United States District Court, N.D. Illinois, Eastern Division
NEIL W. LEVIN, Plaintiff,
v.
THE POSEN FOUNDATION, a Swiss Foundation all Counts, and FELIX POSEN, an individual Count III, Defendants.
AMENDED OPINION AND ORDER
Joan
H. Lefkow U.S. District Judge.
Neil W.
Levin, a distinguished scholar of Jewish music, sued Felix
Posen and the Posen Foundation, a family foundation of which
Felix Posen is president, asserting several claims arising
from an aborted collaboration with the Posen Foundation on
the creation of an anthology of Jewish music for the Posen
Library of Jewish Culture and Civilization (the Posen
Library). After more than five years of litigation, during
which some claims and one defendant were dismissed and
fruitless settlement attempts were made, the case is before
the court on defendants' motion for summary judgment on
Levin's surviving claims for fraud and breach of implied
contract against Posen and the Posen
Foundation.[1]
For the
reasons stated in this Opinion, the motion is denied with
respect to the implied contract claim and granted with
respect to the fraud claim.
BACKGROUND[2]
Neil
Levin was and is the artistic director and editor-in-chief of
The Milken Archive of Jewish Music sponsored and supported by
the Milken Family Foundation. In the past Levin was a
full-time professor of music at the Jewish Theological
Seminary and has been professor emeritus since approximately
2011. See
http://www.milkenarchive.org/artists/view/neil-levin.
The
Posen Foundation is a Swiss equivalent of a U.S.
not-for-profit. The Foundation was established in 2004 by
Felix Posen, who at all relevant times served as its
president. It is funded by Posen and his family. Its mission
is to work internationally to advance Jewish education and
promote Jewish culture in the public sphere. It awards
fellowships, hosts public events, and supports Jewish
scholarship in the area of modern Jewish history and culture.
A
project of The Posen Foundation, begun about 2004, is
publication of the first ten volumes of the Posen Library.
The Posen Library was described by the Foundation on its
website in 2008 (a copy was provided to Levin) as follows:
A project of enormous scope and importance, the Posen Library
of Jewish Culture and Civilization is an anthology of
important literary works produced primarily by Jews from the
Biblical period through the end of 2002. Under the guidance
of Editor-in-Chief James E. Young, 120 internationally
recognized scholars are contributing to this project, which
will include primary sources, documents, texts, and visual
images. Published by Yale University Press, the first volume
of The Posen Library will be completed in 2009; an additional
11 volumes will be published by 2013.[3]
James
Young, a professor at University of Massachusetts - Amherst
and the first editor-in-chief of the Posen Library, held that
position at all relevant times. As of 2008 he was receiving
$18, 000 per year to serve as editor-in-chief.
In or
about 2008, the Posen defendants were exploring ways to
secure rights to recorded music for use within, inter
alia, Volume 10 of the Posen Library by exploring a
collaboration with the Milken Foundation. (Young in an email
to Joyce Rappaport, executive editor of the Posen Library,
also expressed interest in providing links to works already
on line, such as through the Milken Archive or the University
of Pennsylvania's archive.)
On
October 27, 2008, Rappaport sent an email to Paul
Schwendener, chief operating officer of the Milken Archive,
to inquire about the possibility of working with the Milken
Archive. Rappaport explained,
Each volume [of the Posen Library] will be accompanied by
CDs, DVD's, or Web-based links that will include examples
of music, art, film and dance. As our volume editors have
gathered their potential music selections for the
contemporary period, they have discovered that the Milken
archive has probably preserved many of the items that they
hope to use. In addition, it has been suggested that Milken
may be organizing future projects that might also be
available for us as well.
Schwendener
forwarded the email from Rappaport, together with information
gathered about the Posen Foundation and Posen Library, to
Levin, who joined Schwendener at a meeting with Rappaport,
and a Posen Library consultant on November 11, 2008.
Following that meeting, Rappaport sent the following email
message to, among others, Young and Posen:
Dear Felix, James, and Jonathan,
Yesterday afternoon, Roberta Newman [the consultant] and I
met with representatives of the Milken music archive. We
talked for quite a while with Paul Schwendener, the Chief
Operative Officer, and Neil Levin, the Artistic Director.
They are quite enthusiastic about the possibilities of
sharing their resources with the Posen Foundation.
The archives has a vast number of recordings, many of which
they have made themselves. Those, in particular, might be
open to an arrangement with us. Other items in their archives
would, we think, still require permissions from the companies
that produced them or the composers or estates.
I think this is worth pursuing. We do have some questions,
though, about their involvement (particularly of Prof. Levin,
who teaches at the Jewish Theological Seminary and who, I
suspect, wants some role in writing or annotating). I also
think that they would be a more effective resource--and
probably an excellent one--for the earlier volumes. Was Levin
ever considered as an adviser to the project? We could find
out more about him from David Roskies, his colleague.
Neil Levin is going to be in London from November 21 through
November 28 and would like to talk to the Posen Foundation.
As I said, this may be worth the conversation. . . .
A Posen Library Progress Report dated November 24, 2008,
includes the following:
[W]e have to face the fact that the music alone for Volume 10
will cost anywhere from $20, 000-$30, 000 for just two-CD
set. …[T]he issue of music and film rights led us to
meet with representatives of the Milken Archive of American
Jewish Music. … They are interested in discussing some
sort of cooperation with the Posen project, not just for
American music.[4]
Posen
met with Levin in London on November 25, 2008. Levin advised
Posen that the list of musical selections for Volume 10
“had numerous faults” and “contained
numerous mistakes, mis-information, vulgar racial slurs and
other tasteless, offensive and irrelevant material.”
