Notice of Electronic Filing
The following transaction was entered on 7/8/2026 at 9:38 AM CDT and filed on 7/8/2026
| Case Name: | Born v. AbbVie, Inc. |
| Case Number: | 1:25-cv-12737 |
| Filer: | |
| Document Number: | 33 |
Docket Text:
ORDER: Defendant’s motion to dismiss [26] is granted. See the attached order for further details. A plaintiff usually receives one opportunity to amend her complaint, Zimmerman v. Bornick, 25 F.4th 491, 494 (7th Cir. 2022), so Plaintiff may file an amended complaint by July 18, 2026, if she believes she can do so consistent with Rule 11 and this order. If Born elects to file an amended complaint, she must file a single document titled “second amended complaint” and that filing must include all relevant information and comply with FRCP 8(a). The court will not refer to prior filings nor will it permit multiple filings at different docket entries. If nothing is filed by that date, the dismissal will convert to one with prejudice and the court will close the case. Signed by the Honorable Lindsay C. Jenkins on 7/8/2026. Mailed notice. (vjd, )
1
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Kathryn Born,
Plaintiff,
v.
AbbVie, Inc.,
Defendant.
No. 25 CV 12737
Judge Lindsay C. Jenkins
ORDER
AbbVie, Inc. employed Kathryn Born from 2018 until her termination in 2025.
Born alleges that AbbVie fired her in retaliation for raising concerns about a defective
internal platform. Before the court is AbbVie’s motion to dismiss, which is granted
for the reasons given below, but Born is given leave to file a second amended
complaint.
AbbVie hired Born as a contractor in June 2018, and then as an employee in
February 2019. [Dkt. 24, ¶¶ 5–6.]1 In 2021, she was promoted to Training and
Communication’s manner in AbbVie’s Research and Convergence Hub (“ARCH”),
whose purpose was to “accelerate and improve scientific discovery” for the scientists
in research and development. [Id., ¶ 7, 9.] In this role, she created learning materials
for a software platform (the “ARCH Platform”). [Id., ¶ 7.]
In March 2022, Born reported to her supervisor that the ARCH Platform did
not perform certain capabilities described in internal R&D materials. [Id., ¶ 10.] She
made similar reports in May and July 2024, id., ¶¶ 18, 21, and in March 2025, she
met with human resources where she informed a representative of the ARCH
Platform’s deficiencies, and that “misleading internal and public statements had been
made concerning its capabilities and adoption.” [Id., ¶¶ 24–25.] She then filed a
formal ethics complaint. [Id., ¶ 26.] She also submitted a report in August, reiterating
concerns to AbbVie’s Office of Ethics and Compliance about the ARCH Platform’s
“functional deficiencies” and “misleading public statements.” [Id., ¶ 31.] Upon
investigation, she specifically identified (as inaccurate) “publicly accessible materials,
including a vendor website describing ARCH Platform’s core software as
incorporating ‘Generative AI.’” [Id., ¶ 33.]
1 The court accepts as true Born’s well-pleaded allegations and draws all reasonable
inferences in her favor. Thomas v. Neenah Joint Sch. Dist., 74 F.4th 521, 522 (7th Cir. 2023).
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Born was fired in September 2025. [Id., ¶ 43.] She insists that her termination
was “in retaliation for [her] continuous reporting” about these “functional
deficiencies” and “misleading public statements.” [Id., ¶ 46.] The amended complaint
raises a single retaliatory discharge claim under Illinois common law. [Dkt. 24.]
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the
plaintiff’s claims. “To survive a motion to dismiss under Rule 12(b)(6), a plaintiff’s
complaint must allege facts which, when taken as true, ‘plausibly suggest that the
plaintiff has a right to relief, raising that possibility above a speculative level.’”
Cochran v. Illinois State Toll Highway Auth., 828 F.3d 597, 599 (7th Cir. 2016)
(quoting EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007)).
Pro se complaints are construed “generously,” and reviewed “by substance, not label,”
United States v. Hassebrock, 21 F.4th 494, 498 (7th Cir. 2021).
