2025 IL App (2d) 250023 No. 2-25-0023 Opinion filed December 8, 2025 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
AMERICAN BACKFLOW AND FIRE ) Appeal from the Circuit Court PREVENTION, INC., and DAN HARBUT, ) of Lake County. ) Plaintiffs-Appellants, ) ) v. ) No. 24-CH-14 ) WILLIAM J. HINCKS; SPRINKLER ) FITTERS AND APPRENTICES UNION, ) LOCAL 281 U.A.; JENNIFER ) MACDONALD; JADEN J. LEKER; ) FRANK WALCZAK; WILLIAM P. ) CALLINAN; and JOHNSON & KROL, LLC, ) Honorable ) Janelle K. Christensen, Defendants-Appellees. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Presiding Justice Kennedy and Justice McLaren concurred in the judgment and opinion.
OPINION
¶1 Plaintiffs American Backflow and Fire Prevention, Inc. (American Backflow) and Dan
Harbut sued defendants William Hincks; Sprinkler Fitters and Apprentices Union, Local 281, U.A.
(Local 281); Jaden Leker; Jennifer MacDonald; Frank Walczak; William Callinan; and Johnson
& Krol, LLC (Johnson & Krol) for their allegedly defamatory and disparaging statements to the
American Society of Sanitary Engineering (ASSE), the National Institute for Certification in
Engineering Technologies (NICET), and the Office of the Illinois State Fire Marshal (Fire 2025 IL App (2d) 250023
Marshal) concerning plaintiffs’ qualifications for fire sprinkler maintenance certification by ASSE
and NICET. The trial court dismissed plaintiffs’ claims because they were barred by the absolute
litigation privilege for defamation claims, as the alleged statements were made in connection with
quasi-judicial proceedings before ASSE and NICET. Plaintiffs appeal. We affirm.
¶2 I. BACKGROUND
¶3 American Backflow was a corporation engaged in the sale of fire protection and inspection
services. Harbut was its owner and an employee. He founded American Backflow in 2013 after
over 29 years in the industry. Local 281 was a legally recognized union representing individuals
who install, inspect, test, repair, and maintain all types of fire extinguishing systems. Hincks was
an executive of, and organizer for, Local 281. Leker and Walczak were members of Local 281.
MacDonald was a former American Backflow employee. Johnson & Krol was a law firm, and
defendant Callinan was an attorney at the firm. Callinan represented Local 281.
¶4 In 2021, Hincks and Local 281 began a union organization campaign at American
Backflow. Plaintiffs alleged that, in May 2021, Hincks stated that “[w]e have been after American
Backflow for a long time. We want to put them out of business.” Additionally, plaintiffs alleged
that a business manager for Plumbers Local Union 130 U.A. told American Backflow employees
that “I’ve been after this scumbag [Harbut] and we’re gonna [sic] put him out of business.”
¶5 In 2022, American Backflow paid for six employees, including Harbut, to seek fire
sprinkler technician certification from ASSE (ASSE 15010 certification). Harbut and three
employees passed the exam and received their ASSE 15010 certifications. American Backflow
continued to pay the employees’ full wages while they sought their 15010 certifications. In
December 2022, plaintiffs learned that complaints were filed against the employees that received
the ASSE certification. ASSE ultimately revoked the certifications of three employees in March
-2- 2025 IL App (2d) 250023
2023, but Harbut’s certification was not revoked. In October 2023, plaintiffs received an e-mail
from NICET stating that Harbut was accused of providing false, incomplete, or misleading
information in connection with a NICET certification.