Levin asserts that Posen engaged him at this meeting to
perform certain studies and other work for the Posen Library,
although his testimony was somewhat different. He stated that
the meeting was “to get to know each other and for
[Levin] to show his expertise … [for] Volume
10.” Levin did not recall any compensation being
discussed in that first meeting. At that meeting and
thereafter, Posen instructed Levin to meet with Young and
Rappaport.
Levin
testified that he and Posen discussed his compensation and
that Levin expressed his expectation to be compensated on a
pro rata basis based on his $300, 000 salary, which came to
$400 per hour. Levin left the November 25, 2008 meeting in
London with the understanding that Posen had agreed to pay
him at the rate of $400 per hour for approximately 16-18
hours per week of work for the Posen Foundation. Levin does
not claim, however, that Posen explicitly promised $400 per
hour.[5]
Following
the meeting, Posen sent an email to those working on the
Posen Library, including Young, in which he noted,
"[Levin] is a very learned and knowledgeable
gentleman." Posen expressed his concern about whether
there would be a “practical solution as to how we might
cooperate." He pointed out that the Milken Archive had
perhaps more than 100 works written by composers over the
past 100 years with which the Archive could possibly create
its own anthology of Jewish music:
The question we are going to have to struggle with is in what
form do we wish to try and include music as part of our
anthology ie just take some representatives pieces of music
in each of say the 1st four volumes or merely refer to it in
writing and leaving it to an outfit like Milken to possible
create a full anthology of Jewish Music on their own.
He
recommended that the general editors and the volume editors
should be involved in a “conversation about what to do
about this issue.”
On
February 4, 2009, Levin met in New York with Young, Rappaport
and Jonathan Brent, then the editorial director of the Yale
University Press, the contracted publisher of the Posen
Library. Levin testified that he reported the initial
research on his feasibility study and CD evaluation at this
meeting. (Defendants dispute this testimony and rely on a
February 15, 2009, email that Young sent Levin (and others)
to memorialize what was discussed at the meeting. Quoting the
February 15, 2009 email, Young stated,
I would like to invite you, Neil, to join my own Editorial
Advisory Board of Experts. … We are paying [the]
Advisory Board members an honorarium of $3, 000 for their
assistance. Assistance in your case, Neil, would be to read
the lists of music as they come in and to advise me of the
lacunae, omissions, and suggestions for improvement.
We've asked all vetting come to me and Joyce [Rappaport],
so that I can assemble all suggestions and make them to the
Volume Editors on behalf of my entire Editorial Board. This
also lets you be as frank and open as you need to be, without
fear of offending Volume Editors or personalizing
suggestions.
* * *
We agree that there may be a need for an “11th
Volume” of Music for the Posen Library . . . .
Young
forwarded to Levin the Posen Library's “Project
Guidelines for Volume Editors, ” although Levin
testified that he had no recollection of receiving them. The
Guidelines reflect that each volume was limited to 1, 000
printed pages and that volume editors would “have to
exercise their judgment in determining the total number of
entries, deciding how long selections will be in the hard
copy, and which might be included in the accompanying
CD.” The Guidelines state that volume editors would
receive a stipend of $25, 000 (in three installments) for
their work on a single volume.
Levin
met again with representatives of the Posen Library,
including Young, on or about May 20, 2009 in New Haven. In an
email dated May 24, 2009, from Young to, among others, Levin,
Young wrote, “I think we've hammered out both a
consulting and a collaboration agreement with Neil
….” Further, he wrote,
… We welcome Neil to our Editorial Advisory Board of
Experts as its musicologist, for which we will pay him a
consulting fee consistent with his contribution to the
project. …[Levin's] "most immediate job will
be to vet and refine the final list of music related entries
for Volume X.” Levin also would suggest a list of
essays “and the appropriate 1, 000-word extracts for
the printed version of Volume X” and work on a
collaboration with the Milken Archive and Yale University
Press which could, if successful, result in a
“stand-alone anthology of World Jewish Music.…
Although
Young's email did not include the understandings Levin
believes were reached at the meeting, Levin testified that at
this meeting he “shared the results of his feasibility
study and CD evaluation” and that he was also assigned
the role of music editor with sole authority over all
music-related content in the entire Posen
Library.[6] Young and Posen testified that the volume
editors had “the final call” on what was included
in the final publication.
In a
May 24, 2009 email Young summarized the understandings
reached at the same meeting, including that Levin would join
their editorial advisory board and would be paid a
“consulting fee consistent with his contribution to the
project.”
In
response to Young's May 24, 2009 email, Posen inquired if
"anything [was] discussed about finance at all?"
(Fischman Decl. Exhibit 16) Young responded,
In general terms, we agreed that Neil would be paid an
Editorial Board Consulting fee, as we've done for other
experts. There has been a $3, 000 fee for close vetting in
particular areas like art or music. In Neil's and Edwin
Seroussi's case, however, they may demand (and deserve)
more. He's basically going to re-make the list of music
and essays on music for Volume X, in collaboration with
Seroussi (a Hebrew University musicologist and specialist in
Israeli and Mizrahi music).[7]
By email dated May 27, 2009, Levin wrote to Posen the
following:
I had a very good and, I think, fruitful meeting last week
[May 20] in New Haven. … I do believe now that we all
understand what has to be done on several levels - with
regard both to the substantive content matters
vis-à-vis music-related writings as well as
...