Perfect Choice Exteriors, LLC v. Better Bus. Bureau of Cent. Ill., Inc.

2018 IL App (3d) 150864

99 N.E.3d 541

PERFECT CHOICE EXTERIORS, LLC, Plaintiff–Appellant,

v.BETTER BUSINESS BUREAU OF CENTRAL ILLINOIS, INC., an Illinois Corporation, Defendant–Appellee.

Appeal No. 3–15–0864

Appellate Court of Illinois, Third District.

Opinion filed March 12, 2018

William M. Anderson IV, of Anderson Law Offices, of Creve Coeur, for appellant.

David T. Brown and Bradley S. Levison, of Kaufman Dolowich & Voluck, LLP, of Chicago, for appellee.

PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Perfect Choice Exteriors, LLC (Perfect Choice), sued Defendant Better Business Bureau of Central Illinois (BBB), alleging defamation, commercial disparagement, tortious interference with contract, and violations of the Uniform Deceptive Trade Practices Act ( 815 ILCS 510/2 (West 2014) ). Each of the claims asserted by Perfect Choice was premised upon allegations that BBB made defamatory statements by giving Perfect Choice a "D-" rating on its website and by telling customers that Perfect Choice was not a good company and that they should not do business with Perfect Choice. Perfect Choice sought monetary damages and an order requiring BBB to restore Perfect Choice's previous "A" rating and to remove all allegedly false and misleading information about Perfect Choice from its website.

¶ 2 BBB filed a motion to dismiss Perfect Choice's amended complaint pursuant to section 2–619 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2–619 (West 2014) ), arguing that the allegedly defamatory statements at issue were opinions protected by the first amendment and were afforded a qualified privilege under Illinois law. The trial court granted BBB's motion and dismissed the complaint.

¶ 3 This appeal followed.

¶ 4 FACTS

¶ 5 Perfect Choice is a home improvement company that has been in business in Creve Coeur, Illinois, since June 2009. Perfect Choice specializes in the installation of roofing, windows, and siding. BBB is an Illinois corporation that publishes and disseminates "reliability reports" that rate and assign grades to businesses in central Illinois, including Perfect Choice.

¶ 6 On December 16, 2014, Perfect Choice filed a four-count complaint against BBB, alleging defamation, commercial disparagement, tortious interference with contract, and violations of the Uniform Deceptive Trade Practices Act ( 815 ILCS 510/2 (West 2014) ). BBB filed a combined motion to dismiss the complaint under sections 2–615 and 2–619 of the Code ( 735 ILCS 5/2–619.1 (West 2014) ). The trial court dismissed the complaint without prejudice pursuant to section 2–615 of the Code, granted Perfect Choice leave to file an amended complaint, and reserved ruling on BBB's arguments for dismissal under section 2–619 of the Code.

¶ 7 Perfect Choice subsequently filed an amended complaint. The following factual recitation is taken from the allegations contained in Perfect Choice's amended complaint.

¶ 8 Since approximately August 2009, BBB has published and disseminated a reliability report regarding Perfect Choice and has posted this report on its website. BBB initially gave Perfect Choice an "A" rating in its published reliability report. However. BBB later changed that rating to a "D-." The reliability report stated that BBB relied upon several factors in determining Perfect Choice's rating, including the "complaint volume with the BBB for a business of [Perfect Choice's] size" and Perfect Choice's responses to and resolution of customer complaints.

¶ 9 In its amended complaint, Perfect Choice alleged that (1) Perfect Choice has always conducted its business in an ethical manner and responded to the consumer complaints filed with BBB; (2) Perfect Choice provided information to BBB showing that the allegations made by consumers about Perfect Choice were not "true and accurate, and, as such, should not [have been] included" in BBB's reliability report; and (3) nevertheless, BBB did not make any changes to the report and continued to publish and distribute "false and defamatory" statements about Perfect Choice until Perfect Choice filed the instant lawsuit. Perfect Choice also alleged "on information and belief," that BBB never conducted a "material investigation * * * to determine the validity" of the consumer complaints against Perfect Choice filed with BBB.

