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Levin v. The Posen Foundation

United States District Court, N.D. Illinois, Eastern Division

January 6, 2015

NEIL W. LEVIN, Plaintiff,


JOAN H. LEFKOW, District Judge.

Plaintiff Neil W. Levin filed suit alleging breach of implied contract and copyright infringement against The Posen Foundation and common law fraud against The Posen Foundation, Felix Posen, and James E. Young. The court dismissed the suit against Young for lack of personal jurisdiction. (Dkt. 41.)

The remaining defendants, the Posen Foundation and Felix Posen, now ask the court to dismiss the suit against Felix Posen for lack of personal jurisdiction. They also ask the court to dismiss the implied contract claim and the fraud claim for failure to state a claim upon which relief can be granted. For the reasons discussed below, defendants' motion is granted in part and denied in part.


Plaintiff Neil W. Levin is a scholar of Jewish music. (Dkt. 1 ("Compl.") ¶ 4B.) He teaches at Jewish Theological Seminary of America and serves as artistic director and editor-in-chief of The Milken Archive of Jewish Music. ( Id. ¶¶ 4B, 4C.) Levin is a resident of Illinois. ( Id. ¶ 4.)

Felix Posen is the founder and president of The Posen Foundation ("the Foundation"), a Swiss equivalent of a not-for-profit corporation. ( Id. ¶ 5.) The Foundation has "assets and operations" in the United States, Israel, Switzerland, and England-where Posen lives. ( Id. ) One of the Foundation's projects is The Posen Library of Jewish Culture and Civilization ("the Library"), a ten-volume series that, as the defendants describe it, "anthologizes Jewish artistic, literary, intellectual and spiritual works from biblical times to the present." (Dkt. 37 at 3.) In his complaint, Levin notes the Library includes "recorded music." (Compl. ¶ 5D.) The Library's editor-in-chief is James E. Young and its executive editor is Joyce Rappaport. ( Id. ) The Library's first volume, Volume X, was published by Yale University Press in November 2012. ( Id. )

Rappaport first reached out to Levin on October 27, 2008, when she sought his advice on the Library's inclusion of recorded music. ( Id. ¶ 6A.) Rappaport also told him that the Foundation was interested in establishing a partnership with The Milken Archive. ( Id. ¶ 6B.) This initial communication sparked a series of emails, phone calls, and meetings between Levin and Foundation employees that eventually led to Levin's working as the Foundation's "musical expert." ( See id. ¶¶ 6E, 7.)

Levin's role quickly expanded. At a November 25, 2008 meeting in London, Posen asked Levin to determine whether an "additional volume devoted exclusively to Jewish music" would be feasible. ( Id. ¶ 8C.) If it would be, Posen suggested Levin edit it. ( Id. ) Posen also asked Levin to look whether the Library should include additional writings, ranging from scholarly articles to bibliographies, on Jewish music. ( Id. ¶ 8B.) Levin's role further expanded when, in a February 15, 2009 email, Young invited Levin to join the Library's Editorial Advisory Board of Experts to vet other scholars' musical selections. ( Id. ¶ 15 (internal quotation marks omitted).) Young also offered Levin a "$3, 000 honorarium'" for joining the board. ( Id. )[2]

Three months later, at a May 21, 2009 meeting, Levin told Young and Rappaport that he had determined an additional volume dedicated exclusively to music would be feasible. ( See id. ¶¶ 18A-B.) Young agreed and told Levin the Library would publish the additional volume. ( See id. ) Young also asked Levin to be the Library's music editor. ( Id. ¶ 18A.) Levin accepted Young's offer on three conditions, which Levin claims Young consented to: that Levin's role apply to the entire Library, that he have sole authority over all music-related content, and that his official title be music editor of the Posen Library of Jewish Culture and Civilization. ( Id. ) Young also offered Levin compensation "consistent with his contribution to the project." ( Id. ¶ 18C.)

A few days later, Young emailed Levin and Posen a summary of the May 21, 2009 meeting:

We hammered out both a consulting and a collaboration agreement with [Levin] that will address both immediate ( i.e., Vol. X) and long-term issues surrounding the integration of music into The Posen Library. We all agree strongly that the music component of the Library is crucial to its success and stature, and that we need to do it right, or not at all.

( Id. ¶ 22 (emphasis removed).) Young's email goes on to discuss possible problems with the Library's page limits:

Joyce points out that the addition of these entries may well put Volume X over its page limit. Once we've received the list and actual manuscript pages from [Levin], we will work together with Volume Editors Deborah Moore and Nurith Hirsch, either to subtract other entries or to divide Volume X into two books....

