or statements contained a promise clear enough that an employee would reasonably believe that an offer has been made." Brokemond's letters and oral statements could be considered policies or statements containing promises clear enough to make a reasonable employee believe that he could rely upon and enforce them. The principle announced in Duldulao and repeated in instruction 10 transcends employment manuals and, if anything, is more apt to this case than to Duldulao itself, since this case contains express promises in an individually negotiated employment relationship.
Next, the defendants, relying very heavily on opinions of the Seventh Circuit in which I have criticized plaintiffs for the quality of their evidence of damages, see, e.g., FDIC v. W.R. Grace & Co., 877 F.2d 614, 623-24 (7th Cir. 1989), argue that I should grant a new trial on the issue of compensatory damages, or at least grant a remittitur, because the plaintiff's evidence was inadequate. Unfortunately the defendants' discussion of the issue is bare of particulars. In any event I do not think the jury exceeded the bounds of reason in awarding Price $ 25,000 in compensatory damages. Since the incentive program was never fully specified or implemented, there was an inescapable but permissible element of speculation involved in estimating what incentive compensation she would have earned but for the defendants' misconduct. The damages average out to $ 9,375 per year (recall that Price was employed by the bank for two years and eight months), which means that under her theory of damages she would have received total compensation of almost $ 40,000 had the bank honored its promises. This would have been slightly more than her earnings at Continental but less than her present earnings at Drexel and I cannot say that it is an unreasonable estimate or one unsupported by the evidence.
The remaining issues concern the fraud count. First and least, the defendants argue that the plaintiff should not have been allowed to use at trial oral representations that Brokemond allegedly made to her, since the complaint mentioned only the February 4 and August 11 letters; and fraud must be pleaded with particularity. See Fed.R.Civ.P. 9(b). However, the plaintiff was using to prove the fraudulent character of the promise to establish an incentive-compensation program not Brokemond's oral representations (except incidentally and cumulatively), but his statement that he never intended to put the program into effect. This statement has nothing to do with the pleading requirements of Rule 9(b). All the cases ever require to be pleaded with specificity is the misrepresentations, not the circumstances that demonstrate their falsity. See, e.g., Haroco, Inc. v. American National Bank & Trust Co., 747 F.2d 384, 405 (7th Cir. 1984), aff'd per curiam, 473 U.S. 606, 87 L. Ed. 2d 437, 105 S. Ct. 3291 (1985); Luce v. Edelstein, 802 F.2d 49, 54-55 (2d Cir. 1986); Seville Industrial Machinery Corp. v. Southmost Machinery Corp., 742 F.2d 786, 791 (3d Cir. 1984).
The defendants complain that instruction number 20 was in error in allowing the jury to award punitive damages for fraud if it found "from a preponderance of the evidence that the plaintiff is entitled to actual or compensatory damages." The fraud instruction correctly placed on the plaintiff the burden of proving fraud by clear and convincing evidence. Instruction 20 was not erroneous, for its office was not to set the burden of proof for fraud but merely to require that the jury find some actual damages before it went on to consider whether to award punitive damages. Nor do I think it likely to have misled the jury, in the context of the full instructions. See Needham v. White Laboratories, Inc., 847 F.2d 355, 358 (7th Cir. 1988); Goldman v. Fadell, 844 F.2d 1297, 1302 (7th Cir. 1988).
Finally and in a variety of ways the defendants object to the award of punitive damages and particularly to the amount of the award. The first objection has no merit. Punitive damages are routinely awarded for deliberate torts, and if there was fraud here it was deliberate. The defendants do not question the vicarious liability of the bank for punitive damages, and would be on weak footing if they did, for while Illinois follows the "complicity rule" and thus refuses to allow punitive damages to be awarded on a theory of respondeat superior, see Oakview New Lenox School District No. 122 v. Ford Motor Co., 61 Ill. App. 3d 194, 199-200, 378 N.E.2d 544, 548-49, 19 Ill. Dec. 43 (1978); Tolle v. Interstate Systems Truck Lines, Inc., 42 Ill. App. 3d 771, 356 N.E.2d 625, 1 Ill. Dec. 437 (1976); Douglass v. Hustler Magazine, Inc., supra, 769 F.2d at 1145-46, the rule is satisfied by proof of wrongdoing by a corporate officer -- Brokemond. See id. at 1145.
But I agree with the defendants that the award was grossly excessive. Of course it is wrongful to promise an employee a benefit knowing that you do not intend to give it to him and by doing so to discourage the employee from exploring alternative opportunities. But on the scale of wrongs prevalent in our society this one ranks pretty low, and I think a year's salary -- $ 30,000 -- is, in the circumstances, the maximum punishment that each defendant should be made to pay for such a wrong, consistent with contemporary norms of fair dealing and commercial reasonableness. No evidence was offered that Brokemond committed this fraud as part of some larger and nefarious scheme to enrich himself or his bank at the expense of his employees, and the award of compensatory damages is a generous one. Considering the gravity of the wrong, and the plaintiff's failure to present evidence concerning Brokemond's financial wherewithal, see generally Hazelwood v. Illinois Central Gulf R.R., 114 Ill. App. 3d 703, 712-13, 450 N.E.2d 1199, 1207, 71 Ill. Dec. 320 (1983), I conclude that the defendants are entitled to a remittitur that will bring the total judgment down from $ 175,000 to $ 85,000 ($ 25,000 in compensatory damages plus $ 30,000 in punitive damages against each defendant). If the plaintiff declines the remittitur, the case will be set for a new trial limited to damages; if she accepts it, I will enter final judgment for $ 85,000. The plaintiff is directed to submit a statement accepting or rejecting the remittitur within two weeks from today.
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