Chicago, Illinois, February 7, 2008

Ad not tailored to court’s taste, but clothier’s suit fails

The proprietors of a Lincolnwood menswear store cannot state a claim for defamation against a competitor whose advertisement compared their integrity to that of the “Iraq Information Minister,” the Illinois Supreme Court held Thursday

The high court reversed a 1st District Appellate Court ruling that revived the suit that Imperial Apparel Ltd. and Paul and Cyril Rosengarten filed against Cosmo’s Designer Direct Inc. and the Chicago Sun-Times. Imperial is now known as Suits 20/20.

The high court’s decision in favor of the defendants was unanimous, but Chief Justice Robert R. Thomas did not participate in the case. Thomas settled his own high-profile defamation suit in October.

Writing for the court, Justice Lloyd A. Karmeier said the newspaper ad was not actionable because it could not be reasonably interpreted as stating facts about Imperial or the Rosengartens.

“The text is artless, ungrammatical, sophomoric and sometimes nonsensical,” Karmeier wrote. “It is also a shameless appeal to ethnic prejudice, extolling, as it does, the supposed superiority of Italians over those of Jewish ancestry, at least ‘when it comes to fine clothing.’ We do not believe, however, that an ordinary reader would perceive it as making objectively verifiable assertions about the plaintiffs’ business.”

Imperial and Cosmo’s, a Villa Park clothing store, are located about 20 miles apart and are rivals in the discount menswear business. Cosmo Laudadio, Cosmo’s president, is of Italian descent, while Paul Rosengarten, the owner of Imperial, is Jewish. Rosengarten’s father, Cyril, formerly ran the store and is now an employee.

Cosmo’s, according to the ruling, prides itself on “being the home of the original 3 for 1 promotion.” When Imperial began offering similar sales, Cosmo’s ran an ad in the Sun-Times on Oct. 15, 2004.

The ad warned customers to “beware of cheap imitators up north.” It added, “So to the shameless owners of Empire rags center, east Eden and south of quality, we say … Start being kosher. … Stop openly copying and coveting your neighbor’s concepts or a hail storm of frozen matzo balls shall deluge your ‘flea market style warehouse.’ ”

It went on to state: “It is laughable how with all the integrity of the ‘Iraq Information Minister,’ they brazenly attempt pulling polyester over your eyes by conjuring up a low rent 3 for imitation that has the transparency of a hooker’s come on— but no matter how they inflate prices and compromise quality, much to their dismay, Cy and his son Paul the plagiarist still remain light years away from delivering anything close to our ‘3 for 1’ values.”

The Rosengartens alleged that they lost business following the publication of the ad and sued for defamation and false light invasion of privacy. In finding that they could not state a claim, the high court cited the First Amendment’s prohibition on defamation actions based “on loose, figurative language that no reasonable person would believe presented facts.” Troy Group Inc. v. Tilson, 364 F. Supp. 2d 1149, 1157 (C.D. Cal. 2005).

Karmeier wrote that the privilege for statements that are not factual clearly applies to suits brought by private individuals against media defendants like the Sun-Times. But it is unclear whether that privilege applies in circumstances where one private party makes a statement about another on a matter that is not of public concern, he wrote.

Karmeier noted that allowing such a privilege has its advantages, because it reduces ambiguity about whether particular statements are actionable.

“This is an important value in First Amendment jurisprudence, for ambiguity yields fear of liability and fosters self-censorship, the effects of which chill the free flow of protected expression,” he wrote, citing Hillsboro News Co. v. City of Tampa, 451 F.Supp 952, 954 (M.D. Fla. 1978).

However, the high court said it did not need to decide the issue, because the lower courts assumed that the privilege would apply to the plaintiffs’ claims against Cosmo’s, and the parties did not challenge that assumption.

Karmeier wrote that the message Cosmo’s tried to convey through the ad was that Imperial copied its sale, and that customers could get more for their money at Cosmo’s. While saying that Cosmo’s used offensive language to convey that message, the high court found that the ad’s characterizations of the plaintiffs lacked a “precise and readily understood meaning.”

“In the context of discount clothing sales, no reasonable person would regard them as anything other than colorful hyperbole aimed at capturing the reader’s interest and attention,” Karmeier wrote.

The case is Imperial Apparel Ltd. v. Cosmo’s Designer Direct, Inc., No. 103331.

Edward W. Feldman and Zachary J. Freeman ofMiller, Shakman & Beem LLP represented the plaintiffs. Feldman said he had yet to confer with his clients and did not know whether they would pursue further court action.

“We’re disappointed in the opinion, and we respectfully disagree with it,” Feldman said. “The ad was a vicious and intentional libel that did contain false and defamatory facts about Imperial.”

Attorneys for Cosmo’s and the Sun- Times, however, praised the ruling.

“I think it reaffirmed [the court’s] commitment to protecting First Amendment rights,” said James M. Wolf of Wolf & Tennant, who along with his father, James H. Wolf, represented Cosmo’s.

The Sun-Times was represented by Damon E. Dunn and Eric D. Bolander of Funkhouser, Vegosen, Liebman & Dunn Ltd. Bolander is no longer with the firm.

“We never need the First Amendment to protect the speech we all like,” Dunn said. “The end result if the appellate opinion stood would have been fewer voices, either paid or free, getting into the newspaper.”

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