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United States District Court, Northern District of Illinois, W.D

November 6, 1984


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


Wayne ("Wayne") and Eunice ("Eunice") Miller (collectively "Millers") have filed an eight-count complaint (the "Complaint") against Delaware corporation Affiliated Financial Corporation ("Affiliated"), Illinois corporation Credit-Pak Corporation of Illinois ("Credit-Pak"), Stephen J. Smith ("Stephen"), Jack D. Smith ("Jack") and Joann Smith ("Joann," apparently Jack's wife). Millers seek damages and equitable relief under federal securities and antiracketeering statutes, Illinois securities and consumer fraud statutes and the common law, charging harm suffered as a result of having entered into a limited partnership agreement devised and promoted by defendants. Defendants have now moved under Fed.R.Civ.P. ("Rule") 12(b)(6) to dismiss all eight counts of the Complaint. For the reasons stated in this memorandum opinion and order, their motion is denied in principal part.


In July 1982 Wayne responded to an advertisement in the Prairie Farmer by Credit-Pak, representing itself as an organization equipped to help financially straitened farmers in resolving their money woes. On July 29 and on several occasions in August, Wayne met with Stephen, Vice President of Credit-Pak and Affiliated, to discuss ways in which Wayne might resolve his own money problems. In conjunction with those discussions Stephen undertook a review of Wayne's affairs. On September 1 he wrote Wayne, noting "we are continuing to work on your matter on a best efforts basis" and including an invoice for $4,821.08 for services rendered to date.

Defendants having expended no further efforts on his behalf, in the spring of 1983 Wayne sought the return of documents and papers he had delivered to Stephen the previous summer. During the course of their conversation, Stephen told Wayne it still might be possible to arrange a "creative financing" plan to alleviate Wayne's financial worries. Over the course of further conversations Stephen described the plan as involving a sale and repurchase of land (the "Land") owned by Wayne's mother Eunice, having a fair market value of $700,000 and subject to a first mortgage of some $100,000. Repurchase would take place five years after sale, though it would be subject to extension for an additional five years at Wayne's option, and would involve an increase in the indebtedness on the Land of about $100,000. There would be a $25,000 fee for arranging the financing, payable at the end of the original five-year repurchase period. Defendants also required immediate payment of $8,500 to cover legal and accounting fees associated with preparing the financing plan documents. Eunice paid the required $8,500 to defendants in November 1983.

On December 19 Stephen telephoned Wayne to say a "creative financing" agreement (the "Agreement") had been prepared and had to be signed by the end of the day because the lender would not be accepting loan applications thereafter. Later that day Stephen met with Wayne and spent three to five minutes outlining the Agreement's contents. Stephen repeated his previous representations about the five-year term of the Agreement, the renewal option, the increase in debt on the Land and the $25,000 fee. Under the terms of the Agreement, he explained, Credit-Pak would in effect purchase a portion of the Land, which Wayne would have a right to repurchase over a five-year period. Most importantly, Stephen said the proceeds of the sale to Credit-Pak would be turned over to Wayne so he could pay his debts. Wayne asked whether he could have his lawyer review the Agreement. Stephen discouraged him from doing so, saying a lawyer would not understand a "creative" arrangement of the sort contemplated by the Agreement.*fn2 Wayne then signed the Agreement. Stephen and Wayne proceeded immediately to Eunice's house where, after Stephen had repeated the explanation and representations previously made to Wayne, Eunice too signed the Agreement. Stephen signed the Agreement in his capacity as Vice President of Affiliated.

