with Thompson's recommendation of the Stuart Park investment. Id. at 4. Taken together, this evidence strongly indicates that no genuine issue of material fact exists with respect to Thompson's involvement in the kickback scheme with Bennett.
Further, the plaintiffs have not presented one jot of evidence to the contrary. Yorger v. Pittsburgh Corning Corp., 733 F.2d 1215, 1222 (7th Cir. 1984) (in defending against a motion for summary judgment, the non-movant plaintiff may not rest upon mere allegations). Indeed, the plaintiffs do not even expressly aver that the kickback scheme did not exist. Rather, they merely attack the defendants' evidence as speculative. (Pl. Mem. in Opp. at 1). Given the plaintiffs' failure to adduce any evidence that Thompson acted lawfully or to assert at least that they in good faith do not believe Thompson acted unlawfully, this court must hold that the plaintiffs failed to meet their burden on motion for summary judgment. LaScola v. U.S. Sprint Communications, 946 F.2d 559, 563 (7th Cir. 1991) (in defending against a motion for summary judgment, the non-movant must demonstrate that the record contains the existence of a genuine issue). Accordingly, we find that Thompson participated in a fee-splitting scheme with Bennett in relation to the Stuart Park transaction.
The defendants proceed to correctly argue that this fee-splitting arrangement violates ERISA. Thompson was a fiduciary of the Pension Trust. As a fiduciary, he was required to act exclusively for the interests of the Pension Trust participants and their beneficiaries. 29 U.S.C. § 1104(a)(1)(A)(i) (1993). By exchanging favorable recommendations for personal monetary gain, it is clear that Thompson was acting on his own behalf and not solely for the Pension Trust participants and beneficiaries. See, e.g., Whitfield v. Tomasso, 682 F. Supp. 1287, 1301-02 (E.D.N.Y. 1988) (holding that the defendant breached his fiduciary duty by accepting kickbacks); Martin v. Consultants and Adm'rs, Inc. 966 F.2d 1078, 1084, 1089 (7th Cir. 1992) (noting that kickbacks violate section 1104 of ERISA); Anweiler v. American Electric Power Serv. Corp., 3 F.3d 986, 990 (7th Cir. 1993) (stating that an ERISA fiduciary must act solely for a plan's participants and beneficiaries).
Moreover, a fiduciary is prohibited from accepting consideration from a party dealing with a plan if the receipt of the consideration is connected with a transaction involving the assets of the plan. 29 U.S.C. § 1106(b)(3). Here, Thompson accepted money from Bennett. Bennett was dealing with the Pension Trust, as the Pension Trust expressly agreed to pay Bennett $ 210,000.00. Consequently, Thompson violated section 1106. See, e.g., Lowen v. Tower Asset Mgmt., Inc., 829 F.2d 1209, 1214 (2d Cir. 1987) (holding that an ERISA fiduciary violates section 1106 by receiving money from a company because of the company's dealings with the pension fund); Martin, 966 F.2d at 1084, 1089 (noting that kickbacks violate section 1106 of ERISA). Thus, Thompson violated sections 1104 and 1106 of ERISA.
Ordinarily, a contract whose performance would violate federal law is unenforceable and, therefore, neither party can recover on it. Comdisco, Inc. v. United States, 756 F.2d 569, 576 (7th Cir. 1985). Indeed, in M & R Investment Co. v. Fitzsimmons, the Ninth Circuit Court of Appeals held that a pension fund could not be sued for breach of contract for refusing to honor a contract which violated ERISA. M & R Inv. Co. v. Fitzsimmons, 685 F.2d 283, 286-288 (9th Cir. 1982). However, in the instant case, the Ameritech defendants cannot invoke the defense of impossibility when their actions rendered the contract illegal. First Nat'l Bank of Chicago v. Atlantic Tele-Network Co., 946 F.2d 516, 521 (7th Cir. 1991) (holding that a party to a contract "cannot make performance impossible and then cry impossibility"); Comdisco Disaster Recovery Servs., Inc. v. Money Mgmt. Systems, Inc., 789 F. Supp. 48, 53 (D.Mass. 1992) (applying Illinois law).
In Comdisco Disaster Recovery Services, the defendant entered into a contract with the plaintiff in which the plaintiff promised to provide computer services to the defendant in the event that a disaster disabled the defendant's computer system. Id. at 50. Subsequently, the defendant was acquired by SunGuard Data Systems ("SunGuard"). Id. at 51. This takeover was not hostile; the defendant had readily participated in it. Id. at 54. SunGuard also owned SunGuard Recovery Services, the plaintiff's chief competitor. Id. at 51. The defendant ceased performing under its contract with the plaintiff and argued that it was relieved of its duty to perform because such performance would violate the antitrust statutes. Id. at 51, 53. After reviewing Illinois precedent, the court held that a party cannot make performance impossible by positing itself in a position by which contractual performance would violate antitrust laws, and then seek to escape liability. Id. at 54 (citing M.A. Felman Co. v. WJOL, Inc., 104 Ill. App. 2d 66, 72-73, 243 N.E.2d 33, 36-37 (1968) (holding that "illegality must not have come about because any action or non-action on [the] part of either of the parties to the contract")).
