The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff DSC Logistics, Inc. ("DSC") is a supply chain management
company that was hired by Solo Cup Company ("Solo") to oversee Solo's
logistics and transportation operations. Defendant Innovative Movements,
Inc. ("MI") is a commercial carrier that worked for Solo prior to the
transition of the logistics functions to DSC and continued that work with
DSC after the transition. Defendant Ike Bakhsh is the managing employee
of IMI. The basis of DSC's current suit is an email sent by Bakhsh to
Solo in which DSC claims Bakhsh made false and defamatory statements
about DSC's business policies, practices, capabilities, and integrity.
Defendants now move, pursuant to Federal Rule of Civil Procedure
12(b)(6), to dismiss DSC's claims regarding defamation per se,
commercial disparagement, and tortious interference with business
expectancy and contractual relations. A motion to dismiss under
Rule 12(b)(6) is proper where it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim, which would entitle him to
relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In
reviewing a motion to dismiss, the court must construe all allegations in
the complaint in the
light most favorable to the plaintiff and accept all well-pled
facts and allegations as true. Bontkowski v. First Nat'l Bank,
998 F.2d 459, 461 (7th Cir. 1993).
Most of Defendants' Motion to Dismiss is directed at DSC's claims of
defamation per se. According to Illinois law, a statement made
in reference to a corporation is defamatory per se if it assails
the corporation's financial position, business methods, or accuses the
corporation of fraud, or mismanagement. Geske & Sons v.
NLRB, 103 F.3d 1366, 1373 (7th Cir. 1997). If a statement is deemed
defamation per se, the plaintiff need not prove actual damages;
rather such statements are considered so obviously and materially harmful
that injury may be presumed. Kolegas v. Heftel Broad. Corp.,
607 N.E.2d 201, 206 (Ill. 1992).
DSC claims the following statements made in Bakhsh's email were
defamatory per se:(1) DSC's "procedures are not only time
consuming and costly, but [also] are tedious and repetitious [and] will
create errors," (2) Defendants have "only been met with demands for more
information; information that has been provided more than once," (3)
DSC's practice is "not to pay . . . invoice[s]," (4) "no rebilling or
corrections are accepted" by DSC, (5) Defendants "are not the only ones
that have this problem," (6) "there are others who also have full
intentions to take legal actions," and (7) DSC has acted in "utter bad
faith." These statements are undoubtably criticisms of DSC's business
methods and, as such, fall into a category of statements that are
defamatory per se.
Defendants argue that even if the statements fall into a per
se category, they are still nonactionable because they have an
alternative innocent construction and because they are opinions protected
by the First Amendment. Under the innocent construction rule, a
taken in its context, that can reasonably be innocently construed
is not actionable as defamation per se. Chapski v. Copley Press,
Inc., 442 N.E.2d 195, 199 (Ill. 1982). However, when the meaning is
clear, the courts should not strain to interpret allegedly defamatory
words such that they fit with an innocent construction. Bryson v.
News Am. Publs., Inc., 672 N.E.2d 1207 (Ill. 1996). Given the
email's strongly negative tone, fitting Bakhsh's statements into an
innocent construction is next to impossible. Since it would be difficult
to read these statements as anything other than criticisms of DSC's
business practices, the innocent construction rule does not apply.
Under the First Amendment, statements of opinion are nonactionable even
if they fall into a per se category. Hopewell v.
Vitullo, 701 N.E.2d 99, 102 (Ill.App. Ct. 1998). "Opinions and
Judgements may be harsh, critical, or even abusive, yet still not subject
the writer to liability." Vee See Constr. Co. v. Jensen &
Halstead, Ltd., 399 N.E.2d 278, 281 (Ill.App. Ct. 1979). However, a
statement is only protected if it cannot be "reasonably interpreted as
stating actual facts." Bryson, 174 Ill.2d 77 at 100 (quoting
Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990)). I find
that much of the email's content could reasonably be construed as
fact.*fn1 Therefore, the statements are not entitled to First Amendment
Lastly, Defendants argue that Bakhsh's email is not sufficiently
defamatory to warrant damages without proof. There appears to be some
disagreement over whether Illinois law requires plaintiffs to overcome an
additional sufficiency hurdle after showing the complained of
statement fits into a per se category. Some courts have
required plaintiffs to show that the statements are so obviously and
naturally harmful to plaintiff's reputation that proof of injury can be
done away with. Management Servs. v. Health Management Sys.,
907 F. Supp. 289, 293-94 (C.D. Ill. 1995); See also Brown &
Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 268 (7th Cir.
1983). However, other courts have either explicitly rejected this notion
stating that this "additional hurdle . . . does not exist under Illinois
law," Republic Tobacco, L.P. v. N. Atl. Trading Co.,
254 F. Supp.2d 985, 1000 (N.D. Ill. 2002), or have failed to include this
hurdle as a criterion. Bryson, 174 Ill.2d 77 at 100.
While I tend to think that a sufficiency showing is not required, I
need not decide that issue now. The statements here are so obviously and
naturally hurtful that they easily meet the heightened requirement for
sufficiently defamatory statements. Defendants sent an email, which was
highly critical of DSC's ability to conduct its business, to one of DSC's
largest and most important clients. Injury to DSC's reputation in this
instance can be assumed.
II. Commercial Disparagement
To state a claim for commercial disparagement, a plaintiff must allege
that defendant made false and demeaning statements about the quality of
plaintiff's goods or services. Appraisers Coalition v. Appraisal
Inst., 845 F. Supp. 592, 610 (N.D. Ill. 1994). See Also Crinkley
v. Dow Jones & Co., 385 N.E.2d 714, 719 (Ill.App. Ct.
1978)("defamation and commercial disparagement are separate and distinct
torts"). As discussed above, the statements made in Bakhsh's email
criticized DSC's business practices. Accordingly, DSC has stated a valid
claim for commercial disparagement.
III. Tortious Interference with Contract and Business
Defendants argue that both DSC's claims of tortious interference with
contract and tortious interference with business relationships are
improperly pled.*fn2 To state a claim for tortious interference with a
business relationship, DSC must plead (1) a reasonable expectation of
future business with a third party, (2) defendant's knowledge of the
prospective business, (3) defendant's purposeful interference to prevent
the expectancy from being fulfilled, and (4) resulting damage to the
plaintiff. Cook v. Winfrey, 141 F.3d 322, 327 (7th Cir. 1998)
(citing Fellhauer v. Geneva, 142 Ill.2d 495 (1991)). In its
complaint, DSC alleged a reasonable expectation of future business with
Solo, knowledge by the Defendants of that ...