In fact the Agreement turned out to be a limited partnership agreement*fn3 designating Affiliated as sole general partner and Wayne and Eunice as sole limited partners of the Miller Farm Partnership (the "Partnership"). It required Eunice and Wayne to make capital contributions to the Partnership: Eunice, the Land subject to the existing mortgage; Wayne, certain farm machinery and equipment.*fn4 In exchange Eunice was to receive a 45% interest and Wayne a 25% interest in the annual net profits or losses of the Partnership. Affiliated, which was to contribute only its services as general partner, received the remaining 30% interest. Other terms of the Agreement included:

    1. authorization for Affiliated to obtain on behalf
  of the Partnership a $400,000 mortgage loan on the
  Land (the "Mortgage");

    2. a $75,000 fee (payable from the Mortgage
  proceeds) to Affiliated for services rendered as
  general partner;

    3. a lease agreement, in effect obligating Wayne to
  lease the Land and certain farm equipment from the

    4. a purchase agreement, in effect obligating Wayne
  to purchase the Land from the partnership within five
  years for $900,000;

    5. assignment by Wayne of one-half his partnership
  interest to Affiliated to secure his obligations
  under the Lease and Land purchase provision; and

    6. authorization for Affiliated, at its option, to
  borrow from the Partnership any surplus proceeds of
  the Mortgage on an interest-free demand-note basis.

There was however no renewal option covering Wayne's repurchase obligation.

After the Agreement was signed the authorized $400,000 Mortgage was consummated, increasing the encumbrance on the Land and yielding $300,000 in net proceeds after paying off the pre-existing mortgage. But contrary to Stephen's representations, little of that sum has been distributed to Millers:

    1. Eunice's $8,500 advance to cover expenses
  incurred in forming the Partnership has been

    2. Two interest-bearing demand loans aggregating
  $27,000 have been extended to Wayne.

Pointing to those and other discrepancies between the terms of the Agreement and Stephen's description of those terms (upon which plaintiffs had relied in signing),
*fn5 Wayne and Eunice filed this action May 18, 1984.

Count I

Count I alleges violations of Securities Exchange Act of 1934 ("1934 Act") § 10(b) ("Section 10(b)") and SEC Rule 10b-5 ("Rule 10b-5"*fn6). Defendants urge the Complaint lacks any allegation of the use of an instrumentality of interstate commerce, necessary to confer jurisdiction under the statute:

    1. All the asserted misrepresentations occurred in
  wholly intrastate telephone communications.

    2. All the mail communications alleged to satisfy
  the interstate commerce requirement were not causally
  related to the securities fraud.

Neither argument succeeds, but before this opinion turns to an explanation of why they do not, it must pause over an argument defendants have now abandoned.

Count I is captioned "SECURITIES FRAUD," and it unquestionably seeks to allege material misrepresentations and purchase of securities in reliance thereon — a classic Section 10(b) case. Complaint Count I ¶ 35 accurately quotes Section 10(b) but erroneously cites it as 15 U.S.C. § 78i (b) ("Section 78i(b)," Section 9 of the 1934 Act) (it should have read 15 U.S.C. § 78j (b)). Focusing on that proofreading error, defendants originally based their motion to dismiss Count I on the inapplicability of Section 78i (b) to the facts alleged. They chose to ignore the obvious discrepancy between the mistaken citation and the statutory language actually quoted at length in the Complaint.*fn7 Then, after putting Millers' counsel through the unnecessary exercise of addressing the patent error in citation in the course of their responsive memorandum, defendants engaged in a bit of posturing (R.Mem. 1-2):

  With the Plaintiffs' admission of a crucial citation
  error, Defendants have been apprised of Plaintiffs'
  securities claim. Plaintiffs have stretched the
  concept of "notice pleading" to its limits by
  suggesting that Defendants should have divined the
  nature of Plaintiffs' claim by reading an incorrect
  statute citation.

It is now unnecessary to decide specifically whether defendants' counsel acted in bad faith (even though that prospect does appear far more likely than the "empty head, pure heart" alternative), for they surely appear to have violated Rule 11 as amended in 1983. Rule 11 now requires that every paper filed with the court by the parties be signed by an attorney who thereby vouches:

  that he has read the pleading, motion, or other
  paper; that to the best of his knowledge,
  information, and belief formed after reasonable
  inquiry it is well grounded in fact and is warranted
  by existing law or a good faith argument for the
  extension, modification, or reversal of existing law,
  and that it is not interposed for any improper
  purpose, such as to harass or to cause unnecessary
  delay or needless increase in the cost of litigation.

