2022 IL App (1st) 220208-U No. 1-22-0208 Order filed December 8, 2022 Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ SMILEDIRECTCLUB, LLC, and SMILE OF TENNESSEE, ) Appeal from the P.C., ) Circuit Court of ) Cook County. Plaintiffs-Appellants, ) ) v. ) No. 20 L 6973 ) DELTA DENTAL PLANS ASSOCIATION, ) Honorable ) Michael F. Otto, Defendant-Appellee. ) Judge, presiding.
PRESIDING JUSTICE LAMPKIN delivered the judgment of the court. Justices Hoffman and Martin concurred in the judgment.
ORDER
¶1 Held: Plaintiffs’ amended complaint alleging civil conspiracy to defame, disparage, and tortiously interfere with plaintiffs’ business relations was properly dismissed with prejudice based on plaintiffs’ failure to sufficiently allege malice and thereby defeat defendant’s qualified privilege regarding the challenged statements.
¶2 Following the dismissal of six counts of their seven-count, third amended complaint,
plaintiffs SmileDirectClub, LLC (SDC) and Smile of Tennessee, P.C. (Smile PC) voluntarily
dismissed their remaining count and appealed only the dismissal of four counts of their claims No. 1-22-0208
against defendant Delta Dental Plans Association (Delta Dental) for civil conspiracy to defame,
disparage, and tortiously interfere with plaintiffs’ business relations.
¶3 On appeal, plaintiffs argue that they made sufficient allegations of malice based on Delta
Dental’s knowledge of the falsity and/or reckless disregard of the truth of statements about the do-
it-yourself nature of plaintiffs’ clear aligner therapy for purposes of defeating Delta Dental’s
qualified privilege regarding plaintiffs’ civil conspiracy claims based on the underlying torts of
defamation, disparagement and tortious interference with plaintiffs’ business relations.
¶4 For the reasons that follow, we affirm the judgment of the circuit court. 1
¶5 I. BACKGROUND
¶6 According to the well-pleaded facts of the pleadings and reasonable inferences drawn
therefrom, and the external submissions of the parties, plaintiff SDC, an oral care company, offers
dental support organization services and a “med tech platform” that enable licensed dentists and
orthodontists to treat patients with mild to moderate malocclusion with clear aligner therapy using
a teledentistry platform. Plaintiff Smile PC is a professional corporation that does business by and
through licensed dentists and orthodontists and contracts with SDC to allow these dentists and
orthodontists to access SDC’s teledentistry platform to treat their patients.
¶7 Defendant Delta Dental is a nonprofit association of 39 member companies that provide
Delta Dental-branded dental insurance and dental plan administrative services to insureds and
employers throughout the United States and Puerto Rico. Delta Dental, by and through its affiliated
1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.
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member companies, provides insurance for approximately 75 million people nationwide, and
approximately 25% of SDC’s customers were insured by Delta Dental affiliates.
¶8 Plaintiffs offered the dental service of aligner therapy as a remote alternative to traditional
in-office orthodontics. They advertised their product in part by emphasizing the convenience they
provided to customers by offering a dental care solution that did not require visits to a traditional
dentist’s office. To begin the service, customers bought kits that SDC sold on its website. Using
the kits, the customers created an impression of their teeth. In the alternative, the customers could
visit retail locations to have scans taken of their teeth by a lab technician. After either approach, a
lab technician used the information gathered about the customer’s teeth to create a plan for further
dental work. After the plan was reviewed and approved by an SDC-affiliated dentist, plaintiffs
manufactured plastic aligners and shipped the product to their customers along with instructions
for use. After the customer received the aligners, the customer uploaded photos of the aligners on
their teeth for review by an SDC-affiliated dentist. Customers were instructed to check in with an
SDC-affiliated dentist at least once every sixty days.
¶9 In 2017, the American Dental Association (ADA) passed resolution 50, which “strongly
discourage[d] the practice of do-it-yourself orthodontics because of the potential harm to patients.”
The ADA expressed concern over the lack of sufficient, active participation by a licensed dentist
in the various phases of orthodontic treatment, which normally require a dentist to perform an
initial oral exam, obtain and review periodontal and radiographic studies of gums, teeth and bones,
plan the patient’s course of treatment, conduct periodic progress assessments, and make a final
assessment and decide on stabilizing measures.
