Depends. If the defense filed a counterclaim for intentional infliction of emotional distress based upon a theory that the underlying case was filed without any basis whatsoever but, instead, to intentionally cause the defendant emotional distress, the defendant will have a difficult road to hoe. Under Illinois law, there is a qualified litigation privilege which immunizes both parties from claims of civil torts so long as the conduct in question occurs as part of the litigation process and is not clearly plead or filed for the sole purpose of harassment or intimidation, without any good faith basis in the law. If the underlying pleading being attacked has some modicum 'good faith' or some basis in fact, a counterclaim attacking the complaint as queried should be subject to a motion to dismiss or a motion for summary judgment once some evidence is produced to support the claim. The law presumes good faith by the parties and the burden is on the opposing party to assert and prove and the complaint has no basis in law or fact.
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