Born’s theory of retaliation shifts from complaint to briefing. She first pled that
AbbVie terminated her for reporting “that the ARCH Platform had functional
deficiencies and for reporting misleading public statements.” [Dkt. 25, ¶ 46 (emphasis
added).] In responding to the motion to dismiss, however, she makes explicit that she
is not basing her claim on any “complaints about internal ‘functional deficiencies,’”
and therefore abandons those allegations. [Dkt. 29, at 1.] Rather, she says, she
“alleges a mismatch between what AbbVie publicly said ARCH could do and what
Plaintiff observed.” [Id. See also id., at 2, 4 (reiterating that she “alleges that AbbVie
publicly attributed to ARCH capabilities, adoption, and AI functionality that she did
not observe in practice, and that she reported that mismatch internally,” and “that
she reasonably believed those public-facing descriptions could mislead investors and
the public,” and “that she reported that AbbVie’s public statements about the ARCH
platform overstated its capabilities, adoption, and AI functionality and could mislead
investors and the public”).]
“To state a valid retaliatory discharge cause of action, an employee must allege
that (1) the employer discharged the employee, (2) in retaliation for the employee’s
activities, and (3) that the discharge violates a clear mandate of public policy.” Turner
v. Memorial Medical Ctr., 911 N.E.2d 369, 374 (Ill. 2009). There is no precise
definition for “clearly mandated public policy,” so courts look to state and federal
constitutions, statutes, and judicial decisions. Id. (citing Palmateer v. Int’l Harvester
Co., 421 N.E.2d 876, 878 (Ill. 1981)); Bradish v. Aperion Care Marseilles, LLC, 278
N.E.3d 718, 725 (Ill. App. Ct. 2025).
Born alleges that “[i]t is the clearly mandated public policy of the State of
Illinois that employees not be terminated for reporting conduct they reasonably
believe to constitute fraud, misleading financial representations, or other violations
of law affecting investors and the public.” [Dkt. 24, ¶ 47.] She similarly suggests, both
in her amended complaint and her brief, that “public descriptions of ARCH Platform’s
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capabilities could present potential compliance risks, including under the Sarbanes-
Oxley Act.” [Id., ¶ 34; Dkt. 29, at 4 (referencing Sarbanes-Oxley as supplying “legal
significance” to her concerns).] She identifies no other public policy.
Illinois courts have recognized situations in which “an employee is discharged
for reporting illegal or improper conduct” as satisfying the clear-mandate-of-publicpolicy
standard. Jacobson v. Knepper & Moga, P.C., 706 N.E.2d 491, 493 (Ill. 1998).
But “[t]he tort of retaliatory discharge was not intended to serve as a substitute
means for enforcement of particular laws,” and so courts also consider whether there
exists an adequate alternative remedy. Stebbings v. Univ. of Chicago, 726 N.E.2d
1136, 1141 (Ill. App. Ct. 2000). See also Zwick v. Inteliquent, Inc., 83 F. Supp. 3d 804,
809 (N.D. Ill. 2015) (“Illinois courts are concerned that some remedy be available to
deter conduct that is contrary to public policy, but find common law remedies
superfluous if a statutory remedy is already available.”) Sarbanes-Oxley, an investor
protection law, has its own built-in whistleblower regime: an “anti-retaliation
provision [that] covers employees who report fraud not only to the SEC, but also to
any other federal agency, Congress, or an internal supervisor.” Digital Realty Tr., Inc.
v. Somers, 583 U.S. 149, 163 (2018) (citing 18 U.S.C. § 1514A(a)(1)). Courts in this
district have therefore found that, where Sarbanes-Oxley applies, there is no
“common law claim for retaliatory discharge in Illinois.” Cohen v. Power Sols. Int’l,
Inc., 2018 WL 1919058, at *3 (N.D. Ill. Apr. 23, 2018); Zwick, 83 F. Supp. 3d at 809.
This is true even though the remedies are not identical, see Zwick, 83 F. Supp. 3d at
809, and when the protected conduct is “not exactly the same, [but] it is substantially
similar,” Cohen, 2018 WL 1919058, at *3.
AbbVie raises this argument, but Born responds only that she “does not assert
a claim under the Sarbanes-Oxley Act, and her claim does not depend on satisfying
SOX’s statutory elements.” [Dkt. 29, at 4.] But the question is not whether she is
proceeding under Sarbanes-Oxley; it’s whether she could be. Illinois courts emphasize
superfluity in deterrents, not claims. See Stebbings, 726 N.E.2d at 1141; Fellhauer v.
