Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

 EGAN MARINE CORP. v. GREAT AMERICAN INSURANCE COMPANY OF NEW YORK (November 23, 2011)

Egan Marine Corporation operates vessels on the Chicago Sanitary and Ship Canal. Its sister company, Service Welding and Shipbuilding operates the shipyard. Egan and SWS obtained insurance from the Great American Insurance Company against an event that exposed either to specific federal statutory environmental liability. The policy covered each of the companies’ vessels up to $5 million. In January of 2005, an Egan tugboat was pushing an Egan barge filled with slurry oil up the canal when the barge exploded. The Coast Guard designated the barge as the source of the discharge and notified Egan that it could be held financially responsible for all damages. Great American hired Egan and SWS to conduct spill management, cleanup, and salvage operations. The companies agreed to provide those services at cost. A dispute arose between the parties regarding Egan's billing methodology. The parties also were at odds over the amount of coverage. Great American took the position that the barge was the only vessel involved in the incident and the coverage was therefore limited to $5 million. Egan took the position that both the barge and the tugboat were involved and that coverage extended to $10 million. The Coast Guard sent a letter on May 18, 2005 indicating that the emergency response was complete except for oil remaining in the canal, which it directed Egan to remove. The Illinois EPA filed suit for an injunction, civil penalties, and costs. Great American paid for Egan's expense for some time, but then stopped. The United States also brought suit, seeking removal costs and civil penalties. The suit names both the tugboat and the barge as responsible. Egan and SWS brought suit against Great American alleging breach of contract and breach of good faith and fair dealing. Great American counterclaimed for a declaratory judgment. On summary judgment, Judge Kennelly (N.D. Ill.) ruled that Great American satisfied its policy obligations with respect to the barge but that it breached the policy by not honoring the $5 million coverage for the tugboat. After a bench trial, the court ruled that the only damages from the breached contract were unpaid defense costs, that Great American did not breach the contract by disputing and refusing to pay the total amounts claimed by Egan for the recovery efforts, that Great American breached the contract by refusing any coverage after the Coast Guard letter, and that Great American did not breach its duty of good faith and fair dealing. Both parties appeal.

In their opinion, Seven Circuit Judges Bauer, Flaum, and Sykes affirmed. First, the Court concluded that Great American's refusal to pay the amounts claimed by Egan on the ground that they did not represent Egan's "costs," was not clear error. Egan had refused an opportunity to provide additional justification for its claims to Great American and the record evidence did not support a conclusion that they were entitled to the money claimed. Second, the Court also found no error in the district court's conclusion that coverage extended beyond the date of the Coast Guard letter but did not extend beyond the date of the Illinois EPA's lawsuit, in which there was no mention of any ongoing threat of contamination. Third, the Court concluded that New York law does not recognize an independent breach of good faith claim that is based on the same evidence as a breach of contract claim. Fourth, the Court agreed that the tugboat was entitled to coverage in that it was a "vessel" under federal pollution statutes, that it was the barge's sole means of propulsion, and that it therefore posed a substantial threat of discharge. Finally, the Court concluded that Egan incurred defense costs in the Illinois EPA suit as part of its exposure under federal and state pollution statutes. The defense costs were therefore covered under the policy.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

DAKOTA, MINNESOTA & EASTERN RAILROAD CORP. v. WISCONSIN & SOUTHERN RAILROAD CORP. (September 20, 2011)

Dakota, Minnesota & Eastern Railroad and Wisconsin & Southern Railroad both operated freight lines in southern Wisconsin. Wisconsin approached Dakota in an effort to purchase some rail line near Janesville, Wisconsin. The line included a 200-foot spur connecting the line with a plant owned by Freedom Plastics. Freedom’s facility was the only plant on the spur. It shipped several carloads a week and was Dakota's largest customer in the area. So Dakota did sell the line to Wisconsin but retained the right to use the line and retained an exclusive easement to serve Freedom over the spur. Years later, Freedom entered receivership. The receiver eventually sold the Janesville plant to North American Pipe Corporation. Wisconsin started shipping for North American, contending that Dakota’s exclusive easement terminated when the plant was sold. Dakota brought suit against Wisconsin, alleging two theories of recovery: 1) breach of contract, on the theory that the exclusive easement was not personal to Freedom but rather referred to the plant itself, and 2) trespass, on the theory that Dakota never sold the tracks, only the land under the tracks. Chief Judge Conley (W.D. Wis.) granted summary judgment to Wisconsin on both claims. Dakota appeals.

In their opinion, Seventh Circuit Judges Bauer, Posner, and Manion affirmed. With respect to the breach of contract claim, the Court sided with Wisconsin. It rejected Dakota's claim that "trade usage" converted its right to serve Freedom to a right to serve the facility, no matter who owned it. Dakota’s only evidence (a railroad worker’s affidavit) was insufficient to establish trade usage, said the Court. Trade usage requires at least management-level, if not expert, opinion testimony. Then, although it found the contract unambiguous, it considered extrinsic evidence because the parties both relied on it. But the evidence of negotiations did not support Dakota's position. With respect to the trespass claim, the Court noted that the contract of sale excluded the spur tracks but the quitclaim deed did not. Given that inconsistency, the Court stated that the deed controls. Furthermore, the rails are fixtures and sold with the real property to which they are attached. In any event, the Court concluded that the trespass claim was unnecessary. If Dakota had the contract right it claimed, it would prevail on the contract claim without the trespass claim. If it did not have those rights, it could prevail on neither

• Email This
• Print
• Comments
• Trackbacks
• Share Link

QUALITY OIL, INC. v. KELLEY PARTNERS (September 19, 2011)

Kelley Partners operates a number of quick-lube facilities in Illinois. In 2003, it entered into an agreement with lubricants distributor Quality Oil which provided: a) Quality “loaned” $150,000 to Kelley without cost, b) Kelley agreed to purchase 85% of its motor oil requirement from Quality and agreed to purchase at least 225,000 gallons of oil and 225,000 oil filters over five years, c) the agreement terminated when Kelley either met the purchase requirements or 60 months, whichever came first, d) Kelley agreed to pay a penalty if it terminated the agreement early, and e) Kelley agreed that it could be liable for the termination penalty if it transferred any of its locations without obligating the purchaser to the contract terms. Two years into the agreement, and before it met its purchase requirements, Kelley sold its business without obligating its purchaser to the contract. Kelly refused to pay an early termination penalty. Quality brought a breach of contract claim against Kelley. Magistrate Judge Cox (N.D. Ill.) granted summary judgment to Quality for the termination penalty and prejudgment interest. Kelley appeals.

In their opinion, Seventh Circuit Judges Ripple, Evans (who, as a result of his death, took no part in the decision), and Sykes affirmed. Kelley's principal argument was that the five-year/225,000 gallon contract termination clause was handwritten, that it should therefore take priority over other contract terms, and that it should be interpreted to relieve Kelley of any obligation after five years, even if it did not meet the purchase requirements. The Court rejected that argument on several grounds. One, handwritten terms are not given priority if they alter the fundamental contractual bargain. Two, a contract must be ready in its entirety. And three, a contract should be interpreted so as not to produce absurd results. Here, although the Court conceded that a literal interpretation of the handwritten term could support Kelley's argument, it made no commercial sense to read it that way, taking the agreement as a whole. Kelley stopped purchasing motor oil from Quality after two years without having met its contractual obligation and then sold its business. It therefore breached the agreement and was liable to Quality for the early termination penalty.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

WELLS FARGO BANK v. LAKE OF THE TORCHES ECONOMIC DEVELOPMENT CORPORATION (September 6, 2011)

Lake of the Torches Economic Development Corporation is chartered under tribal law. It operates the Lake of the Torches Resort Casino in northern Wisconsin. Several years ago, the company issued $50 million in revenue bonds in order to finance a riverboat casino in Mississippi. The accompanying indenture named Wells Fargo Bank as trustee. Under the indenture, Wells Fargo was given certain oversight powers with respect to casino revenues. Lake of the Torches also agreed to a limited waiver of its sovereign immunity with respect to lawsuits related to the bonds. The Mississippi casino investment was not a success. Lake of the Torches stopped depositing casino revenue into the Wells Fargo trust account and ultimately repudiated its $46 million bond obligation. Wells Fargo brought suit for breach of the Indenture and sought the appointment of a temporary receiver. Without any notice or hearing, Judge Randa (W.D. Wis.) dismissed the case for lack of jurisdiction. He concluded that the Indenture was a management contract under the Indian Gaming Regulatory Act, that the Indenture was not approved by the National Indian Gaming Commission as required by the Act, that the Indenture was therefore void, that the waiver of sovereign immunity was also void, and that the district court lacked jurisdiction. The court also denied Wells Fargo's request for leave to file an amended complaint asserting claims under the bond documents only. Wells Fargo appeals.