( Id. ¶ 23 (emphasis removed).) A few days after Young sent the email, Levin called Young to ask him why the email did not mention Levin's new title of music editor. ( Id. ¶ 24.) Young assured Levin it was a mistake. ( Id. ) On May 27, 2009, Levin emailed Posen summarizing the meeting in his own words. ( Id. ¶ 25.) Posen responded: "Yes. I too heard that there was a good and fruitful meeting between all of you." ( Id. ) At a June 7, 2009 meeting at Posen's home in London, Posen also accepted Levin's "pre-conditions" for assuming the position of music editor, including the condition that he have sole authority over all music-related elements of the Library. ( Id. ¶ 26B.)

In late August of 2009, Posen phoned Levin at his Illinois office regarding his progress on Volume X. ( Id. ¶ 30.) Posen "expressed concern" that Levin had not yet submitted any work. ( Id. ) Levin told Posen that the work was in progress. ( Id. ) Levin then asked Posen to personally guarantee his title of music editor. ( Id. ¶30A.) Even though Posen had accepted Levin's "pre-conditions" two months earlier, Levin was concerned that his title was not official; on more than one occasion, Young had either misstated or forgotten it. ( Id .; see also id. ¶¶ 26B, 28.) Posen told Levin that he would personally guarantee Levin's title if Levin would send him descriptions of his work that justified the title. ( Id. ¶ 30B.) Levin refused and told Posen that he would "resign" and send an "invoice for his time expended." ( Id. ) When Posen did not waver, Levin agreed to provide written descriptions of his work. ( Id. ¶¶ 30B-C.)

On September 25, 2009, Levin faxed Posen a letter providing a "more concrete' idea of what [he] would include in the Posen Library." ( Id. ¶ 31.) Posen emailed Levin the following day, stating that he now had a better understanding of what Levin had in mind. ( Id. ¶ 32.) Posen did not, however, personally guarantee Levin the title of music editor. Instead, he wrote: "Assuming you can finish at least what we need for Volume X... by the end of November, everything else is ready, then we would be happy to offer you the position of Musical Editor." ( Id. (emphasis removed).)

On October 6, 2009, Levin sent Posen more "sample material." ( Id. ¶ 33.) On October 20, 2009, Posen emailed Levin and asked him to "finish as fast as you can what you think should go into Volume 10." ( Id. ¶ 35.) Later that month, Posen emailed Levin again regarding licensing and permission rights for the different volumes. ( Id. ¶ 40.) Posen also suggested the Foundation pay Levin $25, 000 per volume for his contributions to the Library. ( Id. ¶ 37A.) In November or December of 2009, Young asked Levin to produce bibliographies of literature on Jewish music. ( Id. ¶ 41.) Around that same time, the deadline for Volume X was postponed. ( Id. )

Over the next year, Levin sent Rappaport nine scholarly articles (one of which Levin authored), two bibliographies on writings, and four bibliographies on music. ( Id. ¶ 42.) When Rappaport received the materials, she informed Levin that he would need to shorten the articles to less than 1, 500 words as well as create annotated lists for the music bibliographies. ( Id. ¶ 44.) Levin told Rappaport that "this was not the way in which he had been working on the Bibliographies" and "that it was the first time it had been suggested to him by anyone." (Compl. ¶ 45A.) He did offer to "re-examine" the writings, however, if Rappaport would identify which ones needed to be shortened. ( Id. ¶ 44B.) It appears from Levin's complaint that at some point after this exchange, Levin asked Young for Volume X's specific page limits. ( See id. ¶ 46.) On March 16, 2010, Young responded that as soon as the Foundation had a complete draft, he would know the volume's page limits. ( Id. )

Levin sent another installment of his work product on April 14, 2010. ( Id. ¶ 47.) Levin included a note along with the installment that asked whether he was "on the right track." ( Id. ) On May 19, 2010, Young told Levin that his work was "exactly what [the Foundation] was hoping for." ( Id. ¶ 47A.) Young urged Levin to continue working but also warned him that the Foundation might need to cut 20% of Levin's submissions. ( Id. ) Levin sent another installment of his work on June 6, 2010. ( Id. ¶ 48.) On September 8, 2010, Levin emailed Rappaport the "complete Posen Volume X Document." ( Id. ¶ 50 (internal quotation marks omitted).) It had 945 entries and was 47 pages long. ( Id. ) On September 14, 2010, Levin faxed Rappaport an additional article accompanied by a note inquiring about "next step[s]." ( Id. ¶ 51.) Rappaport told Levin that Young would call him. ( Id. ¶ 51B.) A little over a month later, on October 15, 2010, Young emailed Levin asking him to limit his submission of 945 entries to 40 entries. ( Id. ¶ 52.) Young also stated that the Foundation wanted to "continue working" with Levin and that a "standalone volume" edited by Levin "would make an amazing part of the Posen Library." ( Id. ¶ 53B.) Young told Levin that the Foundation was "glad" to list him as the "Musical Editor." ( Id. ¶ 53B.)

The next day, Posen emailed Levin about the cuts:

Final word must remain with the editor-in-chief [Young] and the ...

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