2025 IL App (2d) 240354-U No. 2-24-0354 Order filed March 13, 2025

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

BRYAN YOUNGE, ) Appeal from the Circuit Court ) of McHenry County. Plaintiff-Appellant, ) ) v. ) No. 23 LA 93 ) RYAN BERMAN, ) Honorable ) Joel D. Berg, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court. Justices McLaren and Mullen concurred in the judgment.

ORDER

¶1 Held: Plaintiff’s second amended complaint was properly dismissed where he failed to adequately plead claims of defamation per se and tortious interference with a prospective economic advantage.

¶2 Plaintiff, Bryan Younge, appeals the circuit court of McHenry County’s order dismissing his second amended complaint alleging that defendant, Ryan Berman, committed defamation per se and tortious interference with a prospective economic advantage. On appeal, plaintiff argues that he properly stated claims for relief relating to each claim. We affirm.

¶3 I. BACKGROUND

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¶4 Younge, a resident of the Village of Lakewood, was appointed to serve as a trustee for the village board for a term spanning from June 2019 and May 2021. In April 2020, Younge

reportedly became aware of an incident involving the village’s Police Chief, Todd Richardson, and he sought to investigate the incident “to obtain authority to terminate” Richardson. During this

investigation, Younge purported to learn of a “toxic work environment” encompassing the village’s administration, which was propagated by other trustees, the village’s Chief

Administrative Officer, Jeannine Smith, as well as the village president, Phil Stephan. According

to Younge, as a result of his investigation, several Lakewood employees warned him of the potential of retaliation from Smith and Stephan. On May 4, 2020, Younge and Stephan had a heated confrontation at the village’s offices. On May 6, 2020, Younge sent an email to several

other trustees concerning his investigation and implicating Smith and Stephan in certain misconduct. Following the email’s delivery, “communications and events” concerning the village board grew even more contentious.

¶5 On July 28, 2020, the village board “authorized” Stephan to send a letter to the McHenry

County State’s Attorney, Patrick Kenneally, requesting an investigation into Younge as a result of the tactics he used in his investigation. In the letter, 1 the board “request[ed] that [Kenneally’s] office investigate the harassment by Bryan Younge to determine whether his actions violate any

stalking or harassment provisions of the Illinois Criminal Code.” The letter offered “a sampling of [Younge’s] emails and texts to various Board members,” which included:

“1) Implied physical threats, including the following:

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2025 IL App (2d) 240354-U a) Doxing of Trustee Ulrich by publishing the location of his residence b) Threatening Trustee Berman and challenging him to ‘take a walk’

2) Continued use of the FOIA process as a political weapon

3) Public declarations that Trustees are ‘under investigation’

4) Continued and sustained threats that Trustees will be subjected to lawsuits

5) Harassing text messages sent at all hours of the night

6) Withering harassment of the Village’s [Chief Administrative Officer (CAO)]

7) Taunting via electronic communication.”

According to the letter, the 20 attached examples of Younge’s correspondence “demonstrate[ed] the harassment that has been directed towards [Smith], [Stephan], and multiple Trustees.”

¶6 A. The Packets

¶7 On August 5, 2020, Richardson was put on administrative leave, and Younge continued

with his investigation, promulgating a series of Freedom of Information Act (FOIA) requests in order to continue his investigation into the village. However, effective October 3, 2020, Younge

resigned from his position as trustee. Shortly thereafter, Berman anonymously sent a packet of materials (Packet 1) to Younge’s employer, Newmark Knight Frank. Packet 1 included a cover letter, which read:

“You have a problem.

Specifically, a highly compensated employee whose actions in his community have multiple residents and board members fearful for their safety. His actions have, in many instances, occurred during work hours. His actions have, in many instances, carried

Newmark’s corporate email signature.

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I have attached many documents highlighting your employee’s actions within his community. Specifically:

1) Bullying and electronic harassment of local officials, including a 68-year[-]old woman[;]

2) Threats of investigation and incarceration towards local officials[;]

3) Fat-shaming of multiple local officials and village residents[;]

4) Implied physical threats towards local officials[;]

5) Doxing of a local official, including posting images of his home online[;]

6) Copying village employees in on his threats[;]

7) Threatening a village resident with forwarding an email string to his employer[;]

8) Multiple complaints files [sic] with the Illinois Attorney General over perceived violations, none of which he has won[; and]

9) Dozens and dozens of FOIA requests filed with the Village in an effort to stop the Village from functioning[.]