In their opinion, Seventh Circuit Judges Flaum, Ripple, and Evans (who, as a result of his death, did not take part in the decision) affirmed in part and reversed and remanded in part. The Court first addressed its jurisdiction, given that the defendant was a tribal Corporation. It noted that most courts agree that Indian tribes themselves are not citizens of any state for diversity purposes. However, the 9th and 10th Circuits have held that a tribal Corporation is the equivalent of a Corporation created under state law. The Court agreed and concluded that there was no reason to treat a tribal Corporation that engages in commerce differently than its non-tribal counterparts. Turning to the merits, the Court noted that Congress passed the Act in 1988 to provide a comprehensive framework for tribal gaming. The Act requires that any management contract entered into by a tribe for the operation and management of the casino must be reviewed and approved by the Commission Chairman. Failure to do so renders the contracts void. The principal issue on appeal is whether the Indenture is a management contract under the Act. Unfortunately, the term is not defined in the statute. The Court turned to the language and overriding purpose of the Act. Although it conceded that some of the Act's provisions seemed directed at the more traditional management contracts, in which a third-party actually operates the facility, it also found some provisions that seemed to apply more broadly. Ultimately, the Court could find no strong indication that Congress intended to limit the breadth of the term. The Court also looks to statements from the Commission and from its Acting General Counsel, even recognizing that they were not entitled to any particular deference. In the end, it was clear to the Court that Congress was not simply concerned with traditional management contracts but was concerned about any agreement that allowed for some influence in management decisions. Examining the Indenture Agreement in that light, the Court concluded that it was a management agreement under the Act. In doing so, the Court focused on certain indenture provisions that gave Wells Fargo control over the trust account, limited capital expenditures, and allowed, in certain circumstances, the bond holder to retain experts to make recommendations concerning casino operations. The Court also concluded that the regulatory framework did not allow for reformation of the Indenture and removal of any offending provisions. The district court erred, however, in denying Wells Fargo leave to amend. It is premature, on the face of the complaint, to conclude that the bond documents are collateral documents under the Act or that the sovereign immunity waivers contained in those documents are also void as part of the same transaction. The Court remanded to allow Wells Fargo an opportunity to file an amended complaint.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

KOLBE & KOLBE HEALTH & WELFARE BENEFIT PLAN v. THE MEDICAL COLLEGE OF WISCONSIN, INC. (September 2, 2011)

Scott Gurzynski worked for the Kolbe & Kolbe Millwork Co. and participated in its welfare benefit plan. His daughter K.G. was born in 2007. Although he submitted an enrollment change to the Plan in mid-2007, it was incomplete. For example, he neglected to indicate whether K.G. lived with him and whether he claimed her as a tax exemption. It was not until late November that he admitted that she did not live with him and that he was not claiming her as an exemption. The Plan requested additional information without success. It eventually denied enrollment status to K.G. in June 2008. Meanwhile, K.G. had received over $1.5 million in medical care from the Medical College of Wisconsin and the Children's Hospital of Wisconsin, all paid for by the Plan. After its decision denying K.G. enrollment status, the Plan asked the Medical College and the Children's Hospital to refund the money the Plan had paid. They refused. In a second amended complaint, the Plan seeks recovery under three theories: a) ERISA § 502(a)(3) equitable relief, b) unjust enrichment under federal common law, and c) breach of contract. Judge Crabb (W.D. Wis.) dismissed each of the claims and awarded attorneys fees to the defendants. The Plan appeals.

In their opinion, Seventh Circuit Judges Flaum and Williams and District Chief Judge Herndon affirmed in part and reversed and remanded in part. The Court addressed each theory in turn. ERISA § 502(a)(3) allows a Plan fiduciary to bring an equitable claim to enforce a term of the Plan. Here, the Plan seeks to enforce the Plan's overpayment provision. Under that provision, the Plan is entitled to seek recovery of payments it has made in error. However, the Plan limits that right to recovery from a "Covered Person." Although that term is not defined in the Plan, it is clear that neither the defendants, who provided the medical services, nor K.G., who was denied enrollment in the Plan, is a "Covered Person." The ERISA count was properly dismissed. In fact, in addressing the unjust enrichment count, the Court noted that ERISA had nothing to do with the case. K.G. was never covered by the Plan -- there is no need to interpret ERISA or the Plan. Therefore, there is also no ERISA unjust enrichment claim. The Court turned to the state law breach of contract claims. First, it concluded that the claims were not preempted by ERISA since the claims do not relate to the terms of the Plan. Instead, they relate to the contracts between the Plan and the defendants. The Court therefore remanded the state law claims to the district court, with the comment that the normal practice would be to decline to exercise supplemental jurisdiction over the claims. With respect to attorney's fees, the Court stated that the basic question, after the prevailing party's showing of some degree of success on the merits, is whether the losing party's position was substantially justified or merely harassment. The district court had concluded that the ERISA and state law claims were not substantially justified. The Court concluded that that was an abuse of discretion. It found all of plaintiffs claims to be substantially justified and taken in good faith – and reversed the fee award.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

EDGENET, INC. v. HOME DEPOT U.S.A. (September 2, 2011)

When Home Depot wanted a classification system for its inventory database, it went to Edgenet. Home Depot and Edgenet entered into a contract for the creation of the taxonomy. The contract provided that Edgenet owned the intellectual property and that Home People had a no-cost license as long as Edgenet continued to provide services. If Home Depot terminated its service contract with Edgenet, the license terminated and Home Depot had to either purchase a $100,000 perpetual license or stop using the taxonomy. In early 2009, Home Depot gave notice that it would no longer be needing Edgenet’s services and tendered $100,000 for the perpetual license. Edgenet filed suit alleging that Home Depot infringed its copyright on the taxonomy. Judge Stadtmueller (E.D. Wis.) dismissed the claim, concluding that Home Depot had a right to use the taxonomy under the contract. Edgenet appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Sykes and Tinder affirmed. The Court first addresses its jurisdiction and satisfied itself that the case really arose under the copyright law and was not merely a breach of contract case. On the merits, the Court criticized the lower court for relying on Rule 12(b)(6) instead of Rule 56 when it relied on matters outside the pleadings but nevertheless affirmed its result. The Court concluded that: a) Home Depot never used the taxonomy in any prohibited way, b) Home Depot had the perpetual license option on the taxonomy's current version, not just the original one, and c) Home Depot exercised its option while its license was still in effect.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

THE NATURE CONSERVANCY v. WILDER CORPORATION OF DELAWARE (September 1, 2011)

The Wilder Corporation of Delaware owned 6,660 acres of farmland in central Illinois. In 2000, it sold the property to The Nature Conservatory, which intended to use it as a nature preserve. As part of the agreement, Wilder promised to remove hazardous and toxic substances from the property. The Conservancy brought suit in early 2006 on a number of contract matters. During discovery, it discovered petroleum contaminated soil on the property and amended its complaint. Judge Mihm (C.D. Ill.) granted summary judgment to the Conservatory. Wilder appeals.

In their opinion, Seventh Circuit Judges Rovner, Wood, and Tinder affirmed. The only issue on appeal is Wilder's contention that the petroleum contamination claim should be barred by the equitable doctrine of laches because it was filed seven years after the property transfer and five years after Wilder vacated the property. The Court noted that, in Illinois, laches will bar equitable relief when a party fails to assert a right over a period of time and causes prejudice to the other party. Here, the Conservancy's claim for relief is not in equity but for damages. Although the Court conceded that Illinois’ distinction between law and equity has evolved over the years, it did not believe that an Illinois court would apply laches to a simple breach of contract case for money damages between private actors. It concluded that it did not have to definitively answer that question, however, as it found that Wilder's defense failed for lack of prejudice. The Court noted that the record was devoid of any evidence of prejudice. Although Wilder claimed that the delay prevented him from showing prejudice, he never attempted to discover any facts that would support his claim of prejudice, in discovery or otherwise.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

MARCATANTE v. CITY OF CHICAGO (August 24, 2011)

The City of Chicago had Collective Bargaining Agreements between 1999 and 2003 with a coalition of trade unions representing certain City employees. When the parties were unable to agree on 2003-2007 CBAs by the then-current CBAs’ expiration date, they entered into a letter agreement. The agreement extended the terms of the then-current agreements. The City also agreed that any wage increase it ultimately agreed to would be retroactive to July 1, 2003, unless otherwise agreed. Months later, while negotiations were still ongoing, the City offered certain employees an incentive to retire early. Some City employees took advantage of the offer and retired in early 2004. The City and the unions reached agreement on the 2003-2007 CBAs in July of 2005. Although the City agreed to a pay raise, it made the increase retroactive to 2003 only for certain employees. The early retirees were not included. A class of retired employees brought suit alleging due process and equal protection violations as well as state law claims for breach of implied contract and breach of express contract. On cross motions for summary judgment, Judge Kocoras (N.D. Ill.) found for the City on the due process, equal protection, and express contract claims but found for the plaintiffs on the implied contract claim and awarded over $1.7 million in damages. The City appeals on the implied contract claim. The plaintiffs cross-appeal on the due process and express contract claim.

In their opinion, Seventh Circuit Judges Posner, Kanne, and Tinder affirmed in part and reversed in part. The Court first struck plaintiffs' cross-appeal as improper. A cross-appeal is appropriate only when a party wants to alter the district court's judgment. The plaintiffs are not seeking any modified relief on the breach of contract appeal. Although they did seek modified relief under the due process claim, they did not do so until their reply brief -- and so waived that claim. As an aside, the Court noted its agreement with the district court's dismissal of those claims on the merits. The Court turned to the implied contract claim, on which the plaintiffs prevailed. An implied-in-fact contract is created by law and is based on the parties' conduct. The contract is inferred from the surrounding facts and circumstances and gives effect to an unstated promise. However, an implied contract cannot exist where an express contract already governs the same subject. Here, the Court found that the subject matter -- plaintiffs' pay rate -- was governed by the Collective Bargaining Agreements. The fact that retroactive increases were given in similar situations in the past is irrelevant, as is plaintiffs' hope for such an increase. Given the existence of the express contract, there can be no implied contract. Furthermore, the letter agreement is unambiguous and only provided that agreed pay raises would be retroactive. Since the parties did not agree on a pay raise for the retirees, there was nothing to make retroactive. An implied-in-law contract is not really a contract but an equitable claim for unjust enrichment. But, just like an implied-in-fact contract, an implied-in-law contract cannot coexist with an express contract on the same subject matter.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

BOYD v. TORNIER, INC. (August 24, 2011)

Tornier, Inc. is a national medical goods manufacturer, particularly in the joint replacement field. In 2003, it entered into exclusive distribution agreements with Boyd Medical in Missouri and Addison Medical in Iowa. The agreements provided that Boyd and Addison had exclusive distribution rights in their respective areas, that they could not sell products that competed with Tornier products, that Tornier could set sales quotas, and that the failure to meet a sales quota was grounds for termination. Even when it entered into these agreements, however, Tornier was developing a plan to convert these distributorships into dedicated Tornier outlets. Tornier told both Boyd and Addison of its plan and represented to both that they would be exclusive distributors of its new and expanded product line. Boyd and Addison began preparing for that opportunity by dropping other product lines. The truth, however, was that Tornier was not satisfied with Boyd and Addison and had already found replacement distributors. When the time came, it increased the sales quotas for both distributors and terminated them when they failed to meet the new quotas. Both Boyd and Addison went out of business and sued Tornier for breach of contract, intentional misrepresentation, and negligent misrepresentation. Magistrate Judge Wilkerson (S.D. Ill.) dismissed the negligent misrepresentation count as to Addison pursuant to Iowa law limitations on such a claim and sent the other claims to the jury. The jury found against Tornier on all claims and awarded $1.4 million in compensatory damages to Boyd, $1.1 million in compensatory damages to Addison, and $2 million in punitive damages for each. The district court set aside the punitive damages but otherwise upheld the verdict. Both parties appealed.

