Atturo Tire Corporation v. Toyo Tire Corp., et al.

Respondent Toyo, one of the world’s largest tire companies, filed a complaint with the federal International Trade Commission (“ITC”) against a group of tire manufacturers and distributors. Petitioner Atturo, a small competitor, was not named in Toyo’s ITC case, and no Atturo tires were challenged in it. Toyo quickly settled its ITC claims, requiring that ITC respondents promise never to make or sell Atturo’s best-selling tire. A Chicago federal jury awarded Atturo millions of dollars in damages on Illinois law claims for tortious interference with business expectancy, unfair competition, and unjust enrichment based on Toyo’s use of the ITC proceeding–which did not involve Atturo or its tires–to keep other companies from doing business with Atturo. Because Toyo had once asserted short-lived patent claims against other parties in the Chicago case, it appealed to the Federal Circuit. The Federal Circuit held that the jury’s award was barred by Illinois’ absolute litigation privilege, while admitting that there was no guiding Illinois precedent and that it had to “predict” how the Illinois Supreme Court would rule. And while an Illinois rule allows certification of open questions of Illinois law to the Illinois Supreme Court, it only permits them from the Seventh Circuit or from this Court (not from the Federal Circuit). The question presented is: Should this Court certify to the Illinois Supreme Court whether Illinois’ absolute litigation privilege bars Atturo’s claims of tortious interference with business expectancy, unfair competition, and unjust enrichment, and, if the Illinois Supreme Court rules it does not, remand for proceedings consistent with the Illinois opinion?