The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on the Defendants' Motions for Summary Judgment (d/e 141, 142, 143, 144, and 145). For the reasons set forth below, the Motions for Summary Judgment filed by Defendants Steven K. Bentley, and Real Estate Systems of Gillette, Inc. (RES), are ALLOWED, and the Motion for Summary judgment filed by Defendant Willis Chrans is ALLOWED in part and DENIED in part. The Motions for Summary Judgment filed by Defendants Bank of Springfield, McGlasson and Kelley are denied as moot because these parties have entered into a binding settlement agreement.
In 1997, Randall Martin and Donald Mallette owned a company called Capital Aircraft, Inc. (Capital).*fn1 Capital was located in Springfield, Illinois, and it leased commercial aircraft and aircraft engines to foreign airlines. In 1997, Capital hired Defendant RES to perform professional management services for Capital. Defendants Willis Chrans and Steven Bentley were the principles of RES. Under the Management Agreement, Chrans became Capital's chief operating officer and Bentley became the chief financial officer. Bank of Springfield's Motion for Summary Judgment (d/e 141) (Bank Motion), Statement of Undisputed Fact (Bank SUF) ¶¶ 28-31.*fn2
In 1997, Capital formed an affiliated limited liability company called Capital Airline Leasing Company Three, LLC (Cap III). Cap III acquired a Fokker-28-1000 airplane (F-28). Capital Aircraft Holding Company LLC (Capital Holding) owned 87.5 percent of Cap III and an investor named Jeremy Michaels owned the remaining 12.5 percent. Capital Holding was owned by Mallette and Martin. Bank SUF ¶¶ 32-34.
Cap III tried to lease the F-28 unsuccessfully to an Argentinian airline called Aerogaucho. The president of Aerogaucho told Mallette that another Argentinian airline called American Falcon, S.A. (American Falcon), was interested in leasing the F-28. At this point in time, American Falcon only flew charter flights using aircraft leased on an hourly basis from a civilian arm of the Argentinian military. American Falcon's principal, Fayez Chehab, was interested in acquiring planes and starting regular commercial service in Argentina. Bank SUF ¶¶ 35-37.
In July 1998, Defendant Bank loaned $2,500,000.00 to Cap III to refinance the F-28. The loan was guaranteed by Mallette, Martin, Jeremy Michaels, William Pyle (a Springfield physician), and Capital. Each guarantee was limited to $650,000.00. In November 1998, Cap III leased the F-28 to American Falcon. In July 1999, the Bank refinanced the loan on the F-28 with the same guarantors. Bank SUF ¶¶ 40-43.
In August 1999, Chehab came to Springfield to look at two McDonnell-Douglas DC-9 planes owned by Capital (DC-9s). He wanted to lease those planes to put them into service with American Falcon. Bank SUF ¶ 45.
Chehab also offered Capital's principles the opportunity to buy American Falcon stock. In November 1999, Martin, Mallette, Chrans, Bentley, and three other individuals associated with Capital, Steve Young, Jeff Shaw, and Jeremy Michaels (Capital Group) formed the Capital Airline Investment LLC. Capital Airline Investment LLC purchased 460,000 shares of American Falcon from Chehab for a stated purchase price of $1,500,000.00. The Capital Group, collectively, paid $500,000.00 at the time of the purchase. The Capital Group agreed to pay the rest of the purchase price over time, however, the Capital Group never paid any more for the stock. Defendants did not disclose the terms of this stock acquisition to the Plaintiffs. Bank SUF ¶¶ 47-49; Plaintiffs' Response to Chrans Motion for Summary Judgment (d/e 149), Statement of Additional Undisputed Facts (Plaintiffs' Response to Chrans SUF) ¶ 43.
In addition, Capital Airline Investment LLC also agreed to broker a sale of 280,000 of Chehab's shares of American Falcon to an investor group by July 15, 2000, for $3,000,080.00. Chehab would contribute $2,200,000.00 of the purchase price to American Falcon and loan $440,000.00 of the purchase price to the buying investment group. Bank SUF ¶ 47.
