530 N.E.2d 439, 446, 125 Ill. Dec. 281 (1988) (claims for severance pay and unpaid expenses following discharge of employee not arbitrable under Rule 600.00 because they "arose out of [plaintiff's] contract of employment with [defendant] and clearly did not 'arise out of Exchange business'").
d. Defamation and False Light Privacy Claims
Zechman's final two claims are based on a series of acts, performed by his superiors at Merrill Lynch while effecting his discharge, that Zechman claims communicated the false assertion that he had been fired for committing a criminal or unethical act. Though incorrectly reasoned (Zechman relies on the "unexpected tortious conduct" logic discredited supra), Zechman's characterization of these claims as non-arbitrable is sound. Like the Count V and VI claims for vacation and personal days, the defamation and privacy counts implicate the exchange business of the parties only because they are incidental to Zechman's discharge. To prevail on these counts Zechman need not establish that he was fired in retaliation for renouncing Merrill Lynch's trading practices, but rather that the defamatory message conveyed by the series of acts was false.
Finding Counts I, II, III, and IV of Zechman's complaint arbitrable, we stay the proceedings before this court on those counts pending arbitration pursuant to 9 U.S.C. § 3.
Merrill Lynch's motion to dismiss Counts VII and VIII remains unaffected by these arbitration proceedings, and it is to the merits of this motion that we now turn.
B. 12(b)(6) Motion
1. Count VII: Defamation
In connection with his discharge, Zechman alleges, Merrill Lynch (1) made, in the plain view of Merrill Lynch employees and others, an unprecedented surprise visit to Zechman's office; (2) refused to allow Zechman to speak to his staff; (3) remained with Zechman in his office while he packed up some of his personal belongings and prevented him from finishing; (4) interrogated Merrill Lynch employees and others about entries in his travel and entertainment expense account; and (5) escorted him out of the building. The cumulative impact of this series of acts, Zechman alleges, was to communicate the false and defamatory assertion that Zechman had committed a serious criminal act or substantial breach of ethics, which precipitated his discharge; Zechman charges that this assertion constitutes defamation per se.
Under Illinois common law words are actionable per se -- that is, without proof of special damages -- if they are obviously and naturally harmful. Harris Trust and Savings Bank v. Phillips, 154 Ill. App. 3d 574, 578, 506 N.E.2d 1370, 1373, 107 Ill. Dec. 315 (1st Dist. 1987). Illinois courts have recognized four categories of defamation per se : (1) words that impute the commission of a criminal offense; (2) words that impute infection with a communicable disease; (3) words that impute an inability to perform or a want of integrity in the discharge of one's duties of office or employment; and (4) words that prejudice a party in his profession or trade. Costello v. Capital Cities Communications, 125 Ill. 2d 402, 414, 532 N.E.2d 790, 795, 126 Ill. Dec. 919 (1988); Whitby v. Associates Discount Corp., 59 Ill. App. 2d 337, 340, 207 N.E.2d 482, 484 (1965). While most states analyze slander claims and libel claims under different sets of standards, recognizing libel as the more serious wrong, see W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the Law of Torts 785 (5th ed. 1984) (" Prosser & Keeton "), Illinois has rejected this bifurcated approach in favor of a single set of rules, Harris Trust, 154 Ill. App. 3d at 579, 506 N.E.2d at 1373; Irving v. J.L. Marsh, Inc., 46 Ill. App. 3d 162, 165, 360 N.E.2d 983, 985, 4 Ill. Dec. 720 (3d Dist. 1977); the four per se categories, therefore, apply both to slander and to libel actions.
A statement will not be found defamatory per se, however, if it is reasonably capable of an innocent interpretation. This so-called "innocent construction rule," first enunciated in Illinois in John v. Tribune Co., 24 Ill. 2d 437, 181 N.E.2d 105, cert. denied, 371 U.S. 877, 83 S. Ct. 148, 9 L. Ed. 2d 114 (1962), was modified by the Illinois Supreme Court twenty years later in Chapski v. Copley Press, 92 Ill. 2d 344, 442 N.E.2d 195, 65 Ill. Dec. 884 (1982). The Chapski reform sought to ensure that only reasonable innocent constructions would remove an alleged defamatory statement from the per se category, see Costello, 125 Ill. 2d at 416, 532 N.E.2d at 796; the Chapski court directs
that a written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se. This preliminary determination is properly a question of law to be resolved by the court in the first instance.