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¶ 10 In 2019, the ADA filed a citizen petition with the Federal Drug Administration (FDA)
asserting that SDC’s aligner therapy violated the Federal Food, Drug & Cosmetic Act (21 U.S.C.
§ 301 et seq.), by evading the requirement that clear aligners be “by prescription only” because
“SDC has virtually eliminated from the process any substantive participation by a dentist in a
customer’s teeth straightening treatment even with respect to the all-important comprehensive oral
examination that should precede prescribing treatment in every instance.” The ADA argued that
the aligner therapy skirted the “by prescription only” requirement by shifting too much
responsibility to the consumer, creating a risk of serious complications and injury. Citing the
affidavit of a licensed dentist filed in support of its citizen petition, the ADA explained that SDC’s
process “fails to meet the standard of care for a comprehensive oral examination and does not
provide a basis upon which a valid prescription for orthodontic care can be written.”
¶ 11 The ADA argued that self-made dental impressions were “almost inherently of little
clinical value” because it was “difficult for a trained, experienced professional to make good dental
impressions of a patient’s teeth even in the controlled environment of an office equipped to take
and retake such impressions, and it is important to be able to see and examine the patient while the
impressions are being taken.” The self-made photos and scans made at SDC’s retail shops suffered
from the same lack of clinical value as the self-administered impression kits because the photos
might not properly show the position and alignment of the customer’s molars due to lighting issues
and the photographer’s skill level. Another shortcoming of SDC’s aligner therapy process was
that, in lieu of a comprehensive, in-person oral exam by a licensed dentist, SDC invited its
customers to simply “self-certify” that nothing was wrong with their teeth and gums and that they
had been thoroughly examined by their own dentist. The customer was not asked to provide any
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of their dental records or any other evidence of oral health, nor was an SDC dentist obligated to
verify the accuracy of the information in the customer’s self-certification.
¶ 12 The ADA’s petition was supported by SDC customer complaints to the Better Business
Bureau describing issues with the aligner therapy, including “excruciating pain, possible nerve
damage”; “teeth fanned out, roots showing through gums”; “after treatment mouth doesn’t close
all the way, back teeth don’t touch, jaw pain from bite problem”; “cannot fully close bite, have
problems with chewing.” The ADA was also harshly critical of SDC’s marketing strategy, which
the ADA characterized as highly misleading. Specifically, SDC’s website and product packaging
showed examples of people with severe malocclusion, suggesting that the aligner therapy could
correct such a severe misalignment. The ADA explained that while it supports safe and effective
teledentistry, it did not consider SDC’s platform to be “valid” teledentistry because SDC’s
affiliated dentists did “not interact with customers in real time or in any other way.”
¶ 13 Based on the same concerns, the American Association of Orthodontists (AAO) filed
complaints against SDC with at least 35 state dental boards, alleging that SDC was engaged in the
unauthorized practice of dentistry.
¶ 14 On January 6, 2020, seven members of Congress sent a letter to the FDA and the Federal
Trade Commission (FTC) expressing their “strong support of the FDA and the FTC investigating
the practices of SmileDirectClub to ensure that it is not misleading consumers or causing patient
harm.”
¶ 15 During the pandemic, an ADA policy statement recognized that teledentistry examinations
“can be an effective way to extend the reach of dental professionals” provided that the “services
delivered via teledentistry [were] consistent with how they would be delivered in person” and a
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“dentist who uses teledentistry [has] adequate knowledge of the nature and availability of local
dental resources to provide appropriate follow-up care to a patient following a teledentistry
encounter.”
¶ 16 Meanwhile, Delta Dental issued a policy directive to its members for the denial of all claims
for coverage of SDC clear aligners. Accordingly, Delta Dental members issued insurance claim
denial letters to insureds seeking coverage for treatment with SDC’s clear aligners. The denial
letters referenced, in varying terms, the self-application and mail-order nature of SDC’s services
as the reason for coverage denial.
¶ 17 SDC in late 2017 and early 2018 submitted to Delta Dental the addresses and tax
identification numbers of several affiliated dentists and orthodontists for purposes of registering
them in Delta Dental’s electronic provider database, which was an essential step in having dental
services covered under Delta Dental’s insurance. Plaintiffs’ attempts at registration were rejected
by Delta Dental, as were subsequent attempts later in 2018 and again in 2019.
