Chicago Business Litigation Lawyer Blog

While scientists have gathered convincing evidence to support the theory of global warming, many remain skeptical. Where the skeptics might find themselves in trouble is when they allegedly wrongly accuse scientists of manipulating data to reach false conclusions. Such is the case with scientist Michael Mann and National Review, which ran an article last summer accusing Mann of implementing fraud in his research.

Mann was one of a group of researchers that developed the climate change model known as the “hockey stick graph”. This graph shows a dramatic rise in global temperature at the end of the last millennium. Many of those who refuse to believe that climate change is real have criticized Mann and his work. Several investigations have been conducted over the years into Mann’s research methods. They have all cleared him of any wrongdoing.

These investigations, though, were not enough for the author of the National Review Article, which drew comparisons between Mann and former assistant football coach, Jerry Sandusky, who was convicted of child molestation. The article questioned the validity of a particular investigation by Penn State which cleared Mann of any wrongdoing. According to the article, the University’s investigation of Sandusky’s conduct and the investigation of Mann’s research methods both took place under former Penn State President Graham Spanier. The article quoted a July 13 post from the Competitive Enterprise Institute’s blog, which said that Mann “could be said to be the Jerry Sandusky of climate science, except that instead of molesting children, he has molested and tortured data in the service of politicized science.”

The defendants argued that the statements were opinion and rhetorical hyperbole and therefore protected under the Constitution’s First Amendment. They filed a motion to dismiss under strategic lawsuit against public participation (SLAPP). SLAPP is a District of Columbia law which bars plaintiffs from filing lawsuits against plaintiffs with the aim of intimidating them into silence by burdening them with the cost of legal defense until they abandon their criticism. Most SLAPP plaintiffs do not expect to win their cases, hoping instead to achieve their goals through intimidation, mounting legal costs, or simple exhaustion before the case advances very far.

District of Columbia Superior Court Judge Natalia Combs Greene denied the motions to dismiss, having found that the article’s statements crossed the line from opinion to factual assertions. At this stage of the proceedings, Judge Combs Greene allowed that the criticism of Mann’s work may be fair but that is not currently the issue. The issue is whether or not Mann has a valid complaint against the defendants and, since they presented their statements as facts, rather than opinions, Mann has the right to defend his reputation in a court of law. According to the judge’s written statement, “there is a strong probability that the [National Review] Defendants disregarded the falsity of their statements and did so with reckless disregard.

In another recent case reviewed by our Chicago libel lawyers, in the District of Columbia’s Court of Appeals, the appellate court issued an order which found that the anti-SLAPP statute didn’t provide for interlocutory review. This means that National Review cannot appeal the judge’s decision to deny their motion to dismiss. The next stage of the case is discovery.

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Many people file libel lawsuits simply in retaliation against those who acted or spoke out against them. For this reason, once a libel lawsuit has been filed, the first thing the court does under Illinois new SLAPP statute, if the speech at issue involves petitioning the government, is give the defendant a chance to prove that the lawsuit is simply retaliatory and without merit.

Such was recently the case in a lawsuit between two lawyers, one the former employer of the other. The defendant, Clinton Krislov, is the sole shareholder of Krislov & Associates and former employer of Robert J. Stein. Stein worked for Krislov’s firm from 1994 to 2001 before going to work for a new firm. The new firm happened to be one of three firms representing the plaintiffs in a motion for class certification in an unrelated class action lawsuit.

One of the requirements for attaining class certification is proof that the attorneys representing the plaintiffs are competent in class action lawsuits. In order to prove this, attorneys frequently list their history and qualifications as part of the motion for class certification. Krislov happened upon this motion for class certification while conducting unrelated research and took interest in the section describing Stein’s legal experience. In June 2005, Krislov sent a letter to the judge in the case, claiming that Stein’s statements referring to his experience were

“simply misstatements, known to the filers to be untrue.”

The judge then contacted Stein and his fellow attorneys in the case and provided them with a copy of Krislov’s letter. Stein responded by disputing Krislov’s claims and providing documentation to support his experience. Krislov then sent a letter to the judge in reply to Stein’s letter and Stein filed an amended complaint against Krislov, alleging libel and libel per se. Stein also alleged that Krislov owed him vacation and bonus pay from when he had worked as an employee of Krislov & Associates. Krislov argued that the letter to the judge had been privileged information and, initially, the trial court agreed and dismissed the libel lawsuit.

Stein moved to reconsider though, and the trial court reversed its decision. Krislov filed another motion to reconsider, but the court held firm this time. In its decision, the court found that only communication which called into question professional acts could be considered privileged. As it is, the court argued that, “[a]bsolute privileges must be narrowly construed, and where an attorney has injected himself into litigation with which he has absolutely no connection, we do not find that any kind of absolute privilege exists’ and that Krislov had absolutely no duty under the Illinois Rule of Professional Conduct to report misconduct elsewhere.”