On February 7, 2000, Chehab sent Chrans, Bentley, and RES an email in which he recommended that American Falcon stop operating on February 15, 2000, and to forget about regular flights altogether. Chehab complained about the high cost of operating the F-28. In March 2000, Chehab met with Chrans in Miami to discuss the financial condition of the company. Chehab presented three options: raise sufficient funds to finance the projected deficit; try to sell American Falcon; or close the company as soon as possible to avoid further losses. In March 2000, Chehab told Chrans that he would put the company into bankruptcy on May 1, 2000, if they could not provide any assistance. Plaintiffs' Response to Chrans SUF ¶¶ 22-24.
In April 2000, Mallette and Bentley asked the Bank for $200,000.00 in additional credit to perform the maintenance on the F-28 and to rebuild its engines. Bank SUF ¶ 50; Plaintiffs' Response to Chrans SUF ¶ 25.
In Spring 2000, Chrans, Bentley, and RES prepared and distributed a document called a Private Placement Offering (PPO) to prospective investors to offer an opportunity to invest in American Falcon. Chrans Motion for Summary Judgment (d/e 143) (Chrans Motion), Exhibit 12, PPO. Chrans and Bentley also distributed a copy of a Power Point presentation of the investment opportunity. Id., Exhibit 13, Power Point Presentation (Power Point) (the Power Point and PPO are collectively referred to as the Offering Documents).
The Offering Documents explained that American Falcon was a startup airline in Argentina. American Falcon leased one airplane, the F-28, and also rented other planes on an hourly basis. American Falcon planned to lease additional planes, expand its charter business, and start regularly scheduled air service in South America. The Offering Documents explained that the F-28 was not currently flying because of a required maintenance check. The proposal contained projections that estimated that American Falcon would start producing positive net income in August 2000, and would have a net income in 2001 of over $5,000,000.00. By 2004, the PPO projected that American Falcon would have an annual net income of more than $11,800,000.00.
The Offering Documents sought ten investors. Under the proposal, a new limited liability company called American Falcon Investment Company, LLC (AMFAL Investment) would be formed. The Bank would lend AMFAL Investment $3,000,000.00. AMFAL Investment would use $2,200,000.00 to buy 33.3 percent of American Falcon stock. AMFAL Investment would use $521,818.00 for debt service until American Falcon started to generate enough positive cash flow to service the debt. The remaining $278,182.00 would be held in reserve. The PPO projected that American Falcon would start servicing the debt in March 2001. The ten prospective investors would sign personal guarantees of $300,000.00 each to guarantee the Bank's loan to AMFAL Investment, but put up no cash. In exchange, each investor would receive a ten percent interest in AMFAL Investment (and, through AMFAL Investment, a 3.33 percent ownership interest in American Falcon). Bank SUF ¶ 59. The Offering Documents disclosed that Chehab would own 33.3 percent of American Falcon, and the Capital Group would own the remaining 33.3 percent.
The PPO also contained an Addendum that stated that the investors in AMFAL Investment would be given the opportunity to invest in the airplanes that American Falcon planned on acquiring. The proposal explained that the investors would form new limited liability companies to own the planes, and then lease the planes to American Falcon. It was anticipated that four planes would be acquired and leased to American Falcon. Bank SUF ¶ 60; Second Amended Complaint (d/e 101), Exhibit 3, Addendum to Investment Opportunity In American Falcon Involving Airplane Ownership.*fn3
The PPO also contained disclaimers about the risks of the proposal, and also the underlying assumptions. Among other things, the PPO assumed that the F-28 would be back in service by April 16, 2000, that American Falcon would have a Boeing 737 airplane in service by August 1, 2000, and a second Boeing 737 in service by January 1, 2001. PPO, Schedule of Assumptions to the Projections--2000 to 2001.
The Offering Documents did not disclose certain matters. The Offering Documents did not disclose Chehab's statements earlier in 2000 that the venture was too costly to operate and should be shut down, nor his threat to put the company in bankruptcy. The Offering Documents did not disclose that the Capital Group paid only $500,000.00 for its stock.
Plaintiffs Robert Trask (Dr. Trask), Thomas Baron (Dr. Baron), and Christopher Mallavarapu (Dr. Mallavarapu) were all physicians living in Springfield, Illinois. Dr. Trask was married to Plaintiff Mary Trask; Dr. Baron was married to Plaintiff Linda Baron; and Dr. Mallavarapu was married to Plaintiff Janet Mallavarapu. Randall Martin was also a physician. The Plaintiffs received the Offering Documents. Bank SUF ¶¶ 2-19, 52-58.