"Improper purpose" was intended to work a substantive change from the older bad-faith test: That is made clear both by the changed language and by the Advisory Committee Notes to revised Rule 11. Because it is utterly unreasonable for anyone to read Count I of the Complaint as setting forth a claim under Section 78i(b), counsel's argument to that effect raises a strong inference of improper purpose. Perhaps Millers' lawyers sustained an easy burden in answering so patently frivolous an argument, but their having to bear it (and Millers' having to pay for it) at all qualifies as harassment. So too, while no court could possibly be misled in any substantive way by such an empty contention, its interposition in the litigation diverts attention from the relevant issues, wastes time and serves to trivialize the litigative and adjudicatory process.*fn8

It remains, then, to impose an appropriate sanction on defendants' counsel if they cannot show the absence of an "improper purpose." To that end the order issuing in the present motion includes the following:

    1. On or before November 19, 1984(a) defendants'
  counsel shall file a memorandum

  detailing any claimed justifications or mitigating
  factors for their conduct and (b) Millers' counsel
  shall file a memorandum detailing the damage
  inflicted by counsel's frivolous argument.

    2. On or before November 29, 1984 defendants'
  counsel shall identify any issues posed by either
  submission as to which an evidentiary hearing is

This Court will then either schedule a hearing or decide the issue.

This opinion now reverts to the substantive issues mentioned earlier. Both turn on asserted jurisdictional flaws in Count I.

First, defendants say any misrepresentations made during the course of intrastate telephone calls do not constitute a use of any "means or instrumentality of interstate commerce."*fn10 Though our Court of Appeals has not had occasion to decide whether local calls satisfy Section 10(b)'s jurisdictional requirement, Hidell v. International Diversified Investments, 520 F.2d 529, 536 & n. 15 (7th Cir. 1975) (per curiam), most courts addressing the question have held such telephone calls do confer jurisdiction. See, e.g., Loveridge v. Dreagoux, 678 F.2d 870, 873-74 (10th Cir. 1982); Gower v. Cohn, 643 F.2d 1146, 1151-52 (5th Cir. 1981); Spilker v. Shayne Laboratories, Inc., 520 F.2d 523, 524-25 (9th Cir. 1975).*fn11 True enough, a dictum by this Court's colleague Judge Aspen has expressed his disinclination to find the jurisdictional requirement satisfied where the only connection with interstate commerce was an intrastate letter and an intrastate telephone call, both occurring before the negotiations giving rise to the fraud began. Barsy v. Verin, 508 F. Supp. 952, 955 & n. 4 (N.D.Ill. 1981). Here by contrast at least one of Stephen's telephone conversations with Wayne (on December 19) occurred in the midst of negotiations over the Agreement (Complaint Count I, ¶¶ 25-26); indeed it was the vehicle for crucial misrepresentations. In light of the clear weight of precedent treating intrastate telephone calls as jurisdictionally sufficient, together with the equally clear connection between Stephen's telephone communication and the alleged fraud, defendants' argument fails.*fn12

As to their second position, defendants correctly state plaintiffs cannot prevail in a Section 10(b) action without showing a causal connection between (1) the use of an instrumentality of interstate commerce or the use of the mails and (2) the alleged fraud. But as Trecker v. Scag, 481 F. Supp. 861, 864 (E.D.Wis. 1979) said:

  It is not required that the manipulative or deceptive
  device be communicated in the mailed materials, as
  long as such a device is employed in connection with
  the use of the mails or of the instruments of
  interstate commerce.

