Richard F. Friedman
Neal & Leroy, LLC
Chicago, Illinois

Singapore Dunes, LLC v. Suagatuk Twp., 1:10CV-210 W.D. Mich).
3

Considerations other than the public interest may
be factors in the settlement:


Cost savings by discontinuing the litigation.
Quick exit from the litigation.
Avoidance of controversy.
Obtaining court “cover” for a result not available by other
means.
Lack of information so that the court and parties can know
the wider impact of the settlement.



4


Public notice of the terms of the potential
settlement of litigation.
Opportunity for the public to provide input
 In writing.
 And/or in testimony before the court.
5




Zoning.
Environmental.
Transportation.
Landmarks and other protected historic
resources.
6

Public trusts.

Charitable trusts.

Trusts Enforceable by the Attorney General.
 No requirement for public input.
 Enforcement discretionary by the A.G.
7


"Fair, reasonable, adequate, consistent with
applicable law.” Metro. Housing Dev. Corp. v.
Vil. Arlington Hts., 616 F.2d 1006 (7th Cir.
1980).
Public interest: "adequately protects and is
consistent with the public interest" U.S. v. BP
Exploration & Oil Co., 167 F.Supp.2d 1045
(N.D. Ind. 2001); U.S. v County of Muskegon,
298 F.3d 569 (6th Cir. 2002).



No general mechanism or procedure for
applying public interest standard.
U.S. v. BP Exploration & Oil Co., 167 F.Supp.2d
1045 (N.D. Ind. 2001) hearing not necessary
(but notice published and comments
received).
U.S. v. City of Akron, 794 F.Supp.2d 782 (N.D.
Ohio 2011) 2-day fairness hearing conducted.
9

Fed class action settlements - Rule 23(e)
 notice to class members of proposed settlement.
 hearing .
 finding of “fair, reasonable, and adequate.“


affected class is already before the court
through class representative.
Illinois class actions has no similar law, but
courts generally follow Fed. Procedure.
10

28 CFR Sec. 50.7.
 Proposed settlement must be lodged with court .
 U.S. Dept. Justice will receive, consider and file
with the court all written comments.

No provision for hearing or taking testimony.

Notice, hearing and administrative review available
for certain
 Zoning.
▪ see Div. 13 of Ill. Munic. Code. 65 ILCS 5/11-13-1 et seq. for
notices and hearings.
 Landmarking.
 Environmental.

Parties of record (or applicants) appearing before
admin. agency are parties in administrative review
cases. 735 ILCS 5/3-107.

Limits to public input in land use court
settlements.
 Interested (lay) parties may choose not to appear in




administrative review.
Different issues may arise in the proposed decree.
Appearing by counsel is expensive.
Appearing members of the public may not be aware of the
settlement negotiations.
Affected members of public outside the geographic limits
in the original proceeding.
13

De novo review of all zoning decisions as
legislative action. 65 ILCS 5/11-13-25.
 Deferential review may exclude pubic input.



Injunction.
Mandamus.
Declaratory (except certain zoning).





Prior to approving a settlement agreement affecting the public interest,
the court shall hold a fairness hearing.
A matter “affecting the public interest” means substantially modifying a
zoning, environmental, landmarking or other land use regulation
affecting a particular parcel of property or the terms of a charitable or
public trust.
A fairness hearing shall be held no less than 30 days after publishing the
proposed settlement in a newspaper of general circulation in the affected
community.
An person may submit written comments or testimony at the fairness
hearing in accordance with procedures established by the court.
The court shall approve a settlement agreement unless it is not fair,
reasonable and adequately protects and is consistent with the public
interest.
15

735 ILCS 110/1 et seq.

Effective August 28, 2007.

Immunity nullified by Sandholm v. Kueker,
2012 IL 111443, announced January 20, 2012.
16

Strategic Lawsuits Against Public
Participation

Legislative finding that SLAPPs and threat of
SLAPPs significantly chill citizens’
participation in government. Sec. 5.
17






Defamation.
Interference with contract .
Interference with prospective economic
advantage.
Intentional infliction of emotional harm.
Anti-trust.
Conspiracy.
18
“Acts in furtherance of the constitutional rights
to petition, speech, association, and
participation in government are immune from
liability, regardless of intent or purpose, except
when not genuinely aimed at procuring
favorable government action, result, or
outcome.” 735 ILCS 110/15.
 Broader than other states’ SLAPP acts. Hytel
Group, Inc. v. Butler, 405 Ill.App.3d 126 (2d Dist.
2010).

19

Must be decided by court within 90 days of
noticing the motion. 735 ILCS 11/20(a).
20


Sandholm v. Kuecker 2012 IL 111433.
Immunity is not total; damages available
where plaintiff is “genuinely seeking relief.”
 “Substantial basis other than petitioning
activities.”


Defendant has initial burden of proof before
presumption arises.
CPA is properly raised as an other affirmative
matter in a 2-619(a)(9) motion.
21


All speech and activities in context of public issues
immunized under the terms of CPA, regardless of harm.
Adopts Noerr-Pennington doctrine: “except when not
genuinely aimed” at procuring government action.
 Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc.,
365 U.S. 127, 135 (1961); United Mine Workers v. Pennington, 381
U.S. 657, 670 (1965).

Presumption for defendant unless plaintiff produces
clear and convincing evidence. 735 ILCS 110/20(c).
 Query, how does plaintiff produce evidence in response to motion
to dismiss?
22


Sec. 20(a) Purports to permit interlocutory
appeal.
Providing for appeal from non-final order
exceeds the legislature’s authority.
 Mund v. Brown, 393 Ill.App.3d 994 (5th Dist. 2009).
 Stein v. Krislov, 405 Ill.App.3d 538 (1st Dist.2010).
23

Reasonable attorneys fees and costs awarded
to defendant in connection with motion. 735
ILCS 110/25.
 Note: to moving party, not prevailing party.

Only attorneys fees related to the motion,
not the entire case, may be awared under the
CPA. Sandholm v. Kuecker 2012 IL 111433.
24
Richard F. Friedman
attorney at law
203 N. LaSalle St. Suite 2300
Chicago, IL 60601
312 641-7144
25