On June 5, 2000, AMFAL Investment was formed. A total of fourteen units were subscribed by investors. The Trasks, Barons, and Mallavarapus, as married couples, each invested in one unit of AMFAL Investment, for a total of three units. The Plaintiffs signed the Operating Agreement for AMFAL Investment on June 9, 2000. The Operating Agreement recited that fourteen units were sold, rather than the ten proposed in the Offering Documents. The Operating Agreement identified all of the investors. The transaction was adjusted to reflect the fact that the offering was oversubscribed. AMFAL Investment borrowed $4,200,000.00 from the Bank and purchased 47 percent of the stock in American Falcon. As a result AMFAL Investment still owned 3.33 percent of American Falcon stock for each investment unit in AMFAL Investment. Each Plaintiff also signed a personal guarantee with the Bank guaranteeing the loan to AMFAL Investment. Bank SUF ¶¶ 62-67.*fn4
The guarantees were absolute, unconditional guarantees of payment which waived any and all defenses, including any failure of the Bank to perfect security interests in collateral. The obligations of the guarantors were joint and several and were continuing until the obligation, including interest, fees, attorney fees and costs of collection, were paid in full. Bank Motion, Exhibits 26-28, AMFAL Investment Guarantees.
AMFAL Investment paid $2,200,000.00 to American Falcon as a contribution of new capital for new stock. AMFAL Investment paid $900,000.00 to existing shareholders to buy additional stock: $460,000.00 went to Chehab; and $440,000.00 was divided among Bentley, Shaw, Young, and Michaels. Bentley received $110,000.00 for one third of his stock. He had paid $90,000.00 for all of his stock less than a year earlier.
Plaintiffs' Summary Judgment Exhibits (d/e 150) (Plaintiffs' Exhibits), Exhibit K, Deposition of Steven Bentley on February 7, 2007, at 100-03, 134-35. The Offering Documents did not disclose that AMFAL Investment was paying more than three times the price paid by the Capital Group for American Falcon stock.
While AMFAL Investment was forming, Capital was looking for airplanes to lease to American Falcon. By May 10, 2000, Capital located a Boeing 737 (Capital 737) to acquire and lease to American Falcon. The Capital 737 was already in Argentina. The Capital 737 needed extensive maintenance work. Capital planned to purchase the Capital 737 for $2,500,000.00 and lease it to American Falcon for $85,000.00 per month. Capital planned to finance the purchase with a loan from Marine Bank of Springfield, Illinois (Marine Bank). In September 2000, Marine Bank loaned Capital $3,100,000.00 to purchase the Capital 737. The loan was a short-term loan until the required maintenance was completed. Capital expected to arrange long-term financing and sell the Capital 737 to a limited liability company that would, in turn, lease the Capital 737 to American Falcon. Bank SUF ¶¶ 69-73.
In September 2000, Bentley presented a status report to AMFAL Investment members. The status report stated that the purchase of the Capital 737 had been completed, but the plane was not ready to fly because it had to undergo a maintenance check. The report indicated the Capital 737 would start flying in January 2001. The report also stated that the F-28 experienced mechanical problems and reduced its flying time. The status report stated that an additional $2,367,039.00 was needed to keep the company going until the planes started flying. The status report proposed that AMFAL Investment members loan $85,750.00 per membership unit to AMFAL Investment. The report stated that the loans would be repaid from operational income in 2001. Chrans and Chehab also told the AMFAL Investment members, including the Plaintiffs, that they needed the additional funds in connection with negotiations between Air France and American Falcon, to meet certain requirements set by Air France for a business relationship. In November 2000, the Plaintiffs, as couples, made three loans to AMFAL Investment of $85,750.00 each. The loans were evidenced by promissory notes repayable in one year at 10 percent interest. The loans were never paid back. Bank SUF ¶¶ 74-76; Second Amended Complaint, ¶ 63; Answer and Affirmative Defenses of Chrans, Bentley and RES (d/e 107 & 108), ¶ 63.