In their opinion, Seventh Circuit Judges Bauer, Wood, and Sykes affirmed in part, vacated in part, and remanded. The Court first addressed the breach of contract claim, which was governed by Texas law under a choice of law clause. It found that the contract specifically excluded lost profits relief after termination. Texas law, however, provides that contractual limitations on damages are not enforced when there is a bargaining disparity between the parties. The district court allowed the jury to decide whether there was a disparity as a matter of fact. The Court disagreed and vacated the compensatory damage awards. Although Boyd and Addison were dependent on Tornier, they were so by choice. They were both sophisticated businesses and could have rejected Tornier's contract demands. The Court turned to the intentional misrepresentation claims, the elements of which are: a) a false, material representation, b) that the speaker knew was false, c) spoken with the intent to deceive, d) which was justifiably relied on, and e) causing damages. Tornier challenged both the justifiable reliance and the knowledge of falsity elements. The Court affirmed the district court, finding sufficient evidence of those two elements in the record to support the jury's verdict. On Boyd's negligent misrepresentation claim, Tornier argued that the same limitation that Iowa law imposed on Addison's claim (limiting it to professionals whose business is to give advice) should be imposed on Boyd's (which was governed by Missouri law). The Court found no Missouri case that imposed such a limitation and declined the invitation to expand state law. The Court turned to tort damages. The jury's actual damage award was based on six years of lost profits assuming a 20% annual growth rate. The Court had no difficulty with the six years of lost profits, even though the distributorship contracts were of a one-year duration. Both Missouri and Iowa allow tort damages beyond a contract term if there is an ongoing relationship. There was sufficient evidence of that relationship in the record for the jury's finding. On the other hand, the assumed 20% growth rate was not supported by anything other than conjecture and hope. The Court remanded for further damage calculation. Finally, the Court addressed the punitive damage award. An award of punitive damages requires a showing of actual or legal malice. It found that Tornier's behavior, although tortious, was not vindictive or so outrageous as to meet the punitive damages standard.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA v. ZF BOGE ELASTMETALL LLC (August 19, 2011)

Prior to 2007, ZF Boge operated two manufacturing facilities in the United States. The one in Paris, Illinois was unionized. The workers were represented by the UAW. The company's second facility was in Hebron, Kentucky and was non-union. In early 2007, ZF Boge began to consider closing one facility and consolidating its operations in the other. The Paris plant manager approached the UAW and requested renegotiation of several provisions of the Collective Bargaining Agreement then in effect. The request was couched in terms of maximizing the long-term viability of the Paris facility. The company and the Union reached an agreement in mid-2007. The agreement took the form of a chart, with the CBA provisions in one column and the negotiated amendments in another. The agreement provided that the changes would not take effect unless Paris became the surviving facility and that, if it did not, it would continue to operate under the original CBA. ZF Boge announced its decision to close the Hebron facility and to consolidate its operations at the Paris facility. Before the consolidation was complete, ZF Boge and the UAW began to negotiate a new CBA, since the then-current one was due to expire in April 2008. The parties were unable to agree on a new CBA. The UAW members went on strike. ZF Boge reversed its decision and closed the Paris facility, consolidating its operations in Kentucky. The Union filed an action pursuant to § 301 of the Labor Management Relations Act, alleging that ZF Boge breached the midterm agreement. It sought damages and specific performance. Chief Judge McCuskey (C.D. Ill.) granted summary judgment to ZF Boge, concluding that the midterm agreement was a CBA modification that expired with the CBA in April 2008. The UAW appeals.

In their opinion, Seventh Circuit Judges Ripple, Kanne, and Sykes affirmed. The Court recited several familiar rules of contract construction: contract interpretation is normally a matter of law, CBAs are interpreted like other contracts, the starting point is the contract's language, and a document should be read as a whole with consideration to its structure. The Court found the contract's structure very significant in interpreting its meaning, particularly given that it had no independent expiration date. It was clear to the Court that the chart simply listed those CBA terms that were modified, identifying the original and amended approaches. It clearly was not meant to modify any unidentified terms, including an expiration date. The fact that the contract precluded any renegotiation of the amended terms in a future CBA is not inconsistent with that conclusion. The Court therefore concluded, as did the district court, that the midterm agreement was a CBA modification that did not change the expiration date. The Court also rejected the UAW's view that, even if the amendment expired, it created some vested rights. Although the Court acknowledged that a contract can create obligations that survive its expiration, it noted that courts are reluctant to interpret contracts that way without clear language illustrating the intent of the parties. It found no such clear language in the midterm agreement. Finally, the UAW presented extrinsic evidence in an effort to show that there was a latent ambiguity in the contract. The Court found the proffered evidence insufficient to create such an ambiguity.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

YANNACOPOLOUS v. GENERAL DYNAMICS (July 26, 2011)

In the early 1980s, General Dynamics had a consulting agreement with Dimitri Yannacopolous under which Yannacopolous helped a subsidiary market telephone equipment in Greece. The agreement was terminated in 1983. In 1987, General Dynamics agreed to sell Greece several fighter planes plus parts and services. The sale was conducted under the auspices of the United States' Foreign Military Financing program. Under that program, Greece purchased the planes from General Dynamics directly but with funds loaned to it by the United States government. When Yannacopolous learned of the sale, he demanded a commission. General Dynamics refused. Yannacopolous brought suit against General Dynamics and lost. Relying on information he obtained, at least in part, from discovery in that suit, he filed a False Claims Act complaint against General Dynamics. Judge Gettleman (N.D. Ill.) granted summary judgment to General Dynamics. Yannacopolous appeals.

In their opinion, Seven Circuit Judges Bauer, Sykes, and Hamilton affirmed. Under the False Claims Act, it is illegal to present to the United States a false or fraudulent claim for payment, to make a false statement material to a false claim, or to use a false record to conceal an obligation to pay. Individuals (known as "relators") are authorized to initiate civil suits under the Act on behalf of the United States and receive, in return, a percentage of any funds recovered. The elements of the claim are that: a) the defendants made a statement for the purpose of receiving money from the government, b) the statement was false, and c) the defendant knew the statement was false. Yannacopolous alleges several separate claims under the Act. He claimed that General Dynamics (or, in the case of d) below, Lockheed): a) lied about funds used to capitalize a Greek business development company, b) failed to disclose the deletion of the Economic Price Adjustment clause from the draft contract, c) made misrepresentations regarding spare parts purchases, and d) made misrepresentations in contract amendments. The Court considered each claim in turn. First, the Court rejected Yannacopolous's argument that General Dynamics breached the contract by charging to it its costs of establishing the Greek business development company. It did not violate the representation that "material" was of U.S. origin since the investment in the development company was not "material." Furthermore, there was nothing in the contract itself that prohibited these costs from being charged to the contract. In fact, it appeared that General Dynamics’ conduct was consistent with the contract. Yannacopolous also claimed that General Dynamics falsely certified compliance with respect to the business development company costs. Again, the Court rejected that claim, in part, because it related only to "material." It did concede that one certification neglected to explicitly refer to the contract. The Court concluded that no reasonable juror could find the omission material, since General Dynamics had recently submitted the contract for review. Second, the Court rejected Yannacopolous's argument with respect to the Economic Price Adjustment Clause deletion. The draft contract contained such a clause. It reduced the contract price because of the economic benefit General Dynamics was going to receive from advance payments. Greece agreed to delete the clause, however, in exchange for General Dynamics' agreement to deliver the planes on an accelerated schedule. Before General Dynamics submitted any invoices, it sent a letter to the government explaining that the clause was no longer applicable. Even if General Dynamics failed to comply with paragraph 10 of the Certification Agreement that required notification of any changes in the clause, the deletion of the clause was immaterial. Third, the Court rejected Yannacopolous's argument with respect to spare parts. Under the contract, $70 million was allocated for spare parts, including hardware and services. The services element was not subject to change but the hardware portion of the charge was understood to be an estimate, subject to recalculation at the end of the contract period. General Dynamics continued to submit invoices including spare parts charges after Greece decided to purchase some spare parts outside the contract. The contract required an "appropriate" adjustment to the spare parts price before the March 1987 payment. Yannacopolous maintained that General Dynamics’ failure to reduce the parts price after knowing of Greece's decision was a false statement. In order to prevail, Yannacopolous had to present evidence that General Dynamics knew that the initial estimate was incorrect and that Greece would not order $70 million in spare parts over the life of the contract. Yannacopolous did not produce evidence that General Dynamics could have known that Greece's decision to buy some spare parts elsewhere would lead to a conclusion that it would not purchase $70 million of spare parts from General Dynamics over the following decade. Next, the Court rejected Yannacopolous's interpretation of the contract with respect to the depot program and concluded there were no false invoices. Finally, Lockheed assumed all of General Dynamics' rights and obligations under the program in 1993 and entered into two contract modifications with Greece. Yannacopolous claims both are "reverse" false claims. The Court concluded that Yannacopolous did not present evidence that either modification was objectively false. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

TROVARE CAPITAL GROUP v. SIMKINS INDUSTRIES (July 20, 2011)

In late 2006, Leon Simkins decided to sell the family owned folding carton business and its affiliates, in which he was a controlling shareholder. He engaged Mesirow Financial to act as broker. Trovare Capital Group was interested and contacted Mesirow. In late May of 2007, Simkins and Trovare entered into a letter of intent ("LOI"). The agreement was generally nonbinding but did give Trovare a 90-day exclusivity period and obligated Simkins to pay a $200,000 fee if it breached the exclusivity period or gave Trovare written notice of a unilateral termination of the negotiations. The LOI included a termination date of September 30, 2007, after which neither party any obligations. Shortly afterward, the negotiations went south. Trovare's environmental consultant concluded that all real properties involved needed further environmental testing. Simkins and his family became more and more concerned about their own liabilities that would arise from a sale. At one point, Simkins told his own negotiating team that he did not want to go through with the deal. Although the parties continued to communicate, both Mesirow and Trovare began doubting the sellers’ sincerity. Trovare even demanded the breakup fee as early as August. After the communications stopped, Trovare brought suit against Simkins for the $200,000 fee. Judge Gettleman (N.D. Ill.) granted summary judgment to the defendants, concluding that the undisputed facts established that they did not terminate the negotiations and that they negotiated in good faith. Trovare appeals.

