IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, LAW DIVISION

 (Most Recent News As Of June 1st, 2006 reads:)

 DEFENDANT'S MEMORANDUM IN OPPOSITION TO 
PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTIVE RELIEF

Defendant, DEAN ANDREW KANTIS, by his attorneys, LINDSAY and RAPPAPORT, L.L.C, submits the following for his Response Memorandum in Opposition to Plaintiffs' Motion for Preliminary Injunction:   

Introduction

            Plaintiffs' Motion for Preliminary Injunction is a remarkable piece of spin.  It is an undeniable fact and a matter of public record that the lasik surgery practiced by Nick Caro has prompted over fifty medical malpractice lawsuits.  It is an undeniable fact and a matter of public record that the Food and Drug Administration had to send US marshals into the St. George Corrective Vision Center to shut down Caro's use of an unauthorized laser machine.

These facts are front and center of Dean Kantis' lifeafterlasik website.  It is no wonder that Caro is attempting to shut down this website.  However, Plaintiffs' motion conveniently ignores these key facts, distorts other facts, and ignores the prevailing legal principles.  As long as the First Amendment to the United States Constitution, and Article I §4 of the Illinois Constitution remain the law in this land (which is highly likely), and unless and until Caro can secure a trial verdict in his favor in this case (which is highly unlikely), Kantis' website should remain. 

Facts and Statements at Issue

            The most compelling facts published on the website - the fifty plus medical malpractice lawsuits, and the FDA seizure of Caro's laser machine - can not be seriously contested.  Submitted as Exhibit A is a true and correct printout of information from the Clerk of the Circuit Court of Cook County, Illinois, listing those lawsuits.  Exhibit B is a true and correct printout of information from the FDA's web page relating to its notification to Caro that the laser he was using was unapproved and unauthorized, and United States Marshall's actual physical seizure of the laser from Caro's office.  This is publicly available information.  To put it mildly, this publicly available information at least raises a factual dispute regarding Plaintiffs' claim that they enjoy a reputation as providing safe and effective treatment.

Dean Kantis is a former patient.  Caro performed lasik surgery on him in 1999, and again in 2000.  Kantis' Affidavit is submitted in support of this Memorandum.  Kantis has suffered from serious vision problems as a result of those lasik surgeries.  Submitted as Exhibit C is a medical record  from of one of Kantis' more recent treating physicians, Dr. Kenneth Maller.  This record indicates that Dean Kantis has optical aberrations secondary to lasik in each eye, causing central corneal irregularity.  (Ex. C).  Both of his eyes have an inferiorly displaced ablation zone (the area of corneal tissue that is removed during lasik surgery) as well as other problems.  (Ex. C)   Kantis has been diagnosed as suffering from several effects of the 1999 and 2000 lasik surgeries, including irregularly shaped corneas, short/de-centered flap cuts, coma higher order aberrations, spherical higher order aberrations, dry eye syndrome, light contrast problems, halos and starbursts, ghosting/buzzing of the eyes.  (Kantis Affidavit at ¶ 9).

Caro spins the fact that Kantis never filed a medical negligence lawsuit against him.  This is somewhat ironic, as the reason for this was Caro's success at deceit.   Caro repeatedly told Kantis that his post lasik vision problems were due to Kantis' eyes being in the 5% category that have problems beyond control, and that it would take five to seven years before his eyes would fully adjust and they would see the final resolution of the surgery.  (Kantis Affidavit at ¶ 5).  This is a falsehood - the final result of lasik surgery is known within a few months; twelve months at the longest.  (Id. at ¶ 6; see also Exhibit D, p.4, which is a printout from the FDA webpage on what a lasik patient can expect, indicating that it is during the "first few months after surgery" that vision may fluctuate)  By the time Kantis educated himself enough to learn that his doctor had lied to him (Kantis Affidavit at ¶ 6 - 8), more than four years had passed, making any lawsuit somewhat difficult given Illinois' statutes of limitations and repose. Having defended more than fifty medical negligence lawsuits, it is a safe inference that Caro is familiar with the applicable statutes of limitations and repose, and that this is why he told Kantis that it would take five to seven years for his vision to resolve. 

In August, 2005, after investigating publicly available information about Caro, and about lasik, and having learned of the numerous medical malpractice lawsuits, the FDA action, and that his vision problems were not just normal side effects, Kantis first started maintaining the lifeafterlasik website.  (Kantis Aff. at ¶ 10, 15)  As the statements on the website are at issue in this case, it makes sense to include the site itself in the Court record, rather than quotes isolated passages.  Exhibit E contains the "home page;" Exhibit F contains the "about us" and the "contact us" pages; Exhibit G contains the "my personal story" page; Exhibit H contains the "nickcaro lawsuits" page; Exhibit I contains the "nickcarolaserseizedbyfda" page; all as existing as of March 27, 2006.  The lifeafterlasik site further contains pages devoted to definitions of the medical terms involved in the procedure; an illustrated guide to the cornea and to the actual procedure; a list of and explanation of known complications ; simulations of vision aberrations ; information on new technology; information on which laser machines are approved by the FDA; and numerous "links" to other sites, including sites regarding malpractice claims,  information as to how to contact the  agency responsible for regulating doctors; alternatives to lasik; and information on expert ophthalmologists who have treated lasik victims.  (Kantis Affidavit at ¶ 20).  This Court can evaluate for itself whether the material on this site is "defamatory, outrageous and objectively false" as Caro claims.

From a wealth of factual and educational material on the lifeafterlasik website, Caro singles out a handful of derogatory statements ("butcher, liar, illegal laser") that were contained in a chain of correspondence generated by Kantis in connection with a complaint he filed with the Better Business Bureau. (Kantis Affidavit at ¶¶ 28-33).   This material has been taken down from the website.  However, until early March, 2006, Kantis' correspondence to the Better Business Bureau, along with Dr. Caro's response, verbatim, was reproduced on the "BBB page" of the lifeafterlasik website.  (Kantis Affidavit at ¶¶ 33-35).  The passages cited by Caro in his Second Verified Amended Complaint at ¶¶ 13, 14 and 15 come from the BBB page.  (See citation in Second Verified Amended Complaint, and see Kantis Affidavit at ¶ 32).  A true and correct copy of the BBB page, printed out on February 27, 2006, is submitted as Exhibit J.  