¶ 18 In February 2018, Delta Dental of Washington posted an article written by Kyle Dosch,
D.D.S., who was a member of Delta Dental’s dental committee and the dental director of Delta
Dental of Washington. The article, titled “At-Home Invisible Aligners and Your Dental
Coverage,” warned consumers of dangers and risks associated with “do it yourself” orthodontic-
treatment systems. The article, which did not specifically name SDC,2 generally stated that reliance
on at-home systems without the trained expertise of orthodontists can cause “long-term problems”
2 Plaintiffs alleged that although Dr. Dosch’s article did not specifically name SDC, the reference to SDC was implicit due to SDC’s position as the leading teledentistry service provider in February 2018.
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with dental health. The article ended with the conclusion that “DIY treatments, orthodontic or
otherwise, are not a covered benefit.”
¶ 19 SDC attempted to persuade Delta Dental multiple times in 2017 and 2019 during in-person
meetings and by written communications to change its orthodontic claims processing policy
regarding insurance coverage for aligner therapy. The gist of these communications was that SDC
told Delta Dental that a licensed dentist was involved in the clinical aspects of the aligner therapy
and that aligner therapy was overseen by licensed dentists and was not a do-it-yourself or self-
administered or self-applied therapy. Delta Dental conveyed these communications with SDC to
Delta Dental’s members via Delta Dental’s dental policy committee, on which member
representatives sat.
¶ 20 In 2020, plaintiffs sued Delta Dental and Delta Dental of Illinois for defamation, tortious
interference, and deceptive trade and business practices. Plaintiffs later dismissed Delta Dental of
Illinois pursuant to an agreement. 3 Ultimately, plaintiffs filed a seven-count, third amended
complaint against Delta Dental only, alleging (relevant to this appeal) that Delta Dental and its
member companies wrongfully denied insurance benefits to their insureds for the cost of plaintiffs’
dental aligner therapy as part of a conspiracy to defame, disparage and interfere with plaintiffs’
teledentistry business. Specifically, plaintiffs alleged, in relevant part, that Delta Dental and its
members caused insurance claim denial letters to be issued to insureds that denied coverage for
treatment with clear aligners provided through SDC’s teledentistry platform on the knowingly
false basis that licensed dentists do not supervise such treatment. Plaintiffs alleged that many
3 In their operative amended complaint, plaintiffs substituted Delta Dental of California for Delta Dental of Illinois as the “primary exemplar” member company. Delta Dental of California is not a defendant in this case. The parties agree that because Illinois and California law are materially the same, there is no need for a choice of law analysis in this case.
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consumers, upon receiving these denial notices, elected not to pursue or continue SDC’s aligner
therapy because of the lack of coverage. Plaintiffs alleged several instances of coverage denial
letters issued by Delta Dental members to SDC customers. Each letter referenced, in varying terms,
the self-application and mail-order nature of SDC’s services as the reason for coverage denial.
Plaintiffs also alleged that Delta Dental rejected with no basis the registration of SDC-affiliated
dentists as part of Delta Dental’s anti-SDC directive and for the specific purpose of avoiding
responsibility for coverage of SDC’s teledentistry services.
¶ 21 Plaintiffs’ allegations that Delta Dental acted with malice are based on Delta Dental’s and
its members’ alleged knowledge that the aligner therapy was overseen by licensed dentists, and
SDC’s argument that the ADA has a history of anti-competitive behavior. Specifically, plaintiffs
claimed that they told Delta Dental of California on three occasions in 2018 and 2019 that the
aligner therapy was overseen by state-licensed dentists by stating that (1) “SDC aligner therapy
was overseen by licensed dentists,” (2) “licensed dentists were involved in all aspects of SDC
aligner therapy,” and (3) “please note we do not believe the [do-it-yourself] label is applicable in
any way to our platform given the oversight and responsibility for care that is solely placed with
treating doctors.”
¶ 22 Regarding their allegations that the ADA is a biased, anticompetitive organization,
plaintiffs claimed that the ADA was not a health organization or a standards body and did not set
the standard of care in the field of dentistry. Rather, the ADA was a powerful trade organization
made up of market participants. Plaintiffs also alleged that the ADA has a documented history of
anti-competitive conduct when it came to innovative products that reduce dentist revenue. For
example, plaintiffs alleged that over 60 years ago, the ADA campaigned against dental therapists,
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which are midlevel providers, as “lesser-trained” providers, but the FTC repudiated the ADA’s
position, stating that the ability of dental therapists to work without a dentist on site was
particularly important in underserved areas where dentists might not be available. Plaintiffs also
cited the ADA’s unsuccessful attack on teeth whitening products as unsafe. In May 2019, the FDA
denied the relief requested in the ADA’s April 25, 2019 petition to the FDA about SDC.