In their opinion, Circuit Judges Kanne and Evans and District Judge Clevert reversed and remanded. The Court quickly dispensed with Trovare's argument that it was entitled to the contractual $200,000 fee. The LOI imposed that obligation on the sellers only if they breached the exclusivity period or gave written notice of the termination of negotiations. Neither occurred here. Trovare also alleged, however, a breach of the implied covenant of good faith and fair dealing. The Court noted that Trovare could prevail on that claim if it proved that the sellers had decided to terminate negotiations but simply refused to provide a written notice. The Court disagreed with the district court that the undisputed record showed continued good faith negotiations beyond the termination date. The Court concluded that a reasonable trier of fact could conclude that the continued communications were not actually negotiations. The Court pointed to several parts of the record, including: a) Simkins’ statement that he “definitely" did not want to consummate the deal, b) Simkins later willingness to negotiate only if Trovare agreed to five demands, and c) the sellers’ misrepresentations that the second phase environmental inspections had already begun. Summary judgment for the defendants was error.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

COLLINS v. AMERICA'S SERVICING CO. (July 13, 2011)

In 2004, Phillip Collins bought a house in Lowell, Indiana. His lender assigned the mortgage servicing obligations to America's Servicing Company shortly after closing. Under the terms of the mortgage, Collins’s payment was due on the first of the month with a 15-day grace period, a late fee was assessed after the grace period, and any payment was always applied first to the oldest obligation. Collins missed his payments in September and October of 2006. He sought assistance from ASC. Collins and ASC entered into a forbearance agreement. Under the agreement: a) Collins did not have to make his November payment, b) the amount of his November payment was prorated over the following eight months’ payments, c) his due date was extended to the 15th of each month, d) the grace period was eliminated, and e) ASC would continue credit reporting. Collins apparently did not understand the agreement. He thought that he could avoid late fees and protect his credit under the agreement if he simply made his regular, though now slightly increased, monthly payments. Collins and ASC entered into a second agreement in April. ASC agreed not to accelerate the loan if Collins made his regular monthly payments for the following four months. Like the earlier agreement, there was no grace period and credit reporting continued. In fact, ASC charged late fees every month and reported him delinquent every month after September. Collins discovered this when he tried to refinance in August 2007. Collins sent a letter to ASC pursuant to the Real Estate Settlement Procedures Act (RESPA) and requested that ASC remove the late fees and retract any negative credit reports. ASE responded to the letter but refused his requests. He now faces foreclosure. Collins filed suit alleging violations of RESPA, the Indiana Home Loan Practices Act, and breach of contract. Judge Miller (N.D. Ind.) granted summary judgment to ASC on all counts. He concluded that ASC responded to Collins' RESPA request according to the statute. He concluded that Collins failed to prevent evidence of either a breach of contract or a material misrepresentation in violation of the Indiana statute. Collins appeals the latter two rulings.

In their opinion, Judges Bauer, Kanne, and Evans affirmed. The Court first addressed the breach of contract claim. The Court concluded that ASC fully complied with the terms of the mortgage, the first forbearance agreement, and the second forbearance agreement. After Collins missed his September and October payments, he was always in arrears. Even if he made every monthly payment, the monthly payments went to past due obligations. The fact that Collins understood otherwise, and may have even been told otherwise, does not help him. The language of the contracts is unambiguous and Collins cannot rely on oral modifications for a breach of contract under Indiana law. Likewise, Collins cannot succeed on his Indiana Home Loan Practices Act claim. The written agreements are very clear. Collins cannot prove that ASC made a knowing or intentional material misrepresentation.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

MATTHEWS v. WISCONSIN ENERGY CORP. (June 1, 2011)

After almost 20 years at Wisconsin Energy Corporation, Bernadine Matthews left the company in 1999. In 2003, Matthews and WEC settled a lawsuit that she had brought regarding reference requests. As part of a settlement, WEC agreed to respond to any reference requests in accordance with its policy existing at the time of the request and agreed not to say that she had been fired. In 2005, Matthews filed suit alleging that WEC breached the agreement twice in 2004. At about the same time that she filed suit, Matthews hired a consultant, Howard Schwartz, to help her find a job through a federal program for disabled persons. She gave Schwartz permission to contact third parties, including her former employers, to gather personal information. Schwartz sent a letter to WEC requesting work history confirmation and job performance comments. He advised WEC that he was assisting Matthews in her job search and that she had authorized the release of the information. One of WEC's attorneys responded. She told Schwartz that she would only provide basic work history, not performance comments. She also told him that Matthews had sued the company regarding their responses to reference requests. The district court granted WEC's motion for summary judgment and awarded attorneys’ fees. The Seventh Circuit affirmed for the most part, but reinstated the breach of contract claim based on the conversation Schwartz had with WEC's lawyer. That count was tried to a jury. The jury found for WEC and Judge Stadtmueller (E.D. Wis.) again awarded fees. Matthews appeals.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Evans affirmed. The Court first addressed Matthews' position that the district court erred in allowing WEC to argue that she waived the provisions when she allowed Schwartz to gather personal information. It rejected both her arguments: a) WEC was not required to plead the affirmative defense of waiver because Matthews did not include the facts giving rise to the defense in her complaint (in fact, the conversation had not yet occurred), and b) the settlement agreement's writing requirement applies only to joint waivers that would affect the meaning of the contract, not to a party’s unilateral right to waive a contract term. Second, with respect to the breach and damages instruction, the Court reviewed the substantive jury instructions as a whole and found no error. Third, the Court concluded that the evidence was sufficient to support an instruction that the jury could find that Schwartz was acting as Matthews agent. Matthews submitted the instruction in a joint pretrial report, she put into evidence a stipulation that presumed agency, and she granted Schwartz broad authority to gather information on her behalf. Although the Court concluded that the evidence was not enough to establish agency as a matter of law, it was enough for the jury to find agency. Finally, the Court affirmed the district court’s award of almost $600,000 in attorneys fees. Since the fee shifting provision was in a contract and not a statute, the Court applied a "commercially reasonable" standard. Given that WEC paid the fees before the jury verdict and that Matthews' final settlement demand was $500,000, the fees are commercially reasonable. The Court declined to reduce the amount of fees on the ground that WEC did not prevail in every single respect or on the ground that the award created a financial hardship for Matthews.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

DIGITECH COMPUTER v. TRANS-CARE, INC. (May 20, 2011)

When Trans-Care, a medical transportation company, decided to update its software, it approached Digitech. Digitech's first proposal contained a “satisfaction guarantee” – a provision that allowed Trans-Care to walk away from the contract in the first 90 days without paying any licensing fees. Several months later, after much negotiation, Digitech submitted a final agreement, which Trans-Care signed. The final agreement did not include the guarantee, although Trans-Care return the signed agreement with its own purchase order that purported to incorporate earlier proposals and promises. The final agreement also provided that: a) monthly licensing payments began 90 days after installation, b) Digitech could suspend services if payments became 60 days delinquent, c) Digitech could recover attorney's fees incurred in collecting unpaid balances, and d) both parties had to provide notice and an opportunity to cure prior to termination. Digitech completed the software installation on January 1, 2007. Trans-Care experienced substantial problems with the software and gave notice on March 1 that it invoking the 90-day guarantee. Digitech refused to honor the notice and eventually locked the system on April 3 for Trans-Care's payment delinquency. Digitech brought suit for breach of contract -- Trans-Care counterclaimed for fraud. Magistrate Judge Hussmann (S.D. Ind.) granted summary judgment to Digitech on the fraud claim and, at trial, found for Digitech also on its breach of contract claim. The court awarded damages based in part on its view that the contract had 33 months remaining. It also awarded Digitech its attorneys' fees for prosecuting the breach of contract case, but not for defending the counterclaim. Both sides appeal.

