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Larry Harmon and Harmon- Castillo, Llp, F/K/A Larry v. Ben Gordon

January 27, 2011


The opinion of the court was delivered by: Charles P. Kocoras, District Judge


This matter comes before the court on the motion of Defendant Ben Gordon ("Gordon") to dismiss the Complaint of Plaintiffs Larry Harmon and Harmon-Castillo, LLP, for failure to state a claim. For the reasons set forth below, Gordon's motion is granted in part and denied in part.


According to the allegations of the complaint, which we must accept as true for purposes of this motion,*fn1 Plaintiff Larry Harmon is an individual residing in California and Plaintiff Harmon-Castillo, LLP, (collectively, "LHA") is a California-based entity serving as accountant and business manager for professional athletes. LHA alleges that on May 17, 2004, it entered into a consulting agreement with Ben Gordon ("Gordon"), a professional basketball player currently employed by the Detroit Pistons of the National Basketball Association ("NBA"). Pursuant to the terms of the consulting agreement, Gordon engaged LHA as consultants and financial advisors for the entire duration of his playing career in the NBA. LHA alleges that the parties initially agreed that in exchange for its services LHA would receive monthly payments of $4,000 during Gordon's rookie season, $5,000 during his second season, and $6,000 during his third and fourth seasons.

LHA asserts that in May 2006, Harmon informed Gordon by e-mail that the flat monthly rates would be replaced with a new percentage-based fee amounting to 1.5% of Gordon's total income. LHA claims Gordon acknowledged receiving the e-mail and did not object to the change. From May 2006 to June 2007, Gordon received LHA's monthly invoices which displayed the new fee arrangement at a rate of 1.5%. LHA submits that Gordon paid all the invoices according to the newly-modified 1.5% rate, and that overall Gordon benefitted from the percentage-based calculation of fees because he was charged less than what he would have been with the flat-fee based amounts. Gordon did not object to the new fee structure until sometime in 2007 when he fired LHA as his financial advisors. LHA claims that, under the terms of their agreement, Gordon had no right to terminate LHA because he remains an active player of the NBA.

LHA further alleges that in February 2007 Gordon agreed to transfer $1,000,000 to Vitalis, an entity affiliated to LHA. According to LHA, Gordon believed that the money would be used to acquire an equity interest in a real estate property. The parties executed a promissory note memorializing their agreement. LHA asserts that the instrument Gordon signed expressly disclosed LHA's interest in the transaction and obligated LHA to repay the funds within a certain period of time.

On September 19, 2007, Gordon filed suit against LHA in the Circuit Court of Cook County. Although the suit was originally filed in Illinois state court, LHA removed the case to this court on diversity grounds. In his complaint, Gordon asserted a breach of contract claim for failure to pay the principal loan amount of $1,000,000. Gordon also asserted a breach of fiduciary duty claim in connection with the fee structure of the consulting agreement and with the monetary transaction underlying the promissory note. In the allegations related to the breach of fiduciary duty claim, Gordon averred that he never agreed to changing the fee structure from a flat fee to a percentage-based fee. Gordon also alleged that LHA failed to disclose the true nature of the $1,000,000 investment, that the purported real estate investment was in reality a loan to LHA, and that LHA used the money to obtain its own interest in real estate property.

LHA alleged counterclaims of breach of contract and tortious interference with prospective business advantage. Gordon moved to dismiss the counterclaims for failure to state a claim. On July 31, 2008, we denied Gordon's motion as to the breach of contract count but granted the motion with respect to the tortious interference count. Subsequently, Gordon requested summary judgment in his favor on the breach of contract claim and LHA requested the same relief on Gordon's breach of fiduciary duty count. On January 27, 2010, we awarded Gordon summary judgment on his breach of contract claim and granted LHA's motion for summary judgment on Gordon's breach of fiduciary duty claim. We also dismissed LHA's counterclaim for breach of contract for lack of diversity jurisdiction.

On March 2, 2010, LHA filed a four-count complaint against Gordon alleging breach of contract, malicious prosecution, abuse of process, and tortious interference with prospective business advantage. Gordon now moves to dismiss all counts of the complaint for failure to state a claim.


A Rule 12(b)(6) motion to dismiss is used to test the legal sufficiency of a complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on a motion to dismiss, a court must draw all reasonable inferences in favor of the plaintiff, construe allegations of a complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). To be cognizable, the factual allegations contained in the complaint must raise a claim for relief "above the speculative level." Bell Atlantic Corp., v. Twombly, 550 U.S. 544, 555 (2007). However, a pleading need only convey enough information to allow the defendant to understand the gravamen of the complaint. Payton v. Rush-Presbyterian-St. Luke's Med. Ctr., 184 F.3d 623, 627 (7th Cir. 1999). With these principles in mind, we now consider Gordon's motion to dismiss.


A. Count I: Breach of Contract

Gordon asks that we dismiss LHA's breach of contract claim. In support of dismissal, Gordon argues that, in the context of a principal-agent relationship, the client has an absolute right to terminate the agent and that such termination does not constitute a breach of contract even though the relationship between the parties is contractual.*fn2 Under Illinois law, when a principal and an agent enter into a contract for a specific term, the principal may still revoke the agent's authority "at any time and under any circumstances." Lehman v. Eugene Matanky & Assoc. Inc., 438 N.E.2d 614, 619 (Ill. App. Ct. 1982). However, a principal who agreed to employ the agent for a certain length of time cannot revoke the agency "rendering himself legally liable for such damages." Kenilworth Realty Co. v. Sandquist, 371 N.E.2d 936, 939 (Ill. App. Ct. 1977). Such a revocation results in a repudiation of the principal's contractual obligations. Id. Here, LHA has alleged that Gordon agreed to use LHA's financial and consulting services on an exclusive basis for the entire duration of his NBA playing career, ...

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