Finally, two more items that I have attached:

10) Mr. Younge hatched a plan to overthrow the local government with a plan to make himself Village Manager. He did this over Newmark’s signature.

11) Mr. Younge was also referred to the State’s Attorney over his continued harassment of local officials.

So, as you can see, you have a problem.

Newmark’s fingerprints are all over this. They are on the email where Mr. Younge hatched his plan to overthrow the local government. They are on emails where he bullies an elderly

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2025 IL App (2d) 240354-U woman. They are in the documents sent to the State’s Attorney. And, [G]od forbid, should anything worse than electronic harassment occur, your company’s fingerprints will be all over that as well.”

Also included in Packet 1 was the July 28, 2020, letter and materials to Kenneally, a printout of Younge’s corporate biography, which had been sourced from Newmark’s website, copies of Younge’s correspondence, and a log of FOIA requests that were attributed to Younge. Of note, one of the attached emails included a “suggested roadmap” that Younge had compiled on May 6, 2020, detailing how he and others could “tender resignations” to Stephan and Smith before replacing them as Village President and CAO, respectively.

¶8 A second packet (Packet 2) was also sent to Newmark, which Younge also attributed to

Berman. This packet also included a cover letter, which read, in its entirety, “IS THIS HOW YOU

WANT YOUR COMPANY REPRESENTED?” Like the previous mailing, Packet 2 included copies of certain of Younge’s correspondence with other village personnel, with many of his emails including a Newmark signature block. Additionally, Packet 2 once more included documents concerning the board’s request for Kenneally to investigate Younge, and a news article concerning the same.

¶9 In April 2021, Younge learned through his employer of the packets’ receipt. He was notified that, as a result of the packets’ contents, he “could no longer be approved” for a pending promotion that he had expected.

¶ 10 B. Procedural History

¶ 11 Younge filed suit against Berman in federal court, alleging First Amendment retaliation, due process violations, Title VII violations, and other state law claims. Younge v. Berman, 3:22-

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2025 IL App (2d) 240354-U cv-50099 (N.D. Ill.). The district court ultimately dismissed Younge’s federal claims and declined to exercise supplemental jurisdiction over his state law claims. Id.

¶ 12 On April 4, 2023, Younge filed his complaint against Berman in the circuit of McHenry

County. On March 15, 2024, Younge filed his second amended complaint, arguing tortious interference with a prospective economic advantage (count I), defamation per se resulting from an article that Berman allegedly had been quoted for (count II), defamation per se relating to the letter to Kenneally (count III),^[2] and defamation per se as to the packets that were sent to Newmark (count

IV). On April 5, 2024, Berman filed his motion to dismiss the second amended complaint pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2022))

(Code), arguing that Younge failed to make any claims for which relief count be granted because the information provided via the packets was “not false,” and that Berman otherwise was entitled to immunity. Berman also argued that some of the publications underlying Younge’s claims were privileged and that other claims were untimely. Pertinently, in his response to the motion, Younge withdrew both counts II and III. ^[3]

¶ 13 On May 17, 2024, the court held a hearing on the motion to dismiss. During the hearing, the court asked Younge whether it was true that the packets that were sent to Newmark

“contain[ed] his words.” Younge replied, “But, Your Honor, they don’t. What they are is words taken out of context.” The court asked how Younge’s words were taken out of context, leading him to respond, “They’re not complete emails, Your Honor. There are responses and 240359

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communications back and forth that are omitted.” Berman generally disagreed, arguing that the packets included proper context, and that the only information “deleted” from the packets were the names of any recipients engaged in the communications with Younge.

¶ 14 Following this brief argument, the court granted the motion to dismiss with prejudice, telling the parties that it “agree[d] with every single point raised by [Berman] on every single count.”

¶ 15 Plaintiff timely appeals.