The BBB page no longer exists.  Kantis removed it from the lifeafterlasik website in early March, 2006, and has no intention of republishing or reposting this text.  (Kantis Affidavit at ¶¶ 34-35).  While we do not concede for a second that calling Caro a lying butcher is defamatory, we do concede that legitimate points can be raised about Caro's competence, and concerns with lasik in general, without indulging in this harsh rhetoric.

The lifeafterlasik website, as currently constituted (see Exhibits E - I) will remain available on line unless this Court rules otherwise.  (Kantis Affidavit at ¶ 36).  This website contains factual information on Caro (the malpractice lawsuits and the FDA laser seizure) that is not only objectively and verifiably correct, but also a matter of public record.  The site also contains a host of educational information and links regarding the lasik procedure.  (Kantis Affidavit at ¶¶ 19, 20, 37).

The lifeafterlasik website is not a commercial endeavor.  Dean Kantis is not in the trade of running lasik informational websites for profit.  This lifeafterlasik website is not run for any commercial or business reason, and it is not part of Dean Kantis' business, vocation or profession.  (Kantis Affidavit at ¶¶ 16-18).  Kantis does not have any monetary interest in the website. (Id.)   Kantis is a citizen activist, and is maintaining the lifeafterlasik website purely as a matter of such First Amendment activism. (Id. at ¶ 19).

Caro's Complaint, and Request for Injunction

Before analyzing the current pleading, something must be said, straight out.  This lawsuit is a "SLAPP" suit ("strategic lawsuit against public participation").  This kind of tactic was discussed in Levin v. King, 271 Ill. App. 3d 728 (1^st Dist. 1995), where a developer brought a tortious interference with advantageous business relationship lawsuit against a neighborhood citizen activist who opposed his development.  The court directed a verdict against the plaintiff developer based on the citizen activist's First Amendment right to petition the government.  King v. Levin, 184 Ill. App. 3d 557 (1^st Dist. 1989).  The activist then brought his own act against the developer, Levin v. King, alleging that the developer's lawsuit was a SLAPP suit that had substantially chilled his exercise of his rights of free expression and petition of government, induced fears of adverse financial consequences to him and jeopardized other persons who opposed the housing development, and thus constituted malicious prosecution.  The first district refused to adjust the law of malicious prosecution for a SLAPP suit, but its analysis is interesting. Even if the developer had filed a "SLAPP" suit as the activist claimed, malicious prosecution requires some special injury beyond the usual expense, time or annoyance in defending a lawsuit, such as the plaintiff pursing a provisional remedy like an injunction so as to deny the activist his right to protest. 271 Ill. App. 3d 728 at 734.

The parallel to our case is apparent.  This Plaintiff is seeking to use the court system to chill another's right to free expression.  The distinction is also apparent, as this Plaintiff seeks and injunction, while the developer in Levin had not.  Both cases raise First Amendment issues.  

Caro filed the initial Complaint in this matter on September 12, 2005.  It was not until March 10, 2006, almost six months later, that Caro first filed his initial Motion for Preliminary Injunctive Relief.  Caro's Complaint, and the Motion, have gone through a few amendments. It remains to be seen whether any Complaint can survive a Motion to Dismiss.  Kantis has filed Motions to Dismiss the last two complaints, and Caro has responded by filing amended pleadings.    

Plaintiffs' current pleading, entitled Verified Second Amended Complaint for Injunctive and Other Relief, was filed on March 16, 2006.  We have yet to submit a responsive pleading, although we anticipate that another Motion to Dismiss would be in order several grounds, including the legal proposition that the statements complained of are either objectively verifiable public information, or non actionable opinion.

This current pleading reads more like an argumentative brief than a plain and concise statement of the cause of action.  While the pleading is replete with conclusions and aspersions as to Kantis' motives, it is particularly important to note what is not alleged. 

Caro never alleges that the list of lawsuits from the Clerk of the Circuit Court of Cook County is false.  Caro never alleges a falsehood regarding the publication of the FDA's warning letter to him to stop using a certain laser is false.  Caro never alleges a falsehood regarding the publication of the fact that the FDA had to send U.S. Marshals into his office and to physically seize an unapproved laser.  While Caro complains of words like "butcher," the pleading is fairly short on substance as to just what specific statements are objectively false, and how so. The only specific factual allegation Caro makes as to a supposedly false statement relates to the timing of Kantis' surgery as opposed to when Caro was using the unauthorized laser seized by the U.S. marshals.  (Complaint at par. 12).  This particular statement, as well as the remaining statements reproduced out of context at ¶¶ 13 and 14 of the pleading, is no longer published on Kantis' website (see above).  What Caro is doing is viewing this website with tunnel vision, focusing attention on one factual allegation to dramatically narrow the issues in this lawsuit and avoid confronting the core issues before the Court - Kantis' objectively factually correct statements as to the medical malpractice lawsuits, the FDA action, and the wealth of educational and advocacy material on lasik that is not specific to Caro. 

The current Complaint contains four counts, I being Defamation; II being False Light Invasion of Privacy; III being the Illinois Consumer Trade and Deceptive Business Practice Act, 815 ILCS § 505/1; and IV being the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS § 510/1.  The previous complaints were based on the same theories of defamation and false light invasion of privacy.  For the same reasons expressed in our Motion to Dismiss the Original Complaint, and our Motion to Dismiss the First Amended Complaint, Plaintiff's defamation / false light case is not sustainable.   Kantis’ statements regarding Caro, while undeniably critical and harsh, are for the most part are either objectively verifiable facts, or protected opinion.  We plan on filing a Motion to Dismiss the Second Amended Complaint on this same basis.  For the time being, we incorporate by reference the arguments made in the Motion to Dismiss the First Amended Complaint as part of this Memorandum. 