¶ 23 Delta Dental moved to dismiss plaintiffs’ third-amended complaint pursuant to section
2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2020)), arguing, inter
alia, that the statements plaintiffs challenged as defamatory or disparaging were not actionable
because plaintiffs failed to sufficiently allege malice to overcome Delta Dental’s qualified
privilege. Delta Dental also argued that the challenged statements were protected by the privilege
of fair comment and criticism and were nonactionable opinions.
¶ 24 On January 25, 2022, the circuit court dismissed counts I to VI of the third amended
complaint with prejudice, ruling that a qualified privilege applied to the member companies’
statements about the self-administered nature of plaintiffs’ aligner therapy because those
companies had a legal duty to explain to their insureds the reasons for the companies’ denials of
the insureds’ insurance claims. The court also ruled that plaintiffs failed to sufficiently allege
malice to overcome the qualified privilege given the evidence of the public controversy over the
safety and efficacy of plaintiffs’ aligner therapy. Specifically, the court cited evidence of the
proceedings before the FDA and a request by seven members of Congress that the FDA and FTC
investigate the marketing and safety of plaintiffs’ aligner therapy product.
¶ 25 To pursue an immediate appeal, plaintiffs voluntarily dismissed their remaining count of
intentional tortious interference and appealed only the dismissal of their claims against Delta
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Dental for civil conspiracy to defame (count I), disparage (count II), and tortiously interfere with
the business relations of SDC (count III) and of Smile PC (count IV).
¶ 26 II. ANALYSIS
¶ 27 “A motion to dismiss under section 2-615(a) of the Code (735 ILCS 5/2-615(a) (West
2020)) tests the legal sufficiency of the complaint, whereas a motion to dismiss under section
2-619(a) of the Code (735 ILCS 5/2-619(a) (West 2020)) admits the legal sufficiency of the
complaint, but asserts affirmative matter outside the complaint that defeats the cause of action.”
Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361 (2009). Section 2-619.1 of the Code (735 ILCS
5/2-619.1 (West 2020)) permits a party to combine a section 2-615 motion to dismiss based upon
a plaintiff’s substantially insufficient pleadings with a section 2-619 motion to dismiss based upon
certain defects or defenses. When ruling on a motion to dismiss under either section 2-615 or
section 2-619, the court must accept all well-pleaded facts in the complaint as true and draw all
reasonable inferences from those facts in favor of the nonmoving party. Lykowski v. Bergman, 299
Ill. App. 3d 157, 162 (1998).
¶ 28 Under a 2-615 motion, the court may consider “only those facts apparent from the face of
the pleadings, matters of which the court can take judicial notice, and judicial admissions in the
record.” K Miller Construction Company v. McGinnis, 238 Ill. 2d 284, 291 (2010). In ruling on a
2-619 motion, the court may consider external submissions of the parties including depositions
and affidavits (Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995)); however, the evidentiary material
cannot contradict the pleadings because 2-619 motions admit the truth of the well-pleaded facts
(Stone v. McCarthy, 158 Ill. App. 3d 569, 572 (1987)).
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¶ 29 We review dismissals under sections 2-615, 2-619, and 2-619.1 de novo. See Reynolds v.
Jimmy John’s Enterprises, LLC, 2013 IL App (4th) 120139, ¶¶ 25, 31. Under de novo review, the
reviewing court performs the same analysis the trial court would perform with no deference shown
to the trial court’s judgment. Beauchamp v. Dart, 2022 IL App (1st) 210091, ¶ 8.
¶ 30 A. Civil Conspiracy to Defame and Disparage
¶ 31 Plaintiffs first argue that the statements in the insurance coverage claim denial letters that
members of Delta Dental issued to insureds were defamatory and disparaging because those
statements gave the do-it-yourself or self-application nature of the aligner therapy as the reason
for the coverage denial even though Delta Dental and its members knew that licensed dentists
supervised the aligner therapy.