In their opinion, Judges Wood, Williams, and Tinder affirmed in part and vacated and remanded in part. The Court first affirmed the dismissal of Trans-Care's claim that Digitech committed fraud when it refused to honor the 90-day provision. The Court focused on the negotiation history. It pointed out that the provision existed in early draft proposals but dropped out during negotiations. The fact that it did not even appear in the final agreement was enough for the Court to conclude there was no fraud. The Court turned to Digitech's breach of contract claim. It concluded that Trans-Care breached the contract when it attempted to walk away from the deal without providing notice and an opportunity to cure. The Court rejected the notion that Trans-Care’s purchase order brought the guarantee back into the contract. The Court did part ways with the magistrate judge on damages, however. The magistrate judge calculated damages based on the remaining contractual term. But the Court noted that Digitech chose to terminate the contract on April 3. Since Trans-Care's licensing fee obligation did not begin until the 90-day period expired on March 31, Digitech is only entitled to licensing fees for the three days in April. With respect to attorneys' fees, the Court agreed that Digitech was not entitled to its fees for defending against the counterclaim since those fees were not incurred in connection with collecting an unpaid balance. Finally, the Court noted that the amount of fees awarded on the breach of contract claim should be reassessed in light of its significant reduction in damages.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

ARLINGTON LF, LLC v. ARLINGTON HOSPITALITY, INC. (March 3, 2011)

Arlington Hospitality, Inc. owned a number of hotels, mostly in the Midwest. Because of financial difficulties, Arlington filed for Chapter 11 bankruptcy in 2005. At about the same time, it entered into an agreement with a special-purpose entity, Arlington LF. Pursuant to the agreement, LF agreed to provide a $6 million revolving loan as well as other financing. Arlington agreed to two fees, "payable immediately" -- a $100,000 commitment fee and a $210,000 funding fee. The bankruptcy court approved the agreement with the caveat that LF had to give Arlington notice of any default and three business days to cure. A few weeks later, after Arlington had drawn down over $3 million of the loan, LF told Arlington's investment banker that it was unwilling to fund additional monies. LF also told the creditors’ committee did it would make no further loans. Only after those statements were made did tell LF actually send Arlington an invoice for the unpaid fees. When Arlington failed to pay, LF sent the required notice of default and gave Arlington three days to cure. Arlington still did not pay. Instead, with the court's approval, it sold its assets to a third party. It repaid the money it had borrowed from LF but not the fees. LF filed a motion in the bankruptcy court for its fees. The bankruptcy court denied the motion, ruling that LF was not entitled to the fees because it was guilty of an anticipatory breach. The district court reversed and remanded. It noted that, because the fees were "payable immediately," Arlington was already in default at the time of the breach. On remand, the bankruptcy court agreed with Arlington that it was not in default before LF’s breach because LF had not provided the required notice and opportunity to cure. It nevertheless felt bound by the district court's earlier opinion and awarded LF $842,000. The district court again reversed. It stated that the bankruptcy court had misunderstood the scope of its earlier ruling. It agreed that Arlington could not have been in default until it had an opportunity to cure. It remanded with instructions to enter judgment for Arlington. LF appeals.

In their opinion, Judges Bauer, Wood, and Williams affirmed. The Court concluded that it was faced with a rather simple question -- who breached the contract first? Under Illinois law, an unequivocal intent not to perform amounts to an anticipatory breach. The Court found no clear error (and, in fact, agreed with) the bankruptcy court's findings that the statements to the investment banker and the creditor's committee constituted just such a breach. Statements to the investment banker, Arlington’s agent, are the same as statements to Arlington. The Court also rejected LF's argument that the Statement of Account that it later sent to Arlington acted as a retraction of its breach. The only "retraction" was one line on the form indicating $2.5 million of available loan commitment. That statement is not sufficiently clear and unequivocal to constitute a retraction of the earlier breach. By the time LF provided the required notice, it was in breach. Its breach discharged Arlington's remaining obligations, including its obligation to pay the fees.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

RABE v. UNITED AIR LINES (February 28, 2011)

United Air Lines hired Laurence Rabe as a flight attendant in 1993. Although United assigned her to fly out of Paris , she signed an employment agreement in Chicago. Pursuant to the terms of the agreement, she was to perform her work on United's aircraft, she was required to join the flight attendants' union in the United States, she agreed that her employment would be governed by United States law, and she agreed that only a United States court would have jurisdiction over any employment claim. Rabe transferred to Hong Kong in 1997. She was on leave between 2002 and 2005, when she returned to Hong Kong. She was fired in 2008 amid allegations that she had misused travel vouchers. Rabe brought suit pursuant to Title VII, the Age Discrimination and Employment Act, and the Illinois Human Rights Act. She alleged that the real reason for her termination was the fact that she was a lesbian. Judge Pallmeyer (N.D. Ill.) dismissed the complaint, concluding that she lacked subject matter jurisdiction because Rabe was a non-citizen working principally outside of the country. The court did not address United's argument that the claims were precluded or preempted by the Railway Labor Act. Rabe appeals.

In their opinion, Chief Judge Easterbrook and Judges Coffey and Hamilton reversed and remanded. The Court first corrected the nature of the issue. Although Title VII and ADEA generally do not protect non-citizens working outside the country, it is not because district courts lack subject matter jurisdiction. The Supreme Court, in Arbaugh, held that Title VII's minimum employee threshold is a merits question, not a jurisdictional one. That same analysis applies here. Therefore, the Court concluded that the district court should have treated United’s argument as a motion to dismiss for failure to state a claim. On that issue, the Court stated that whether Rabe was protected by the statutes was debatable. Her recent employment involved very few flights to or from the United States, but her earlier employment mostly involved United States flights. The Court also noted without deciding that the United States registration of the aircraft on which she worked might be enough to justify statutory protection. Ultimately, though, the Court concluded that United’s motion to dismiss should have been denied for other reasons. United elected to protect itself from the uncertainties associated with international employment by insisting, in the employment agreement, that Rabe's employment was to be governed by United States law. She agreed. Therefore, in addition to her colorable statutory claims, she has state law claims for breach of contract or promissory estoppel. She should have been allowed to proceed on those claims. The Court also decided to address the Railway Labor Act question, although the district court did not. It concluded that the claims were not precluded or preempted because they are not based on the collective bargaining agreement and will not require a construction of that agreement.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

INTEGRATED GENOMICS v. GERNGROSS (February 24, 2011)

Integrated Genomics is in the business of mapping organisms' genomes and selling the data for commercial and noncommercial uses. In 2000, Tillman Gerngross, a Dartmouth College bioengineering professor, formed a private company to develop commercial uses for the genetic modification of yeast. In 2002, Gerngross sought to obtain a license to use data IG had developed regarding a species of yeast organism. The parties dispute whether Gerngross disclosed that he was seeking a license for commercial, rather than academic, purposes (the district court concluded that he had not). In any event, IG treated him as an academic customer. IG usually charges more to its commercial customers. Gerngross refused to sign IG's standard academic agreement, but did agree to some data publication restrictions. Merck acquired Gerngross’ company in 2006 for $400 million. IG accused Merck of using its data for commercial purposes. When Merck refused to compensate IG more generously, IG filed suit against Gerngross. It alleged that Gerngross fraudulently misrepresented his status when he acquired the license, breached an oral agreement to use the data for academic purposes only, and breach the written agreement that restricted publication. Judge Kennelly (N.D. Ill.) granted summary judgment to Gerngross on the oral contract claim (finding insufficient evidence of a contract), granted summary judgment to Gerngross on the written contract claim (concluding that internal data sharing was not publication), and entered judgment for Gerngross on the fraudulent misrepresentation claim after a bench trial (finding that Gerngross did not misrepresent the purpose of the data and that he had no duty to affirmatively volunteer its purpose, and concluding that IG failed to carry its burden that it would have made a difference). IG appeals the rulings with respect to the written agreement and fraudulent misrepresentation.

In their opinion, Judges Bauer, Rovner, and Hamilton affirmed. With respect to the written contract claim, the Court had to interpret Gerngross’ promise not to "publish" more than a certain amount of data per year. Applying state law, and particularly Illinois' rule to give contracts their plain meaning, the Court concluded that "publish" means disclosure to the public. Therefore, Gerngross’ sharing with Merck did not constitute a publication and was not a breach. With respect to the fraudulent misrepresentation claim, the Court concluded that there was sufficient evidence to support the district court's finding – and also sufficient evidence to support the finding urged by IG. The district court did not commit error in resolving the dispute as it did.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

GREENBERGER v. GEICO GENERAL INSURANCE CO. (January 10, 2011

The day after Stephen Greenberger got into a car accident, a GEICO insurance adjuster inspected his car and gave him a check for over $3200. Greenberger kept the money but never repaired the car. A few months later, in connection with the possible sale of the car, a mechanic estimated that the damage was closer to $5000. Greenberger eventually donated the car to charity. He brought suit against GEICO for breach of contract, fraud, and violation of the Illinois Consumer Fraud and Deceptive Practices Act. His claim is that GEICO purposely understates the value of necessary repairs in its estimates. Although he filed the action as a class action, the court never ruled on class certification. Judge Manning (N.D. Ill) dismissed the statutory fraud claim and granted summary judgment to GEICO on the contract and common law fraud claims. Greenberger appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Circuit Judges Kanne and Sykes affirmed. First, the Court concluded that the breach of contract claim was foreclosed by the Illinois Supreme Court's decision in Avery. That case stands for the proposition that a physical examination of the insured's automobile is necessary to prevail on a claim that one's insurer breached its promise to restore the automobile to its prior condition. Although Avery dealt with an insurer's practice of not using original equipment manufacturer parts, the principle is the same. The Court rejected Greenberger's attempts to distinguish Avery on the ground that he had an actual higher estimate. It also rejected his theory that GEICO failed to meet industry standards. With respect to the former, a higher estimate cannot establish the fact of a breach, although it may be admissible, supporting evidence. With respect to the latter, the Court noted that GEICO's promise was not to repair according to any industry standard. The Court also noted that Greenberger could not prove damages without the automobile. Second, the Court affirmed the district court's dismissal of the statutory fraud claim. The Act prohibits unfair and deceptive practices but does not apply to every simple contract dispute. Again, Avery controls. It held that a deceptive practice must include more than simply a promise and a breach. Here, Greenberger has only that. Finally, the Court addressed the common law fraud claim. That claim fails for the same reason the statutory fraud claim fails. Greenberger cannot identify a fraudulent act other than the breach. The Court noted that the claim also fails to the extent it alleges fraudulent concealment. Fraudulent concealment requires a fiduciary relationship. Insurers are generally not fiduciaries and Greenberger has not alleged with any specificity any reason why they should be considered so here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

RAIN v. ROLLS-ROYCE CORP. (November 18, 2010)

Among many other things, Rolls-Royce manufactures helicopter engines. A network of authorized repair and overhaul facilities supports that product line. Paramount International, owned by David Rain, competes with Rolls-Royce in the business of selling helicopter engine parts to those facilities. In 2006, Paramount and Rolls-Royce agreed to a non-disparagement clause as part of a lawsuit settlement. It simply stated: "None of the Parties will disparage the other." Rain brought suit in 2007, alleging a breach of the non-disparagement clause. He alleged two independent breaches: a) Rolls-Royce filed a RICO claim against a third party in which it alleged that Paramount and Rain were co-conspirators, and b) Rolls-Royce personnel asked him to leave a customer appreciation event held for its authorized network members, even though he was a guest of one of those members. Judge Lawrence (S.D. Ind.) granted summary judgment to Rolls-Royce, concluding that an Indiana absolute litigation privilege immunized it on the first claim and that the company's conduct with respect to the second claim did not amount to disparagement. Rain and Paramount appeal.