As for the insertion of the statutory claims in Counts III and IV, this is new, and frankly quite clever.  Plaintiffs' Verified Motion for Preliminary Injunctive Relief seeks an injunction under § 3 of the Uniform Deceptive Trade Practices Act.  We will discuss that Act, Caro's failure to satisfy the requirements for an injunction, and the special First Amendment concerns, below.

Plaintiff is not Entitled to an Injunction under the

Illinois Uniform Deceptive Trade Practices Act

The Illinois Uniform Deceptive Trade Practices Act gives an aggrieved party a cause of action for activities such as "misleading trade identification or deceptive advertising" as well as for disparagement of claimant's goods and services by false and misleading representations of fact.  See Unique Coupons Inc. v. Northfield Corp., 2000 US Dist. Lexis 6762 (N.D. Ill. 2000).  Any conduct in a business which creates a likelihood of consumer confusion or misunderstanding is potentially actionable under the statute. Unique Concepts, Inc. v. Manuel, 669 F. Supp. 185, 191 (N.D. Ill. 1987). (emphasis added). As discussed in Zeller v. La Hood, 627 F. Supp. 55 (C.D. Ill. 1985), the Act effectively delineates two prohibited forms of action. The first is "passing off" the goods or services of another, and the second is causing a likelihood of confusion by some pattern of designation or representation in conjunction with goods or services. 

The Act, at Section 2, reads in pertinent part:  Sec. 2. Deceptive trade practices. (a) A person engages in a deceptive trade practice when, in the course of his or her business, vocation, or occupation, the person: (list of practices such as passing off goods or services as those of another, causing likelihood of confusion as to source of goods, etc.). The Act then lists 12 activities, 11 specific and one catch-all, which can constitute deceptive trade practices. 815 ILCS § 510/2.

While Plaintiffs' use of this statute is undeniably clever, it falls short of a threshold requirement - Kantis is not maintaining the lifeafterlasik website in the course of his or her business, vocation, or occupation.  (Affidavit at ¶¶ 16-19).  This fact alone calls for this Court to deny Plaintiff's request for injunctive relief, and merits dismissal with prejudice of Count IV.

Even assuming that Kantis' citizen activism falls under the auspices of the Act, Plaintiffs still fail to justify their extraordinary request that this Court shut down Kantis' website.    It is important - indeed crucial - to note that the Illinois Uniform Deceptive Trade Practices Act is subject to the First Amendment of the United States Constitution.  See People ex rel Ryan v. Telemarketing Assoc., 198 Ill. 2d 345(2001); Ill. ex rel Madigan v. Telemarketing Assoc; 538 U.S. 600 (2003).   We will discuss these First Amendment issues, and then return to the Act. 

Kantis' Statements are Protected First Amendment Activity

The Internet is an arena of free speech. See Reno v. American Civil Liberties Union, 117 S. Ct. 2329, 2334 (1997).   Thus, Plaintiff’s motion for preliminary injunction must be decided with First Amendment protection in mind.  The First Amendment is renowned for protecting speech we deplore as thoroughly as the speech we admire. See, e.g., Noto v. United States, 367 U.S. 290, 298 (1961). 

Under the First Amendment guarantee of freedom of speech, a distinction is made between damages awards following trial (in defamation cases, for example) and prior restraints on speech.  Restraining orders and injunctions "are classic examples of prior restraints" and as such are presumed to be unconstitutional. Alexander v. United States, 509 U.S. 544, 550 (1993). See also, Vance v. Universal Amusement Co., 445 U.S. 308, 316 n.13 (1980);  New York Times Co. v. United States, 403 U.S. 713, 714 (1971).

The First Amendment does not tolerate even temporary suppression of speech that might ultimately be found to be protected. See Vance, 445 U.S. at 316, n.13. Thus, a court will not enjoin speech that might be, but has not yet been, found defamatory. See Near v. Minnesota, 283 U.S. 697 (1931). An application for a prior restraint on expression comes to a Court with a 'heavy presumption' against its constitutional validity,” is particularly disfavored, and is considered acceptable only in "exceptional cases.”  CBS v. Davis, 510 U.S. 1315 (1994) (refusing to enjoin CBS from showing video from inside a meatpacking plant).

The United States Supreme Court has stated that debate on public issues be "uninhibited, robust and wide-open," New York Times v. Sullivan, 376 U.S. 254, 270 (1964), and that publication on the World Wide Web is due unqualified First Amendment protection, Reno v. ACLU, 521 U.S. 844, 870 (1997).  As for speech which may or may not be found to be defamatory, the Court is clear - the defamed find their remedies in actions for damages, not in proceedings to restrain publication.  See Near v. Minnesota, 283 U.S. 697, 718-19 (1931). [1]

The Illinois courts, both state and federal, have followed these principles without exception.  Kisser v. Coalition for Religious Freedom, 1996 U.S. Dist. Lexis 3906(N.D. Ill.) is a perfect example of this.  The plaintiff sought to enjoin the defendant from publishing libels about her, and the Court granted summary judgment in favor of the defendant, citing well established Illinois and federal law. 

The Illinois courts have carefully guarded First Amendment protections.  One of the leading cases, Montgomery Ward & Co. v. United Retail, Wholesale & Department Store Employees of America, C.I.O., 400 Ill. 38, 42; 79 N.E.2d 46, 48 (1948), dates back almost sixty years, and involved a department store’s attempt to persuade a court to enjoin union members from distributing leaflets and pamphlets about working conditions, etc, which the Court conceded could be libelous.  The Illinois Supreme Court conducted an extensive review of the law in this area, and soundly rejected the Plaintiff’s position.  The Court explained that the constitutional guaranty of free speech as a general rule prohibits both the courts and the legislature from putting previous restraints on publications, and that in Illinois, this constitutional protection comes not only from the United States Constitution, but the Illinois Constitution as well. The Court wrote that, “The constitution of this State, section 4, article II, provides: ‘Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty,’ and explained that this provision is broader than that of the constitution of the United States [.]”  Montgomery Ward & Co.,  400 Ill. 2d at 45-46. 

