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Crinkley v. Dow Jones & Co.

OPINION FILED DECEMBER 1, 1978.

ROBERT A. CRINKLEY, PLAINTIFF-APPELLANT,

v.

DOW JONES AND CO. ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL P. COMAN, Judge, presiding. MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from an order dismissing four of eight counts of his complaint. The issues presented are: (1) whether the trial court abused its discretion in dismissing two counts brought under the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 311 et seq.) (hereinafter referred to as the Deceptive Trade Practices Act) and denying plaintiff leave to amend to include as a basis for relief the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 261 et seq.) (hereinafter referred to as the Consumer Fraud Act); and (2) whether the trial court abused its discretion in dismissing two counts alleging interference with prospective economic advantage for failure to amend these originally defective counts within 28 days, as ordered.

This case arose from an article appearing on April 27, 1976, in the Wall Street Journal, published by defendant Dow Jones & Co., reporting a statement of defendant G.D. Searle & Co. concerning plaintiff, a former Searle executive. The relevant portion of the article stated:

"In another development, Searle disclosed that two top officers involved in the payment of $1.3 million to agents of foreign governments to win business abroad have resigned. William Owens * * * and Robert Crinkley, president of the radiographics division, quit in early February. * * * A spokesman said the two were the only resignations to result from the disclosures about payoffs.

In February, after the resignations, Searle told the Securities and Exchange Commission that `certain members of corporate management were generally aware that some such payments were being made and, in some instances, authorized the arrangements to make payments.'"

Plaintiff's complaint for damages against defendants contained one count alleging violation of the Deceptive Trade Practices Act against each defendant on the theory that defendants disparaged Crinkley's services, in violation of section 2(8) of the Act (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 312(8)); one count against each defendant alleging interference with prospective economic advantage on the theory that each defendant interfered with plaintiff's expectation of entering into various employment relationships; and two counts of libel against each defendant.

Defendants moved to dismiss the counts brought under the Deceptive Trade Practices Act on the ground that only injunctive relief, and not damages as sought by plaintiff, are available thereunder (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 313), and defendant Dow Jones further contended that since plaintiff failed to allege it acted with knowledge of the article's deceptive character, the count was insufficient against it as a publisher (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 314(2)). Defendants also moved to dismiss the counts alleging interference with prospective economic advantage on the ground that plaintiff failed to allege they purposefully intended to interfere with plaintiff's business expectations, as is required to state such a cause of action, and defendant Searle further alleged that these counts were insufficient at law in that plaintiff failed to allege the exact identity of the third parties with whom his economic expectations were destroyed. A motion to dismiss the libel counts on the ground that the limitations period had expired is not before us in the instant appeal.

The trial court, on December 7, 1977, ordered the counts brought under the Deceptive Trade Practices Act dismissed with prejudice. It appears that plaintiff argued that these counts would be legally sufficient if he were allowed to amend them to include allegations that the violations of the Deceptive Trade Practices Act were also violations of the Consumer Fraud Act which allows recovery of damages. (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 270a.) The trial court denied plaintiff leave to amend these counts but granted him leave to file a proposed amendment, stating however that it would "be of no effect as to the substance of the claim." In addition, the counts alleging interference with prospective economic advantage were stricken in an order which provided that if plaintiff did not amend these counts within 28 days, they would be dismissed with prejudice.

Within 30 days, plaintiff moved to vacate the order of December 30, 1977, requested leave to amend the counts brought under the Deceptive Trade Practices Act, and asked for an additional 120 days within which to file amended counts alleging interference with prospective economic advantage. Plaintiff asserted that he needed this additional time to determine through discovery whether he could properly allege that defendants purposely intended to disrupt plaintiff's economic expectations. On February 21, 1978, after a series of continuances precipitated by the illness of the original trial judge, plaintiff's motion to vacate was denied and the counts alleging interference with prospective economic advantage were dismissed with prejudice on the ground that plaintiff failed to amend those stricken counts within 28 days, as ordered.

OPINION

I.

• 1, 2 Plaintiff first contends that the trial court abused its discretion in dismissing the counts brought under the Deceptive Trade Practices Act and refusing plaintiff leave to amend them to include as a basis for relief the Consumer Fraud Act. Initially, we note that plaintiff's original counts seeking damages solely under the Deceptive Trade Practices Act failed to state a cause of action because, under that Act, injunctive relief is the exclusive remedy. (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 313; National Educational Advertising Services, Inc. v. Cass Student Advertising Inc. (N.D. Ill. 1977), 454 F. Supp. 71; Brooks v. Midas-International Corp. (1977), 47 Ill. App.3d 266, 361 N.E.2d 815.) However, "a cause of action should not be dismissed on the pleadings unless it appears that no set of facts can be proved which will entitle the pleader to relief, and then only if it is apparent that even after amendment, if leave to amend is sought, no cause of action can be stated." (Richard v. Illinois Bell Telephone Co. (1978), 66 Ill. App.3d 825, 383 N.E.2d 1242; Dinn Oil Co. v. Hanover Insurance Co. (1967), 87 Ill. App.2d 206, 211-12, 230 N.E.2d 702, 705.) Thus, in determining the propriety of the trial court's action, we will consider whether plaintiff's proposed amendment stated a cause of action.

The amendment, in pertinent part, alleged that by the article appearing in the Wall Street Journal, defendants disparaged the services of plaintiff as an executive in violation of section 2(8) of the Deceptive Trade Practices Act (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 312(8)); that under section 2 of the Consumer Fraud Act (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 262) any violation of the Deceptive Trade Practices Act is also a violation of the Consumer Fraud Act; that defendants therefore violated the Consumer Fraud Act; and that under section 10a of the Consumer Fraud Act (Ill. Rev. Stat. 1977, ch. 121 1/2, par. 270a) plaintiff is entitled to recover damages against them. Thus, in order to determine whether plaintiff has stated a cause of action under the Consumer Fraud Act, we must ascertain whether plaintiff has properly alleged a violation of the Deceptive Trade Practices Act.

• 3 In this regard, defendants have presented several arguments against the validity of plaintiff's proposed amendment, and we will now consider them. First, defendants Searle and Dow Jones contend that the holding in Brooks v. Midas-International Corp. prohibits plaintiff from employing the Consumer Fraud Act in order to obtain damages for a violation of the Deceptive Trade Practices Act. They rely in particular upon the following quotation from Brooks:

"Thus, under the amended section 2 [of the Consumer Fraud Act], the conduct specified in the Uniform Deceptive Trade Practices Act is included as acts constituting unlawful practices. However, the scope of redress that can be afforded to an aggrieved private party is not ...


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