On November 9, 2000, Capital entered into a Lease with American Falcon to lease the Capital 737. Capital did not intend to charge rent until the Capital 737 was ready for service and properly registered in Argentina. Bank SUF ¶ 73. American Falcon also discussed leasing the DC-9s. The parties discussed leasing the DC-9s throughout 2001, but never completed those Leases. Bank SUF ¶¶ 74, 77, 83, 95-102.
AMFAL Investment held another meeting on February 22, 2001. At that point, the investors were told that the Capital 737 was still not flying and that Capital was having difficulty getting long-term financing for the Capital 737. The Argentinian government would not authorize the Capital 737 to fly commercially in Argentina. Bentley and Mallette presented a proposal to lease the DC-9s to American Falcon. Bentley also presented financial statements for the fiscal year ending September 30, 2000, and for the year-to-date through January 31, 2001. The statements showed a net loss of ($2,099,360.49) for the fiscal year ending September 30, 2000, and an additional net loss of ($1,193,960.95) for the four months from October 2000 through January 2001. Bentley told the investors then the company would need another $1,477,513.00 to cover losses through May 31, 2001. He also told them that American Falcon would need an additional $250,000.00 for each month that it was delayed in putting the planes into operation. He revised the projected 2001 first-quarter income from $410,377.00 in positive net income, to a loss of ($1,104,294.00). Bank SUF ¶¶ 77-80.
At the February 22, 2001, meeting, Chrans represented to Plaintiffs that American Falcon had secured $9,000,000.00 to $13,000,000.00 in charter revenue under contract. Plaintiffs' Exhibits, Exhibit Q, Deposition of Thomas Baron on February 14, 2007 (2-14-07 T. Baron Deposition), at 253-55; Bank Motion, Exhibit 50, Minutes of American Falcon Shareholders' Meeting on February 22, 2001 (February 22, 2001, Minutes). The members of AMFAL Investment also voted to have the members become the direct owners of the American Falcon stock that AMFAL Investment purchased in the original June 2000 transaction. Chrans Motion, SUF ¶ 46; February 22, 2001, Minutes.
AMFAL Investors next met on April 26 and 27, 2001. Capital and American Falcon had continued discussions regarding the Lease of the DC-9s. A proposal was approved for American Falcon to issue 640,000 additional shares at a price of $5.00 per share. Chehab would also receive 130,000 shares to minimize dilution of his ownership interest. The remaining new shares would be sold to existing shareholders for a total additional investment of $2,500,000.00. The agenda also contained a statement that American Falcon needed an additional $250,000.00 "by Monday." Chehab stated that American Falcon needed $250,000.00 per month for every month until American Falcon had the DC-9s and the Capital 737 under lease and in operation. Projections were presented that said that the Capital 737 could start flying in July and the DC-9s could start flying in September 2001. Bank SUF ¶¶ 88-89, Bank Motion, Exhibit 62, Minutes of American Falcon Shareholders Meeting on April 26-27, 2001.
The members of AMFAL Investment met immediately after the April 27, 2001, American Falcon shareholders' meeting. The members elected Plaintiff Janet Mallavarapu as Manager of AMFAL Investment. Chrans had previously acted as Manager. Janet Mallavarapu thereafter received monthly financial reports from Chehab. Bank SUF ¶¶ 90-92.
On May 14, 2001, Bentley emailed the members of AMFAL Investment, including Plaintiffs Drs. Baron, Trask, and Mallavarapu, with information that American Falcon's financial statement showed that American Falcon had a net loss of ($2,005,551.00) for the period from October 1, 2000, to April 30, 2001. Bank SUF ¶ 106. On the same day, Chehab sent an email to AMFAL Investment members reiterating that American Falcon needed $250,000.00 per month to stay afloat until the F-28 was returned to service and a 737 was secured and put into service. He presented several options ranging from acquiring planes from other lessors, to purchasing planes, to closing the company. Bank SUF ¶ 107. Chrans, Chehab, and Bentley, however, also stated to Plaintiffs that they should ignore the financial statement showing American Falcon had lost more than $2,000,000.00 because the losses were incurred because Capital would not supply American Falcon with the Capital 737. Plaintiffs' Exhibits, Exhibit I, Deposition of Christopher Mallavarapu on January 29, 2007 (1-29-07 C. Mallavarapu Deposition), at 155-56.