¶6 In late 2022, American Backflow and three of the certified employees filed a lawsuit
(separate from this lawsuit) against ASSE, seeking to enjoin the possible revocation of the
certificates. (Lake County case No. 22-CH-239) (ASSE Lawsuit). In October 2023, during
discovery in the ASSE Lawsuit, American Backflow learned that Hincks submitted a formal
complaint to ASSE on behalf of Local 281 and included letters from himself, MacDonald, and
Leker. Hincks’s letter accused Harbut of fraudulently obtaining the ASSE 15010 certification and
lacking the necessary field experience pertaining to fire sprinkler systems. It also stated that
American Backflow “has a history of deceitful behavior in regard to obtaining industry
certifications.” MacDonald’s letter stated that she was an American Backflow employee from June
2011 until May 2021 and that Harbut was “very rarely in the field” and “had no actual field
experience for any fire systems.” Leker’s letter stated that Harbut “not only falsified his own work
verification for NICET but also the work verification of others in my opinion.” Walczak also sent
an e-mail to ASSE accusing plaintiffs of fraudulently representing their credentials and stating that
American Backflow “has in the past, fraudulently documented work experience thru [sic] the
NICET organization, who is now scrutinizing their employees [sic] application requirements.”
Hincks also sent similar letters to NICET and the Fire Marshal. Plaintiffs allege that these
statements are all false and that defendants were working together to damage plaintiffs’
reputations.
¶7 In December 2023, plaintiffs learned through discovery in the ASSE lawsuit that Robert
Wetzel, a Fire Marshal employee, contacted ASSE in March 2023 and threatened to remove the
-3- 2025 IL App (2d) 250023
ASSE 15010 certification from the approved certification list in Illinois if the American Backflow
employees’ certifications were not revoked. Plaintiffs alleged that Wetzel did this at the command
of Hincks.
¶8 Callinan, acting as an attorney on behalf of Local 281, contacted ASSE seeking information
regarding the formal complaint Local 281 filed against plaintiffs. In an e-mail to ASSE’s general
counsel, Callinan asked, “Has the investigation been completed, and if so has any action been
taken against American Backflow and Fire Prevention? Specifically what actions have been taken
against the owner, Dan Harbut, who seems to have been involved in many of the
misrepresentations made to ASSE?” Plaintiffs alleged that this was to pressure ASSE into revoking
plaintiffs’ certifications.
¶9 Plaintiffs also alleged that, in March 2024, one of American Backflow’s long-term
customers, Profasts, Inc. (Profasts), stopped paying its bill and ceased communication with
American Backflow. Plaintiffs alleged, on information and belief, that Local 281 convinced
Profasts to stop doing business with American Backflow. Plaintiffs claimed that Profasts owed
them $10,573.06.
¶ 10 Based on these allegations, plaintiffs brought claims for (1) tortious interference with
economic advantage against Hincks and Local 281 for the complaints to ASSE and NICET; (2)
tortious interference with business contracts against Hincks and Local 281 for interfering with the
alleged contracts between American Backflow employees and ASSE and NICET because of their
complaints; trade libel and commercial disparagement against Hincks, Walczak, and Local 281;
(3) business defamation against Hincks, Walczak, and Local 281; (4) defamation per se of Harbut
against Hincks, Leker, MacDonald, and Local 281; (5) violations of the Uniform Deceptive Trade
Practices Act (815 ILCS 510/1 et seq. (West 2022)) against Hincks, Walczak, and Local 281 for
-4- 2025 IL App (2d) 250023
their allegedly disparaging statements to ASSE and NICET; and (6) civil conspiracy against all
defendants. Plaintiffs alleged they suffered compensatory damages of at least $933,967.06.
¶ 11 MacDonald moved to dismiss plaintiffs’ complaint under section 2-619 of the Code of
Civil Procedure (Code) (735 ILCS 5/2-619 (West 2022)). The remaining defendants moved to
dismiss the complaint under section 2-619.1 of the Code (id. § 2-619.1). Defendants argued,
inter alia, that plaintiffs’ claims were entirely barred by the absolute litigation privilege. In
support, defendants attached an affidavit from Hincks. In the affidavit, Hincks “absolutely denied”
that he stated that he wished to put American Backflow out of business. He explained that it would
be contrary to the mission of Local 281, which sought to unionize nonunion contractors, not put
them out of business. Hincks stated that his attempts to organize American Backflow began in
early 2021. He first tried to reach out to management but began talking directly to employees after
his attempts to reach management failed. By April 2021, Local 281 sought a formal demand for
recognition from American Backflow and filed a representation petition with the National Labor
Relations Board (NLRB). An election was held by the NLRB in June 2021, resulting in a vote of
nine to five in favor of unionizing. The NLRB subsequently certified Local 281 as the bargaining
representative for a class of American Backflow employees.
