The attorney representing Andrea Geller, a Coldwell Banker agent and member of the Chicago Association of Realtor’s finance committee who was sued by the association for defamation, has filed a motion to dismiss the lawsuit.

By Peter Ricci

Donald Battaglia, the attorney representing Coldwell Banker agent and Chicago Association of Realtors (CAR) member Andrea Geller, has filed a motion to dismiss CAR’s defamation lawsuit, which it filed against Geller for allegedly defamatory statements she made on both Chicago Agent magazine’s website and Facebook.

Battaglia’s motion, which can be read in full here, states two principle points– one, that Geller’s comments are protected under two separate areas of the law, and two, that CAR’s lawsuit, which seeks $50,000 in damages from Geller, does not provide adequate information to support its claims of defamation.

Andrea Geller/CAR Lawsuit – “Innocent Construction Rule” and Free Speech

According to Battaglia’s motion, Geller’s written statements are protected under two areas of the law: “innocent construction rule” and standard free speech protections. Regarding the innocent construction rule, Battaglia wrote:

• Under Illinois law, there are four categories in which statements can be deemed defamatory. In its lawsuit, CAR alleged that Geller’s statements qualify for two of the categories: “inability to perform or want of integrity to discharge duties of office or employment,” and “prejudice to a party, or lack of ability, in his trade, profession or business.”
• However, this is where the “innocent construction” rule comes in to play. According to Illinois law, if a statement is “reasonably capable” of being interpreted in a non-defamatory way, it will be interpreted as such, and Battaglia is arguing that all of Geller’s statements can be interpreted in that manner.
• Whether a statement is of “innocent construction” is ultimately the decision of the court, though Battaglia notes that the standards of interpretation favor the defendant.

Additionally, Battaglia wrote in the motion that Geller’s comments are protected under the first amendment:

• In Illinois, “if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.”
• The key part of that sentence, Battaglia wrote, is if a statement contains an “objectively verifiable assertion.”
• Geller’s statements, he concluded, do not pass such a test, considering they are statements of opinion, not fact.
• For instance, when Geller wrote, “it just seems like a pile of cover-ups,” Battaglia argues that Geller was not accusing CAR or CEO Ginger Downs of facilitating a cover-up, only commenting on how CAR’s handling of its finances give off “an appearance of impropriety.”

In addition to those defenses, Battaglia wrote in the motion that CAR’s lawsuit is also thin on details and explanations, and does not provide the necessary facts to prove that Geller knowingly acted with malice in writing her comments. The burden for such facts, he added, is particularly strong when defamation suits involve public figures, and both CAR and Downs are public figures.

“If They Want a Fight, They’ll Have a Fight”

Battaglia will present his motion to the court on Oct. 31, he told us, and he expects an official hearing on the motion 60 to 90 days from then. In that time, the judge will allow CAR’s legal representative,  Peter Friedman of Holland & Knight, to respond to the motion, and Battaglia will also be allowed a counter-response.

In his comments to Chicago Agent, Battaglia said that Geller is “rearing to go” for the hearing (echoing previous comments in our past story on the lawsuit), and both he and Geller are hoping to use the courts as an opportunity to ask the court for “discovery,” and use that motion to compel CAR to release all of its various financial documents – the same documents that Bob Floss, the association’s former president, claims he was also asking to see before his removal from the presidency.

Should CAR decide to walk away from the lawsuit, Battaglia said, then they will not ask for discovery, at least initially (he and Geller have no intentions to countersue the association at this point, though Battaglia said he could not comment on any long-term legal strategy). Should CAR fight his motion, though, Battaglia said he and Geller are ready.

“The real estate community is fired up over this,” he said. “If they want to fight, they’ll have a fight.”

Chicago Agent did contact Friedman for comment on the motion, but he told us that he has not yet received the motion; we will update the story with Friedman’s comments when he has reviewed the document. We had contacted Friedman in September for more information on the association’s original lawsuit, but he declined to answer our questions.