Update: Wright Development Group, LLC v. Walsh

On Oct. 21, 2010, the Illinois Supreme Court issued its opinion in Wright Development Group, LLC v. Walsh, No. 109463, addressing for the first time the scope of Illinois' Citizen Participation Act (CPA), 735 ILCS 110/1 et seq. The CPA is Illinois' Anti-SLAPP statute, designed to protect individuals, corporations, associations and members of the media who are sued for statements they make while petitioning or otherwise participating in government. In its decision, the court broadly interpreted the protections afforded by the CPA, providing some comfort to those who testify before government bodies, report official misconduct, speak with the media or otherwise attempt to influence government action that they can fight back if they are sued as a result.

The Case

The plaintiff in the case, Wright Development Group, had filed a defamation suit against John Walsh, a local newspaper and its publisher. Wright Development Group alleged that it was defamed by statements made by Walsh while he attended a public forum convened by his alderman to discuss the need for government action to confront problems with local developers and contractors. Walsh spoke with a reporter after the formal question-and-answer session ended, and some of his comments were published in the newspaper, prompting the defamation suit.

Walsh and other defendants moved to dismiss the complaint, arguing that under Illinois' innocent construction rule, the statements were not actionable. While that motion was pending, Walsh moved to dismiss under the CPA. The trial court, after limited discovery and a hearing, denied Walsh's motion to dismiss under the CPA, apparently because the statements at issue were made to a reporter and not to the alderman or her representatives. Walsh filed an interlocutory appeal in accordance with the CPA, and while that appeal was pending, the trial court granted the earlier motion to dismiss, holding that they statements were not actionable because they were capable of an innocent construction. The Illinois Appellate Court then dismissed Walsh's appeal under the CPA as moot, reasoning that because Walsh had “already obtained the relief he sought, an action by this court would constitute an advisory opinion.” Wright Dev. Group, LLC v. Walsh, No. 1-08-2783 (Ill. App. Ct. Sept. 29, 2009). The Illinois Supreme Court granted Walsh's petition for leave to appeal from the dismissal order and, in last month's decision, reversed the Illinois Appellate Court.

The Reversal

First, the Illinois Supreme Court held that the trial court's dismissal of the complaint on alternative grounds did not moot Walsh's appeal from the SLAPP ruling. The court noted that the appellate court's dismissal of the appeal directly contradicted the legislature's explicit expressions of public policy regarding the efficient process to identify and adjudicate SLAPPs and in favor of an award of attorneys' fees and costs to prevailing parties in such suits. The court also noted that the trial court's action potentially injured Walsh by denying his request for a statutory award of attorneys' fees and costs ' an entitlement not available to him with the dismissal on innocent construction grounds.

Second, the court held that the CPA “clearly immunized” Walsh's statements, made in an alderman's office to a reporter concerning statements he had made at an official public meeting. In so holding, the court noted the CPA's broad definition of “government” to include the electorate, i.e., the public at large, as well as government officials. This shifted the burden to Wright Development to produce “clear and convincing evidence” that Walsh's statements were not immunized from, or were not in furtherance of, acts immunized from liability by the CPA. The court concluded that Wright Development had not met this burden. The court also held that the Act applied to Walsh's statements, even though they were made directly to a reporter and even though they were made after the formal portion of the meeting had ended. The court remanded the case to the trial court for a determination of the amount of fees and costs to which Walsh was entitled.

The Concurring Opinion

In his concurring opinion, Justice Charles E. Freeman set out what he (and Justice Anne M. Burke, who joined in the concurrence) views as the proper procedure for invoking the protections of the CPA ' the filing of a single motion to dismiss, raising the protections of the CPA and any other basis for dismissal, rather than a separate motion under the CPA. This procedure would avoid some of the procedural and jurisdictional issues present in Walsh. The concurring opinion provides important guidance to future defendants who have been SLAPPed.

Julie Bauer is a partner in the litigation department of Winston & Strawn's Chicago office. Ms. Bauer is co-counsel for the amici in the Wright Development case. She may be reached at [email protected].