Similarly, in the instant case, Thompson's actions violated ERISA and hence, rendered contractual performance illegal. Yet Thompson was the agent, fiduciary and employee of the Pension Trust and Ameritech. (Def. Stat. of Mat. Facts at 4-5). It is well-established that an employee's actions within the scope of employment are imputed to the employer, Gomien v. Wear-Ever Aluminum, Inc., 50 Ill. 2d 19, 21, 276 N.E.2d 336, 338 (1971); Babb v. Minder, 806 F.2d 749, 752 (7th Cir. 1986) (applying Illinois law), even in the context of ERISA litigation. American Fed'n of Unions Local 102 Health and Welfare Fund v. Equitable Life Assurance Soc'y, 841 F.2d 658, 665 (5th Cir. 1988) (holding that the state law doctrine of respondeat superior applies in ERISA cases); National Football Scouting, Inc. v. Continental Assurance Co., 931 F.2d 646, 648 (10th Cir. 1991) (same); Continental Assurance Co. v. Cedar Rapids Pediatric Clinic, 957 F.2d 588, 589, 590-592 (8th Cir. 1992) (applying state law to determine that a fiduciary who embezzled from the plan was the agent of both the pension plan and his employer). Thus, because the Pension Trust and Ameritech share responsibility for rendering the Investment Agreement illegal, they cannot avoid liability by invoking the doctrine of impossibility. Accordingly, this court must reject their argument that they can escape liability for breach of contract because Thompson rendered contractual performance illegal.
However, the same does not hold true for defendant Harris. Plaintiffs failed to present any evidence from which one could infer that Thompson could be considered the agent of Harris. Moreover, from the court's independent review of the record, it is clear that Harris and Thompson did not enjoy an agency relationship. To establish an agency relationship, the plaintiff must demonstrate that the defendant had the right to supervise and control the alleged agent and to terminate the relationship at any time. Illinois Nurses Ass'n v. Illinois State Labor Relations Bd., 196 Ill. App. 3d 576, 582, 554 N.E.2d 404, 408, 143 Ill. Dec. 469 (1st Dist.), appeal denied, 132 Ill. 2d 545, 555 N.E.2d 376 (1990); Spivey v. Brown, 150 Ill. App. 3d 139, 143, 502 N.E.2d 23, 25, 103 Ill. Dec. 876 (3d Dist. 1986). No evidence exists demonstrating that Harris, as the trustee for the Ameritech Pension Trust, had the right to control Ameritech employees. To the contrary, Ameritech had complete control over Harris. (Trust Agreement between Harris and Ameritech at P 1.3 ("All instructions and directions to the Trustee [Harris] shall come from the Company [Ameritech] . . . ."); Def. Reply Br. at 15 (stating that Harris is merely Ameritech's "directed trustee" and derives its authority from Ameritech). Because Thompson was not Harris' agent, his unlawful actions cannot be imputed to Harris, and Harris can successfully invoke the doctrine of impossibility. Accordingly, Harris' motion with respect to the breach of the Investment Agreement is granted, and Harris is dismissed from count I of the plaintiffs' complaint.
The Ameritech defendants proceed to argue that they are entitled to summary judgment nonetheless because as a matter of law, the plaintiffs were in pari delicto with the Ameritech defendants. If the parties to an illegal contract are in pari delicto, then the contract is unenforceable and neither can recover. O'Hara v. Ahlgren, Blumenfeld and Kempster, 127 Ill. 2d 333, 348, 537 N.E.2d 730, 737, 130 Ill. Dec. 401 (1989). The Ameritech defendants aver that the plaintiffs enlisted the assistance of Bennett and insured he would receive $ 350,000.00 for "little or no work." (Def. Mem. in Supp. at 5). The Ameritech defendants argue that, as a matter of law, the size of Bennett's fee demonstrates either that the plaintiffs had knowledge of the scheme between Bennett and Thompson or that the plaintiffs introduced Bennett into the transaction to make "sure that Thompson would fail to act prudently." Id. at 3.
It is axiomatic that in reviewing a motion for summary judgment, the court must interpret the evidence in the light most favorable to the non-movant. Holland v. Jefferson Nat'l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir. 1989). Here, the size of Bennett's fee can simply suggest the plaintiffs' zeal to close the Stuart Park deal. The Ameritech defendants do not dispute that the plaintiffs were unable to elicit consideration from Thompson and the Pension Trust before they enlisted Bennett's assistance. Thus, a reasonable jury could find that the size of the fee suggests only that the plaintiffs believed they were required to pay such a fee in order to stimulate negotiations. Moreover, it appears from evidence submitted by both the plaintiffs and the Ameritech defendants that, in the industry, such fees are common. (Affidavit of William Paulsen cited in Def. Mem. in Supp. at 5 (asserting that "such payments were necessary to get deals done"); Pl. Mem. in Opp., Ex. 11 (in a letter to Judith Mares, the plaintiffs' agent states "[Bennett's] fee was consistent with financing fees paid for securing equity joint venture financing in the real estate industry")). Most importantly, the Ameritech defendants do not present any case law or explanation as to why a reasonable jury must infer either that the plaintiffs knew of the kickback scheme or that they intended for Bennett to entice Thompson into violating federal law simply because they agreed to pay Bennett a fee of $ 350,000.00. Thus, the size of Bennett's fee simply does not demonstrate in pari delicto as a matter of law. Accordingly, the Ameritech defendants' motion seeking the dismissal of count I on these grounds is denied.