Stephen's letters to Wayne described in the Complaint (Count II ¶ 49) — two invoices, a letter authorizing the sale/leaseback arrangement and a letter concerning the substitution of rents for the farm equipment as Wayne's capital contribution to the Partnership — satisfy that standard. While none of those documents is a self-contained misrepresentation or other fraudulent communication, they all implement the continuing course of dealings between the parties that constituted the fraudulent scheme. In other words, the letters represent a use of the mails in connection with a transaction alleged to constitute a securities fraud. That is enough to satisfy the Section 10(b) jurisdictional requirement.

Count II

Count II purports to state a cause of action under the civil remedies provision of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964(c):*fn13

  (c) Any person injured in his business or property by
  reason of a violation of section 1962 of this chapter
  may sue therefor in any appropriate United States
  district court and shall recover threefold the
  damages he sustains and the cost of the suit,
  including a reasonable attorney's fee.

Plaintiffs predicate their Section 1964(c) suit on an alleged violation of Section 1962(c):

  (c) It shall be unlawful for any person employed by
  or associated with any enterprise engaged in, or the
  activities of which affect, interstate or foreign
  commerce, to conduct or participate, directly or
  indirectly, in the conduct of such enterprise's
  affairs through a pattern of racketeering activity or
  collection of unlawful debt.

Each defendant (1) is said to be a "person" (Section 1961(3)) associated with an "enterprise" in fact (Section 1961(1)) comprising all the defendants and (2) has conducted the affairs of that enterprise through a "pattern of racketeering activity" (Section 1961(5)). That "racketeering activity" includes alleged acts of securities fraud (Section 1961(1)(D)) and mail fraud (Section 1961(1)(B)).

Defendants attack those allegations as failing to assert injury "by reason of a violation of section 1962" (emphasis added), as Section 1964(c) requires. This Court has never given the underscored phrase the added (not merely causative) content ascribed to it by many judges in high places (see, e.g., Bankers Trust Co. v. Rhoades, 741 F.2d 511, 516-18 (2d Cir. 1984)). And now the issue is plainly settled in our Circuit, Haroco, Inc. v. American National Bank & Trust Co., 747 F.2d 384 at 398 (7th Cir. 1984):

  We conclude that a civil RICO plaintiff need not
  allege or prove injury beyond any injury to business
  or property resulting from the underlying acts of

  This holding by no means renders superfluous the
  requirement in section 1964(c) that the plaintiff be
  injured "by reason of" a violation of section 1962.
  As we read this "by reason of" language, it simply
  imposes a proximate cause requirement on plaintiffs.
  The criminal conduct in violation of section 1962
  must, directly or indirectly, have injured the
  plaintiff's business or property. A defendant who
  violates section 1962 is not liable for treble
  damages to everyone he might have injured by other
  conduct, nor is the defendant liable to those who
  have not been injured. This causation requirement
  might not be subtle, elegant or imaginative, but we
  believe it is based on a straightforward reading of
  the statute as Congress intended it to be read.

Haroco obviates any need to pore over the Complaint to determine whether Millers have alleged injury beyond that resulting from the predicate acts of securities and mail fraud. They have sufficiently stated injury flowing from defendants' acts of racketeering, acts that may be properly analyzed into the configuration set out in Section 1962(c).*fn14

Defendants are however entitled to strike the prayer for equitable relief from Count II. In addition to treble damages and attorney's fees, Millers there ask (as they do in Count I) for:

    1. a declaratory judgment that the Agreement is

    2. an order compelling the return of all property
  Millers transferred to defendants pursuant to the

    3. an injunction striking the name of any defendant
  as a beneficiary of life insurance policies purchased
  pursuant to the Agreement; and

    4. a declaratory judgment that all notes executed
  by Wayne and payable to Affiliated are void.

