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Absolute Litigation Privilege shields complaints to certification bodies in Illinois

1/7/26

By: Quinn P. Donnelly

In American Backflow & Fire Prevention, Inc. v. Hincks et al, 2025 IL App (1st) 250023, the Illinois Appellate Court, Second District, affirmed the dismissal of claims arising from allegedly defamatory statements made to the American Society of Sanitary Engineering (ASSE), the National Institute for Certification in Engineering Technologies (NICET), and the Illinois State Fire Marshal. The Appellate Court held that the statements were protected by Illinois’s absolute litigation privilege and reaffirmed that this privilege applies broadly to communications made before, during, or after judicial or quasi-judicial proceedings and specifically applies to complaints made to certification bodies, such as the ASSE and the NICET.

Background & Procedural Posture

The plaintiffs – a fire protection company and its owner – sued union representatives, a former employee, and counsel, alleging a coordinated campaign to interfere with their business and damage their reputation through complaints to the ASSE, NICET, and the Illinois State Fire Marshal. These complaints challenged whether plaintiffs and their employees had sufficient field experience for ASSE and NICET credentials and alleged that plaintiffs had fraudulently documented their work experience.

Plaintiffs asserted an array of claims—tortious interference with economic advantage, tortious interference with contract, defamation, defamation per se, violations of the Uniform Deceptive Trade Practices Act (815 ILCS 510/1 et seq), and civil conspiracy—seeking nearly $934,000 in damages. Defendants moved to dismiss under 735 ILCS 5/2‑619(a)(9), invoking the absolute litigation privilege. The circuit court (Lake County) dismissed plaintiffs’ Complaint in its entirety, and the Second District affirmed.

The Court’s Analysis

The court’s analysis centered on Illinois’s expansive application of the absolute litigation privilege. The court reaffirmed that the privilege applies broadly to communications made before, during, or after judicial or quasi-judicial proceedings, and even to statements by non-parties, so long as they are pertinent to the matter at hand. Motive is irrelevant, and any doubts about pertinency are resolved in favor of applying the privilege.

To determine whether ASSE and NICET qualified as quasi-judicial bodies, the court applied the six-factor test from Kalish v. Illinois Education Ass’n, 157 Ill. App. 3d 969, 971–72 (1987). The test considers whether the entity has the power to: (1) exercise judgment and discretion; (2) ascertain facts and decide; (3) make binding orders; (4) affect personal or property rights; (5) examine witnesses, compel their attendance, and conduct hearings; and (6) enforce decisions or impose penalties.

The court found that ASSE and NICET satisfied at least five of these factors. Both organizations investigate complaints, exercise discretion in determining whether to revoke certifications, conduct hearings with rights to counsel and witnesses, issue binding decisions on certification status, and impose penalties by revoking credentials. Although they lack subpoena power, the presence of these other powers was sufficient for the court to conclude that ASSE and NICET function as quasi-judicial bodies, triggering the absolute litigation privilege for statements made in connection with their proceedings.

The court further concluded that defendants’ statements were related to the quasi-judicial proceedings they were submitted through each entity’s formal complaint process and specifically questioned plaintiffs’ qualifications for the ASSE and NICET certifications. Even though defendants were not parties to the proceeding, their statements concerned the same subject matter and were necessary to initiate the quasi-judicial proceeding and therefore met the pertinency requirement and are thus protected by the absolute litigation privilege.

The court also found two alternative bases to support the application of the absolute litigation privilege: the statements were made in anticipation of enforcement actions under the Fire Sprinkler Contractor Licensing Act and were related to ongoing NLRB proceedings.

Finally, the court held that, while the plaintiffs brought claims other than defamation, the absolute litigation privilege extended to all claims because they arose from the same allegedly defamatory statements and were merely attempts to recast their defamation claims to avoid the protection afforded by the privilege.

Key Takeaways

This decision reinforces Illinois’s expansive view of the absolute litigation privilege and further clarifies that it can apply to communications with private certification or licensing bodies, even when the speaker is not a party to the proceeding. By asserting the absolute litigation privilege where appropriate, litigants can avoid unnecessary and costly litigation.

For more information, please contact Quinn P. Donnelly at quinn.donnelly@fmglaw.com or your local FMG attorney.

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