Basile v. Prometheus Global Media, LLC

2020 IL App (1st) 190602-UNo. 1-19-0602
Third Division
July 2, 2020
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
NICOLE BASILE, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 17 L 009521
)
PROMETHEUS GLOBAL MEDIA, LLC, ) Honorable
) Daniel T. Gillespie,
Defendant-Appellant. ) Judge, presiding.
JUSTICE COBBS delivered the judgment of the court.
Presiding Justice Ellis and Justice McBride concurred in the judgment.
ORDER
¶1 Held: Defendant’s interlocutory appeal under Illinois Supreme Court Rule 306(a)(9) is
dismissed for lack of jurisdiction.
¶2 This appeal involves the application of the anti-SLAPP statutes of Illinois and California.
The term “SLAPP,” which is an acronym for Strategic Lawsuit Against Public Participation, refers
to a meritless lawsuit aimed at preventing citizens from exercising their political rights or at
punishing them for having done so. Sandholm v. Kuecker, 2012 IL 111443, ¶ 33. “The traditional
SLAPP paradigm involves a large and powerful corporation or entity that sues an individual or
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grassroots political organization for defamation, intentional interference with economic advantage,
or some other similar tort.” Ryan v. Fox Television Stations, Inc., 2012 IL App (1st) 120005, ¶ 13.
The goal of a plaintiff in a SLAPP is not necessarily to win the litigation, but rather to chill the
speech of the defendant and others through the delay, expense, and distraction associated with
defending against a lawsuit. Sandholm, 2012 IL 111443, ¶ 34. Thus, although SLAPPs are
meritless by definition, SLAPP plaintiffs nevertheless accomplish their goals through the ancillary
effects of the lawsuits themselves. Id.¶3 Recognizing that existing safeguards against SLAPPs were inadequate to protect
defendants from these ancillary effects, many states, including Illinois and California, have enacted
special anti-SLAPP statutes. While such legislation varies from state to state, the statutes typically
provide a mechanism for early dismissal and the award of attorney’s fees to a successful defendant.
¶4 Here, plaintiff-appellee, Nicole Basile, filed a complaint against defendant-appellant,
Prometheus Global Media, LLC, alleging defamation per se, defamation per quod, and false light
invasion of privacy. Defendant filed a motion to dismiss the complaint, citing California’s anti-
SLAPP statue. In response, plaintiff argued that Illinois’ anti-SLAPP statute, not California’s,
applied to this case. The circuit court denied the motion to dismiss, reasoning that it did not need
to decide which statute applied because defendant was not entitled to relief under either state’s
law. Defendant petitioned this court for leave to file an interlocutory appeal under Illinois Supreme
Court Rule 306(a)(9), which we granted. However, we now decide that we lack jurisdiction to
consider defendant’s arguments, and we therefore dismiss the appeal.
¶5 I. BACKGROUND
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¶6 Plaintiff is an Illinois resident who formerly lived and worked in Los Angeles, California
as a payroll accountant in the television and film industries. Defendant is a Delaware limited
liability company with its principal place of business in New York. The Hollywood Reporter,
which is wholly owned and published by defendant, is a Los Angeles-based magazine and website
that focuses on the television, film, and entertainment industries.
¶7 In December 2014, an article entitled “Sony Hack: Studio Security Points to Inside Job”
appeared in print edition of The Hollywood Reporter and on the magazine’s website. The article
concerns the highly publicized November 2014 cyber attack in which hackers obtained and leaked
confidential data from Sony Pictures Entertainment (Sony), including unreleased films and
personal information of Sony employees. This article is the subject of plaintiff’s complaint.
¶8 After the subheadline that “North Korea might hate a new movie, but studio sources lean
toward an ex-employee scenario ***,” the article briefly recounts the background of the attack,
what information was stolen, and what measures Sony and other studios have taken to enhance
their cyber security in its wake. The article then continues with a critical transition paragraph:
“Now the question of who is behind the attack has become a chilling Hollywood whodunit.
While the hackers have identified themselves only as Guardians of Peace, emails pointing
journalists to allegedly stolen files posted on a site called Pastebin came from a sender named
‘Nicole Basile.’ A woman by that name is credited on IMDb as an accountant on the studio’s 2012
hit film The Amazing Spider-Man, and her LinkedIn page says she worked at Sony for one year in
2011. Basile couldn’t be reached for comment and the studio declined to confirm if she works or
has worked there.”