On Oct. 21, 2010, the Illinois Supreme Court issued its opinion in Wright Development Group, LLC v. Walsh, No. 109463, addressing for the first time the scope of Illinois' Citizen Participation Act (CPA), 735 ILCS 110/1 et seq. The CPA is Illinois' Anti-SLAPP statute, designed to protect individuals, corporations, associations and members of the media who are sued for statements they make while petitioning or otherwise participating in government. In its decision, the court broadly interpreted the protections afforded by the CPA, providing some comfort to those who testify before government bodies, report official misconduct, speak with the media or otherwise attempt to influence government action that they can fight back if they are sued as a result.

The Case

The plaintiff in the case, Wright Development Group, had filed a defamation suit against John Walsh, a local newspaper and its publisher. Wright Development Group alleged that it was defamed by statements made by Walsh while he attended a public forum convened by his alderman to discuss the need for government action to confront problems with local developers and contractors. Walsh spoke with a reporter after the formal question-and-answer session ended, and some of his comments were published in the newspaper, prompting the defamation suit.

Walsh and other defendants moved to dismiss the complaint, arguing that under Illinois' innocent construction rule, the statements were not actionable. While that motion was pending, Walsh moved to dismiss under the CPA. The trial court, after limited discovery and a hearing, denied Walsh's motion to dismiss under the CPA, apparently because the statements at issue were made to a reporter and not to the alderman or her representatives. Walsh filed an interlocutory appeal in accordance with the CPA, and while that appeal was pending, the trial court granted the earlier motion to dismiss, holding that they statements were not actionable because they were capable of an innocent construction. The Illinois Appellate Court then dismissed Walsh's appeal under the CPA as moot, reasoning that because Walsh had “already obtained the relief he sought, an action by this court would constitute an advisory opinion.” Wright Dev. Group, LLC v. Walsh, No. 1-08-2783 (Ill. App. Ct. Sept. 29, 2009). The Illinois Supreme Court granted Walsh's petition for leave to appeal from the dismissal order and, in last month's decision, reversed the Illinois Appellate Court.

The Reversal

First, the Illinois Supreme Court held that the trial court's dismissal of the complaint on alternative grounds did not moot Walsh's appeal from the SLAPP ruling. The court noted that the appellate court's dismissal of the appeal directly contradicted the legislature's explicit expressions of public policy regarding the efficient process to identify and adjudicate SLAPPs and in favor of an award of attorneys' fees and costs to prevailing parties in such suits. The court also noted that the trial court's action potentially injured Walsh by denying his request for a statutory award of attorneys' fees and costs ' an entitlement not available to him with the dismissal on innocent construction grounds.

Second, the court held that the CPA “clearly immunized” Walsh's statements, made in an alderman's office to a reporter concerning statements he had made at an official public meeting. In so holding, the court noted the CPA's broad definition of “government” to include the electorate, i.e., the public at large, as well as government officials. This shifted the burden to Wright Development to produce “clear and convincing evidence” that Walsh's statements were not immunized from, or were not in furtherance of, acts immunized from liability by the CPA. The court concluded that Wright Development had not met this burden. The court also held that the Act applied to Walsh's statements, even though they were made directly to a reporter and even though they were made after the formal portion of the meeting had ended. The court remanded the case to the trial court for a determination of the amount of fees and costs to which Walsh was entitled.

The Concurring Opinion

In his concurring opinion, Justice Charles E. Freeman set out what he (and Justice Anne M. Burke, who joined in the concurrence) views as the proper procedure for invoking the protections of the CPA ' the filing of a single motion to dismiss, raising the protections of the CPA and any other basis for dismissal, rather than a separate motion under the CPA. This procedure would avoid some of the procedural and jurisdictional issues present in Walsh. The concurring opinion provides important guidance to future defendants who have been SLAPPed.

Julie Bauer is a partner in the litigation department of Winston & Strawn's Chicago office. Ms. Bauer is co-counsel for the amici in the Wright Development case. She may be reached at [email protected].