Fifty eight years after the Illinois Supreme Court made this pronouncement, the language of the Illinois Constitution remains the same.  Illinois Const., Art. I, § 4.  Moreover, these principles remain the law in Illinois.  Perhaps because the law is so clear, a request for injunctive relief to enjoin defamation appears to be quite rare.  Our research has not found only one reported Illinois case since Montgomery Ward & Co. where this is at issue, the Keefe case discussed below. 

The Montgomery Ward & Co case has been followed in many different respects, and in each case the Illinois courts have affirmed the principle that a plaintiff bears a heavy burden of justifying the imposition of a prior restraint upon a defendants' right to freedom of speech.  These issues have arisen in other "prior restraint" cases, such as "fighting words" cases, and in regard to "gag orders."  In the well known case of Village of Skokie v Nat’l Socialist Party of America, 69 Ill. 2d 605 (1978) the Court refused to enjoin the Nazi party from displaying a Swastika, certainly "fighting words" in a heavily Jewish area, based on these principles.  In Kemner v. Monsanto Co., 112 Ill. 2d 223 (1986), the Court relied on these same principles to vacate a gag order prohibiting Monsanto from publicly commenting on dioxin during a product liability case involving that substance.  In Cooper v. Rockford Newspapers, Inc., 34 Ill. App. 3d 645  (2d Dist. 1975), the court reversed the trial court's restraining order that enjoined a newspaper from writing editorials about a libel suit that was filed by the public official that the newspaper had called a political hack. 

Perhaps the most well known prior restraint case arising in Illinois is Keefe v. Organization for a Better Austin, 115 Ill. App. 2d 236  (1^st Dist. 1969).  In Keefe, the First District affirmed an order restraining community activists from picketing and distributing leaflets derogatory to a real estate broker's business practices of fanning white flight panic selling in a neighborhood undergoing integration.  The broker had argued that defamatory attacks upon him personally, with the purpose of forcing him to abandon his lawful business practices, were properly the subject of a prior restraint.

            The case went up to the United States Supreme Court, Better Austin v. Keefe, 402 U.S. 415 (1971), and the Court dissolved the preliminary injunction as an unconstitutional prior restraint, rejecting the claim that the broker's interest in privacy outweighed the public interest in peaceful distribution of leaflets.  The Court explained that the law in this area simply did not  support the proposition that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court. Id. at 417-19.

 Kantis' website is the functional equivalent of the leaflets passed out in Keene.  The only difference is the use of the World Wide Web.  Our research has not found a reported decision in Illinois involving an attempt to shut down a website on the ground that the content was defamatory.  Other courts have rejected this.  See Media3 v. Mail Abuse Prevention System, 2001 U.S. Dist. Lexia 1310 (D. Mass. 2001) (refusing to enjoin an internet company from calling a website company 'spam friendly', which is considered derogatory). 

The most interesting, and on point decision following Keefe is Sheehan v. King County Experian, aka TRW, no. c97-1360WD (W.D. Wash. 1998).[2]  Sheehan, a citizen activist, ran a website containing derogatory statements (criminally insane, jerkoffs, scumbags, etc) regarding Experian, a credit reporting agency.  The stated purpose of the website was to hold the credit companies "accountable,” and the site even published addresses and telephone numbers of employees to make it easier for others aggrieved by credit reports to serve process.   Experian brought claims for defamation, commercial disparagement, and interference with a lawful business, the same type of claims Caro brings, and sought to enjoin Sheehan from posting on his website any false or defamatory statements about Experian. 

The court denied the request for injunction, and explained that the Internet is a modern version of the leaflets distributed in Keefe. (Op. at p. 3).  Absent any incitement to imminent unlawful action, any injunction could not withstand constitutional scrutiny.  As correctly noted by the court in Experian, the fact that one may maintain a website rather than distributing leaflets simply puts a more modern twist on the same First Amendment principles.  These principles require that Kantis not be enjoined from maintaining his website. 

 Caro Can Not Avoid the First Amendment by Inventing New Theories

Given the long history of judicial protection of free speech rights, and the courts’ continued adherence to the rule that the defamed find their remedy in an action for damages rather than an injunction, it is no wonder that Caro cleverly attempts to dress this up as a commercial disparagement / trade libel type of case.  While certainly a creative legal move, this move runs him into the same dead end discussed above – Kantis is not a competing lasik surgeon trying to create a “likelihood of confusion” to try and divert Caro’s patients  to his own practice.  Kantis is not maintaining this website for any commercial motive.  Kantis is simply a citizen activist who maintains this website because he believes that he has a right to voice his concerns in this country. 

The reason that Caro is pursuing the “likelihood of confusion” / deceptive trade practices theory is to try to bring this case under the rule that equity may enjoin defamations causing breaches of contract and commercial disparagement, but not defamation of a person's integrity.  Allcare, Inc. v. Bork, 176 Ill. App. 3d 993 (1988).

Allcare is in some respects a typical case in this regard, as it involved two competing medical supply companies; with one challenging the other's business practices.  One of the competitors had told a potential customer a falsehood, that falsehood being that the other company was being investigated for medicare fraud.  The court denied a request for injunctive relief, and explained that defamation involves an attack on a person's integrity in his business or profession is attacked, while commercial disparagement lies when the quality of his goods or services is attacked.  In almost every case of a defamation of a business, it can be alleged that the defamation could cause customers not to deal with the plaintiff.   The court also rejected the argument that equity will enjoin continuing defamations causing injury to property.  176 Ill. App. 3d 993, 1002.    