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¶9 The article next explains the “[i]nitial speculation” that the hack was perpetrated by the
government of North Korea in retaliation for an upcoming Sony film involving a CIA plot to
assassinate North Korean leader Kim Jong-un. However, the following sentence states, “Inside the
studio, though, sources say there is little evidence that North Korea is behind the attack.” The
article then quotes a cyber security expert who also found it “hard to believe that North Korea
[was] the perpetrator,” and instead “theorize[d] an employee or ex-employee with administrative
access privileges [was] a more likely suspect.” The expert reasoned that an outside hacker would
have needed months to find such sensitive information within the Sony network and would not
have used “such things as Hushmail, Dropbox, and Facebook” because those sites track user
information and cooperate with law enforcement. 1 After quoting the expert, the article asserted
that the “possibility of a disgruntled employee wreaking havoc is very real,” as Sony had laid off
hundreds of employees in the year preceding the attack. The article then concluded by detailing
the potential financial impact of the leaked films and by noting that Sony was working with the
FBI to investigate the attack as a criminal matter.
¶ 10 A. The Federal Suit
¶ 11 On November 11, 2015, plaintiff filed a complaint against defendant in the U.S. District
Court for the Northern District of Illinois, alleging that the article constituted defamation per se
and false light invasion of privacy. 2 In particular, plaintiff claimed that the article portrayed her as
responsible for the cyber attack through its “overall meaning” and three false and defamatory
1
Although not mentioned in the original article, a follow-up article, which is not the subject of
plaintiff’s claims, indicates that the hackers used the e-mail address “nicole.basile@hushmail.com.”
2
Plaintiff’s federal complaint also named the article’s authors as defendants. However, the district
court dismissed the authors for lack of personal jurisdiction, plaintiff did not name them in her state court
complaint, and they are not parties to this appeal.
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statements: (1) that her name was the only alias used by the hackers, (2) that she was a former
Sony employee, and (3) that she had “disappeared” and could not be found for comment despite
reasonable efforts.
¶ 12 In a written order dated December 7, 2016, the district court granted defendant’s motion
for judgment on the pleadings and dismissed the complaint. Applying Illinois defamation law, the
district court found that the article could not reasonably be construed as imputing criminal activity
to plaintiff because it “recognize[d] that the identity of the actual perpetrators are unknown,”
explained that any of a number of laid-off former Sony employees might be responsible, and did
not accuse plaintiff of sending the e-mail to journalists. The district court also found that the article
did not disparage plaintiff’s ability to perform her job, and was therefore not defamatory per se.
The district court further stated that, even if the article had been defamatory per se, plaintiff would
still not have been entitled to relief because the article was capable of a reasonable innocent
construction. Finally, the court rejected plaintiff’s false light claim because it was based on the
same statements as her defamation claim.
¶ 13 On appeal, however, it was discovered that complete diversity did not exist between the
parties because one of defendant’s members was a citizen of Illinois. Accordingly, the Seventh
Circuit remanded to the District Court with instructions to dismiss the case for lack of jurisdiction.
¶ 14 B. The State Suit
¶ 15 On October 20, 2017, plaintiff filed the instant complaint in the Circuit Court of Cook
County pursuant to section 5/13-217 of the Code of Civil Procedure (Code) (735 ILCS 5/13-217
(West 2016)), which allows a plaintiff to commence a new action in the circuit court within a year
of a dismissal in a district court for lack of jurisdiction. The state court complaint mirrored the
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federal court complaint with respect to the claims of defamation per se and false light invasion of
privacy, but also added a claim of defamation per quod based on plaintiff’s contentions that the
article was defamatory on its face and that she suffered special damages in the form of lost income
and business opportunities as a result.
¶ 16 Defendant filed a motion to dismiss the complaint pursuant to section 2-615 of the Code,
arguing that the article was “not defamatory as a matter of law” and was capable of a reasonable
innocent construction. Defendant further contended that plaintiff’s claim of defamation per quod
should also be dismissed because she did not allege special damages with sufficient particularity.
Lastly, defendant maintained that plaintiff’s false light claim failed because it was based on the
same nonactionable statements as her defamation claims.
¶ 17 In response, plaintiff argued that the article was defamatory per se because it conveyed that
the hacker was a disgruntled ex-Sony-employee while mentioning only her—by name—as an ex-
employee connected to the stolen data. Plaintiff also maintained that her claim of defamation per
quod remained viable because the article was defamatory on its face and she pled special damages.
¶ 18 Following a hearing, the circuit court denied defendant’s section 2-615 motion. In so
ruling, the court stated that the mention of plaintiff’s name in relation to the stolen information
was “the punch line” of the article and was “arguably colorfully a defamatory statement” that
amounted to defamation per se. With respect to the plaintiff’s claim of defamation per quod, the
court reiterated that the article was defamatory on its face and also found that plaintiff adequately
pled special damages where she alleged, in the court’s words, an “inability to get hired in [the film
industry] and lost wages as a result.”