In their opinion, Seventh Circuit Judges Bauer, Flaum, and Hamilton affirmed. The Court first addressed the claims relating to the RICO allegations. Indiana does have an absolute litigation privilege and construes it liberally. It protects all "relevant" statements in the proceedings. Here, the Court concluded that the statements were relevant, given the pleading requirements for a RICO claim. Indiana courts, however, have only applied the privilege in tort liability, not contract liability, cases. With no Indiana authority, the Court looked elsewhere and adopted the rule applied in several other jurisdictions -- that the privilege does apply to contract claims, at least where its use is consistent with the purpose of the privilege. Here, the application of the privilege is consistent with the fair administration of justice and open expression by participants in a judicial proceeding. The Court further concluded that certification of the question was not warranted and affirmed the district court's application of the privilege. With respect to the claim based upon the company's conduct at the customer reception, the Court agreed that an Indiana court would look to a common dictionary definition of disparage -- that is, to dishonor, to unjustly discredit, to detract from one's reputation. The tougher question was whether the term referred to one's commercial reputation only or, as plaintiffs argued, to one's personal reputation. Relying on decisions from other jurisdictions, the Restatement, and the circumstances in which the clause appeared (the settlement of a commercial dispute), the Court concluded that the term should be applied to one's commercial reputation only. Since there was no evidence that Paramount or Rain suffered an injury in that sense, the Court affirmed.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

FEDNAV INTERNATIONAL v. CONTINENTAL INSURANCE CO. (November 1, 2010)

Three shipments of steel made their way across the Atlantic Ocean in 2001 and were delivered at Burns Harbor, Indiana. Each of the shipments was allegedly arrived damaged. Continental Insurance, the steel owner’s subrogee, brought suits against the carrier, Fednav, under the Carriage of Goods by Sea Act. The carrier agreement had a forum selection clause designating the federal district court with jurisdiction at the port of discharge (i.e., Burns Harbor) as the only available forum. Notwithstanding the forum selection clause, Continental filed the three suits in Illinois federal court. The court dismissed for improper venue. The Seventh Circuit affirmed. By that time, the statute of limitations had run and the cases were not refiled. Several years later, Fednav brought suit against Continental on a breach of contract theory. It alleged that Continentals’ breach of the forum selection clause allowed it to recover the costs and attorneys' fees it incurred in the earlier litigation. Judge Darrah (N.D. Ill.) dismissed the complaint as an impermissible attempt to recover attorneys' fees. Fednav appeals.

In their opinion, Chief Judge Easterbrook, Circuit Judge Hamilton, and District Judge Springmann affirmed. The Court first discussed choice of law. As a diversity case, state law governs substantive issues -- federal law governs procedural issues. Fednav's claim of entitlement to fees is a substantive issue and is therefore governed by state law. Since neither party raised a conflict of law issue, the Court applied the law of Illinois as the law of the state in which it sat. Illinois law generally adheres to the American Rule, under which a litigant bears her own fees and costs unless otherwise provided for by a contract or statute. The Court stated that Fednav cited no such contractual or statutory provision. Therefore, Fednav is not entitled to recover those fees in a breach of contract case. The Court also addressed Fednav’s argument that federal common law permitted recovery of attorneys' fees. It rejected the argument, both because Fednav waived it and because federal common law also recognizes the American Rule.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

COGSWELL v. CITIFINANCIAL MORTGAGE CO. (October 5, 2010)

In January 2001, the Patrick Group (PG) purchased a mortgage (and the underlying note) from CitiFinancial Mortgage Co. However, CitiFinancial could not locate the original note or mortgage. It gave PG a copy of the mortgage but could not locate even a copy of the note. PG ran into complications when it substituted for CitiFinancial in the pending foreclosure proceeding. A title search disclosed a gap in the recorded ownership of the mortgage. Because PG could not produce even a copy of the note, the court directed a verdict against PG. The appellate court affirmed. PG then brought suit for breach of contract against CitiFinancial. Judge Norgle (N.D. Ill.) granted summary judgment to CitiFinancial, concluding that the agreement did not require transfer of the note and that, even if it did, CitiFinancial’s failure to transfer was not the cause of PG's damages. PG appeals.

In their opinion, Judges Flaum, Ripple, and Sykes reversed and remanded. The Court first addressed whether the contract required the physical transfer of the note. The Court took issue with the district court's treatment of this as a question of law, as if it were a question regarding the existence of a contract. Here, there is no doubt that a contract exists. The only question concerns its terms -- and that is a question of fact. Relying on PG's offer letter, the contract itself, and an uncontested affidavit, the Court concluded that the contract was ambiguous. Although the district court's reading of the contract was plausible, it is not the only reasonable reading. The district court improperly resolved this factual dispute on summary judgment. It must go to a trier of fact. The Court turned to causation. Again, the Court disagreed with the district court and its holding that the failure to transfer was not the cause of damages because PG could have enforced its rights on alternative paths. The Court stated that Illinois applies a special rule to breach of contract cases when the alleged harm is a result of an adverse judicial outcome. In those cases, causation is a question of law and depends on an analysis of what a reasonable court would have done had the defendant not breached the contract. Here, the Court concluded that a reasonable Illinois court would have allowed PG to proceed with the foreclosure if it had a copy of the note. Thus, CitiFinancial's breach caused PG's damages. The Court also rejected CitiFinancial’s alternative paths argument, although it first re-categorized the arguments as "failed to mitigate," rather than failed to prove causation. It held that, under Illinois foreclosure law, a reasonable court would have ruled against PG on both the lost-note affidavit and the personal judgment theories.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

ALLIANCE 3PL CORP. v. NEW PRIME, INC. (August 2, 2010)

Loders Croklaan USA produces fats and oils used in the food industry. Until 2003, the company dealt directly with trucking companies to transport its product to its customers. One of the companies with whom it had such a relationship was New Prime, Inc. In 2003, Loders retained Alliance 3PL Corp., a transportation management services company, to manage its transportation needs. In turn, Alliance entered into a contract with New Prime to continue transporting Loder's products. The contract contained a back-solicitation clause which prohibited New Prime from soliciting any “traffic” from a company which it first learned about through Alliance. When Loders' contract with Alliance ended, New Prime submitted a successful bid directly to Loders. Alliance brought suit against New Prime for breach of the back-solicitation clause. A jury awarded Alliance $2.2 million in damages. Judge Bucklo (N.D. Ill.) denied New Prime's Rule 50 and 59 motions. New Prime appeals.

In their opinion, Chief Judge Easterbrook and Judges Kanne and Rovner reversed. The basic facts were not in dispute. The parties agreed that New Prime had a relationship with Loders before being retained by Alliance and that the amount of business available to New Prime increased during the Alliance era. The Court noted that the dispute arose regarding the meaning of the word "traffic" in the back-solicitation clause. The district court judge concluded that the word was ambiguous and allowed the jury to decide which meeting to apply. New Prime relied on the ordinary definition of the word in conjunction with the purpose behind the back-solicitation clause to conclude that, since it knew of the company and its general transportation needs before its contract with Alliance, it did not breach the clause. The Court found this position supported by Illinois restrictive covenant law. The Court added that a party that wants to divert from the normal definition of the term can do so with either parol or trade usage evidence -- and Alliance did neither. There is therefore no record support for Alliance's position that "traffic" should be defined as "amount of traffic" in order to hold New Prime liable.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

CW CAPITAL ASSET MANAGEMENT v. CHICAGO PROPERTIES (June 29, 2010)

Blockbuster, the movie rental company, has been hurt by increasing competition and changing business models. As a result, it has abandoned some of its stores. One of those stores was leased from Chicago Properties, a commercial landlord. Blockbuster settled the ensuing breach of lease lawsuit for $161,000, although it owed Chicago Properties future rents of $471,000. The mortgage on the property was held in trust as part of a mortgage-backed security. Bank of America is the trustee and CW Capital Asset Management is the servicer. CW Capital has been granted comprehensive power and authority with respect to the management of the trust’s assets. It brought suit under the parties' "Subordination, Non-Disturbance and Attornment Agreement" (the “Agreement”) for the $471,000. Judge Zagel (N.D. Ill) found for the defendants after a bench trial but then dismissed the suit on the grounds that CW Capital, as servicer, was not the real party in interest. CW Capital appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Evans reversed with directions (still finding for the defendants but on the merits). The Court first addressed the real party in interest issue. It concluded, based on its review of the law and the documents, that the trust held legal title to the claim but delegated equitable ownership to CW Capital. That was enough to be a real party in interest. Alternatively, even if CW Capital is not a real party in interest, the Court noted that the case should proceed under Rule 17(a)(3) since the trustee ratified CW Capital's suit in the district court. On the merits, the court noted that the Agreement defines the rights of the parties in the event of a default. Here, notwithstanding Blockbuster's breach, Chicago Properties has not defaulted. Since it continues to meet its monthly obligations, the terms of the Agreement relied on by CW Capital have not been triggered. With respect to the claims based on the mortgage itself and the owners' guaranty, the Court concluded that the settlement with Blockbuster was not a violation. Finally, the Court upheld the district court's award of attorney's fees to Blockbuster under a "prevailing party" term of the Agreement. The Court concluded that the fact that Blockbuster did not prevail on an "unimportant" counterclaim did not change its status as a prevailing party under the Agreement. Although the defendants had prevailed in the district court (on the real party in interest dismissal), the Court reversed that dismissal with directions to enter judgment on the merits for the defendants.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

NATIONAL INSPECTION & REPAIRS v. GEORGE S. MAY INTERNATIONAL (April 9, 2010)

National Inspection & Repairs (“NIR”) is a trucking company located in Topeka, Kansas. When one of its employees accidentally caused its accounting systems to crash, NIR sought help from George S. May International (" May"), a business consulting firm. The parties entered into a consulting agreement. The agreement required NIR to approve any effort recommended by May. It also prohibited NIR from hiring any May employee for a year after the date of the agreement. May submitted five progress reports over the course of the three-week engagement. Each report was approved by NIR. As soon as the engagement was complete, NIR hired the May project manager as its Controller. NIR alleges that the project manager embezzled hundreds of thousands of dollars from NIR while acting as its Controller. NIR brought a breach of contract action against May. It alleged that May breached the contract by failing to "implement" its duties and for negligently hiring and supervising the project manager. The district court granted summary judgment to May. NIR appeals.