The American Falcon shareholders then met on May 22, 2001. The chair asked for a motion to close the company, but no motion was forthcoming. The shareholders discussed the pledges made to purchase the additional shares for the $2,500,000.00 approved at the April meeting. After the meeting, a letter was sent to each AMFAL Investment member and purportedly signed by Janet Mallavarapu. The letter stated that each member was required to contribute an additional $6,380.00 per month to AMFAL Investment to service the Bank loan until the Capital 737 and Capital DC-9s were in service for American Falcon. Bank SUF ¶¶ 113, 116-17.
In April or May or June 2001, Dr. Mallavarapu met with Michael McGlasson, an officer of Bank of Springfield, to discuss the AMFAL Investment Guarantees. During that meeting, McGlasson told Dr. Mallavarapu about the various loans between the Bank and Capital and about the strength of some of the other guarantors. With respect to several of the guarantors, McGlasson said that he had no comment on the guarantor's financial condition. After the meeting, the Plaintiffs became concerned that they were exposed to joint and several liability with coguarantors who were weak credit risks. McGlasson told Mallavarapu at the meeting not to worry about Capital because, despite its high debt structure, it always paid its bills. Plaintiffs' Response to Bank's Motion for Summary Judgment (d/e 148) ( Plaintiffs' Response to Bank), at 17-18 Statement of Additional Undisputed Fact (Plaintiffs' Response to Bank SUF) ¶¶ 10-11.
Throughout the spring and summer of 2001, a group of AMFAL Investment members, along with Chrans and Chehab (collectively the 737 Group), discussed the possibility of buying another Boeing 737 airplane to lease to American Falcon. The Plaintiffs were part of the 737 Group. In May 2001, Dr. Mallavarapu contacted McGlasson at the Bank to seek financing for the purchase of an airplane to lease to American Falcon. The borrower would be the 737 Group. On June 8, 2001, McGlasson wrote Dr. Mallavarapu to confirm that the Bank would provide financing, but the specifics of the loan would depend on the amount of the loan and the specific airplane involved. Bank SUF ¶¶ 119.
Chrans told the Plaintiffs on July 2, 2001, that American Falcon had lucrative routes and just needed more planes to secure additional lucrative routes. Plaintiffs' Response to Chrans SUF ¶ 58.
On July 9, 2001, Dr. Mallavarapu took Chehab to meet McGlasson to discuss financing the purchase of a Boeing 737 airplane. McGlasson had not previously met or spoken to Chehab. Following the meeting, the Bank committed to lend the group $4,200,000.00 to buy the plane, to be secured by a lien on the plane and personal guarantees of the investors. Bank SUF ¶¶ 126-127.
Later that day, on July 9, 2001, American Falcon shareholders held their next meeting. The Capital 737 was still not flying, and Capital and American Falcon had not agreed on a lease of the DC-9s. Chehab asked shareholders to deposit the remainder of their prior financial commitments to American Falcon by July 12, 2001. At the close of the meeting, the members of AMFAL Investment discussed refinancing the June 2000 $4,200,000.00 AMFAL Investment loan. Bank SUF ¶¶ 125, 129. On July 22, 2001, a reminder letter was sent to each AMFAL Investment member, purportedly signed by Janet Mallavarapu, stating that the $6,380.00 monthly payment was due to AMFAL Investment for the August bank loan payment. Bank SUF ¶ 133.
In August 2001, AMFAL Investment and its members refinanced the June 2000 $4,200,000.00 note. Some members exchanged their $300,000.00 guarantees for promissory notes with a principal balance of $248,509.68. AMFAL Investment signed a note for $728,823.64 to refinance the debt from some of the members who did not exchange their guarantees for personal loans. The Plaintiffs all exchanged their guarantees for personal loans and were no longer obligated to the Bank on the original June 2000 guarantees. The Bank did not call the guarantees. Bank SUF ¶¶ 134-138.
On August 25, 2001, the Bank loaned $3,000,000.00 to American Falcon. The $3,000,000.00 was then deposited into a Certificate of Deposit at the Bank to secure the loan. McGlasson understood that this transaction was intended to allow American Falcon to list the borrowed funds as cash reserves on its balance sheet to satisfy Argentinian airline regulators. The Bank did not disclose this $3,000,000.00 loan to the Plaintiffs. Plaintiffs' Response to Bank SUF ¶¶ 14-16. Chrans approved this transaction as a director of American Falcon. Plaintiffs' Response to Chrans SUF ¶ 59.
