agreement has been found. Count I of the countercomplaint will be dismissed.
B. Interference with Employment Relations
David Ragan has presented evidence that, after he left Conti to work at Merrill Lynch, Conti and Continental informed Merrill Lynch employees that David Ragan had been involved in criminal conduct with customer accounts. Counterdefendants do not claim the undisputed facts show David Ragan was engaged in criminal conduct. There is evidence from which it can be inferred that counter-defendants intended to induce David Ragan's firing. David Ragan has also presented evidence to support the claim that the information provided by counter-defendants caused David Ragan's dismissal from Merrill Lynch. David Ragan, however, has not presented specific facts showing counter-defendants caused the loss of any other employment. The citations contained in paragraphs 24 and 25 of David Ragan's statement of additional facts ("SOF") have been examined. No loss of a job opportunity caused by counter-defendants is shown. Moreover, David Ragan's deposition contains only nonadmissible hearsay testimony as to any false information counter-defendants passed on to persons other than Merrill Lynch employees.
Count II of the countercomplaint is dismissed to the extent claims are made based on any employment relationship other than the one with Merrill Lynch.
C. Interference with Business Relations with Customers
David Ragan points only to his own testimony to support his claim that counter-defendants interfered with his relationship with customers. See SOF paras. 22-24. There is no testimony that any customer told David Ragan he or she stopped using David Ragan because of any comments heard. Even if there were, David Ragan presents no nonhearsay testimony showing that counter-defendants provided any false information to the customers. Count III of the countercomplaint will be dismissed.
D. Fraud and Conspiracy
David Ragan does not point to any evidence that counter-defendants made any representations contrary to any decision that had been made. Since no false representations are shown, Count IV of the countercomplaint will be dismissed.
E. Slander and Libel
Counterdefendants contend David Ragan cannot show any defamatory statements. The record is to the contrary. See § IX(B) supra. Count V of the countercomplaint will not be dismissed; however, whether all of the elements of a valid claim can be shown is not clear on this record.
F. Indemnity and Contribution
David Ragan claims counter-defendants should indemnify him for any damages he may owe to the customers. This claim, however, is premature since David Ragan has not yet been found liable in any action. Pate v. Tellepsen Construction Co., 596 S.W.2d 548, 552 (Tex. Civ. App. 1980); Forty-Eight Insulations, Inc. v. Johns-Manville Products Corp., 472 F. Supp. 385, 393 (N.D. Ill. 1979). Moricoli v. P & S Management Co., 104 Ill. App. 3d 234, 432 N.E.2d 903, 60 Ill. Dec. 4 (1982), is inapposite since in that case the indemnitor was already a party to the suit. Moreover, to the extent Texas and Illinois law are inconsistent, Texas law controls in this case. Count VI of the countercomplaint will be dismissed.
G. Invasion of Privacy
David Ragan has presented sufficient circumstantial evidence to show that counter-defendants took possession of his personal bank records. These documents were used in a suit counter-defendants brought against David Ragan in Kentucky. Counterdefendants, citing Havoco of America, Ltd. v. Hollobow, 702 F.2d 643, 647 (7th Cir. 1983), argue this makes the claim one for malicious prosecution. David Ragan does not point to use or publication of these documents other than in the Kentucky proceeding. David Ragan has not shown that the alleged intrusion, not the lawsuit itself, caused him any anguish or suffering. See Mucklow v. John Marshall Law School, 176 Ill. App. 3d 886, 531 N.E.2d 941, 946, 126 Ill.Dec. 314 (1988) (quoting Melvin v. Burling, 141 Ill. App. 3d 786, 490 N.E.2d 1011, 1013-14, 95 Ill. Dec. 919 (1986)). Count VII of the countercomplaint will be dismissed.
H. Negligent Misrepresentation
David Ragan argues that counter-defendants were in the business of providing information to regulatory bodies such as the CFTC, Chicago Board of Trade, and Internal Revenue Service and that he can bring suit for negligent misrepresentations to such agencies that caused injury to him. No authority is cited in support of this argument. The case law cited by counter-defendants is to the contrary, holding that the misrepresentation must be information the plaintiff, not a third party, is relying on. See Zahorik v. Smith Barney, Harris Upham & Co., 664 F. Supp. 309, 313 (N.D. Ill. 1987). See also Restatement (Second) of Torts § 552 (1977). Count VIII of the countercomplaint will be dismissed.
I. Breach of Fiduciary Duty
David Ragan has cited no authority to support his claim Conti owed him a fiduciary duty. Count IX of the countercomplaint will be dismissed.
As described above and as set forth in the orders for each particular case, the motions for summary judgment in this multidistrict litigation are granted in part and denied in part. Any motion for reconsideration
of the rulings on the summary judgment motions must be filed by January 25, 1990.
The supporting brief must also be filed by that date or the motion will be denied.
No supporting brief will exceed 10 pages except that certain customer parties will be allowed up to 15 pages and the Conti parties up to 20 pages. Unless ordered by the court, no response to any motion for reconsideration shall be filed. Neither shall any party file a motion for leave to file a response. A status hearing is set for February 21, 1990 at 1:30 p.m. The parties should be prepared at that time to discuss (a) pending motions for reconsideration; (b) any matters remaining to be resolved by this court; and (c) the preparation of final pretrial orders.
IT IS THEREFORE ORDERED that the "Summary Judgment Opinion" is entered in the record of MDL No. 644. Any motions for reconsideration of this opinion and related orders, with supporting briefs, are to be filed by January 25, 1990. No brief may exceed 10 pages except that certain customer parties are allowed 15 pages and the Conti parties 20 pages. No response to any motion for reconsideration is to be filed absent further order of this court. A status hearing is set for February 21, 1990 at 1:30 p.m.
Dated: JANUARY 11, 1990