Caro is trying to turn this into a commercial disparagement case, and his theory appears to be that Kantis, by pointing out Caro’s numerous problems and calling him a “butcher,” has attacked not just his integrity, but also the quality of his services.  Thus, the theory goes, as Kantis is committing commercial disparagement rather than just good old fashioned defamation, all of the First Amendment issues can be avoided. 

Caro is trying to fit a square peg in a round hole.  Caro can try to cast this as a commercial disparagement / likelihood of confusion / intellectual property dispute, but this is simply not the case.  The same argument could be made in favor of an injunction against criticism of the business practices and services of the meatpacking plant in CBS v. Davis, supra, or the real estate broker in Keefe, supra, or of the credit reporting firm in Sheehan v. Experian, supra.   Once again, the First Amendment keeps getting in the way.  All this Court needs do is review the material on the lifeafterlasik website (Exhibits D - I) and this Court can reach the same conclusion as to Kantis' criticism of Caro's business practices.    

The case law under the Illinois Uniform Deceptive Trade Practices Act also gets in the way.    The Deceptive Practices Act was intended to protect businessmen and provide them with a remedy for unethical competitive conduct. Hayna v. Arby’s, 99 Ill. App. 3d 700 (1^st Dist. 1981).  While this is not a hard and fast requirement, see Crinkley v. Dow Jones, 67 Ill. App. 3d 869 (1^st Dist. 1978), it is nonetheless the focus of the Act. Brooks v. Midas-International Corp., 47 Ill. App. 3d 266 (1^st Dist. 1977).  (The Act is a codification of the common law of unfair competition).  Our research has not yielded a single case under the Act where an aggrieved business seeks to shut down the complaints of an aggrieved customer.  

Even looking at this case under the Act, Caro falls short.  Section 3 of the Act, upon which the Plaintiffs rely, reads: "A person likely to be damaged by a deceptive trade practice of another may be granted injunctive relief upon terms that the court considers reasonable." The case law under Section 3 makes it clear that a request for preliminary relief pursuant to this section is governed by the customary rules concerning injunctions.  Bally Mfg. Corp. v. JS&A Group, Inc., 88 Ill. App. 3d 87  (1^st Dist. 1980); Schlicksup Drug Co. v. Schlicksup, 129 Ill. App. 2d 181 (3d Dist. 1970) (Principles of equity require that the customary rules governing the issuance of preliminary or temporary injunctions must be followed in the issuance of a preliminary injunction under this section).

An allegation such as Caro’s that a party's acts and practices have, are and will continue to cause irreparable injury to the plaintiff for which plaintiff has no adequate remedy at law is a conclusion and is not an allegation of fact necessary to support the issuance of a preliminary injunction, and where a party controverts the Plaintiff’s allegations, which we have done by way of Kantis’ Affidavit, the question of creating a “likelihood of confusion” becomes a question of fact, and the chancellor should not grant a preliminary injunction without a hearing on these disputed fact questions. Schlicksup, 129 Ill. App. 2d 181 (3d Dist. 1970).  In Schlicksup, the court noted that it was not until 6 1/2 months after the filing of the complaint that the plaintiff filed an application for a preliminary injunction, and this delay of itself raises a question as to the need for the preliminary injunction. Id. at 188.  In our case, the delay is about six months (September 12, 2005, to March 10, 2006), and likewise suggests that a preliminary injunction is not in order. 

Moreover, the "he used an illegal laser on me" statement that seems to have drawn most of Caro's wrath is no longer posted on the website, and Kantis has no intention of republishing this.  Where an allegedly false statement is no longer being uttered, and the plaintiff can show basis for assuming its threat of repetition, an injunction is not proper.  American Pet Motels v. Chgo. Veterinary Assoc., 106 Ill. App. ed 626 (1^st Dist. 1982).  This narrows the issues down a bit.  Is Caro truly entitled to an injunction prohibiting Kantis from publicizing the fact that the Clerk of the Circuit Court of Cook County lists numerous lawsuits against him, and the fact FDA seized his unapproved laser?  We suggest not.  

Caro Fails to Satisfy the Requirements for a Preliminary Injunction

Caro’s Motion recites the correct standard for a preliminary injunction, however, given the serious factual issues in this case, he can not satisfy them.  A preliminary injunction is proper when the plaintiff establishes (1) a clearly ascertainable right in need of protection, (2) irreparable harm will result if the injunctive relief is not granted, (3) no adequate remedy at law and (4) the likelihood of success on the merits. Hartlein v. Illinois Power Co., 151 Ill. 2d 142 (1992).

Element 1 is problematic to say the least.  Caro claims a right to a good reputation.  However, the need for protection of that right is in doubt, given the extensive body of law to the effect that the proper way to protect one’s reputation is by way of an action for damages, not an injunction. 

Element 2 is likewise problematic; again, we have cited case after case above to the effect that courts will not enjoin statements injuring a party’s reputation under the guise of protection from irreparable harm.  Caro has his own website and can take his own steps to publicize his good reputation. 

The same analysis disposes of Element 3 – Caro has an adequate remedy at law, and indeed is pursuing this remedy. The defamed find their remedies in actions for damages, not in proceedings to restrain publication. Near v. Minnesota, 283 U.S. 697, 718-19 (1931).

