Attorneys representing Kevin Ketchum in a deceptive practices lawsuit over postings on some "What's Happening" pages for suburban cities on Facebook want the litigation thrown out, arguing Patriot Heating and Cooling of Elburn has failed to show any damages.
Defense attorneys for Ketchum, president of Nexxus Publishing, and McNally's Heating and Cooling of St. Charles, recently filed motions to dismiss the lawsuit.
Patriot filed the litigation earlier this year, arguing Ketchum would give preferential treatment to advertisers, such as McNally's, in his business magazine on Ketchum's "What's Happening" Facebook pages for communities such as St. Charles, Geneva, Batavia, Campton Hills, Naperville and Elgin.
The lawsuit argued Ketchum, the administrator for the "What's Happening" pages, portrayed the Facebook pages as communities where members can get recommendations on local businesses and restaurants, so it was deceptive on his part to give an edge to his advertisers. Patriot, which doesn't advertise with Ketchum, argues that favorable Facebook posts and recommendations from customers were deleted by Ketchum, but a defamatory post about Patriot was allowed to remain on the site for weeks.
Ketchum's attorney, Timothy Pike, disagrees.
"Because plaintiff has failed to allege that Nexxus published or made any disparaging statement about plaintiff's goods or services, plaintiff's complaint at law fails to allege any conduct against defendant Nexxus Publishing which falls under the definition of 'deceptive trade practice' as defined (by state law)," read part of Pike's motion.
McNally's defense attorney, Edward Druck, has the same argument as Pike, only on behalf of McNally's.
The lawsuit argues the uneven playing field on the "What's Happening" pages has cost Patriot business and profits, and allowed Ketchum to profit off what is portrayed as a free, resident-based community.
Joshua Feagans, an attorney representing Patriot, said he is confident the lawsuit will be allowed to proceed. Even if a judge dismiss it, it will be "without prejudice," meaning Patriot's attorneys will have an opportunity to revise and refile the lawsuit.
"Nowhere in their motion do they address the notion of deceptive practices," Feagans said. "I have no doubt the lawsuit will be able to proceed."
Kane County Judge David Akemann is expected to hear attorney arguments Dec. 6.