¶ 32 Delta Dental responds that the parties’ dispute involves the extent to which licensed
dentists were involved in the care of insureds who bought plaintiffs’ remote access, self-
administered orthodontic therapy. Delta Dental argues that the challenged statements were
substantially true, and truth is an absolute defense to a defamation action. See Hnilica v. Rizza
Chevrolet, Inc., 384 Ill. App. 3d 94, 97 (2008); see also J. Maki Construction Co. v. Chicago
Regional Council of Carpenters, 379 Ill. App. 3d 189, 203 (2008) (the statement at issue need not
be completely accurate; the defense applies if “the gist or sting of the statement is true”).
¶ 33 The truth of a statement is usually a question for the jury, but the question is one of law if
“no reasonable jury could find that substantial truth had not been established.” Id. Alternatively,
this court will review whether the challenged statements are subject to a qualified privilege.
¶ 34 The elements of civil conspiracy are (1) a combination of two or more persons, (2) for the
purpose of accomplishing by some concerted action either an unlawful purpose or a lawful purpose
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by unlawful means, (3) in the furtherance of which one of the conspirators committed an overt
tortious or unlawful act.” Fritz v. Johnston, 209 Ill. 2d 302, 317 (2004).
¶ 35 To show a defamation claim, a plaintiff must present facts showing that the defendant made
a false statement about the plaintiff, that the defendant made an unprivileged publication of that
statement to a third party, and that this publication caused damages. Green v. Rogers, 234 Ill. 2d
478, 491 (2009).
¶ 36 Disparagement is defined as “statement[s] about a competitor’s goods which [are] untrue
or misleading and [are] made to influence or tend to influence the public not to buy.” Lexmark
International Inc. v. Transportation Insurance Company, 327 Ill. App. 3d 128, 140 (2001). “The
definition of disparagement *** [can] be broken down into three elements. The statement (1) must
be about a competitor’s goods or services, (2) must be untrue or misleading, and (3) must have
been made to influence or tend to influence the public not to buy those goods or services. Pekin
Insurance Co. v. Phelan, 343 Ill. App. 3d 1216, 1220 (2003).
¶ 37 Defamatory statements may not be actionable if immunized by an absolute privilege
(Layne v. Builders Plumbing Supply Co., 210 Ill. App. 3d 966, 969 (1991)), if shielded under the
innocent construction rule (Kolegas v. Heftel Broadcasting Corp., 154 Ill. 2d 1, 11 (1992)), if
safeguarded as an expression of opinion (Mittelman v. Witous, 135 Ill. 2d 220, 239 (1989)), or if
protected by a qualified privilege (Kuwik v. Starmark Star Marketing and Administration, Inc.,
156 Ill. 2d 16 (1993)). Whether or not an allegedly defamatory statement is protected by an
absolute or qualified privilege is a question of law to be determined by the court. Adco Services,
Inc. v. Bullard, 256 Ill. App. 3d 655, 659 (1993).
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¶ 38 To determine whether a conditional privilege exists, “a court looks only to the occasion
itself for the communication and determines as a matter of law and general policy whether the
occasion created some recognized duty or interest to make the communication so as to make it
privileged.” Kuwik, 156 Ill. 2d at 27. The Illinois Supreme court adopted the approach to qualified
privilege from the Restatement (Second) of Torts. Id.; Restatement (Second) of Torts § 593
through 599 (1977). Under such analysis, three classes of conditionally privileged occasions are
recognized: situations in which (1) some interest of the person who publishes the defamatory
matter is involved, (2) some interest of the person to whom the matter is published or of some
other third person is involved, and (3) a recognized interest of the public is concerned. Kuwik, 156
Ill. 2d at 29.
¶ 39 In Kuwik, the plaintiff chiropractor filed a libel action against certain insurance carriers and
their employees for statements made in two letters. The supreme court held that the qualified
privilege, as a matter of law, protected the two challenged letters. The first letter was sent to a
health insurance claimant by her insurance carrier denying her claims for treatment by the plaintiff.
Following the issuance of this first letter, the plaintiff filed a formal complaint with the Illinois
Department of Insurance. The second letter was sent to the Department of Insurance by the
insurance carrier’s parent company in response to the formal complaint filed by the plaintiff. The
supreme court reasoned that
“the first letter was sent because of a legal duty [citation], and that both letters were sent
on occasions where not only the interests of defendants [i.e., the insurance carriers and
their employees] were involved, but where plaintiff’s [i.e., the chiropractor] and [the
insured’s] interests were involved as well. The letters were sent on occasions where a
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misstatement of information should be afforded some degree of protection in order to
facilitate the free flow of correct information.” Id. at 30.