Element 4 is the weakest of all.  Caro is required to convince this Court of his likelihood of success on the merits.  This will require Caro to clear significant legal and factual hurdles.  The legal obstacles are found in the substantive law of defamation in Illinois.  Defamatory statements must be taken in context, Troman v. Wood, 62 Ill. 2d 184, 189 (1975), and even the most inflammatory statements (butcher, liar, etc) previously published in the BBB page contains Caro’s response, verbatim.  Thus, the reader would also be informed that Caro is a physician in good standing in Illinois as well as 5 other states without disciplinary actions; he has treated over 20,000 successful surgeries with laser vision correction and has never had a complaint with [the BBB] organization; that off axis ablations is one of the complications of lasik surgery; and that Kantis is trying to seek monies from him and ruin his good name (See. Ex. J at p.4)

Next, while “butcher” and “liar” sound derogatory, that is not the legal test.  Illinois law allows wide latitude for name calling, and opinions.  See Haberstroh v. Crain Publications, Inc., 189 Ill. App. 3d 267 (1^st Dist. 1989) and cases cited therein.  As the Haberstroh court explained, words that are merely found to be name calling have also been held as non-actionable.  Id.  The mere fact that language is abusive does not make it defamatory per se either.  Id.   Expressions of opinion touching on an individual’s capabilities or qualifications does not constitute defamation “no matter how much the complained of statement may injure the subject person in his own conception.” Zaret v. Joliet Park District, 91 Ill. App. 3d 225, 227 (1980).   Similar statements, such as the plaintiff  is "lazy" and "incompetent" were held to be opinions rather than assertions in Doherty v Kahn, 289 Ill. App. 3d 544 (1^st Dist. 1997).  See also Hopewell v. Vitullo, 299 Ill. App. 3d 513 (1^st Dist. 1998) ("fired because of incompetence" considered non-actionable opinion").  Illinois law creates a high hurdle for Caro's case. 

So do the facts, and we have saved the best for last.  Given the uncontested facts, Caro can not show a likelihood of success on the merits.  Indeed, he has little if any chance of prevailing. 

Let’s imagine the case he would put on in front of a jury.  This is a lasik surgeon fifty times accused of malpractice suing a vision damaged patient who accuses him of malpractice.  This patient would put on expert testimony that Caro did indeed “mess up” and ruin his vision.  (Kantis Affidavit at ¶¶ 40-42).  This patient would describe his horror at discovering that the lasik surgeon who operated on him had received a visit from the U.S. marshals to physically seize an unauthorized laser from his office.  This patient would testify as to how he decided to make this information available to the public, to prevent others from going through what he has gone through. 

Plaintiffs would carry the burden of proving not only that Kantis’ statements were false, but additionally that it was these allegedly false statements that injured his reputation, as opposed to something else.  What about Kantis’ verifiably true statements? Can Caro prove that patients stayed away because Kantis called him a butcher and user of an illegal laser, and not because Kantis published information (the malpractice lawsuits and the FDA action) already a matter of public record?  Indeed, given this public information, how can Caro even prove that he had a good reputation?   

            Conclusion

For all of the reasons stated, Plaintiffs' Motion for Preliminary Injunctive Relief should be denied.  Moreover, for the same reasons, and for the reasons to be set forth in a Motion to Dismiss to be filed shortly, Plaintiff’s Second Amended Verified Complaint should be stricken and dismissed.  

                                                            DEAN ANDREW KANTIS.   

By:_________________________________

      His Attorneys

Stuart N. Rappaport

Luke A. Weiland

LINDSAY & RAPPAPORT, LLC.

221 N. West Street

Waukegan, IL  60085

847 244-4140

847 244-4203 (fax)

Cook Co. Firm #40877

Dean Andrew Kantis's Response To:
Dr. Nick Caro/Nick Caro/St. George Corrective Vision Center

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT, LAW DIVISION 

DEFENDANT's MOTION TO DISMISS

PLAINTIFFS' COMPLAINT 

Defendant, DEAN ANDREW KANTIS, by and his attorneys, LINDSAY and RAPPAPORT, L.L.C, and pursuant to Section 2-615 of the Illinois Code of Civil Procedure, hereby moves this Honorable Court to strike and dismiss Plaintiffs ST. GEORGE CORRECTIVE VISION and NICHOLAS C. CARO’s complaint for being substantially insufficient in law.  In support thereof, Defendant states as follows: 

Introduction

            1.         Plaintiffs have filed a two count complaint, which they title, “COMPLAINT FOR SLANDER AND LIBEL” against Kantis.  A copy of the complaint is attached hereto as Exhibit A.  The complaint is a bit confusing on its face as it does not have a count for slander, but does have a count for libel, which is Count I.  As the complaint only alleges certain written communications, and does not allege any oral communications, we can consider Count I to be for libel only.  See Whitby v. Associates Discount Corp. 59 Ill. App. 2d 337, 340 (1965) (Defamation in the form of written communication is libel while an oral defamation is slander).

            2.         The Second Count of the Complaint purports to allege a claim for Abuse of Process, even though no process has been wrongfully issued.  We will discuss each count separately.

The Complained of Statements

            3.         The gist of the complaint is that Kantis, a patient of Dr. Caro's and St. George Corrective Vision, published the following statements:

·        “Dr. Caro messed up seven years ago.” 

·        "He lied to me and told me that it’s my eyes and that it would take up to seven years for them to fully heal.” 

·        “…he won’t return phone calls, won’t return my money and is threatening my family that he will bury me in lawsuits for wasting his time…” 

(Complaint, par. 10)

            4.         As will be demonstrated below, these statements can not support a cause of action for libel, given Illinois' strict requirements for such a cause of action.  Moreover, the context of the statements indicates that certain privileges attach.  Finally, the claim of abuse of process is wholly insufficient.  

COUNT I: Libel

5.         There are two distinct reasons why Count I of the Plaintiffs’ Complaint should be dismissed under Illinois law.   First, the statements are essentially in the form of an opinion, and are simply not defamatory.  Next, the statements were made in the context of a quasi-judicial capacity, and are thus privileged.

The Statements are Not Legally Defamatory

6.         There is a well developed body of case law in Illinois as to what it takes before words can be considered defamatory.  For words to be considered defamatory per se, they must do the following:

(1) impute the commission of a criminal offense;

(2) impute infection with a loathsome communicable disease;

(3) impute inability to perform or want of integrity in the discharge of duties of office or employment; or

(4) prejudice a party, or impute lack of ability, in his trade, profession or business. (Costello v. Capital Cities Communications, Inc., 125 Ill. 2d 402, 414 (1988); Fried v. Jackson, 99 Ill. 2d 24, 27 (1983); Moore v. Streit, 181 Ill. App. 3d. 587, 597 (1989).

