an individual to defend a suit brought against him personally in a forum
with which his only relevant contacts are acts performed not for his own
benefit but for the benefit of his employer." Rollins, 565 N.E.2d at
1317. Talley avers in his affidavit that he has lived and worked in Texas
since 1982, and he estimates that during his time as the Chairman and CEO
of RAC, he spent "approximately one day, every two years, in Illinois on
RAC business." Talley also asserts that he has had no contact with
Illinois in any individual, personal capacity. Thus, he maintains he
should not be subjected to the jurisdiction of this court.
In response, Plaintiffs claim that the fiduciary shield doctrine does
not apply to high-ranking officers or directors of corporations. In
making that argument, however, Plaintiffs misstate the case law on this
issue. Some Illinois court have refused to apply the fiduciary shield
doctrine to nonresident officers and directors of Illinois corporations,
reasoning that by accepting the position they chose to avail themselves
of the protections of Illinois law and they knew that business
transactions would likely occur in Illinois. See, e.g., Int'l Bus.
Machs. Corp. v. Martin Prop. & Cas. Ins. Agency Inc., 666 N.E.2d 866,
871 (Ill.App. Ct. 1996); Morse v. E&B Coal Co., Inc., 634 N.E.2d 436,
442-43 (Ill.App.Ct. 1994). Additionally, courts have elected not to apply
the fiduciary shield doctrine when officers and directors of corporations
were also shareholders. See, e.g., Plastic Film Corp. of Am., Inc. v.
Unipac, Inc., 128 F. Supp.2d 1143, 1147 (N.D.Ill. 2001) (collecting
cases). But there is not, as Plaintiffs maintain, an across-the-board bar
to applying the fiduciary shield to any high-ranking officer or
director. See Alpert v. Bertsch, 601 N.E.2d 1031, 1037 (Ill.App.Ct.
1992); Hartigan v. Kennedy, 576 N.E.2d 107, 114-15 (Ill.App.Ct. 1991);
Burnhope v. Nat'l Mortgage Equity Corp., 567 N.E.2d 356, 363
Because Plaintiffs make no allegation that RAC was an Illinois
corporation, that Talley was a shareholder, or that he had contacts with
Illinois that were not solely in his official capacity for RAC, Talley is
entitled to the protection of the fiduciary shield doctrine. His motion
to dismiss for want of personal jurisdiction is granted.
APT, a Kansas corporation with its principal place of business in
Kansas, argues that it has insufficient contacts with Illinois to justify
personal jurisdiction. Specifically, APT argues that it does not have an
Illinois address or phone number, any employees in Illinois, or an office
or agent in Illinois. The president of APT averred in his affidavit that
APT does not advertise or solicit customers in Illinois, nor do its
employees travel to Illinois to conduct business. APT claims that merely
sending the tests to RAC, scoring the tests, and mailing the results back
to RAC does not constitute "minimum contacts."
Although APT's relationship with Illinois would be insufficient to
warrant general jurisdiction, it is enough for this court to exercise
specific jurisdiction over APT. APT mailed the tests to RAC in Illinois.
After receiving the test results back from RAC, APT tabulated the score
and created a written psychological profile for each individual, which it
sent to RAC management (not in Illinois). This lawsuit arises directly
out of those contacts with the state, and it is not unreasonable for APT
to anticipate being haled into court in Illinois knowing that its work
being distributed to employees in this state.
APT's motion to dismiss for want of jurisdiction is denied.
IT IS THEREFORE ORDERED:
(1) RAC's Motion to Dismiss Amended Complaint (#6) is
GRANTED in part and DENIED in part. Plaintiffs' FCRA
claim is dismissed. Plaintiffs' invasion of privacy
claim is dismissed except to the extent that
Plaintiffs are raising a claim based on public
disclosure of private facts.
(2) Plaintiffs' Motion to Allow Filing Second Amended
Complaint (#23) is GRANTED, but the above analysis
applies to the claims raised in the Second Amended
(3) Defendant Talley's Motion to Dismiss Amended
Complaint (#24) is GRANTED.
(4) Defendant APT's Motion to Dismiss Amended
Complaint (#32) is DENIED.
(5) This case is referred to the Magistrate Judge for
*fn2 Section 12112 of the ADA provides, in relevant part:
(a) General rule
No covered entity shall discriminate against a
qualified individual with a disability because of the
disability of such individual in regard to job
application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges
of employment. . . .
(d) Medical examinations and inquiries