In August 18, 2001, the 737 Group met with an investment advisor called the Opes Group to discuss structuring the investment in this new 737 airplane. The Opes Group provided a proposal that involved setting up a foreign business corporation and transferring income paid to that corporation in an effort to defer income tax. The Opes Group presentation also contained a discussion of the risks involved and noted that the investors could be personally liable for the full amount of the bank loans should the venture fail. Bank SUF ¶¶ 139-43.
On September 9 and 10, 2001, Chrans notified the 737 Group that he had located an airplane available for purchase. The purchase plan called for borrowing $4,000,000.00 from the Bank guaranteed by the investors. On September 12, 2001, Chrans told the 737 Group members that they would realize monthly gross revenues ranging from $85,000.00 to $95,000.00 with a positive net cash flow of $26,000.00 to $34,500.00 per month on their investment. Plaintiffs' Response to Chrans SUF ¶ 60.*fn5 Chrans sent an email to Plaintiffs on September 19, 2001, regarding a possible purchase of a 737. He stated that the purchase price would be $3,800,000.00, with a $200,000.00 rebate paid back by the seller. On October 12, 2001, the 737 Group organized ROTFL, LLC (ROTFL) to purchase the plane.*fn6 The Plaintiffs were members of ROTFL. Bank SUF ¶¶ 144-45, 151, 165.
Around this time, Chrans told the Plaintiffs that American Falcon just needed time and equipment to be successful. Chrans told the Plaintiffs that the addition of another Boeing 737 would allow American Falcon to take full advantage of the business opportunities continuing to flow to the company. Plaintiffs' Response to Chrans SUF ¶¶ 61-62. Chrans also told the Plaintiffs in the fall of 2001 not to be alarmed by Chehab's email warnings about American Falcon's dire financial condition. Chrans told them that Chehab was trying to raise additional capital. Plaintiffs' Response to Chrans SUF ¶ 63. From October 2001 through September 13, 2004, Chrans did not provide the Plaintiffs with any financial statements for American Falcon. During this time, Chrans represented to Plaintiffs time and again that American Falcon was on the verge of profitability. Plaintiffs' Response to Chrans SUF ¶ 64.
On November 1, 2001, the Bank loaned ROTFL and Western Equipment Leasing Company, LLC, $4,050,000.00 (ROTFL Loan) to buy a second Boeing 737 (ROTFL 737).*fn7 Chrans was affiliated with Western Equipment Leasing. Each Plaintiff personally guaranteed the ROTFL Loan up to $1,050,000.00, which guarantees were subsequently reduced to $840,000.00 each, when Chehab gave the Bank a mortgage on some real estate in France. Bank SUF ¶¶ 166-174. The guarantees were absolute, unconditional guarantees of payment unaffected by any modification, renewal or extension of the loan agreement, or any failure to perfect any lien or security interest in collateral, or to release any collateral. The Plaintiffs waived any obligation of the Bank to provide information or notices to the Plaintiffs or to seek repayment from any other source before demanding payment from them as guarantors. The guarantees recited that the Plaintiffs performed their own investigation and relied on their own information in making these guarantees and assumed all risks associated with the guarantees and relieved the Bank of any obligations to inform them of the borrower's financial condition. The guarantees further allowed the Bank to apply any payment from any source in any manner the Bank wished. The guarantors also agreed to be responsible for all interest, attorney fees and cost of collection. Bank Motion, Exhibits 200-02, ROTFL Guarantees. The Bank was also given a mortgage lien on the ROTFL 737. About the time of the ROTFL loan closing, McGlasson told Baron that if the Bank wanted to foreclose on the aircraft it could be flown out of the country to a different site for repossession. Plaintiffs' Response to Bank SUF ¶ 28. The Bank registered its mortgage in Argentina on the ROTFL 737. Bank SUF ¶ 182.
The seller of the ROTFL 737 paid ROTFL a $400,000.00 rebate on the sale. Chrans told the Plaintiffs that the rebate would be used to purchase additional shares of American Falcon for ROTFL members. In fact, the money was contributed to American Falcon without any additional shares or other ...