¶ 40 In accordance with Kuwik, we find that the present situation involves not only the first
category of conditionally privileged occasions—i.e., the interests of Delta Dental and its members,
who published the alleged defamatory statements because they are required by law to inform the
insureds of the reason for a claim denial—but also “some interest of the person to whom the matter
is published” as stated in the second category of conditionally privileged occasions. In the instant
case, the insureds (i.e., the person to whom the matter is published) clearly have an interest in
learning the reasons for the denial of their claims. See Kuwik, 156 Ill. 2d at 29 (an insurance
company’s letters that provided the company’s rationale for denial of coverage were privileged
because such an explanation was required by Illinois insurance law); Dark v. United States Fidelity
& Guaranty Co., 175 Ill. App. 3d 26, 36 (1988) (statements explaining the basis for the insurer’s
denial of the insured’s claim are protected by a qualified privilege).
¶ 41 Because we find that the statements included in the insurance claim coverage denial letters
to the insureds are protected by qualified privilege, we need not address Delta Dental’s alternative
argument regarding the absolute privilege of opinions. See Baraket v. Matz, 271 Ill. App 3d 662,
669 (1995).
¶ 42 The scope of protection afforded by qualified privilege can be exceeded, thereby abusing
and thus defeating the privilege. Therefore, the inquiry next becomes whether or not the privilege
was abused. Whether the privilege was abused is generally a question of fact to be determined by
the jury. Kuwik, 156 Ill. 2d at 27, 30. However, plaintiff’s complaint was dismissed by a motion
under section 2-619 of the Code, which provides a method to obtain “a summary disposition of
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issues of law or of easily proved issues of fact, with a reservation of jury trial as to disputed
questions of fact.” Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115 (1993).
¶ 43 The qualified privilege serves to enhance a defamation plaintiff’s burden of proof. Kuwik,
156 Ill. 2d at 24. The privilege may protect the speaker from liability regardless of the statement’s
contents. Id. To overcome the privilege, the plaintiff must show not just that the statements are
untrue, but that the defendant abused the privilege by intentionally publishing false material or by
displaying a reckless disregard as to its truth or falsity—meaning that the defendant entertained
serious doubts about the truth of the statement but failed to properly investigate the truth. Id. Abuse
of a privilege may also occur when the defendant fails to limit the scope of the material, or send
the material to only the proper parties. Id. at 30.
¶ 44 Here, plaintiffs have presented no evidence that Delta Dental or its members abused the
qualified privilege, either by intentionally making false statements or by acting with reckless
disregard as to the truth of the challenged statements. Delta Dental claims that the statements were
true, and nothing in the record raises an issue of fact as to whether, at the time the statements were
made, Delta Dental and its members entertained doubts about whether SDC affiliated dentists were
not directly involved in crucial aspects of SDC’s alignment therapy process. Furthermore, the
statements were limited in scope to explaining the reason for the denial of insurance coverage and
were sent only to the insureds.
¶ 45 Delta Dental is not required to agree with plaintiffs’ statements regarding the sufficiency
of the supervision licensed dentists provided to SDC’s alignment therapy. Thus, even if plaintiffs
told Delta Dental that a licensed dentist was involved in the clinical aspects of the aligner therapy
and that aligner therapy was overseen by licensed dentists and was not a do-it-yourself or self-
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administered or self-applied therapy, plaintiffs’ statements were not dispositive as to whether Delta
Dental and its members abused the qualified privilege in making the statements in question. Delta
Dental and its members were entitled to disagree with plaintiffs regarding the sufficiency of the
level of dentist supervision in SDC’s alignment therapy, and plaintiffs did not allege that Delta
Dental and its members unreasonably or in bad faith relied on the ADA’s critical analysis of SDC’s
alignment therapy.
¶ 46 Plaintiffs never alleged that the aligner therapy involved any in-person examinations by an
SDC-affiliated dentist, or that radiographic images were taken and reviewed by an SDC-affiliated
dentist at any stage of the process. Although plaintiffs alleged that SDC-affiliated dentists
conducted “reviews,” plaintiffs never stated what a review entailed or how frequently a dentist was
involved after the initial therapy plan was created by the SDC lab technician.