¶ 16 II. ANALYSIS

¶ 17 Younge makes two arguments on appeal, that the trial court erred in finding that he failed to adequately make claims of: (1) tortious interference with a prospective economic advantage; and (2) defamation per se. We address these contentions in turn.

¶ 18 Illinois is a fact pleading jurisdiction. Marshall v. Burger King Corp., 222 Ill. 2d 422, 429-

30 (2006). Thus, while a complaint need not include specific evidence buttressing its claims, it

must allege sufficient facts to “bring a claim within a legally recognized cause of action.” Ash v. PSP Distribution, LLC, 2023 IL App (1st) 220151, ¶ 19. To this point, conclusory allegations or conclusions of law are not a proper stand-in for well-pleaded facts. Id.

¶ 19 A motion to dismiss under section 2-615 of the Code (735 ILCS 5/2-615 (West 2022)) challenges the legal sufficiency of a complaint as a result of defects apparent on its face, while a

motion to dismiss based on section 2-619 of the Code (id. § 2-619) admits the legal sufficiency of a complaint, while raising defects, defenses, or other affirmative matters that defeat a claim.

Northwestern Illinois Area Agency on Aging v. Basta, 2022 IL App (2d) 210234, ¶¶ 31-32. Section

2-619.1 of the Code, on the other hand, “provides that motions with respect to pleadings, pursuant to section 2-615 and 2-619 of the Code [citation] may be filed together as a single motion.” Id. ¶

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30. “In considering a combined motion to dismiss pursuant to section 2-619.1, we accept all well-

pleaded facts in the complaint as true, drawing all reasonable inferences from these facts in favor of the nonmoving party.” Id. ¶ 33. Still, “[a] motion to dismiss does not admit conclusions of law or conclusory factual allegations unsupported by specific facts alleged in the complaint.” Zander v. Carlson, 2020 IL 125691, ¶ 25. We review the trial court’s ruling on a motion to dismiss de novo. Bouton v. Bailie, 2014 IL App (3d) 130406, ¶ 7.

¶ 20 A. Count I—Intentional Interference with a Prospective Economic Advantage

¶ 21 First, because Younge failed to adequately plead that Berman intended to derail his pending promotion at Newmark, the trial court properly dismissed count I of the second amended complaint.

“ ‘To state a cause of action for intentional interference with prospective economic advantage, a plaintiff must allege (1) a reasonable expectancy of entering into a valid business relationship, (2) the defendant's knowledge of the expectancy, (3) an intentional and unjustified interference by the defendant that induced or caused a breach or termination of the expectancy, and (4) damage to the plaintiff resulting from the defendant's interference.’ ” Voyles v. Sandia Mortgage Corp., 196 Ill. 2d 288, 300-01 (2001) (quoting

Anderson v. Vanden Dorpel, 172 Ill. 2d 399, 406-07 (1996)).

When considering such a claim, “the focus is on the conduct of the party interfering with the expectancy.” Fidelity National Insurance Co. of New York v. Westhaven Properties Partnership, 386 Ill. App. 3d 201, 219 (2007). It is insufficient for a plaintiff to merely allege that a defendant indeed interfered with a business expectancy; a plaintiff must instead allege that the defendant

“acted intentionally with the purpose of injuring the plaintiff’s expectancy.” Id.

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¶ 22 Here, because Younge pleaded no facts showing that Berman specifically intended to derail

his prospective promotion at Newmark, the trial court properly dismissed Younge’s claim of tortious interference with a prospective economic advantage. In the second amended complaint, Younge made the following allegations as to Berman’s supposed knowledge of the hypothetical promotion:

“Upon information and belief, [Berman] knew [Younge] had an expectation of a valid business relationship with Newmark, as [Berman]:

• In [Packet 2], highlighted nearly every mention of Plaintiff’s signature block containing Plaintiff’s employment information[;]

• In [Packet 2], chastised [Younge] for using his Newmark email account for Lakewood matters[;]

• Titled, addressed, and mailed the [packets] to [Younge’s] superiors in multiple Newmark offices[;]

• Suggested that Newmark was complicit in any of [Younge’s] alleged crimes[; and]

• Implied that Newmark should reconsider its employment relationship with

[Younge] *** (imprinting as the cover of [Packet 2] in large and all- capitalized font: ‘IS THIS HOW YOU WANT YOUR COMPANY

REPRESENTED?’) ”

After describing the mailed packets in the second amended complaint, Younge further provides that:

“[Berman] intentionally interfered with [Younge’s] expectation of a valid business relationship—in the form of [Younge’s] acquisition of Newmark’s ‘Global Practice

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Leader’ leadership position—and prevented it from ripening into a valid business

relationship by maliciously and intentionally mailing the [packets], which contained false, fraudulent, and materially altered communications between [Younge] and [Berman] and false and improper allegations of criminal conduct by [Younge], to Newmark.”