As this Court explained at some length in Kaushal v. State Bank of India, 556 F. Supp. 576, 581-84 (N.D.Ill. 1983), there is nothing in the language, structure or legislative history of private civil RICO to suggest Section 1964(c) was meant to grant private plaintiffs remedies of the sort sought here. See also Sedima, S.P.R.L. v. Imrex Co., 741 F.2d 482, 489-90 n. 20 (2d Cir. 1984).*fn15 Accordingly, paragraphs A, B, D and E of Count II's prayer for relief are stricken.

Liability of Joann

Wayne and Eunice dealt exclusively with Stephen during the negotiations leading up to their execution of the Agreement. However he acted as agent for the other individual and corporate defendants as well as on his own behalf. Defendants have not challenged those allegations of agency as to Jack, Credit-Pak and Affiliated, but Joann (the secretary of Credit-Pak and Affiliated) does assert their insufficiency. Joann contends (1) corporate officers are not liable for the illegal actions of others in the corporation merely by virtue of their position and (2) Millers have alleged no other facts indicating Joann's participation in the acts giving rise to Millers' claims.

Joann's theory seems to be that her position as secretary of the corporate defendants is so tangential to their daily business that it cannot serve as the basis for liability absent specific factual allegations. That argument, however, ignores the apparently close business and personal relations among the three individual defendants (reasonably to be inferred from the facts alleged, see n. 1). It also ignores the specific allegation of agency, a matter of mixed law and fact. Under notice pleading principles and the teaching of Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957) and Hishon v. King & Spalding, ___ U.S. ___, 104 S.Ct. 2229, 2233, 81 L.Ed.2d 59 (1984), those are enough to keep Joann in the lawsuit — at least for purposes of determining whether information developed in the course of discovery will support the inferences to be drawn from the Complaint.*fn16

Count V

Count V charges common-law fraud based on Stephen's knowing misrepresentations to Wayne and Eunice. While acknowledging that would be enough to hold Stephen liable, defendants point to the absence of knowing misrepresentations by the other defendants. Because Illinois law requires such knowledge to state a claim for fraud,*fn17 those other defendants seek dismissal from Count V. Once again defendants overlook Millers' claim that Stephen acted as agent for the other defendants. As our Court of Appeals has stated in CFTC v. Premex, Inc., 655 F.2d 779, 784 n. 10 (7th Cir. 1981):

  Under common law principles of respondeat superior, a
  principal is liable for the deceit of its agent, if
  committed in the very business the agent was
  appointed to carry out. This is true even though the
  agent's specific conduct was carried out without the
  knowledge of the principal.

See also 1 I.L.P. Agency §§ 181-82. It is certainly reasonable to infer Stephen's alleged fraud occurred in the business he was appointed to carry out. Moreover to the extent the other defendants in one way or another participated in Stephen's fraudulent acts, they too are guilty of fraud under Illinois law. Instituto Nacional de Comercializacion Agricola v. Continental Illinois National Bank & Trust Co., 530 F. Supp. 279, 281 (N.D.Ill. 1982).

Here too Millers will have to show Stephen was in fact the authorized agent of the other defendants or provide other evidence indicating their participation in his fraudulent acts. For now it is enough they have alleged as much.

Count VII

Millers also purport to state a claim for innocent misrepresentation under Restatement (Second) of Torts, § 552C ("Section 552C"):

  (1) One who, in a sale, rental or exchange
  transaction with another, makes a misrepresentation
  of a material fact for the purpose of inducing the
  other to act

  or to refrain from acting in reliance upon it, is
  subject to liability to the other for pecuniary loss
  caused to him by his justifiable reliance upon the
  misrepresentation, even though it is not made
  fraudulently or negligently.

That provision has been adopted as a common-law rule in some other jurisdictions. See, e.g., Miller v. Bare, 457 F. Supp. 1359, 1362-64 (W.D.Pa. 1978). But Millers have not cited, and further research has not uncovered, any Illinois cases to similar effect.