Krislov then filed another motion to reconsider, arguing that he was immune to the libel lawsuit under the Citizen Participation Act (CPA). The CPA was designed to prevent Strategic Lawsuits Against Public Participation (SLAPP). SLAPP lawsuits are lawsuits without merit which are filed by the plaintiff without any intention of winning the case. Rather, the aim is to distract or discourage defendants from participating in behavior which the plaintiff might view as threatening. SLAPP lawsuits are known for sucking time and resources from the defendants and from the courts so it is in everyone’s best interest to stop them at an early stage.

The court agreed with Krislov’s motion to reconsider on these grounds and awarded almost $100,000 to Krislov for attorney fees and costs. Stein filed a motion to reconsider, arguing that Krislov’s actions were not protected under the CPA and that the court should have considered the libel claims separately from the wage claims. The court disagreed and Stein appealed the decision.

The appellate court looked first at the question of whether the letter sent from Krislov to the judge was privileged. Communications between lawyers about other lawyers may be privileged in certain instances, particularly since lawyers have a duty to report unethical behavior of other lawyers when they are aware of it. Actions which lawyers undertake to report these actions are protected from legal retaliation but the appellate court found that the unsigned letter that Krislov sent to the judge did not qualify for this protection. The court cited Restatement of Second Torts in its decision, pointing out that

“An attorney of law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel.”

Since Krislov was not in any way involved the case at issue, he is ineligible for this protection.

The court then considered the CPA claims. A defendant filing under the CPA is responsible for proving that the lawsuit has no merit and is merely a retaliatory move. According to the appellate court, Krislov failed to do this. Instead, the court acknowledged both the legitimacy of the libel lawsuit as well as wage allegations. The court remanded the case.

You can view the Appellate Court’s opinion here.

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The old cliché of a journalist who will do anything for a story might not be too far from the truth if the claims in this case which caused this CBS reporter are in fact true. Such appeared to be the case for Amy Jacobsen when cameras caught her in a bikini at the house of a person of interest in a major case.

In April 2007, Lisa Stebic disappeared. She and her husband, Craig Stebic, were in the process of getting divorced when Lisa failed to show up to pick up her children, then 10 and 12 years old, from school. After she disappeared, friends and neighbors claimed that Lisa had been inquiring about a domestic violence shelter. She reportedly told one friend, “If anything ever happened to me, look towards Craig.”

After Lisa disappeared, neighbors of Craig Stebic’s house were told by a media consultant to have video cameras aimed at the house at all times in case they should catch anything suspicious. It was one of these neighbors who turned the video of Jacobsen and her children in bathing suits at Craig’s house.

According to Jacobsen, she was driving to the local swim club with her two sons on July 6, 2007, when she got a call from Jill Webb, Craig’s sister. Webb reportedly said she was upset about some of the network coverage of the case and asked Jacobsen if she would talk about the case with her at Craig’s home. Jacobsen said she agreed after Webb told her she could bring her children with her.

A few days later, CBS aired footage of Jacobsen and her children enjoying what looked like a pool party at Craig Stebic’s house. On July 12, Stebic was named a person of interest in his wife’s disappearance.

If Jacobsen is the type of reporter who will do anything for a scoop — a claim she denies in her libel suit –, it appears to have worked. She is one of only two reporters that Craig talked to during the investigation.

After the footage aired, Jacobsen was fired from her position as a reporter at NBC. One year later, Jacobsen filed a libel lawsuit seeking more than $1 million from CBS and the neighbor who shot the video of her at Stebic’s house.

In February 2009, a Cook County judge allowed four counts of defamation to be considered by the courts. Judge Elizabeth Budzinski determined that “the CBS newscaster presented the footage with statement made in the form of insinuations and questions regarding Jacobsen’s activities while at the Stebic home”. Such insinuations and questions, Budzinski wrote in her ruling, “suggest that Jacobsen used improper methods in cultivating sources and obtaining stories.”

A different judge however, Judge Jeffrey Lawrence, has recently dismissed the lawsuit, saying that the parts of the CBS report that Jacobsen complained about are “constitutionally protected expressions of opinion.” Additionally, Lawrence argued that Jacobsen and her attorneys did not provide sufficient evidence that the content in the CBS report was fabricated.

It is not time for CBS to relax yet, though. Jacobsen is intent on an appeal. Her attorney, Kathleen Zellner, said that they “had always figured there would be an appeal before this went to trial because there are too many issues.” Zellner went on to say that the appeal will rest on her argument that Jacobsen was not a public figure at the time that CBS aired the story and that Judge Lawrence’s explanation contradicts a ruling that a prior judge made earlier in the case.