¶ 12 Hincks said that, starting in April 2021, American Backflow—through Harbut, operations
manager David Loes, and office manager Stephanie Hefner—spent weeks trying to undermine the
NLRB’s certification. This included hiring a “union buster” named Jonathan Sutton, who
threatened the employees who favored unionization. Hincks claimed that American Backflow
began firing union employees, including MacDonald and Leker. American Backflow also began
transferring work to management-level staff that were not part of the Local 281 bargaining group.
By July 2021, 10 union member employees went on strike until mid-August 2021. During that
-5- 2025 IL App (2d) 250023
time, American Backflow also allegedly began hiring nonunion replacement employees. As a
result, Local 281 began filing unfair labor practice actions before the NLRB. Hincks said that, as
of September 12, 2024, Local 281 had successfully prosecuted 17 unfair labor practice actions
against American Backflow, resulting in 3 settlements approved by the NLRB. Hincks said
proceedings before the NLRB were ongoing, as American Backflow allegedly continued to violate
the settlement agreements.
¶ 13 Hincks claimed that the certification controversy that underlies this lawsuit stems from
American Backflow’s anti-union activities. Because American Backflow fired and replaced so
many union employees, Hincks claims that it did not have enough employees with the requisite
certifications and licensing to complete its work. Thus, Hincks posited that American Backflow
sought to get certifications for Loes, Lindsay Bouffard, and Harbut’s teenage son, who each did
not have the necessary qualifications for certification, according to Hincks.
¶ 14 Hincks stated that Local 281 operated a local testing center for the ASSE 15010 certificate.
He learned that the American Backflow employees went to a testing center in Pennsylvania instead
of Local 281’s testing center, which was the closest available. Hincks said that he had personal
knowledge that Loes had little to no field experience, that Bouffard’s personnel file obtained in
NLRB proceedings showed that she did not have the five years’ experience required by ASSE,
and that Harbut’s teenage son was 18 years old and therefore could not have the requisite five-
years’ experience. He claimed that nothing in his communications to ASSE or NICET was false
and that the complaints were made in accordance with the procedures outlined in the code of
conduct of each organization. Hincks said that ASSE and NICET mostly agreed with his
statements, as ASSE revoked all but Harbut’s license and NICET reduced Harbut’s son’s license
from Level I to Level II.
-6- 2025 IL App (2d) 250023
¶ 15 Hincks said the complaints were made with possible legal action in mind. He said that
Local 281 intended to persuade the Fire Marshal to seek injunctive relief under the Fire Sprinkler
Contractor Licensing Act (Act) (225 ILCS 317/12 (West 2022)) or seek such injunctive relief
itself. Ultimately, legal action became unnecessary because of ASSE and NICET’s actions.
¶ 16 Also attached to defendants’ motions was information regarding NICET and ASSE’s
licensing and complaint procedures. Under those procedures, NICET accepted four types of
complaints, including complaints “pertaining to an applicant’s or certificant’s qualifications for a
particular certification.” NICET then reviews the complaint to see if it meets acceptance criteria,
which consists of:
“a. Complainant must have personal knowledge of the alleged violation or misbehavior
or must be in a position to supply relevant and reliable documentation.
b. Complainant must demonstrate by documentation and factual evidence that the
complaint involves an issue or issues directly related to the criteria set forth in the preceding
section entitled ‘Complaints Accepted and Possible Actions.’ Matters of a personal nature
or matters not related to the criteria set forth will not be considered.
c. The complaint will not be processed if the NICET records show the named person
is no longer in the NICET Registry or is not a NICET applicant, unless the complaint is
related to such person representing themself as having a valid NICET certification.”
