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VAN DAELE v. VINCI

December 23, 1968

AUGUST A. VAN DAELE, PLAINTIFF,
v.
HENRY VINCI, CERTIFIED GROCERS OF ILLINOIS, INC., AN ILLINOIS CORPORATION, GEORGE NEPIL, GERHARD R. HOOK, HENRY VREE, DAVID WEISS, BEN TAUBIN, PETER REVIGLIO, ANTHONY SOBBE, PETER ZAMMUTO, SAM RIZZO, JACK CHERPAK, AND GASTON ARMOUR, DEFENDANTS.



The opinion of the court was delivered by: Robson, District Judge.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS

The defendants have moved to dismiss. This court is of the opinion that the motion should be granted.

The plaintiff, August A. Van Daele, is a former member of the defendant Certified Grocers of Illinois, Inc. ("Certified"), a cooperative association. The defendant Henry Vinci is Chairman of the Board of Certified, and the remaining individual defendants are directors of that association. In 1967, the plaintiff instituted a derivative action against the management of Certified in the Circuit Court of Cook County, Illinois (Van Daele v. Vinci, 67 CH 5843). In that action, the plaintiff sought to recover funds allegedly mulcted from Certified by one Jack Walsh, an employee in charge of Certified's building program. On March 4, 1968, Certified, by its officers, filed an action against Walsh and others, to recover these allegedly defrauded funds. Certified Grocers of Illinois, Inc. v. Jack R. Walsh et al., 68 CH 1056.

In October, 1967, the plaintiff had two conversations with an Internal Revenue Service special agent regarding the alleged theft of Certified's monies. Nearly a year later, on August 20, 1968, the defendant Gerhard R. Hook, in his capacity as Secretary of Certified, sent a letter to the plaintiff notifying him of a special Board of Directors meeting on September 4, 1968. The letter stated that the purpose of the special meeting was to determine whether good cause existed for censoring, suspending or expelling the plaintiff as a member of Certified pursuant to the association's bylaws. The letter specifically charged the plaintiff with

  (1) refusing to disclose information regarding
      the Construction Program to the Board and its
      Investigation Committee (of which plaintiff
      was a member), thereby prejudicing
      Certified's rights and remedies;
  (2) voluntarily disclosing valuable and
      privileged information about Certified to the
      Internal Revenue Service and the State's
      Attorney of Cook County without first making
      such information available to the Board and
      without the knowledge, approval or
      authorization of the Board;
  (3) disruption of Certified's conduct of business
      by harassment of the management and
      membership;
  (5) agreeing to assist a Certified creditor in a
      disputed claim by making available names of
      other creditors who might join in a
      bankruptcy petition against Certified;
  (6) interceding in negotiations between Certified
      and certain named debtors and creditors, in
      an attempt to thwart Certified's legitimate
      pursuit or defense of such claims; and
  (7) engaging public relations counsel to
      publicize charges against Certified in the
      news media immediately preceding the annual
      meeting of November 7, 1967, thereby damaging
      Certified's prestige and standing in business
      and financial circles.

As a result of the Board hearing (attended by the plaintiff and his counsel), a resolution was adopted expelling the plaintiff from Certified. Charges numbered (1), (3), (4), (6), and (7) were concluded to be satisfactorily proven and were found to constitute good cause for disciplinary action against the plaintiff.

The plaintiff filed this action on September 3, 1968, the day before the Board's special meeting. The original one-count complaint alleges that the letter of August 20, 1968, by reason of charge numbered (2), was a threat calculated to intimidate the plaintiff as a witness and source of information for the Internal Revenue Service, or was a punishment for plaintiff's cooperation with that agency. By merely sending this letter, the plaintiff claims that the defendants attempted to evade or defeat a tax imposed by the Internal Revenue Code.

The plaintiff filed an amended three-count complaint on October 4, 1968. Count One substantially embodies the allegations of the original complaint. Counts One and Two invoke jurisdiction under Title 28 U.S.C. § 1331(a) and 1340; Title 18 U.S.C. § 4, 371 and 1505; Title 26 U.S.C. § 7201 and 7212, and "the common law of the United States." Counts One and Two characterize the defendants' conduct in sending the letter containing the charges against the plaintiff and his subsequent expulsion as a reprisal or punishment for his cooperation with the Internal Revenue Service. He further claims that by reason of the ...


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