¶ 23 While Younge did plead that Berman “intentionally interfered with [Younge’s] expectation of a valid business relationship—in the form of [Younge’s] acquisition of Newmark’s ‘Global

Practice Leader’ leadership position,” this is a conclusory allegation that is unsupported by any allegations in the second amended complaint. Younge never pleads any facts showing or even suggesting Berman’s knowledge of the pending promotion, much less an intent to thwart it.

¶ 24 Nonetheless, Younge argues that certain of his allegations concerning his employment with

Newmark, his email address and signature block, and Berman’s knowledge of the same all describe how Berman “acted with purpose and intent to torpedo [Younge’s] promotion to Global Practice

Leader.” We disagree, as these allegations only show that Berman was aware of Younge’s employment with Newmark, not his prospective promotion. Otherwise put, there was nothing inherent in Younge’s allegations of the signature block, email address, or employment in general suggesting knowledge of the promotion. Thus, it simply does not follow from these allegations that Berman could form the requisite intent to specifically frustrate the promotion.

¶ 25 Still, Younge asserts that “[t]here can be no other explanation” for Berman’s delivery of the packets to Newmark other than to thwart his promotion or to have him fired. However, as we have already stated, Illinois is a fact pleading state, and, again, none of Younge’s allegations supports an inference that Berman sought to derail the promotion. Marshall, 222 Ill. 2d at 429-30.

Further, even if Berman intended to have Younge fired from Newmark, the record shows that he