In their opinion, Chief Judge Easterbrook and Judges Kanne and Sykes affirmed. They Court first quickly addressed its appellate jurisdiction. The district court had dismissed without prejudice a claim brought by each of the parties, which made its order non-final. The Court noted its own precedent the lifts the jurisdictional bar when each party agrees at oral argument to treat the dismissals as with prejudice. Here, the parties were not explicit at oral argument. However, they were explicit in post-argument briefing. The Court concluded that that was sufficient to lift the jurisdictional bar. On the merits of the "failed to implement" allegation, the Court noted that NIR cannot prevail because it never pointed to a specific obligation or provision of the agreement that May is alleged to have failed to implement. On the merits of the negligent hiring claim, the Court concluded that it was NIR that in fact breached the contract by hiring the project manager. Finally, the Court addressed NIR's breach of implied warranty and negligence claims. NIR has a tort claim under Kansas law only if there is a violation of a duty imposed by law, as opposed to by agreement. Since Kansas law does not impose any duty on the parties to a consulting services agreement, there is no action for breach of a duty.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

ESTATE OF LUSTER v. ALLSTATE INSURANCE CO. (March 23, 2010)

Wavie Luster lived alone in her home in Merrillville, Indiana. In late 2001, she was hospitalized after a fall. Upon her release from the hospital, she immediately moved into an extended-care facility, where she remained until her death in 2006. A fire caused extensive damage to her home a few months after her death. Her personal representative submitted a claim on the estate's behalf to Allstate Insurance Company, which had provided insurance on the home for years. Allstate denied the claim on the basis that her home had been unoccupied for over four years. Notwithstanding the denial, Allstate continued to bill Luster's representative and he continued to pay the premiums for more than two years after the fire. In late 2008, Allstate attempted to cancel the policy retroactive to November of 2001 and returned the premiums for that period. The estate brought suit against Allstate for breach of the insurance contract. The district court granted summary judgment to Allstate. The estate appeals.

In their opinion, Judges Posner, Ripple, and Wood reversed and remanded. The Court noted four relevant policy provisions: 1) the insured had an obligation to inform Allstate of any change in the use or occupancy of the premises, 2) the policy continued in effect after the death of the insured until the end of the premium period, 3) there was no coverage for a loss caused by an increase in hazard known to the insured, and 4) there was no coverage for loss caused by vandalism if the property was unoccupied for 30 consecutive days prior to the loss. With respect to notice requirement for a change in occupancy, the Court concluded that the 4+ years in which the house stood empty constituted a change in occupancy, notwithstanding the owner's desire to return. But Luster's failure to notify did not result in a automatic termination of the insurance contract. It was merely a breach, entitling Allstate to certain remedies, which may or may not have included rescission under Indiana law. In any event, Allstate took no action upon learning of the change in occupancy. It continued billing for and receiving the premiums for two years. With respect to the second provision, the Court concluded that the death clause could not revive a policy that had already lapsed -- it merely prevents a coverage lapse upon the death of the insured. It has no application here. The third provision is the provision the district court relied on in granting Allstate summary judgment. The district court ruled that leaving the house unoccupied constituted an increase in hazard as a matter of law. But the Court rejected that conclusion, stating that there is no rule that an unoccupied home for any period of time increases the hazard as a matter of law. Rather, an evidentiary hearing is required for Allstate to prevail on this ground. Finally, with respect to the fourth provision, the Court noted that there was no finding with respect to the cause of the fire. It may well have been caused by vandalism, and, if so, it certainly occurred more than 30 days before the house became unoccupied. The Court concluded that an evidentiary hearing on remand is required to resolve that issue, as well. Before it reversed and remanded, however, the Court had to deal with the estate’s argument that Allstate's waived its right to deny coverage by collecting the premiums for more than two years after learning that the house was unoccupied. The Court rejected the argument. If Allstate was entitled to deny coverage, it was entitled to do so because of the “increase in hazard” or “vandalism” exclusions, not because it had a right to cancel the coverage entirely. Collecting the premiums is not inconsistent with enforcing the exclusions in the policy.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

KIM v. CARTER'S INC. (March 15, 2010)

Su Yeun Kim and Gina Polubinski purchased children's clothing at several different Carter's stores in Illinois over a period of time. Articles of clothing in the stores had individual price tags. Frequently, however, Carter's displayed signs announcing discounts off individual prices. Kim and Polubinski each filed separate class actions, alleging that any savings were fictitious because the prices listed were artificially inflated . The complaints alleged breach of contract and a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. The district court granted Carter’s motion to dismiss the complaints. Kim and Polubinski appeal.

In their opinion, Judges Bauer, Kanne, and Tinder affirmed. With respect to the breach of contract count, the Court concluded that Carter's fulfilled its contractual obligations. It provided articles of clothing to the plaintiffs at an agreed upon price. The Court rejected plaintiffs' interpretation that the sales contract required Carter's to apply the discount to an undisclosed, fair price instead of the tag price. With respect to the statutory claim, however, the Court found that the allegations of the complaints did sufficiently allege a violation. However, the Act requires a private party to show "actual damage." Here, the plaintiffs agreed to pay a certain price for the clothing. They have not alleged that the clothing is actually worth less than what they paid or that they could have purchased it elsewhere for less. Having concluded that the plaintiffs suffered no actual pecuniary harm, the Court held that they could not state a claim under the Act.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

REGER DEVELOPMENT v. NATIONAL CITY BANK (January 20, 2010)

Reger Development is an Illinois real estate development company. In 2007, the company opened a $750,000 line of credit with National City Bank. The company signed a promissory note and provided the personal guarantee of its principal, Kevin Reger. In several places, the note makes reference to the fact that it is payable "on demand." The company made its payments in a timely manner for the first year. Nevertheless, the bank asked it to pay down $125,000 of principal. Reger did so. A month later, the bank advised Reger that it was reducing the amount of the line of credit and also wanted to restructure some of the principal and secure it with a mortgage. The bank told Reger that it was possible that they would demand payment of the entire amount if he did not agree to the modifications. Reger brought suit, alleging breach of contract and fraud. The district court dismissed the case for failure to state a claim. Reger appeals.

In their opinion, Judges Flaum, Williams, and Sykes affirmed. The Court noted that Illinois law generally implies a covenant of good faith and fair dealing in a contract. It does not apply, however, to demand notes. Reger argued that general references to due dates and default provisions in the note were inconsistent with a demand instrument. The Court noted the repeated and explicit references in the instrument to National City's right to demand payment at any time. The note is clearly and unambiguously a demand note, concluded the Court. Since it is a demand instrument, the bank's insistence on modifications did not amount to a breach. With respect to the fraud count, the Court focused on the intent element. It stated that Reger must establish that the bank intended to and did induce him. In order to meet that element, Reger asked the court to infer that the bank intentionally drafted ambiguous documents so as to mislead him. The Court had already considered the ambiguity of the document with respect to the breach of contract claim. Not only had it not found it ambiguous, it found it rather straightforward. Reger failed to allege the element of intent with the particularity necessary in a fraud count -- the dismissal of that count is affirmed.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

WISCONSIN ALUMNI RESEARCH FOUNDATION v. XENON PHARMACEUTICALS, INC. (January 5, 2010)
 

Scientists at the University of Wisconsin discovered that suppressing a certain enzyme in the body reduced cholesterol levels. They disclosed their discovery to the Wisconsin Alumni Research Foundation, which manages patents for the University. They assigned all their rights to the Foundation. Xenon Pharmaceuticals was very interested in the same effort. Xenon and the University entered into a series of agreements under which Xenon sponsored various research projects; Xenon and the Foundation entered into an agreement giving Xenon exclusive licensing rights in return for a percentage of fees received; and Xenon entered into a series of agreements directly with the individual researchers to undertake various projects. Xenon and the Foundation filed for and received a joint patent. The relationship soured. Xenon did some related work with a third party and with an individual University scientist with whom it had a consulting agreement. When it filed a patent application covering the results of that work, the Foundation objected. It also licensed the technology covered by both the joint patent and the related patent to Novartis. The Foundation demanded its contractual percentage -- Xenon refused. The Foundation brought suit, claiming that both the Novartis license and the related patent violated the party's agreement. Xenon counterclaimed. In a series of rulings, the court held that Xenon breached the agreement by granting the sublicense to Novartis and that Xenon owed licensing fees to the Foundation. The court refused the Foundation's request for a declaration that the work on the related patent belonged to it and concluded that the Foundation's argument that it had a right to terminate the contract was not developed sufficiently in its briefs. At trial on damages, the jury awarded $1 million, which was reduced on remittitur to $300,000. The parties cross-appealed.