2. Whether the Ameritech Defendants are Relieved of Liability Because the Plaintiffs Failed to Satisfy a Condition Precedent
The Ameritech defendants also argue they are entitled to judgment as a matter of law with respect to count I because the plaintiffs failed to perform a condition precedent. Under the Investment Agreement, the plaintiffs were required to secure construction financing before November 30 as a condition precedent to any investment by defendants. (Investment Agreement at P 3.6). Plaintiffs failed to fulfill this condition. Plaintiffs correctly respond, however, that, when a party repudiates a contract, the other party is relieved of its duty to perform a condition precedent. B & C Electric, Inc. v. Pullman Bank and Trust Co., 96 Ill. App. 3d 321, 328, 421 N.E.2d 206, 211, 51 Ill. Dec. 698 (1st Dist. 1981); Builders Concrete Co. v. Fred Faubel & Sons, Inc., 58 Ill. App. 3d 100, 106, 373 N.E.2d 863, 868, 15 Ill. Dec. 517 (3d Dist. 1978). The Ameritech defendants repudiated the contract on November 19.
Defendants correctly counter that, be that as it may, to recover for breach of contract the non-breaching party must nonetheless demonstrate that it could have performed the condition. Yale Dev. Co. v. Aurora Pizza Hut, Inc., 95 Ill. App. 3d 523, 526-27, 420 N.E.2d 823, 826, 51 Ill. Dec. 409 (2d Dist. 1981) (citing Nation Oil Co. v. R.C. Davoust Co., 51 Ill. App. 2d 225, 238, 201 N.E.2d 260, 266 (5th Dist. 1964)); see also Bonde v. Weber, 6 Ill. 2d 365, 381, 128 N.E.2d 883, 891 (1955) (holding that when a party repudiates a contract, the other party must demonstrate it was "ready, willing and able" to perform in order to recover damages). In the instant case, the plaintiffs have conceded that they cannot demonstrate an ability to perform: "It is impossible to determine whether final approval [for a financing commitment] would have been received before November 30, 1990." (Plaintiffs' Response to Defendants' First Request for Admissions at P 1).
The plaintiffs may, nevertheless, be able to recover, however. In Illinois, a party to a contract may not frustrate the other party's attempt to fulfil a condition precedent. Unit Trainship, Inc. v. Soo Line R.R., 905 F.2d 160, 163 (7th Cir. 1990) ("Where a party's obligation is subject to a condition precedent, [Illinois law imposes] a duty of good faith and fair dealing . . . to cooperate and to not hinder the occurrence of the condition."). Such conduct represents a breach of the duty of good faith and fair dealing, and consequently, a breach of the contract. Id. In the instant case, it is undisputed that the Ameritech defendants refused to deliver a signed copy of the Investment Agreement to the plaintiffs. The plaintiffs allege that this refusal impaired their ability to secure the financing commitment. (Pl. Resp. to Adm. at P 1; Pl. Mem. in Opp. at 10-11). The Ameritech defendants do not controvert this statement. (See Def. Mot. in Supp.; Def. Reply Br.). Thus, the plaintiffs may be able to demonstrate that the Ameritech defendants relieved them of their burden of demonstrating that they could have fulfilled the condition precedent. Accordingly, the Ameritech defendants' motion with respect to count I on these grounds is denied.
3. whether the Ameritech Defendants are Relieved of Their Contractual Obligations Because They Never Delivered the Contract to the Plaintiffs
Lastly, the Ameritech defendants argue they are entitled to judgment as a matter of law as to count I because the contract was never delivered. They reason that because they never delivered the contract to the plaintiffs, it never became valid. It is undisputed that the Ameritech defendants refused to deliver a signed copy to the plaintiffs once they determined that the Investment Agreement violated ERISA. Delivery, however, is not a precondition to contract formation unless the contract indicates otherwise. See, e.g., Soderstrom v. Rock River Valley Pigeon Club, Inc., 122 Ill. App. 3d 819, 820, 461 N.E.2d 547, 548, 77 Ill. Dec. 924 (3d Dist. 1984) ("Clearly delivery is not an essential element to the formation of a contract unless the offer specifies actual delivery as an essential part of acceptance of the offer."). The Ameritech defendants argue that the parties in the instant case intended for the Investment Agreement to become valid only upon delivery, because both the letter of intent and the Investment Agreement mention execution and delivery:
In consideration of the financial and other commitments which would be made by the Investor by its execution and delivery of the Investment Agreement . . .