- 10 - 2025 IL App (2d) 240354-U did not succeed, as Younge remained employed even after the packets were delivered. Recognizing this juxtaposition, Younge pivots to argue that a form of transferred intent applies: “[B]oth (1) [Younge’s] continued employment at Newmark, and (2) [Younge’s] promised promotion to Global Practice Leader at Newmark, are ‘reasonable expectancies’ and support a claim for a tortious interference with prospective economic advantage. By sending the dossiers to Newmark, [Younge’s] employer, [Berman] intended to torpedo one or both of these for [Younge]. The fact that [Berman] only succeeded in terms of scuttling the promotion does not somehow absolve him of liability.” (Emphasis in original.) Unfortunately, we are unaware of any authority prescribing this novel approach to claims of tortious interference with an economic advantage, and, regardless, Younge does not accompany this theory with any citations to such authority, meaning the argument is forfeited. Ill. S. Ct. R. 347(h)(7) (eff. Oct. ^[1], 2020); Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, ¶ 12 (“Mere contentions, without argument or citation to authority, do not merit consideration on appeal”). Forfeiture aside, it is clear from Illinois case law that, in order to state a viable claim of tortious interference with an economic advantage, a defendant must specifically intend to interfere with the same expectancy that is thwarted by their conduct. J. Eck & Sons, Inc. v. Reuben H. Donnelly Corp., 213 ILL. App. 3d 510, 515 (1991) (“The requisite intent for the tort of intentional interference with a prospective business advantage is defendant’s knowledge of a reasonable business expectancy and defendant’s subsequent intentional interference which prevents the expectancy from ripening into a valid business relationship”). For all of these reasons, the trial court did not err in dismissing count I of the second amended complaint. ¶ 26 B. Count IV—Defamation Per Se - 11 - 2025 IL App (2d) 240354-U ¶ 27 Next, because Younge failed to allege that Berman made any false statements that were published in the Newmark packets, the trial court properly dismissed count IV of the second amended complaint. To properly make a claim of defamation, a plaintiff must “present facts showing that the defendant [(1)] made a false statement about the plaintiff, [(2)] that the defendant made an unprivileged publication of that statement to a third party, and [(3)] that this publication caused damages.” Green v. Rogers, 234 Ill. 2d 478, 491 (2009). “A defamatory statement is a statement that harms a person’s reputation to the extent it lowers the person in the eyes of the community or deters the community from associating with her or him.” Id. “A statement is defamatory per se if its harm is obvious and apparent on its face.” Id. ¶ 28 Illinois courts recognize five categories of statements that can be characterized as defamation per se: “(1) words that impute a person has committed a crime; (2) words that impute a person is infected with a loathsome communicable disease; (3) words that impute a person is unable to perform or lacks integrity in performing her or his employment duties; (4) words that impute a person lacks ability or otherwise prejudices that person in her or his profession; and (5) words that impute a person has engaged in adultery or fornication.” Id. at 491-92. In order to successfully make a claim of defamation per se, “the substance of the statement[s] at issue must be pled with sufficient precision and particularity so as to permit initial judicial review of its defamatory content.” Id. at 492. “Precision and particularity are also necessary so that the defendant may properly formulate an answer and identify any potential affirmative defenses.” Id. Our supreme court has thus reasoned that defamation per se claims require a “heightened pleading standard,” in that they require a “heightened level of precision and particularity.” Id. In order to - 12 - 2025 IL App (2d) 240354-U satisfy this heightened burden, allegations may not be supported only by “information and belief,” but instead, facts must be shown on which the belief is founded. Id. at 495. ¶ 29 Here, in arguing that he made a proper claim of defamation per se in count IV of the second amended complaint, Younge heavily focuses on Berman’s perceived motive in sending the packets, which, according to Younge, were designed to impute that he lacked ability in his profession and that he had committed certain crimes. However, Younge gets ahead of himself, as his arguments largely overlook the first element of a claim of defamation per se: the existence of a false statement. Green, 234 Ill. 2d at 491. Because Younge has failed to address this elephant in the room by properly pleading any actionable, false statements that Berman made in either of the packets, the trial court did not err in dismissing count IV of the second amended complaint. ¶ 30 1. Packet 1 ¶ 31 According to Younge, Packet 1 “is an 83-page package with a cover letter dated March 21, 2021 [citation omitted] addressed to Mr. Peter Helland, a Senior Vice President in Newmark’s Chicago office.” Aside from the cover letter, the packet includes “82 pages of emails, text message screenshots, letters, and other documents.” Contained within these ancillary documents is the July 28, 2020, letter to Kenneally, which itself included several exhibits containing more of Younge’s communications. ¶ 32 Younge repeatedly describes certain “false and defamatory statements” contained within Packet 1, but he does not specifically identify any made therein by Berman, either in his briefs or, more importantly, in the second amended complaint. Moreover, Younge failed to plead anything of the substance of the defamatory statements with any precision or particularity so as to satisfy the heightened pleading standard of a defamation per se claim. For this reason, any allegations of - 13 - 2025 IL App (2d) 240354-U Packet 1 in Younge’s second amended complaint cannot be said to comply with the heightened pleading standards prescribed by Green. Id. at 495. ¶ 33 In either event, our review of Packet 1 does not reveal any actionable material therein. In determining whether Packet 1 contained any false statements that can be attributed to Berman, it first becomes necessary to ascertain what documents in the packet, if any, included actionable statements. After all, a claim of defamation per se is centered around a defendant’s false statements. Id. Thus, it is axiomatic that Younge’s own communications, which make up the vast majority of the packet, cannot support a claim of defamation per se. ^[4] Younge’s briefs suggest only three possible documents in Packet 1 that may be attributed to Berman: (1) the adjoining cover letter; (2) the July 28, 2020, letter to Kenneally; and (3) any responses to Younge in the attached communications. ¶ 34 We have reviewed these sources—which, as stated above, includes the panoply of possible defamatory statements in Packet 1—and find no actionable statements therein. Truth is an absolute defense to a defamation action. Id. Under this reasoning, a statement is not actionable if it is substantially true, meaning the “gist” or “sting” of the statement-at-issue is true. Id. (citing Harrison v Chicago Sun-Times, Inc., 341 Ill. App. 3d 555, 563) (2003)).