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¶ 19 Defendant next filed a motion to dismiss the complaint pursuant to section 2-619 of the
Code, arguing that California’s anti-SLAPP statute (Cal. Proc. Code § 425.61(b)(1); 735 ILCS
110/15 (West 2016)), was “an affirmative matter which warrant[ed] dismissal of the Complaint
with prejudice as a matter of law.” Specifically, defendant contended that California’s anti-SLAPP
statute should apply to this case because, as the article was primarily researched, written, edited,
and published out of The Hollywood Reporter’s Los Angeles office, California had the most
significant contacts and strongest interest in having its anti-SLAPP law applied. Defendant further
asserted that it was entitled to an early dismissal under California’s anti-SLAPP statute because
plaintiff was unable to show a reasonable probability of success on the merits. In particular,
defendant maintained that plaintiff’s claims were destined to fail under Illinois defamation law
because the article was not defamatory and was capable of a reasonable innocent construction.
¶ 20 Plaintiff responded that Illinois’ anti-SLAPP statute, the Citizen Participation Act (735
ILCS 110/1 et seq. (West 2016)), should apply because the case was brought in an Illinois court,
both parties were citizens of Illinois, and the injury was “largely realized in Illinois.” Plaintiff also
argued that, even if the California anti-SLAPP statute were applicable, her complaint would still
survive dismissal because the court had already determined that she pled a prima facie case of
defamation by denying defendant’s section 2-615 motion.
¶ 21 At a hearing on the section 2-619 motion, the court instructed defendant to provide
additional briefing as to whether there was a conflict of law between the California and Illinois
anti-SLAPP statutes. In its supplemental brief, defendant argued that a choice of law analysis was
required because the California statute was “much broader in scope” than its Illinois counterpart.
In particular, defendant noted that California’s statute applies to all speech “in connection with a
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public issue,” whereas Illinois’ statute applies only to speech aimed at procuring a favorable
governmental action or outcome. See Cal. Proc. Code § 425.61(b)(1) (West 2016); 735 ILCS
110/15 (West 2016).
¶ 22 In response, plaintiff argued that the court should apply the Illinois statute because
“California’s anti-SLAPP law is plainly procedural, and not substantive.” Specifically, plaintiff
contended that the California statute merely provided a procedural mechanism through which the
case could be dismissed at an early stage if it were meritless as a matter of substantive Illinois
defamation law.
¶ 23 After receiving the supplemental briefing, the circuit court ruled that it need not conduct a
choice of law analysis because “under either statute, [d]efendant’s 2-619 motion must be denied.”
The court explained that defendant could not prevail under Illinois’ anti-SLAPP statute because
the article was not related to defendant’s participation in government and could not reasonably be
construed as nondefamatory. In line with its ruling on defendant’s section 2-615 motion, the court
stated that “the only reasonable interpretation an ordinary reader could be left with is that plaintiff
participated in the cyber-attack” because the article claimed that (1) the attack was “likely
committed by an ex-employee,” (2) plaintiff was an ex-employee, and (3) the stolen information
“emanated from Nicole Basile.” Similarly, the court further held that, although the article was the
kind of speech covered by the “broader” California anti-SLAPP statute, that statute would not
entitle defendant to an early dismissal because plaintiff had established a prima facie case of
defamation and a reasonable probability of success on the merits. Accordingly, the court denied
defendant’s motion to dismiss without proceeding any further with a choice of law analysis. Over
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plaintiff’s objection, this court granted defendant’s petition for leave to appeal pursuant to Illinois
Supreme Court Rule 306(a)(9) (eff. Nov. 1, 2017).
¶ 24 II. ANALYSIS
¶ 25 A. Jurisdiction
¶ 26 Before we can reach the merits of defendant’s arguments, we must consider the scope of
our jurisdiction over this case. See Xcel Supply, LLC v. Horowitz, 2018 IL App (1st) 162986, ¶ 26
(“An appellate court always has an independent duty to consider its own jurisdiction and dismiss
an appeal if jurisdiction is lacking.”). This court’s jurisdiction is generally limited to appeals from
final judgments, unless the ruling to be reviewed falls within one of the exceptions for interlocutory
appeals specified by our supreme court. Inland Commercial Property Management, Inc. v. HOB I
Holding Corp., 2015 IL App (1st) 141051, ¶ 17. The Illinois Constitution grants our supreme court
the exclusive and final authority to prescribe the scope of interlocutory appeals. People v. Holmes,
235 Ill. 2d 59, 66 (2009). Thus, “[i]f a supreme court rule does not grant the right to appeal from
a nonfinal judgement, then there is no right to an interlocutory appeal and the appellate court does
not have jurisdiction to hear that appeal.” Mund v. Brown, 393 Ill. App. 3d 944, 997 (2009). The
scope of a supreme court rule is a question of law, which we review de novo. McCarthy v. Taylor,