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Sam’s Club is a members-only retail warehouse that features a section for clearance items, called “as-is” items. Items may be designated “as-is” for various reasons and may be damaged or undamaged. Every as-is item is marked with an orange sticker; when a cashier scans the item, the original price appears and the cashier must perform a manual override. The software records the fact that a price override was performed, but does not include the reason. Overrides can occur for reasons other than “as-is” designation. Sam’s contracted with NEW to sell extended warranties for items sold in the store. NEW will not cover some “as is” products, including some purchased by Hayes. On each occasion, Sam’s employees offered and Hayes purchased a NEW warranty. The store provided Hayes with a manual and remote missing from a television he purchased and offered to refund the warranty price. Hayes declined. Hayes sued, on behalf of himself and all other persons who purchased a warranty for an as-is product from Clubs in New Jersey since 2004, asserting violation of the state Consumer Fraud Act, breach of contract, and unjust enrichment.

The trial court certified a Rule 23(b)(3) class. The Third Circuit vacated and remanded for consideration of Rule 23’s class definition, ascertainability, and numerosity requirements in light of its recent decision of Marcus v. BMW of North America, LLC, 687 F.3d 583 (3d Cir. 2012). The Third Circuit reasoned:

Because the able trial court here did not have the benefit of Marcus’s guidance, it did not consider whether it would be administratively feasible to ascertain class members. In discussing numerosity, however, the court noted that Sam’s Club had no method for determining how many of the 3,500 price-override transactions that took place during the class period were for as-is items. The court did not see this as a barrier to class certification, reasoning that plaintiff should not be hindered from bringing a class action because defendant lacked certain records. But the nature or thoroughness of a defendant’s record keeping does not alter the plaintiff’s burden to fulfill Rule 23’s requirements. Nor has plaintiff cited any statutory or regulatory authority obligating Wal-Mart to create and maintain a particular set of records. … Given the trial court’s finding that Wal-Mart lacks records that are necessary to ascertain the class, to be successful on remand, plaintiff must offer some reliable and administratively feasible alternative that would permit the court to determine: (1) whether a Sam’s Club member purchased a Service Plan for an as-is item, (2) whether the as-is item was a “last one” item or otherwise came with a full manufacturer’s warranty, and (3) whether the member nonetheless received service on the as-is item or a refund of the cost of the Service Plan. … To summarize, plaintiff must show by a preponderance of the evidence that there is a reliable and administratively feasible method for ascertaining the class.

You can view the full Third Circuit opinion here
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Johnson, an African-American woman, was employed at Koppers’ plant from 1995 until her termination in 2008. She had been disciplined for sleeping at her desk in the laboratory, for smoking in the lunch room, for not punching out on the time clock, for fighting with a security guard, and for an altercation with a white male co-worker, O’Connell. Without interviewing Johnson, the plant manager determined that both O’Connell and Johnson were at fault and decided that Johnson should be punished more severely because of her disciplinary history and O’Connell’s allegations of racial harassment. The plant manager warned Johnson that future incidents would lead to termination. O’Connell received a less severe warning letter. The Union filed a grievance on Johnson’s behalf and Johnson’s warning was reduced to a memo that summarized her work obligations and employment status. Johnson was fired after another altercation with O’Connell. A witness indicated that Johnson shoved O’Connell, who filed a police report.

Johnson filed suit, alleging discrimination on the basis of her race and gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, and 42 U.S.C. 1983. Johnson argued that her claim should succeed under the cat’s paw theory because her co-worker, O’Connell, harbored discriminatory animus against her race and gender. As O’Connell had no power to terminate Johnson himself, Johnson argued that O’Connell falsely reported that she called
him racial and gender-based slurs on one occasion and pushed him following a separate verbal altercation, in order to induce the plant manager to terminate Johnson’s employment at
Koppers.

The trial court granted summary judgment in favor of the the employer, Koppers and reject Johnson’s claims holding a false report by O’Connell, standing alone, is insufficient to establish discriminatory animus. While it is clear from the record that O’Connell and Johnson did not like each other, Johnson has provided no evidence to indicate that O’Connell’s animosity was motivated by discriminatory bias against her race or gender.

The Seventh Circuit affirmed summary judgment in favor of Koppers. In affirming the trial court, the Seventh Circuit held:

In order to succeed under the cat’s paw theory, Johnson needs to show that O’Connell, motivated by discriminatory animus, concocted a false story about Johnson, and that
O’Connell’s story was the proximate cause of Johnson’s termination. See Jajeh v. Cook County, 678 F.3d 560, 572 (7th Cir. 2012). That simply is not the case here. The proximate cause of
Johnson’s termination was actually the April 2008 physical altercation between Johnson and O’Connell that was witnessed by an independent third party. … Johnson’s claim fails because she cannot prove that she met Koppers’ legitimate job expectations, or that Koppers’ non-discriminatory reason for termination was pretextual. While Johnson correctly points out that there is no evidence to suggest that she had not been adequately performing her duties as a lab technician, her termination stemmed from a specific incident of insubordination, not a failure to perform her daily tasks. Johnson’s insubordination—pushing a co-coworker—clearly does not meet Koppers’ legitimate job expectations, even if she was an otherwise satisfactory lab technician.

You can view the Seventh Circuit opinion here
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