If a complaint is accepted, NICET staff then attempts to resolve the complaint informally. If
informal resolution is unsuccessful, then a hearing panel is established. The hearing panel reviews
the complainant’s statements and, if necessary, formally solicits the certificant for answers to
specific questions. The certificant then may appeal the hearing panel’s decision and request a
formal hearing. At the formal hearing, the certificant will be provided with a “written description
-7- 2025 IL App (2d) 250023
of the scope of the hearing including a clear statement of the allegations to be heard” and have the
right to legal counsel and to call witnesses. The decision after the formal hearing may then be
appealed to the NICET board of governors. The decision of the board of governors is final and
non-appealable.
¶ 17 Similarly, ASSE will “revoke the certification of any person who, after a hearing before
the Board of Directors, is found to have obtained a certificate by fraud or deceit ***.” According
to the complaint in the ASSE Lawsuit, ASSE forms a complaint committee comprised of members
of the board of directors. The committee conducts an investigation and makes a recommendation
to the full board of directors. The full board of directors makes the final decision regarding
certification.
¶ 18 After hearing oral arguments, the trial court dismissed plaintiffs’ complaint under section
2-619(a)(9) of the Code. It reasoned that ASSE and NICET were quasi-judicial bodies and,
therefore, defendants were entitled to the absolute litigation privilege for the statements made
before ASSE and NICET. The trial court alternatively found that the statements were made in
anticipation of legal proceedings, either directly by Local 281 or through the Fire Marshal. The
trial court further pointed out that plaintiffs did not submit an affidavit or evidence to rebut
Hincks’s affidavit or seek to take his deposition under Illinois Supreme Court Rule 191 (eff. Jan.
4, 2013). The trial court, though, allowed plaintiffs leave to amend their complaint to bring a claim
related to Profast’s failure to pay its bill. Plaintiffs decided not to bring such a claim, and the trial
court entered final judgment on December 19, 2024. Plaintiffs timely appealed.
¶ 19 II. ANALYSIS
¶ 20 Section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2022)) allows a party to file a
combined section 2-615 (id. § 2-615) and section 2-619 (id. § 2-619) motion to dismiss. Henderson
-8- 2025 IL App (2d) 250023
Square Condominium Ass’n v. LAB Townhomes, LLC, 2015 IL 118139, ¶ 32. “A motion to dismiss
under section 2-615 challenges the legal sufficiency of the plaintiff’s claim, while a motion to
dismiss under section 2-619 admits the legal sufficiency of the claim but asserts defenses or defects
outside the pleading to defeat the claim.” Cahokia Unit School District No. 187 v. Pritzker, 2021
IL 126212, ¶ 23. Section 2-619 permits the dismissal of an action where “the claim asserted against
defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.”
735 ILCS 5/2-619(a)(9) (West 2022). The absolute litigation privilege is an affirmative defense
that may be raised in a motion to dismiss under section 2-619(a)(9). Johnson v. Johnson & Bell,
Ltd., 2014 IL App (1st) 122677, ¶¶ 14-15.
¶ 21 “Where a defendant presents affidavits or other evidentiary matter supporting the asserted
defense, the burden shifts to the plaintiff to establish that the defense is unfounded or requires the
resolution of an essential element of material fact before it is proven.” McIntosh v. Walgreens
Boots Alliance, Inc., 2019 IL 123626, ¶ 16. “In reviewing a dismissal under section 2-619(a)(9),
this court determines whether there exists a genuine issue of material fact that should have
precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of
law.” Id. ¶ 17. We review de novo the propriety of the trial court’s dismissal under section 2-
619(a)(9). Id.
