The authors discuss two routes to recouping attorney fees for defending frivolous claims: Illinois Supreme Court Rule 137 sanctions and, rarely, malicious prosecution.
A motion for sanctions under Rule 137 is the “easiest and most common option,” the authors wrote. The Rule “provides that sanctions may be awarded on three separate bases, all drawn from the language of the rule: where a pleading is 1) not well grounded in fact, 2) unwarranted by existing law, or 3) filed for improper purpose.”
A malicious prosecution claim “can lead to a more expansive recovery than sanctions, [but] it is also substantially more difficult to navigate successfully,” Mr. Mann and Mr. Haarlow wrote. “To state a claim for malicious prosecution, a plaintiff must demonstrate that (a) he or she won a ‘favorable termination’ of the suit; [t]he defendant brought it (b) without probable cause but (c) with malice, and (d) the plaintiff suffered arrest, seizure of property, or other special damage beyond the normal expense, time, or annoyance arising from an ordinary form of legal controversy.”