laidlaw Education, there can be no
actionable conspiracy.

CONCLUSION

The motion of the defendants Laidlaw Transit, Inc., Peter
Widdrington and John R. Grainger for summary judgment on all
remaining claims is allowed, and judgment will be entered in favor
of the defendants and against the plaintiff Robert E. Hach

dismissing this cause with prejudice.

DATE: November 22, 2004

ENTER: +(e uly

John Be Grady, United States Distric udge



-2-
statements, but concluded that four other statements could present
triable issues. It would depend on the evidence.

Before discussing each of the four statements, it will be
useful to review the law of defamation as it pertains to statements
of opinion.

A.

The Opinion Rule

Because defamation requires proof of falsity, a plaintiff must
show that the statement in question is objectively verifiable as
being either true or false. A statement of opinion is neither true
nor false and therefore cannot qualify as defamation. Moreover, a
statement of opinion is entitled to First Amendment protection.

A helpful discussion is contained in Hopewell _v. Vitullo, 701
N.E.2d 99 (T1ll. App. ct. 1998), where a statement that plaintiff
“was fired because of incompetence” was held to be a nonactionable
opinion. The Court analyzed the statement in terms of three
considerations emphasized in earlier cases: first, “whether the
language of the statement has a precise and readily understood
meaning”; second, whether the context of the statement “negates the
impression that the statement has factual content” and third,
“whether the statement is susceptible of being objectively verified
as true or false.” Id. at 103.

We think the second Hopewell consideration ~— whether the

context of the statement “negates the impression that the statement


02-996.002 November 22, 2004

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ROBERT E. HACH,
Plaintiff,

v. No. 02 C 996
LAIDLAW TRANSIT, INC., D/B/A

LAIDLAW EDUCATION SERVICES, PETER
WIDDRINGTON and JOHN R. GRAINGER,

DOCKETED

NOV 2 4 2094

Defendants.

MEMORANDUM OPINION

In an order dated November 5, 2002, we granted defendants’
motion to dismiss certain of plaintiff’s claims in this diversity
case and denied the motion as to other claims for defamation,
tortious interference with reasonable business expectancy and
conspiracy to interfere with reasonable business expectancy. The
parties have completed discovery and defendants now move for
summary judgment on all of these claims.

DEFAMATION

Count II of the complaint set forth a number of allegedly
defamatory statements the defendant John R. Grainger made to the
Laidlaw Inc. Board of Directors on October 12, 2001. One of the
arguments the defendants made on their motion to dismiss Count II
is that the statements in question were opinions rather than

Statements of fact. We agreed with the defendants on two of the


-~12-
opinion supported by complaints about Hach from members of the
Burlington staff. (Defendants’ Rule 56 Statement, @{ 22.)

Our conclusion is that all of Grainger’s allegedly defamatory
statements were statements of opinion, not fact, and that they will
not support an action for defamation.

INTENTIONAL INTERFERENCE WITH
HACH' S REASONABLE BUSINESS EXPECTANCY

Count III of the complaint alleges that Hach had a reasonable
expectancy that he would be retained as president and CEO of
Laidlaw Education for an indefinite time and that Grainger
tortiously interfered with that expectancy by making the
intentionally false statements to the Laidlaw Board that have been
discussed above.* Hach argues that Grainger’s motive for defaming
him was his desire to replace Hach as president and CEO, which in
fact he eventually did.

The law pertaining to Count III involves the doctrine of
qualified privilege. A corporate officer, acting in the interest
of the corporation, may, without incurring liability, induce the
corporation to breach a contract. To be liable for inducing the
breach, the employee must = act “without justification or
maliciously.” Swager v. Couri, 395 N.E.2d 921, 927 (Ill. 1979).
The same rule applies to suits for intentional interference with

business expectancy, as indicated by Vickers _v. Abbott

2/ Laidlaw Transit, Inc. and Peter Widdrington have been dismissed as
defendants in this count, and Grainger remains as the sole defendant