¶ 47 Although SDC customers were instructed to check in with an SDC-affiliated dentist at least
once every 60 days, there was no allegation that customers were required to check in, even to
confirm, for example, that the customer was ready to begin using the next set of aligners in a
proposed treatment plan.
¶ 48 Delta Dental properly investigated the matter. Delta Dental and its members had the benefit
of publicly available investigations by disinterested experts—the ADA, the AAO, and state dental
boards. Moreover, plaintiffs affirmatively alleged that Delta Dental conducted its own
investigation by requesting and receiving information from SDC and engaging in internal
deliberations about whether to provide benefits for aligner therapy. The record establishes there
was substantial public controversy over the degree of dentist involvement in the aligner therapy
and its impact on the safety and efficacy of the therapy.
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¶ 49 Delta Dental’s and its members’ statements about the lack of supervision by licensed
dentists are protected by a qualified privilege. Furthermore, they did not make the statements with
knowledge of or reckless disregard for their falsity, fail to limit the scope of the statements
properly, or send them to improper parties.
¶ 50 While the court must view the allegations in a light most favorable to the plaintiffs for
purposes of a motion to dismiss, such standard still does not save plaintiffs’ allegations from being
more than conclusory allegations that are insufficient to raise an inference of actual malice. See
Edwards v. University of Chicago Hospitals & Clinics, 137 Ill. App. 3d 485, 491 (1985) (the
conclusory allegations in plaintiff’s amended complaint that defendant published the allegedly
defamatory diagnosis maliciously intending to injure her and to bring her into public scandal,
disrepute and disgrace were, in and of themselves, insufficient to raise an inference of actual
malice.)
¶ 51 We conclude that plaintiffs failed to allege malice sufficient to show that Delta Dental and
its members abused the qualified privilege. Under the standards enunciated for a section 2-619
dismissal, we find no disputed issues of material fact for a jury to consider and hold that defendant
is entitled to judgment as a matter of law on the defamation and disparagement counts relating to
the insurance coverage denial letters. Accordingly, we affirm the trial court’s dismissal of
plaintiffs’ claims regarding defamation and disparagement with prejudice.
¶ 52 B. Civil Conspiracy to Interfere with Business Relations
¶ 53 To state a cause of action for tortious interference with business relations, a plaintiff must
allege (1) the existence of a valid business relationship (not necessarily evidenced by an
enforceable contract) or expectancy, (2) knowledge of the relationship or expectancy on the part
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of the interferer, (3) an intentional interference inducing or causing a breach or termination of the
relationship or expectancy, and (4) resultant damage to the party whose relationship or expectancy
has been disrupted. City of Rock Falls v. Chicago Title & Trust Co., 13 Ill. App. 3d 359, 362-63
(1973). A plaintiff alleging a claim for tortious interference must allege facts demonstrating malice
in order to overcome a motion to dismiss. Strosberg v. Brauvin Realty Service, 295 Ill. App. 3d
17, 33 (1998).
¶ 54 Even if plaintiffs’ interference claims were factually sufficient to survive dismissal, these
claims must be dismissed based on a similar issue of privilege as addressed above. Illinois courts
recognize a privilege against a claim for tortious interference “ ‘where the defendant was acting to
protect an interest which the law deems to be of equal or greater value than the plaintiff’s
contractual rights.’ ” Zdeb v. Baxter International, Inc., 297 Ill. App. 3d 622, 632 (1998) (quoting
HPI Health Care Services Inc. v. Mt. Vernon Hospital Inc., 131 Ill. 2d 145, 157 (1989)).
¶ 55 The challenged statements by Delta Dental and its members in the letters to the insureds
were to explain its denial of coverage, as is required by section 154.6(n) of Illinois’ Insurance Code
(215 ILCS 5/154.6(n) (West 2020)). See International Administrators, Inc. v. Life Insurance
Company of North America, 753 F. 2d 1373, 1381 (7th Cir. 1985) (granting summary judgment to
insurance company on tortious interference claim because insurance company’s statements in non-
renewal letters to insureds were of equal or greater value to the interests of the plaintiff); Kuwik,
156 Ill. 2d at 29; Dark, 175 Ill. App. 3d at 36.
¶ 56 Similar to this court’s analysis on the defamation and commercial disparagement claims,
plaintiffs’ attempts to plead malice were insufficient. They failed to provide supporting details
beyond conclusory statements of malicious intent to sustain their claims.
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¶ 57 III. CONCLUSION
¶ 58 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 59 Affirmed.
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