¶ 10 BBB also alleged, "upon information and belief," that BBB treated companies that were "paid members of the BBB" more favorably than companies that were not paid members of the BBB, like Perfect Choice. As an example of such unfair treatment, Perfect Choice cited BBB's rating of BetterWay Siding and Windows, Inc. (BetterWay), another siding and window company doing business in the Peoria area and one of Perfect Choice's competitors. BetterWay is a paid member of the BBB. BBB gave BetterWay an "A+" rating even though BetterWay had 15 customer complaints during the 3 years before Perfect Choice filed its complaint, 9 of which had occurred during the preceding 12 months. BBB's reliability report on BetterWay noted that BetterWay had made a good faith effort to resolve three of the complaints lodged against it. By contrast, Perfect Choice (which is not a paid member of the BBB or a BBB accredited business) had 28 customer complaints during the 3 years before it filed its amended complaint, only 3 of which had occurred during the past 12 months. Thus, BBB assigned BetterWay a substantially higher grade than Perfect Choice even though Perfect Choice had been in business longer and had fewer complaints during the preceding 12 months. Moreover, Perfect Choice alleged that, when it made a good faith attempt to resolve a complaint raised by a customer, BBB's reliability report merely noted that the issue was "disputed" or "administratively closed" without also noting that Perfect Choice had made a good faith effort to resolve it.

¶ 11 Perfect Choice further alleged "upon information and belief" that, even after the filing of the instant lawsuit, when existing or potential customers called BBB to inquire about Perfect Choice, BBB informed the customers that Perfect Choice was "not a good company" and that they "should not do business with" Perfect Choice.

¶ 12 Perfect Choice alleged that BBB made each of the above-referenced defamatory statements about Perfect Choice intentionally and maliciously or in reckless disregard as to whether such statements applied to Perfect Choice.

¶ 13 Perfect Choice further alleged, "upon information and belief," that BBB (1) did not follow its own internal standards in issuing its reliability report on Perfect Choice; (2) applied "arbitrary and discriminatory" standards in reviewing Perfect Choice's business record, which were different from the standards BBB used in reviewing the business records of certain other companies; and/or (3) "did not act impartially and in good faith and did not review and carefully evaluate all available information in making its statements concerning [Perfect Choice]."

¶ 14 Perfect Choice alleged that, as a result of BBB's defamatory statements, Perfect Choice "has had customers cancel contracts and/or refuse to enter into contracts with Perfect Choice," resulting in a loss exceeding $50,000. Perfect Choice also alleged that it had "suffered injury to its reputation and standing within the business community in an amount exceeding $50,000." Perfect Choice sought compensatory damages for loss of business and for injury to its reputation and standing in the business community, plus punitive damages. It also asked the trial court to enter an order requiring BBB to "immediately remove all false and misleading information from its Reliability Report regarding Perfect Choice" and to "restore an ‘A’ rating" to Perfect Choice.

¶ 15 BBB subsequently filed a motion to dismiss Perfect Choice's amended complaint pursuant to section 2–619 of the Code ( 735 ILCS 5/2–619 (West 2014) ), arguing that the allegedly defamatory statements at issue were opinions protected by the first amendment and were afforded a qualified privilege under Illinois Law. In support of its motion, BBB attached a copy of pamphlet titled "BBB Ratings System Overview" (the Overview pamphlet) and a copy of BBB's "Overview of BBB Grade" webpage. These documents were authenticated by an affidavit submitted by Jessica Tharp, BBB's vice president. In her affidavit, Tharp swore that BBB provided the Overview pamphlet to members of the public upon request and that the "Overview of BBB Grade" webpage could be accessed through BBB's website as it existed in December 2014. The Overview pamphlet states that the BBB rating "is a grade based on a proprietary formula that uses information known to BBB and incorporates BBB experience with the business." According to the Overview pamphlet, BBB's proprietary formula evaluates numerous categories of information and "reflects BBB opinion as to the relative importance of each category." The pamphlet provides that BBB's rating "repre sents BBB's degree of confidence the business is operating in a trustworthy manner and will make a good faith effort to resolve any customer complaints filed with BBB." The pamphlet lists and explains each category of information that the BBB relies upon in determining a business's grade, including "type of business," "time in business," "complaint volume," "serious complaints," "unresolved complaints," "unanswered complaints," "complaint analysis," "government action," "advertising review," and seven other categories of information.

¶ 16 Similarly, BBB's "Overview of BBB Grade" webpage states that BBB's letter grades "represent the BBB's opinion of the business," which is based on "BBB file information about the business," including the number of complaints filed against the business with the BBB, the seriousness of such complaints, whether the business has a history of resolving such complaints satisfactorily in a timely manner, the type of business involved, the length of time the...