¶ 22 Plaintiffs argue on appeal that the trial court erred in finding defendants’ statements to be
privileged because the statements were not made during litigation proceedings before quasi-
judicial bodies. Plaintiffs also contend that defendants were not parties to any of the proceedings,
so the privilege is inapplicable to them. We disagree with plaintiffs’ arguments and hold that the
trial court correctly found the statements privileged.
-9- 2025 IL App (2d) 250023
¶ 23 The absolute litigation privilege, also called the attorney litigation privilege, is generally
based on section 586 of the Restatement (Second) of Torts, which states that an attorney is
“absolutely privileged to publish defamatory matter concerning another in communications
preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as
part of, a judicial proceeding in which he participates as counsel, if it has some relation to the
proceeding.” Restatement (Second) of Torts § 586 (1977). The privilege also extends to private
parties. Id. § 587; Johnson, 2014 IL App (1st) 122677, ¶ 15. The privilege gives attorneys “the
utmost freedom in their efforts to secure justice for their clients.” (Internal quotation marks
omitted.) Kurczaba v. Pollock, 318 Ill. App. 3d 686, 701-02 (2000). The privilege also allows
attorneys to fully and fearlessly communicate with their client and facilitate the free flow of
truthful information to the courts. O’Callaghan v. Satherlie, 2015 IL App (1st) 142152, ¶ 24. “The
privilege is predicated on the tenet that although defendant’s conduct is otherwise actionable,
because he is acting in furtherance of some interest of social importance, the communication is
protected.” Atkinson v. Affronti, 369 Ill. App. 3d 828, 833 (2006). In light of these policies, a
defendant’s motives are irrelevant. Popp v. O’Neil, 313 Ill. App. 3d 638, 642 (2000).
¶ 24 Illinois’s litigation privilege is more expansive than the Restatement’s. In Illinois, the
privilege applies to communications made before, during, and after legal proceedings. Bedin v.
Northwestern Memorial Hospital, 2021 IL App (1st) 190723, ¶ 40. It also extends beyond solely
statements made by attorneys and defamation claims. O’Callaghan, 2015 IL App (1st) 142152,
¶ 27; see Toyo Tire Corp. v. Atturo Tire Corp., No. 2022-1817, 2024 WL 4404358 (Fed. Cir. Oct.
4, 2024) (“Over the last decade, Illinois courts have readily and consistently extended the privilege
beyond the Restatement (Second) to cover numerous other causes of action, in furtherance of
Illinois policy and the purposes of the privilege.”). The only requirement for the application of the
- 10 - 2025 IL App (2d) 250023
privilege is that the communication must pertain to proposed or pending legal proceedings.
Scarpelli v. McDermott Will & Emery LLP, 2018 IL App (1st) 170874, ¶ 19. This requirement,
however, is not strictly construed; any doubts related to pertinency must be resolved “ ‘in favor of
finding the communication pertinent to the litigation.’ ” Goodman v. Goodman, 2023 IL App (2d)
220086, ¶ 26 (quoting Doe v. Williams McCarthy, LLP, 2017 IL App (2d) 160860, ¶ 19). “[T]he
privilege can be applied to statements or actions related to the subject controversy and those not
confined to specific issues related to the litigation.” (Emphasis in original.) Id. When the privilege
applies, “no liability will attach even at the expense of uncompensated harm to the plaintiff.”
O’Callaghan, 2015 IL App (1st) 142152, ¶ 25.
¶ 25 The privilege applies to statements made in legislative, judicial, and quasi-judicial
proceedings. Zych v. Tucker, 363 Ill. App. 3d 831, 834 (2006). Courts evaluate whether a body is
quasi-judicial based on the presence of six powers:
“(1) the power to exercise judgment and discretion; (2) the power to hear and determine or
to ascertain facts and decide; (3) the power to make binding orders and judgments; (4) the
power to affect the personal or property rights of private persons; (5) the power to examine
witnesses, to compel the attendance of witnesses, and to hear the litigation of issues on a
hearing; and (6) the power to enforce decisions or impose penalties.” Kalish v. Illinois
Education Ass’n, 157 Ill. App. 3d 969, 971-72 (1987).
