2018 IL App (3d) 150864
Ill. App. Ct.2018Background
- Perfect Choice Exteriors (home-improvement contractor) sued Better Business Bureau of Central Illinois (BBB) after BBB lowered Perfect Choice’s online reliability grade from an A to a D- and allegedly told callers Perfect Choice was “not a good company.”
- Complaint asserted defamation, commercial disparagement, tortious interference, and violation of the Uniform Deceptive Trade Practices Act, seeking damages and orders to remove the information and restore an A rating.
- BBB moved to dismiss under section 2-619, attaching its public materials (Ratings System Overview pamphlet and website) explaining that BBB grades are derived from a proprietary formula and represent BBB’s opinion.
- Trial court granted dismissal, concluding BBB’s ratings and the alleged oral statements were constitutionally protected opinions and also enjoyed a qualified privilege; Perfect Choice appealed.
- The appellate court affirmed: it held BBB’s grade and the alleged statements to callers were nonactionable opinions (not provably false factual assertions), and therefore all related claims failed as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BBB’s D- rating is actionable defamation (opinion vs. verifiable fact) | The D- is presented as fact-based and implies provable deficiencies; not mere opinion | The grade is a subjective evaluation produced by a proprietary formula and explicitly labeled an opinion | Held: D- is a protected opinion (not provable fact); nonactionable |
| Whether alleged oral statements to callers (“not a good company,” “should not do business with”) are defamatory | Statements harmed reputation and deterred business; therefore actionable | These are vague, generalized opinions without factual assertions or verifiable basis | Held: Statements are nonactionable opinions |
| Whether First Amendment protection applies to private defendants making statements about private parties | (Implicitly conceded below; plaintiff did not press contrary position on appeal) | First Amendment opinion-protection applies where Milkovich/Solaia standards are met | Held: Court applied First Amendment opinion analysis to private defendant communications |
| Whether non‑defamation claims (commercial disparagement, tortious interference, UDTPA) survive if defamation fails | These claims derive from the same alleged defamatory statements and should proceed | If statements are constitutionally protected opinions, related claims fail | Held: All related claims fail because the underlying statements are protected opinions |
Key Cases Cited
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (establishes that statements implying provable facts are actionable; labels alone do not convert fact into opinion)
- Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill. 2d 558 (Illinois standard for distinguishing protected opinion from defamatory factual assertions)
- Imperial Apparel, Ltd. v. Cosmo’s Designer Direct, Inc., 227 Ill. 2d 381 (discusses applying First Amendment protections to private defendants when Milkovich/Solaia standards are met)
- Kuwik v. Starmark Star Marketing & Administration, Inc., 156 Ill. 2d 16 (qualified privilege framework referenced)
- Aviation Charter, Inc. v. Aviation Research Group/US, 416 F.3d 864 (example of courts treating evaluative ratings based on subjective interpretation of data as protected opinion)