In their opinion, Chief Judge Easterbrook and Judges Bauer and Sykes affirmed in part, reversed in part and remanded. The Court first addressed Xenon's transfer to Novartis. The Court agreed with Xenon that each joint patent holder, under federal law, is allowed to use the patented technology without regard to the rights of the other. However, that right is subject to modification by agreement of the parties. Here, the Foundation conditioned Xenon's right to license the technology on its payment of a fee. Interpreting the terms of their agreement, the Court concluded that Xenon owed the contractual fee upon its receipt of its fee and its failure to remit it was a breach of the agreement. The Court then rejected Xenon's argument that the Foundation presented insufficient evidence to support its damages claim. With respect to the Foundation's right to terminate the agreement, the Court concluded that the lower court was in error when it held that the right to terminate was contingent upon a judicial finding of a breach. The agreement specifically gives the Foundation the right to terminate the agreement upon a breach by Xenon and a failure to remedy the breach within 90 days after written notice. The Foundation considered Xenon's conduct a breach and gave appropriate notice. Even though it filed suit prior to the expiration of the 90 days, it's right to terminate after a failure to cure remains. It need not await a judicial determination. The Court concluded that the Foundation properly terminated the agreement. Finally, the Court addressed the Foundation's claim for a declaration of its ownership of the related technology. The Court concluded that the contractual terms were clear and that the scientist's work, although partially sponsored by Xenon, was owned by the Foundation.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

STROITELSTVO BULGARIA LIMITED v. BULGARIAN-AMERICAN ENTERPRISE FUND (December 14, 2009)

Stroitelstvo Bulgaria Limited ("Limited") is a Bulgarian construction company. In 2005, it borrowed almost €2 million from the Bulgarian-American Credit Bank ("Bank") for a construction project. After a few months, the Bank claimed that Limited breached the loan agreement. It terminated its payments under the borrowing and asserted a right to recover almost €1 million, although less than €400,000 had been disbursed. According to Limited, the allegations of a breach were simply a pretext to put pressure on Limited to pay more for its borrowing. When the bank got a judgment in Bulgaria for almost €1 million and froze Limited’s assets, Limited agreed to compromise the claim for less than the judgment but more than they owed. They then sued Bank and its U.S. parent in U.S. court, alleging violations of RICO and the Bulgarian Obligations and Contracts Act as well as contract and tort claims. The court granted a motion to dismiss on forum non conveniens grounds. Limited appeals.

In their opinion, Judges Manion, Sykes and Tinder affirmed. In order to dismiss on forum non conveniens grounds, a court must find that there is an alternate forum that is both available and adequate. The principal issue on the appeal was whether the available Bulgarian forum was “adequate.” An adequate forum is one that provides some fair avenue for redress – not necessarily as complete or comprehensive as the U.S. forum. The Court noted that there was expert testimony regarding corruption in the Bulgarian court system. However, particularly given Bulgaria’s entry into the European Union with its requirement of a stable legal system, the Court concluded that the anecdotal evidence of corruption did not establish inadequacy. The Court also conceded that Limited would not have available the same claims in Bulgaria – particularly would have no RICO claim. It was undisputed that a breach of contract claim would lie against the Bank, and that was the heart of the complaint. The Court concluded that was enough potential for redress to meet the adequacy standard. Finally, the Court concluded that the higher filing fee in Bulgaria did not rule out the dismissal. Having concluded that the Bulgarian forum was available and adequate, the Court addressed the balancing factors. The Court found no abuse of discretion. In fact, it found the private and public interests strongly favored Bulgaria.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

RAO v. BP PRODUCTS NORTH AMERICA (December 9, 2009)

Salik Rao operated as a BP gasoline service station dealer in the Chicago area. For 10 years beginning in the early 1990s, Rao gave over $100,000 worth of cash and gifts to a BP sales manager. In return, the sales manager performed many favors for Rao, to his great benefit. In 2003, Rao reported this improper activity to BP. However, he characterized it as extortion on the part of the sales manager. BP begin an investigation which ultimately led to the termination of the sales manager in November of 2003. BP continued its investigation, seeking to confirm the extortion. Although Rao promised to cooperate, he never met with BP after November of 2003 and affirmatively withdrew his pledge of cooperation in June of 2004. BP notified Rao in October 2004 that it was terminating its franchise relationship with him because of his improper activity. Rao brought suit under the Petroleum Marketing Practices Act ("PMPA"), as well as RICO, fraud, breach of contract and extortion. The court dismissed the counts based on RICO, fraud and breach of contract and granted summary judgment on the PMPA claim. Rao appeals.

In their opinion, Judges Bauer, Flaum and Williams affirmed. The principal issue on appeal was whether BP's notice of termination was sufficient under the PMPA. The PMPA, which protects service station franchisees, allows early termination of franchise agreements in certain circumstances, which Rao does not contest here. The PMPA requires the franchisor to give a notice of such early termination within 120 days of when it "first acquired actual or constructive knowledge" of the reason for the termination. Here, it is uncontested that BP knew of the improper conduct well over 120 days before providing termination notice. The Court focused, however, on what BP knew when and what BP did. From the fall of 2003 through the middle of 2004, Rao continued to insist that he was a victim of the sales manager's extortion. The sales manager, at the same time, insisted that the gifts were given voluntarily in exchange for his favors. The Court concluded that the statute did not require BP to give notice while it was still investigating the allegations. It was not until Rao ceased his cooperation that the clock started. BP's notification was sent within 120 days of that date and was therefore proper. The Court affirmed the rest of the lower court's judgment as well.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

LUCERO V. NETTLE CREEK SCHOOL CORPORATION (May 29, 2009)

Sharon Lucero, a female Hispanic, was hired by the Nettle Creek School Corporation in 2001 to teach English at the Hagerstown Junior - Senior High School (the "School"). The School served students in grades 7 through 12 in the same building. Lucero was informed, at the time of her hire, that she could be assigned to teach English at any of the grade levels. For her first two years, Lucero taught 7th and 8th grade English, respectively. For the third year, the School assented to her request to teach 12th grade English. The year progressed quite differently than her prior years of service. The principal criticized her performance, the students complained of her teaching style, and the parents complained of her grading policies, to name just a few of her problems. In addition, two specific incidents late in the year stood out. In one, a student showed a photograph in class of a partially naked classmate. In another, a group of students left several Playboy magazines in her classroom. The students involved in these two incidents were all suspended. After the school year, the School hired a new English teacher, a white male. The school assigned the new teacher to 12th grade English and reassigned Lucero to 7th grade English. Lucero sued the School, challenging her reassignment under theories of retaliation, discrimination, hostile work environment and breach of contract. The district court granted summary judgment to the School. Lucero appeals.

In their opinion, Judges Bauer, Flaum and Evans affirmed. The Court addressed each of Lucero’s legal theories in turn. With respect to her retaliation claim, the Court noted that she was required to establish that she suffered a materially adverse employment action. The Court addressed the reassignment in light of the Supreme Court's decision in Burlington Northern. Burlington Northern tells us that a court should apply an objective standard for assessing whether the reassignment might have dissuaded a reasonable person from making a charge of discrimination. Here, Lucero was reassigned to teach the same subject in the same building under the same conditions. The Court concluded that her reassignment was not a materially adverse action. The Court similarly found that Lucero failed to demonstrate a materially adverse employment action with respect to her discrimination claim, albeit under a different test. Since her compensation and work conditions were unchanged, Lucero attempted to establish that her reassignment was an adverse employment action by asserting that it would negatively impact her career prospects. The Court found that she failed to submit adequate evidence of a negative career impact and upheld the lower court on the discrimination claim. Next, the Court concluded that Lucero's allegations of hostile work environment failed as a matter of law. Although depicting inappropriate behavior, the Court concluded that they were isolated incidents, were not related to her gender or national origin, and did not support employer liability. Finally, the Court summarily rejected Lucero's breach of contract claims.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

AA SALES v. CONI-SEAL (December 9, 2008)

Gerald Saltzman, owner and sole employee of AA Sales, and Coni-Seal started working together in the early 1980s. Coni-Seal manufactured automotive parts. Saltzman was a sales representative. Early successes led to a written agreement in 1987. The contract provided AA Sales with a 6% commission on sales to approved accounts and with 5 years of post-termination commissions on accounts previously sold by AA Sales. AA and Coni-Seal later agreed to negotiate commissions on an account-by-account basis. In 1994, Coni-Seal approved AA to solicit AutoZone, a large retailer of automotive parts. Shortly thereafter, their relationship began to sour. In 1995, Coni-Seal reassigned several accounts away from AA. In return for releasing the accounts, AA agreed to a monthly fee and a 2% commission on sales to the accounts it released. Coni-Seal authorized a second sales representative for AutoZone in 2003. Coni-Seal began selling to AutoZone in 2004. It paid no commissions to AA on these sales. AA filed suit for breach of contract and violation of the Illinois Sales Representative Act (“ISRA”). The district court granted summary judgment to Coni-Seal. AA appeals.

In their opinion, Judges Cudahy, Flaum and Rovner affirmed in part and reversed in part. The Court agreed with the district court that AA was not responsible for the AutoZone sales but disagreed that that ended the inquiry. The issue for the Court was whether the parties’ contract entitled it to commissions. The Court determined that the contract required Coni-Seal to pay a commission: a) during the life of the contract on all sales to approved accounts, whether AA was responsible for the sale or not, and b) after termination of the contract, only on sales to accounts for which AA was responsible for sales during the life of the contract. The Court proceeded to address the issue of whether Coni-Seal’s sales to AutoZone were “sales to approved accounts.” The parties’ versions of the development of the AutoZone account differed considerably. The Court reversed and remanded for trial.

With respect to AA’s claims on the 1995 oral contract, the Court held that it was not a new contract, but a modification of the termination provisions of the 1987 contract. Since it did not include a term of years to apply to the new post-termination commissions, the Court applied the five year term from the 1987 contract. Since Coni-Seal had already paid the commissions for over ten years, the Court affirmed the district court’s judgment on the 1995 contract.

• Email This
• Print
• Comments
• Trackbacks
• Share Link