“A quasi-judicial body need not possess all six powers; however, the more powers it possesses,
the more likely the body is acting in a quasi-judicial manner.” Id. at 972.
¶ 26 Applying this legal framework, we first consider whether the ASSE and NICET
proceedings were quasi-judicial proceedings. The Act requires fire sprinkler inspectors seeking
licensure to possess a certification from a nationally recognized certification organization, such as
- 11 - 2025 IL App (2d) 250023
NICET; possess an ASSE 15010 certification; or complete an apprentice program approved by the
United States Department of Labor. 225 ILCS 317/17(b) (West 2022). As part of their certification
and revocation procedures, ASSE and NICET have at least five of the six quasi-judicial powers.
As detailed above, after receiving a complaint regarding a certificant, they have the power to
determine or ascertain facts and decide through their investigation and hearing processes; they
have the power to exercise judgment and discretion to revoke (or not) the certification of an
individual following the investigation and hearing; they have the power to make binding orders
and judgments at the end of the investigation and hearing process through their decision regarding
revocation of certification; they have the power to affect the rights of private persons through their
decision regarding the certification of an individual following the investigation and hearing
process; and they have the power to impose penalties by revoking the certification of an individual
found to have violated certification rules following the investigation and hearing. Thus, we
conclude that the ASSE and NICET proceedings were quasi-judicial proceedings.
¶ 27 Plaintiffs’ argument that ASSE and NICET are not quasi-judicial bodies because they are
not the only certification bodies specified under the Act is unpersuasive. There is no requirement
that a quasi-judicial body be the only quasi-judicial body delegated by the legislature.
¶ 28 Plaintiffs’ argument that ASSE and NICET are not quasi-judicial because they are private
entities is also unavailing. Courts have found private entities to be quasi-judicial. For example, in
Bushell v. Caterpillar, Inc., 291 Ill. App. 3d 559, 563 (1997), the appellate court determined that
private arbitration proceedings were quasi-judicial because they possessed several of the quasi-
judicial powers and were therefore protected by the absolute litigation privilege. In doing so, the
court distinguished Illinois law from the laws of other states, such as California, that apply the
privilege only to “official” proceedings—i.e. court proceedings. Id.
- 12 - 2025 IL App (2d) 250023
¶ 29 We also find Illinois College of Optometry v. Labombarda, 910 F. Supp. 431 (N.D. Ill.
1996), instructive. In that case, the plaintiffs sued for defamation based on a letter complaint sent
to the Council on Optometric Education. Id. at 432. The federal court determined that the Council
on Optometric Education had four of the six powers of quasi-judicial bodies under Illinois law: it
had the power to exercise judgment and discretion as an accrediting agency for optometric
education recognized by the United States Department of Education; the power to hear and
ascertain facts and decide; the power to hold hearings when appropriate; and the power to make
decisions about the institutions it accredits. Id. at 433. Because the complaint was a preliminary
step to starting the quasi-judicial proceedings, the court found that the statements were absolutely
privileged. Id. at 433-34.
¶ 30 Here, though there are notable differences from traditional arbitration proceedings, the
ASSE and NICET proceedings are in essence limited-form arbitration proceedings focused on
whether the individuals those companies certify misrepresented their qualifications for
certification. Like the Council on Optometric Education, ASSE and NICET have the majority of
quasi-judicial powers that they may exercise over the entities they certify. Both the legislature and
Fire Marshal have recognized ASSE and NICET’s certification authority (see 225 ILCS 317/17(b)
(West 2022); 41 Ill. Adm. Code 109.45(e)(2)(D) (2023)), just as the U.S. Department of Education
recognized the certification authority of the Council on Optometric Education. Because ASSE and
NICET have these powers, their private nature is not a bar to being a quasi-judicial body. We
therefore conclude that the ASSE and NICET proceedings were quasi-judicial proceedings.
