customers in that territory. Defendant's selective reference to the Policy Manual ignores the fact that the manual expressly provided that Dawson did own his business and the exclusive right to distribute Voortman products in his territory. It appears to be defendant's contention that Dawson owned nothing, an argument which ignores the plain language of the Policy Manual.
However, it is apparent that Count XI does not truly attempt to state an antitrust claim, and that therefore the reference to treble damages in the count should be stricken.
Accordingly, insofar as it attacks Count XI, defendant's motion is granted in part and denied in part. The request for treble damages in Count XI is stricken.
III. STATUTE OF LIMITATIONS ISSUES ON COUNTS I & II
Counts I and II are brought pursuant to the Illinois Sales Representative Act, 820 ILCS 120/0.01 et seq. Defendant argues under these counts that the Act is a statutory penalty, and so a two-year statute of limitations applies. 735 ILCS 5/13-202. Plaintiff does not contest that if a two-year limitation applies then the Sales Representative Act claims are time-barred. Instead, plaintiff argues that the Act does not impose a statutory penalty, and therefore that the two-year statute is inapplicable. The question of whether the Sales Representative Act is a statutory penalty appears to be unresolved in Illinois.
Both parties rely on their interpretations of an analogous Illinois case, McDonald's Corp. v. Levine, 108 Ill. App. 3d 732, 439 N.E.2d 475, 64 Ill. Dec. 224 (1982), as the basis for their respective positions. McDonald's is instructive, and the court finds plaintiff to have the better argument. In McDonald's the Illinois Appellate Court held that the Illinois Eavesdropping Act was not a statutory penalty for purposes of determining the proper statute of limitations. The Illinois Eavesdropping Act, as described by the McDonald's court, provides three remedies -- an injunction, actual damages and punitive damages. See id. at 738-39, 439 N.E.2d at 480 (citing ILL. REV. STAT., ch. 38, P 14-6(1977)). In deciding that the act was not a statutory penalty, the court held that "[a] statute is a statutory penalty if it imposes automatic liability for a violation of its terms and the amount of liability is predetermined by the act and imposed without actual damages suffered by the plaintiff." Id. at 738, 439 N.E.2d at 480.
The last two requirements of a statutory penalty are not found in the Sales Representative Act. First, the amount of liability is not predetermined by the act. The provision in section two of the act, 820 ILCS 120/2, providing for payment of commissions, only directs the employer to pay commissions due in a timely manner upon termination of the employee. The act has imposed a deadline for payment, but has not created liability where there once was none. Section three of the act, 820 ILCS 120/3, provides for exemplary damages not to exceed three times the commissions due. That figure is determined by the preexisting liability between the parties, and in any event does not impose an automatic figure (as opposed to a cap) or require an award of exemplary damages. Second, the amount of liability under section three is related to the amount of actual damages suffered, in that the exemplary damages cap is tied to the amount of commissions due. The court holds that the Sales Representative Act does not impose a statutory penalty for purposes of determining the proper statute of limitations.
Regarding Counts I and II, defendant's motion is denied.
IV. PREVIOUSLY DISMISSED COUNTS
Defendant also states in its motion to dismiss that Counts V and VI of the First Amended Complaint are identical to two counts previously dismissed by this court. Count V of the First Amended Complaint is identical to the previously dismissed Count V, and so Count V (fraud) in the First Amended Complaint will be dismissed by this order. Count VI, however, survived the original motion to dismiss. It is rather Count IV (tortious interference) that was previously dismissed and is repeated in the First Amended Complaint.
Accordingly, Counts IV and V of the First Amended Complaint are dismissed.
Defendant's Motion to Dismiss Counts I, II, X and XI of Plaintiffs First Amended Complaint is granted in part and denied in part. The request for treble damages in Count XI is stricken. On the court's own motion, Counts IV and V are dismissed, as identical counts have previously been dismissed on defendant's motion.
JAMES H. ALESIA
United States District Judge
Date: September 15, 1994