City of Geneva, 568 N.E.2d 870, 876 (1991). Moreover, since she explicitly identifies
Sarbanes-Oxley as forbidding the alleged fraud, this is not an instance where it’s
unclear that a statutory remedy would apply (and Born never argues as much). See
Cohen, 2018 WL 1919058, at *3.
True, the Seventh Circuit has impressed that the availability of a federal
remedy “does not automatically preclude a state retaliatory-discharge claim,” and
that “it appears that the Illinois Supreme Court looks at this fact as one of many
factors in a pragmatic approach toward determining when the tort of retaliatory
discharge will lie.” Arres v. IMI Cornelius Remcor, Inc., 333 F.3d 812, 813 (7th Cir.
2003); Brandon v. Anesthesia & Pain Mgmt. Assocs., Ltd., 277 F.3d 936, 945 (7th Cir.
2002). But in Arres, the Seventh Circuit observed that the federal law “does not
provide a remedy … in the first place, and that there was “no overlap” between the
federal and state law theories. 333 F.3d at 814. And in Brandon, it found that it was
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“unclear at best” if the plaintiff had a viable federal remedy, and, in any event, there
were differences between the two claims. 277 F.3d at 946.
Here, though, the elements of the claims overlap. See Harp v. Charter
Commc’ns, Inc., 2011 WL 13359240, at *6 (S.D. Ill. Mar. 23, 2011) (finding plaintiff
was collaterally estopped from establishing retaliatory discharge when Seventh
Circuit affirmed prior Sarbanes-Oxley ruling). And Born doesn’t even attempt to
explain why she didn’t proceed under Sarbanes-Oxley. She identifies no public policy
exception that related to citizen crime fighting, and she abandons any semblance of
a theory except that related to “investors and the public.” Moreover, when pressed to
explain how AbbVie mispresented itself publicly when she cites only a third party’s
description, see dkt. 24, ¶ 33, Born doubles down on the investor angle, identifying
four new corporate and investor-facing statements.2 [Dkt. 29, at 2–3.]
Against this backdrop, the court places considerable weight on the observation
that “retaliatory discharge was not intended to serve as a substitute means for
enforcement of particular laws,” and that “a court might even be obligated to dismiss
the claim in such a situation.” Stebbings, 726 N.E.2d at 1141. The Illinois Supreme
Court is reluctant to expand the scope of the tort, see Putnam v. CaramelCrisp LLC,
WL 14079454, at *3 (N.D. Ill. Sept. 1, 2020), and—from this court’s research—no
court applying Illinois law has recognized a cause of action when the common law
claim overlaps so explicitly with Sarbanes Oxley. Rather, courts have dismissed on
that basis alone. See Cohen, 2018 WL 1919058, at *3; Zwick, 83 F. Supp. 3d at 809.
To be sure, Born grapples with none of this. She says only that she “does not
assert a SOX claim, and those later references do not convert this Illinois commonlaw
retaliatory-discharge claim into a federal statutory cause of action.” [Id., at 4.]
Nor does she cite a single legal authority—not for her clearly mandated public policy,
the overlap wrinkle, or anything else. These shortcomings factor in, too.
2 “[W]hen adjudicating a motion to dismiss under Rule 12(b)(6), a district court is
limited to the allegations in the complaint.” Fin. Fiduciaries, LLC v. Gannett Co., 46 F.4th
654, 663 (7th Cir. 2022). In other words, “it is a basic principle that the complaint may not
be amended by the briefs in opposition to a motion to dismiss.” Agnew v. Nat’l Collegiate
Athletic Ass’n, 683 F.3d 328, 348 (7th Cir. 2012) (alterations accepted and citation omitted).
For this reason, these new statements cannot save a complaint that, notwithstanding the
above issues, is otherwise flawed. See Roberts v. Board of Trustees Community College Dist.
No. 508, 135 N.E.3d 891, 898 (Ill. 2019) (rejecting conclusory allegation of misrepresentation).
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For these reasons, the motion to dismiss is granted without prejudice. If Born
elects to amend, she must file a single document titled “second amended complaint,”
and that filing must include all relevant information. The court will not refer to prior
filings nor will it permit multiple filings at different docket entries.
Enter: 25-cv-12737
Date: July 8, 2026
Lindsay C. Jenkins
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