¶ 31 Next, we must determine whether defendants’ statements were related to the quasi-judicial
proceedings. Defendants’ statements questioned plaintiffs’ qualifications for the ASSE and
NICET certifications. Defendants submitted the complaints through the entities’ formal complaint
- 13 - 2025 IL App (2d) 250023
process. Because defendants’ statements concerned the same subject matter and were necessary to
initiate the quasi-judicial proceedings, we conclude that the statements were sufficiently related to
the ASSE and NICET proceedings. Though defendants were not parties to the proceedings, they
nevertheless are protected by the privilege because the pertinency requirement is met.
O’Callaghan, 2015 IL App (1st) 142152, ¶ 29; see Qualizza v. Freeman, 2024 IL App (1st)
231534-U, ¶ 38 (“the communication can also be made to third parties beyond attorneys or the
litigants so long as the pertinency requirement is met”).
¶ 32 Defendants’ actions also served to further the State’s public policy. See Atkinson, 369 Ill.
App. 3d at 833 (the purpose of the privilege is to protect those acting in furtherance of public
policy); see also Jordan v. Knafel, 355 Ill. App. 3d 534, 539 (2005) (noting that “[p]ublic policy
is the legal principle that no one may lawfully do that which has the tendency to injure the welfare
of the public”). As the General Assembly expressly recognized in enacting the Act, “the improper
service of fire sprinkler systems and associated components creates conditions that may adversely
affect the public health and general welfare.” 225 ILCS 317/5 (West 2022). Thus, the purpose of
the Act is to regulate the fire sprinkler service industry to “ensur[e] that those who hold themselves
out as possessing professional qualifications to engage in service of fire sprinkler systems are
qualified to render service, and provid[e] for the high standards of professional conduct by those
licensed to service fire sprinkler systems.” Id. Consistent with this public policy, defendants
reported to ASSE and NICET that plaintiffs may not have the qualifications required for
certification. Though defendants may have also had ulterior motives for doing so, their motives
are irrelevant for purposes of the privilege. Popp, 313 Ill. App. 3d at 642.
¶ 33 The circumstances underlying this case are similar to complaints made to other regulatory
and licensing bodies, such as the Attorney Registration and Disciplinary Commission (ADRC). In
- 14 - 2025 IL App (2d) 250023
Kykowski v. Bergman, the appellate court determined that “any statements made during any step
preliminary and necessary to a judicial or quasi-judicial proceeding” are absolutely privileged. 299
Ill. App. 3d 157, 165 (1998). Thus, the court concluded that complaints made to the ARDC are
absolutely privileged, even if defamatory. Id. “This assures that individuals are in no way
discouraged from lodging complaints with the appropriate disciplinary authorities.” Id.
¶ 34 Here, Hincks submitted his complaints to ASSE and NICET through their official
complaint methods. ASSE and NICET investigated those complaints and determined that they
were justified for some of the American Backflow employees. The statements were made to initiate
quasi-judicial proceedings and served to advance a public policy specifically enunciated by the
General Assembly. To hold otherwise would discourage concerned individuals from lodging
complaints with the appropriate entities to protect this public interest. Accordingly, we conclude
that defendants’ statements are protected by the absolute litigation privilege.
¶ 35 We also agree with the trial court that defendants’ statements are protected by the privilege
for a second reason. The statements and actions also occurred in anticipation of proposed litigation.