Additionally, to be considered defamatory per se, the statement(s) in question must be so naturally harmful to the person to whom it refers to that a showing of special damages is unnecessary.  Anderson v. Vanden, 172 Ill.2d 399, 411-12 (1996).

            7.         Even if the statement fits within one of the categories that will sustain a per se action, recovery will not be allowed if the statement can reasonably be given an innocent construction.  The innocent construction rule, provides that a written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se.   Troman v. Wood, 62 Ill. 2d 184, 189 (1975). This preliminary determination is properly a question of law to be resolved by the court in the first instance; whether the publication was in fact understood to be defamatory or to refer to the plaintiff is a question for the jury should the initial determination be resolved in favor of the plaintiff.  Id.  The Illinois Supreme Court has explained that the non-defamatory interpretation must be adopted if it is reasonable even if there are other reasonable interpretations that are defamatory.  Mittelman v. Witous, 135 Ill.2d 220, 234 (1989). 

8.         Even more importantly, the law is quite clear that expressions of opinion are non-actionable as protected forms of speech under the first amendment no matter how vigorously the opinion is expressed.  Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Owen v. Carr, 113 Ill. 2d. 273 (1974).

9.         The distinction between fact and opinion is a matter of law. A written or oral statement is to be considered in factual context, with the words and the implications therefrom given their natural and obvious meaning. To determine whether a statement is fact or opinion, a court must evaluate the totality of the circumstances and should consider whether the statement is capable of objective verification as true or false.  Piersall v. Sportsvision of Chicago, 230 Ill. App. 3d 503, 510 (1992).

10.       While in one sense all opinions imply facts, the question of whether a statement of opinion is actionable as defamation is one of degree; the vaguer and more generalized the opinion, the more likely the opinion is non-actionable as a matter of law…The emphasis in the test for determining the actionability of an allegedly defamatory statement of opinion is on whether the statement contains an objectively verifiable assertion.  Wynne v. Loyola University of University of Chicago, 318 Ill. App. 3d 443, 452 (2000) citing Hopewell v. Vitullo, 299 Ill. App. 3d 519 (1998).

11.       Illinois courts have consistently found non-actionable words which are rhetorical hyperbole or used only in a loose, figurative sense, such as those at issue in our case.  See   Haberstroh v. Crain Publications, Inc., 189 Ill. App. 3d 267 (1^st Dist. 1989) and cases cited therein.  As the Haberstroh court explained, words that are merely found to be name calling have also been held as non-actionable.  Id.  The mere fact that language is abusive does not make it defamatory per se either.  Id.   Moreover, expressions of opinion touching on an individual’s capabilities or qualifications does not constitute defamation “no matter how much the complained of statement may injure the subject person in his own conception.” Zaret v. Joliet Park District, 91 Ill. App. 3d 225, 227 (1980) citing Byars v. Kolodziej, 48 Ill. App. 3d 1015, 1016-17 (1977).

12.       Applying these principles to the statements at issue in our case easily leads to the conclusion that these statements are simply not actionable.  For purposes of analysis, we will discuss the statements one at a time.

13.       “Dr. Caro messed up seven years ago.”  Under the innocent construction rule, this statement is not defamatory because there are simply an infinite number of reasonable interpretations for this statement other than the Dr. Caro lacks ability in his trade.  The usage of “messed up” gives absolutely no clarity or definitiveness as to what is being communicated.  The term "messed up" is loose and in a figurative sense, and is thus non-actionable rhetorical hyperbole.

14.       "Messed up," is also an opinion, rather than a factual assertion. Similar statements, such as the plaintiff  is "lazy" and "incompetent" were held to be opinions rather than assertions in Doherty v Kahn, 289 Ill. App. 3d 544 (1^st Dist. 1997).  See also Hopewell v. Vitullo, 299 Ill. App. 3d 513 (1^st Dist. 1998) ("fired because of incompetence" considered non-actionable opinion").

15.       “He lied to me and told me that it’s my eyes and that it would take up to seven years for them to fully heal.”  This statement is likewise non-actionable.  In Piersall v. Sportsvision of Chicago, 230 Ill. App. 3d 503, 510 (1^st Dist. 1992), the court considered an almost identical statement, and held that the utterance "he's a liar" was non actionable opinion.  

16.       “…he won’t return phone calls, won’t return my money and is threatening my family that he will bury me in lawsuits for wasting his time…”  One struggles to find any kind of theory under which this statement could be defamatory.  The statement fails to (1) impute the commission of a criminal offense; (2) impute infection with a loathsome communicable disease; (3) impute inability to perform or want of integrity in the discharge of duties of office or employment; or (4) prejudice a party, or impute lack of ability, in his trade, profession or business.  Moreover, following the innocent construction rule, this statement is not defamatory because there are simply an infinite number of reasonable interpretations for this statement other than the Dr. Caro lacks ability in his trade. 

17.       Given the Illinois' courts' stringent requirements to find statements defamatory, the statements attributed to Kantis simply do not pass muster.  Illinois courts do not allow defamation cases to proceed where all that the defendant stated is that the plaintiff "messed up" and "lies."  These are statements of opinion, and are not defamatory per se.  Plaintiffs' complaint should be dismissed on this ground alone.

