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SLAMECKA v. EMPIRE KOSHER POULTRY

August 11, 2004.

THOMAS A. SLAMECKA, d/b/a T. Slamecka Inc., Plaintiff,
v.
EMPIRE KOSHER POULTRY, INC., J.W. CHILDS ASSOCIATES, L.P., and J.W. CHILDS ASSOCIATES, INC., Defendants. EMPIRE KOSHER POULTRY, INC., J.W. CHILDS, ASSOCIATES, L.P., and J.W. CHILDS ASSOCIATES, INC., Counterplaintiffs, v. THOMAS A. SLAMECKA, d/b/a T. Slamecka, Inc., Counterdefendant.



The opinion of the court was delivered by: ROBERT GETTLEMAN, District Judge

MEMORANDUM OPINION AND ORDER

In their first amended counterclaim, counterplaintiffs Empire Kosher Poultry, Inc. ("Empire"), J.W. Childs Associates, L.P. ("Childs"), and J.W. Childs Associates, Inc., seek damages against counterdefendant Thomas A. Slamecka ("Slamecka") for his alleged failure to act in the interest of Empire as their exclusive investment banking representative.*fn1 Specifically, Empire asserts the following claims: (1) breach of fiduciary duty (Count I); (2) unjust enrichment (Count II); and (3) tortious interference with prospective business advantage (Count III). Slamecka has moved to dismiss all counts pursuant to Fed.R. Civ. P. 12(b)(6). For the reasons stated below, Slamecka's motion to dismiss is granted with respect to Counts II and III, and denied with respect to Count I.

FACTS*fn2

  Childs owns all of the shares of Empire. In 2002 Empire was experiencing financial difficulties and many of its secured lenders, who were owed tens of millions of dollars by Empire, advocated change in Empire's operations and/or a sale of the company. The lenders proposed a review of the company's operations by an outside third party. Empire contacted Slamecka, after which he informed them that any business would need to be done with T. Slamecka Inc. (the "Corporation"), that the Corporation had a number of associates working for it, and that he would involve those associates in working on consulting or investment banking assignments. Slamecka also made a commitment to Empire, via its agent Childs, that he would not become a member of any group that would seek to purchase Empire or its assets and/or stock or take part or attempt to take part in any effort to buy Empire or be an officer of or run the company post-acquisition.

  The Corporation was represented by Slamecka to be an Illinois corporation of which he was the sole shareholder. Slamecka, however, has never filed corporation papers with the Illinois Secretary of State to formally create the Corporation. On October 11, 2002, the Corporation and Childs entered into an agreement (the "Agreement") naming the Corporation as Empire's "exclusive Investment Banking representative" for the purpose of assisting Empire with respect to, (1) any sale of stock in, or substantially all of the assets of Empire, (2) any merger, or (3) any other divestiture transaction with Empire.

  According to the Agreement, the Corporation would implement a divestiture strategy consistent with the objective, needs and preferences of Empire owners and debt holders "as communicated by J.W. Childs, or its appointed agent." Additionally, the Agreement provided that the Corporation would provide ongoing oversight and management services and oversee negotiations with outside contractors, including labor negotiations.

  In consideration of these services, the Agreement provided that Empire would pay the Corporation a non-refundable cash retainer fee (the "retainer fee") of $12,000 each full calendar month during the term of the Agreement. The Agreement also provided that "[i]f [Empire] or an affiliate controlled by [Empire] enter[ed] into a transaction" during the term of the Agreement, Empire would pay the Corporation a cash transaction fee (the "transaction fee") equal to two percent of the transaction (in certain circumstances, the percentage was to be reduced to 1.5 percent). Any retainer fee received by the Corporation during the twelve months prior to the closing of any transaction was to be credited to the transaction fee. Slamecka received a $78,000 retainer fee for his six and a half months of work on Empire's behalf.

  Empire alleges that Slamecka's representations and promises set forth above were false when made because: the Corporation did not exist and was never created; the Corporation never accepted or ratified the Agreement; almost every expression of interest in acquiring Empire was obtained by Empire; and, Slamecka attempted to affiliate himself with one or more of the parties who expressed interest in acquiring Empire. Further, Slamecka consistently put his own personal interests ahead of Empire, including: refusing and/or ignoring interested parties which had their own broker, with whom he would have to share any brokerage and/or transaction fee; attempting to become a member of various buyers' groups; advising prospective parties on how to pressure Empire and the various lenders into acquiescing to the prospective purchasers' demands and conditions; advising one prospective purchaser, which was a major customer of Empire, to threaten to take its business elsewhere; and causing buyers' groups to insert conditions in any offer that would benefit Slamecka and the Corporation but not Empire.

  According to Empire, this behavior by Slamecka was a breach of his fiduciary duty arising from his position as Empire's agent, resulting in damages of at least $78,000. Empire also alleges that it would violate the principles of justice, equity, and good conscience to allow Slamecka to retain the $78,000 retainer fee that equitably belongs to Empire. Lastly, Empire contends that Slamecka intentionally and unjustifiably interfered with Empire's reasonable expectation that a business relationship would arise between Empire and prospective purchasers.

  DISCUSSION

  The purpose of a motion to dismiss under Fed.R. Civ. P. 12(b)(6) is to test the sufficiency of the complaint, not to rule on its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When considering the motion, the court accepts the factual allegations as true and draws all reasonable inferences favorable to the plaintiff. Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1428 (7th Cir. 1996). The consideration of a Rule 12(b)(6) motion is generally restricted to the pleadings, which include the complaint, any exhibits attached thereto, and supporting briefs. Thompson v. Illinois Department of Professional Regulation, 300 F.3d 750, 753 (7th Cir. 2002). Nonetheless, "documents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [the] claim." Venture Associates Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 431 (7th Cir. 1993).

  The pleading requirements under Fed.R. Civ. P. 8(a)(2) necessitate only "a short and plain statement showing the plaintiff is entitled to relief, the purpose of which is to give the defendant notice of the claims and the grounds they rest upon." Thompson, 300 F.3d at 753.

  1. Breach of Fiduciary Duty:

  Under Illinois law, a plaintiff may recover for breach of fiduciary duty where: "(1) a fiduciary duty exists on defendant's part; (2) the defendant breached that fiduciary duty; and (3) damages proximately resulted from the breach." Pope v. Smith-Rothchild Financial Co., ...


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