2019 IL 123622, ¶ 17.
¶ 27 Here, defendant petitioned for, and was granted, a permissive interlocutory appeal under
Supreme Court Rule 306(a)(9), which applies only to appeals “from an order of the circuit court
denying a motion to dispose under the Citizen Participation Act.” Defendant maintains that this
rule grants us jurisdiction to consider his arguments involving California’s anti-SLAPP statute
because the circuit court denied the underlying motion to dismiss based in part on a finding that
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defendant would not be entitled to an early dismissal under the Citizen Participation Act. In
interpreting the scope of a supreme court rule, we employ the same principles that govern the
interpretation of statutes. McCarthy, 2019 IL 123622, ¶ 17. As with statutory interpretation, the
starting point in construing a supreme court rule is the plain language of the rule itself. In re
Michael D., 2015 IL 119178, ¶ 9. When the language of a rule is clear, it must be given effect
without resort to other tools of interpretation. Id.¶ 28 The language of Rule 306(a)(9) plainly and clearly requires a defendant to have filed “a
motion to dispose under the Citizen Participation Act.” Defendant’s motion to dismiss here makes
no reference to the Citizen Participation Act, and instead relies solely on the protections of
California law. Indeed, defendant’s position below—which it maintains on appeal—was that the
Citizen Participation Act has no application to this case. Thus, defendant’s motion to dismiss was
not “a motion to dispose under the Citizen Participation Act” within the meaning of Rule 306(a)(9).
The circuit court’s ruling on the motion therefore falls outside of the limited scope of the rule.
¶ 29 Moreover, the record shows that the circuit court’s consideration of the Citizen
Participation Act was in no way crucial to its ruling on defendant’s motion. Rather, the circuit
court interpreted the Citizen Participation Act only in addressing the threshold matter of whether
California law had any application to this case. The circuit court ultimately determined that it did
not need to decide whether to apply the Illinois or California anti-SLAPP statute because
defendant’s motion would be unsuccessful under either state’s law. See Townsend v. Sears,
Roebuck, & Co., 227 Ill. 2d 147, 155 (2007) (“A choice-of-law determination is required only
when a difference in law will make a difference in the outcome.”). Thus, even assuming, arguendo,
that California law applied, defendant’s motion would still have been denied. The circuit court’s
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choice-of-law analysis in no way transformed defendant’s motion into one filed “under the Citizen
Participation Act” for purposes of Rule 306(a)(9). As such, the court’s ruling clearly falls outside
the ambit of the rule, and we lack jurisdiction to review it.
¶ 30 Nor are we persuaded by defendant’s argument that “[a]n appeal at this juncture is
consistent with the salutary policy of determining the merits of defamation cases as early in the
litigation process as the circumstances allow.” As previously explained, our jurisdiction in this
case extends only to the narrow limits set forth in Rule 306(a)(9), namely a denial of a motion
brought under the Citizen Participation Act. The rules governing permissive interlocutory appeals
must be strictly construed. Morrissey v. City of Chicago, 334 Ill. App. 3d 251, 258 (2002).
¶ 31 Furthermore, even if we were to ignore the plain language of the rule, we cannot say that
our supreme court intended to allow interlocutory appeals involving other states’ anti-SLAPP
statutes. Before the addition of Rule 306(a)(9), there was significant uncertainty as to whether the
denial of a motion under the Citizen Participation Act was subject to interlocutory review. See
Ryan, 2012 IL App (1st) 120005, ¶ 9 n.1. Our supreme court clarified the issue in 2011 by
amending Rule 306 to explicitly allow for such appeals. However, our supreme court did not
include a similar provision for other states’ anti-SLAPP statutes, even though many states—
including California—had already enacted anti-SLAPP legislation. See Sandholm, 2012 IL
111443, ¶ 33(noting that more than 20 states had enacted anti-SLAPP statutes by August 2007).
Our supreme court has also not expanded the scope of Rule 306(a)(9) in the over nine years since
it was added. Notwithstanding the policies expressed by other states’ legislatures, our supreme
court’s exclusion of foreign anti-SLAPP statutes from the rules governing interlocutory appeals
strongly suggests that our supreme court did not intend for motions under those statutes to be
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subject to interlocutory appeals. See Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 152
(2007) (“[T]he inference that all omissions should be understood as exclusions stands despite the
lack of any negative words of limitation.”). Defendant’s policy argument is therefore unavailing.
¶ 32 III. Conclusion
¶ 33 In sum, defendant’s arguments regarding California law do not fall within the narrow
limits of Rule 306(a)(9), which applies only to the Citizen Participation Act. Accordingly, we
lack jurisdiction to consider the arguments in an interlocutory appeal under the rule. This appeal
is therefore dismissed.
¶ 34 Dismissed.
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