The Statements Were Made in a Quasi Judicial Capacity and Are Privileged

18.       Statements that are made in a quasi-judicial capacity are privileged in the state of Illinois.  Within the judicial context, the absolute privilege covers formal pleadings, in-court communications and "any communication pertinent to pending litigation." McCutcheon v. Moran, 99 Ill. App. 3d 421, 425 (1981).  In addition, absolute privilege extends to proceedings by administrative agencies which act in a judicial or quasi-judicial capacity. Id. at 425. (Emphasis added) In McCutcheon it was determined that absolute privilege protected statements made about the plaintiff-school principal by the defendant-school janitor to the trial committee of the Board of Education and to members of the State's Attorney's office; see also Adco Services v. Bullard, 256 Ill. App. 3d. 655, 659 (1993) and cases cited therein (absolute privilege attached to two letters authored by the defendant-former employee and sent to two quasi-judicial agencies concerning the plaintiff-company's radioactive waste program).

19.       In the context of such proceedings, the “absolute privilege embraces actions required or permitted by law in the course of judicial or quasi-judicial proceedings as well as actions necessarily preliminary to judicial or quasi-judicial proceedings.” Parillo, Weiss & Moss v. Cashion, 181 Ill. App. 3d. 920, 928. (absolute privilege applied to an unsolicited letter which requested the initiation of an investigation of an insurance company and which was sent by the individual defendant to the director of the Illinois Department of Insurance. ) 

20.       In the present case, plaintiffs allege in Count I of their complaint that the defamatory statements that the defendant made were in a letter to the Better Business Bureau.  The Better Business Bureau is a governing agency whose mission is as follows:

“Is to promote and foster the highest ethical relationship between businesses and the public through voluntary self-regulation, consumer and business education, and service excellence.”  (www.chicago.bbb.org)

            21.       As explained by the court in Audition Division v. Better Business Bureau, 120 Ill. App. 3d 254 (1^st Dist. 1983), the Better Business Bureau (BBB) is a not-for-profit corporation which, according to its policy manual, "promotes truth in advertising and selling; maintains an impartial attitude towards firms and individuals; and is dedicated to the building and preservation of public confidence in legitimate business." Although the Better Business Bureau is not a judicial court, one of their prime functions is to work with consumers and businesses to resolve complaints.  Their website indicates that it is easy for a customer to file a complaint, the BBB will conduct an investigation, facilitate resolution, report any misconduct to the appropriate governmental agency if warranted, and in essence, try to resolve the complaint. 

22.       The same policy reasons supporting the privilege in proceedings involving administrative agencies such as the Department of Insurance, school boards, judicial inquiry board, and other agencies, supports applying the privilege to the Better Business Bureau.  In order for the Bureau to work, citizens must have absolute freedom to approach the Bureau, free of the fear of legal action against them.  The public would be adversely affected if statements to the Bureau could be the basis of lawsuits.  The Bureau's function would be greatly hampered.

 23.      While not pled in Count I, plaintiffs also complain that the above statements were communicated to the Illinois Department of "Registration and Education" (sic) - presumably the Illinois Department of Financial and Professional Regulation, the state administrative agency which is responsible for, among other things, overseeing the regulation and licensure of the various licensed professions. See generally 20 ILCS 2105/2105 et. seq., and 2105-15 empowering the Department to conduct hearings on proceedings involving professional licenses. For the same reasons involving other agencies, discussed above, the privilege should attach to communications made to the Illinois Department of Financial and Professional Regulation.

COUNT II: Abuse of Process

24.       Plaintiffs' claim for the tort of "abuse of process" is wholly inadequate.  This is a very strictly defined, and disfavored, tort.  The requisite elements of an action for abuse of process are: (1) the existence of an ulterior purpose or motive, and (2) some act in the use of the legal process which is not proper in the regular prosecution of the proceedings.  Holiday Magic, Inc. v. Scott, 4 Ill. App. 3d 962, 966 (1972), appeal denied 52 Ill. 2d 594 (1972).

25.       In the plaintiffs’ complaint they fail to identify any process abused by the defendant.  This is entirely insufficient.  As the Holiday court explained, “[t]he mere institution of proceedings does not in and of itself constitute abuse of process.  Some act must be alleged whereby there has been a misuse or perversion of the process of the court. It is the settled law of Illinois that mere institution of a suit or proceeding, even with a malicious intent or motive, does not itself constitute an abuse of process."  Id.  (Emphasis added) 

            26.       Because the tort of abuse of process is not favored under Illinois law, the elements must be strictly construed.  Id. In order to satisfy the first element, a plaintiff must plead facts that show that the defendant instituted proceedings against him for an improper purpose, such as extortion, intimidation, or embarrassment.  However, the mere institution of a suit for an improper purpose does not itself constitute an abuse of process, the second element being the gravamen of the offense. In order to satisfy the second element, the plaintiff must plead facts that show a misapplication of process, or, in other words, the plaintiff must show that the process was used to accomplish some result that is beyond the purview of the process. When process is used only for its intended purpose, there has been no misapplication of process.  Neurosurgery & Spine Surgery, S.C. v. Goldman, 339 Ill. App. 3d 177, 183 (2003).

                27.         "Process" is defined as any means used by the court to acquire or to exercise its jurisdiction over a person or over specific property.  In Neurosurgery, it was determined that the issuance of a summons can be categorized as process.  However, the second element of abuse of process--misapplication of process was not satisfied by pleading that there has been process. A party must plead that there has been a misapplication of that process.  The court in Neurosurgery explained that a summons is issued in just about every case in which a lawsuit is filed, and that the intended purpose of a summons is to establish a court's in personal jurisdiction over a person.  This in and of itself is neither irregular nor improper. Rather, the tort of abuse of process requires some misapplication of process, which is found only in cases in which a plaintiff has suffered an actual arrest or seizure of property.  Id.

            28.       Plaintiffs here allege no misapplication of any process.  They allege no arrest or seizure of any property, or nothing abusive about any form of process.  Just as a lawsuit requires a summons, a complaint to the Illinois Department of Financial and Professional Regulation requires some sort of written document - yet nothing in the Complaint gives rise to any theory that "process" has been "abused."   Plaintiffs fail to allege how Kantis abused any process, and this Count should therefore be dismissed.