Quite the contrary inference is in order here. Any right to recover damages for innocent misrepresentation in Illinois appears to be statutory, under the very provision of the Consumer Fraud and Deceptive Business Practices Act (the "Act"), Ill.Rev.Stat. ch. 121 1/2, ¶ 262, that forms the basis of Count IV.*fn18 As Duhl v. Nash Realty, Inc., 102 Ill.App.3d 483, 495, 57 Ill.Dec. 904, 914, 429 N.E.2d 1267, 1277 (1st Dist. 1982) (citations omitted) put it:

  Since the Act affords even broader consumer
  protection than does the common law action of fraud,
  it is clear that a plaintiff suing under the Act need
  not establish all of the elements of fraud as the Act
  prohibits any deception or false promise. . . . And
  it is clear from the language of the Act,
  particularly its reference to false promises, that
  liability is not limited to existing material facts.
  Furthermore, it is well established that under the
  Act the intention of the seller (his good or bad
  faith) is not important and a plaintiff can recover
  under the Act for innocent misrepresentations.

That language plainly implies the Act is the only source of any Illinois action for innocent misrepresentation. Count VII (an attempted common-law counterpart) must be dismissed.

Count VIII

Here Millers advance a claim for equitable relief based on undue advantage in securing Millers' assent to the Agreement. Under the proper circumstances, Illinois law provides, "equity will act in spite of a contract to avoid the unconscionable result." People ex rel. Department of Public Works & Buildings v. South East National Bank of Chicago, 131 Ill.App.2d 238, 243, 266 N.E.2d 778, 782 (1st Dist. 1971); see also 7 I.L.P. Chancery §§ 58-59. To that end the court must assess "the totality of the circumstances to determine if there ha[s] been fraud, undue advantage, or unfairness in securing the agreement." Mearida v. Murphy, 106 Ill.App.3d 705, 711, 62 Ill.Dec. 380, 384, 435 N.E.2d 1352, 1356 (4th Dist. 1982).

Thus defendants are not in a position to say Count VIII does not state a claim. Instead they urge it is "redundant of all the relief requested by Plaintiff in the various counts that precede Count VIII" (Def.Mem. 10) and should for that reason be stricken from the Complaint. Millers have indeed used one set of facts to spawn multiple legal theories, all seeking basically the same relief.

Rule 8(e) provides:

  A party may also state as many separate claims or
  defenses as he has regardless of consistency and
  whether based on legal, equitable, or maritime

In the most important sense a mere difference in legal theories based on the same facts does not bespeak a different claim. See our Court of Appeals' discussion in Minority Police Officers Association of South Bend v. City of South Bend, 721 F.2d 197, 199-201 (7th Cir. 1983). Thus no theoretical justification really exists for labeling as separate "counts" different sets of legal theories predicated on identical facts and producing identical relief. But at least until it becomes necessary to present the trier of fact with the matters Millers must prove in support of each theory, Count VIII poses no defined harm to defendants and will be retained.

Pendent Jurisdiction

Apart from their already-discussed specific objections to Counts V, VII and VIII, defendants contend all the Complaint's pendent state law claims (Counts III through VIII) must be dismissed for lack of jurisdiction. They do not discuss this Court's discretion to decline pendent jurisdiction under United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). Instead they rely on the proposition that dismissal of Counts I and II would leave no basis for federal jurisdiction as to the state law claims. Counts I and II have survived defendants' motion, and so do the pendent claims.


Defendants' motion to dismiss the Complaint is granted as to Count VII and the prayer for equitable relief in Count II. In all other respects it is denied, though Millers will have to redo Count II to conform to Haroco and Parnes. Defendants are ordered to answer all surviving portions of the Complaint except Count II on or before November 19, 1984 and to answer Count II within 14 days after being served with that Count in amended form. In addition, counsel for the parties are ordered to follow the Rule 11 procedures directed in the text preceding n. 9. Finally, this action is set for a status report in Rockford at 8:45 a.m. November 20, 1984.

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