The statements were not only sent to ASSE and NICET, but to the Fire Marshal. The Fire Marshal
is tasked with overseeing the licensing of fire sprinkler contractors and enforcing the terms of the
Act. 225 ILCS 317/12 (West 2022). As such, the Fire Marshal may initiate proceedings to enjoin
entities from improperly holding themselves as licensed under the Act. Id. Had ASSE and NICET
not investigated defendants’ claims, defendants planned to ask the Fire Marshal to use its authority
to enjoin plaintiffs from their work regulated by the Act. Defendants also planned to bring their
own proceedings under the Act. Thus, as defendants’ statements were made in connection with
this proposed litigation, they are also protected by the privilege for this reason. See Scarpelli, 2018
- 15 - 2025 IL App (2d) 250023
IL App (1st) 170874, ¶ 19 (noting that the privilege protects statements related to proposed
proceedings).
¶ 36 Finally, defendants’ statements are protected by the privileges for a third reason not relied
upon by the trial court. See People v. Johnson, 208 Ill. 2d 118, 129 (2003) (holding that the
appellate court may affirm the judgment on any basis of record). When defendants made the
statements to ASSE, NICET, and the Fire Marshal, Local 281 and American Backflow were
enmeshed in proceedings before the NLRB. The NLRB is unquestionably a quasi-judicial body.
The National Labor Relations Act vested the NLRB with the power to prevent unfair labor
practices, established a complaint and hearing procedure before the NLRB, provided subpoena
power, and established enforcement of NLRB orders. 29 U.S.C. §§ 160, 161 (2018). Federal courts
and courts in other states have long held that the NLRB is a quasi-judicial body. See, e.g., Weitzner
v. U.S. Precast Corp., 645 So. 2d 180, 181 (Fla. Dist. Ct. App. 1996); Haleston Drug Stores v.
National Labor Relations Board, 187 F.2d 418, 421 (9th Cir. 1951) (the NLRB is “an
administrative body exercising quasi-judicial powers”). Both the NLRB proceedings and the
allegedly defamatory statements were part of the ongoing union organizing dispute between the
parties and concerned American Backflow’s business practices. Given the broad application of the
pertinency requirement (Goodman, 2023 IL App (2d) 220086, ¶ 26), we therefore conclude that
defendants’ statements were related to the NLRB proceedings.
¶ 37 The absolute litigation privilege bars each of plaintiffs’ claims. Though plaintiffs brought
claims other than defamation, the privilege has also been extended to claims that are based on
allegedly defamatory statements. See Johnson, 2014 IL App (1st) 122677, ¶ 17. This is because to
apply the privilege only to defamation claims would allow a plaintiff to recast the defamation claim
to avoid the privilege. Id. ¶ 18. Here, as plaintiffs’ claims are all based on the same conduct of
- 16 - 2025 IL App (2d) 250023
allegedly false and defamatory statements, they are all recasts of the defamation claim. Thus, all
of plaintiffs’ claims are barred by the absolute litigation privilege.
¶ 38 In their reply brief and at oral argument, plaintiffs argued that a qualified privilege analysis
is more appropriate for the complaints submitted to ASSE, NICET, and the Fire Marshal. Because
we conclude that the complaints were necessary to begin the quasi-judicial proceedings and
protected by the absolute litigation privilege, we do not address this argument.
¶ 39 III. CONCLUSION
¶ 40 For the reasons stated, the judgment of the circuit court of Lake County is affirmed.
¶ 41 Affirmed.
- 17 - 2025 IL App (2d) 250023
American Backflow & Fire Prevention, Inc. v. Hincks, 2025 IL App (2d) 250023
Decision Under Review: Appeal from the Circuit Court of Lake County, No. 24-CH-14; the Hon. Janelle K. Christensen, Judge, presiding.
Attorneys George W. Svoboda, of McHenry, for appellants. for Appellant:
Attorneys Gregory W. Hose, Andrew S. Pigott, and Jonathan J. Tew, of for Gregorio, Stec, Klein & Hose, of Chicago, for appellee Appellee: Jennifer MacDonald.
Marcos Reilly, Tom H. Luetkemeyer, and Katherine G. Schnake, of Hinshaw & Culbertson, LLP, of Chicago, for other appellees.
- 18 -