United States District Court, N.D. Illinois, Eastern Division
AMERICAN CENTER FOR EXCELLENCE IN SURGICAL ASSISTING INC., Plaintiff,
COMMUNITY COLLEGE DISTRICT 502, COLLEGE OF DUPAGE, THOMAS CAMERON, KAREN M. SOLT, and KATHY CABAI, Defendants.
MEMORANDUM OPINION AND ORDER
Center for Excellence in Surgical Assisting Inc.
(“ACE”) brought this diversity suit against
Community College District 502, College of DuPage
(“College” or “COD”), and College
officials Thomas Cameron, Karen Solt, and Kathy Cabai for
matters arising from the College's efforts to establish
an accredited surgical assistant certification program. Doc.
1. The court dismissed some of ACE's claims at the
pleading stage. Docs. 39-40 (reported at 190 F.Supp.3d 812
(N.D. Ill. 2016)). Discovery has concluded, and a bench trial
is set for September 24, 2018. Doc. 145. Defendants now move
for summary judgment on the remaining claims: breach of
contract against the College, and misappropriation of trade
secrets under the Illinois Trade Secrets Act
(“ITSA”), 765 ILCS 1065/1 et seq., and
fraud against all Defendants. Doc. 104. The motion is
following facts are stated as favorably to ACE as permitted
by the record and Local Rule 56.1. See Woods v. City of
Berwyn, 803 F.3d 865, 867 (7th Cir. 2015). In
considering Defendants' motion, the court must assume the
truth of those facts, but does not vouch for them. See
Arroyo v. Volvo Grp. N. Am., LLC, 805 F.3d 278, 281 (7th
markets itself as a provider of surgical assistant training
programs. Doc. 107 at ¶ 2. (Where, as here, ACE's
Local Rule 56.1(b)(3)(B) response, Doc. 125, does not dispute
a fact asserted in Defendants' Local Rule 56.1(a)(3)
statement, Doc. 107, only the Local Rule 56.1(a)(3) statement
is cited and the fact is deemed admitted. See FTC v. Bay
Area Bus. Council, Inc., 423 F.3d 627, 634 (7th Cir.
2005) (“[R]ules like 56.1 provide the only acceptable
means of disputing the other party's facts and of
presenting additional facts to the district court.”)
(alteration and internal quotation marks omitted); Perez
v. Town of Cicero, 2011 WL 4626034, at *2 (N.D. Ill.
Sept. 30, 2011) (“Under settled law, facts asserted in
a brief but not presented in a Local Rule 56.1 statement are
disregarded in resolving a summary judgment motion.”)
(citing cases).) Dan Bump is ACE's sole shareholder and
president. Doc. 107 at ¶ 2. District 502 is an Illinois
community college district created by the Illinois Public
Community College Act, 110 ILCS 805/1 et seq. Doc.
50 at ¶ 2. The College, located in Glen Ellyn, Illinois,
is a public community college within the District. Doc. 46 at
¶ 3. At all relevant times, Cameron was the
College's Dean of Health and Sciences, Solt was the
Associate Dean of Health and Biological Sciences, and Cabai
was the Coordinator of the Surgical Assisting Program and
Co-Director of the Anesthesia Technology Program. Doc. 107 at
November 2013, ACE became aware through non-party Your Extra
Hands Surgical Services (“YEHSS”) that the
College was interesting in starting a surgical assistant
training program. Doc. 125 at pp. 1-2, ¶ 25. To that
end, on November 20, Cabai and Solt met with Keith Bump,
ACE's Vice President of Marketing and Sales, and Kyle
Black, a YEHSS employee. Doc. 107 at ¶¶ 25-26; Doc.
125 at pp. 1-2, ¶¶ 25-26. Cabai and Solt told Keith
Bump and Black that the proposed program would need to pass
through several administrative layers of approval-the
“college system”-before it could be implemented.
Doc. 125 at p. 2, ¶ 26.
next day, Keith Bump e-mailed Cabai and Solt several
documents: (1) a consortium proposal; (2) the ACE Program
Catalog; (3) the ACE Master Curriculum; and (4) a draft
consortium agreement. Doc. 107 at ¶ 27; Doc. 125 at p.
2, ¶ 27; Doc. 107-1 at 23.[*] Section III.8 of the draft
consortium agreement stated: “It is agreed that the
curriculum and associated materials and simulators are
proprietary in nature and are the property of ACE. College
shall not copy or reproduce anything of a proprietary nature
for any reason.” Doc. 107-1 at 11. However, Keith Bump
did not ask Cabai or Solt to sign a confidentiality agreement
before sending them the materials, nor did Keith Bump
indicate-apart from the language in Section III.8-that the
materials were confidential. Doc. 107 at ¶ 27; Doc. 125
at p. 2, ¶ 27; Doc. 107-1 at 23.
December 5, 2013, Dan Bump, Keith Bump, Black, Cabai,
Cameron, and Solt had a conference call. Doc. 107 at ¶
30; Doc. 125 at p. 3, ¶ 30. On December 9, Solt sent
Keith Bump, Dan Bump, Black, Cameron, and Cabai an email
I think our discussion was a great one, and we are at this
point ready to move forward on our part. That consists of
putting the curriculum through our college process and then
on to the state's approval system. I am meeting with
Kathy [Cabai] later this morning, so should have a better
idea of how long that will take.
Doc. 107 at ¶ 32; Doc. 125 at p. 3, ¶ 32; Doc.
107-1 at 26. The draft consortium agreement was never
formally executed. Doc. 107 at ¶ 31; Doc. 125 at p. 3,
¶¶ 32-33.[†] Nevertheless, based on
Solt's email, ACE believed that the College had accepted
its proposal (the draft consortium agreement) and that it
therefore had a contract with the College to assist in
setting up and running the surgical assistant training
program. Doc. 125 at p. 3, ¶¶ 33-35.
February 17, 2014, Cabai told Keith Bump that the proposed
program had passed the first level of internal College
review, the Division Curriculum Committee. Doc. 107 at ¶
37; Doc. 125 at p. 4, ¶ 37. The next month, Cabai asked
ACE for a list of materials necessary for the proposed
program's lab component. Doc. 107 at ¶ 40; Doc. 125
at p. 4, ¶ 40. ACE responded with the requested
materials. Doc. 107 at ¶ 40; Doc. 125 at p. 4, ¶
40; Doc. 111.
April 23, 2014, Cabai emailed Keith Bump and Black to say:
“Just letting you know, after a long day today of a
health care collaborative simulation on a trauma case, I
received a message that all of the classes passed ICCB [the
Illinois Community College Board]. We are ready to go. The
certificate will be presented in October but because we can
offer the first classes without it we are fine.” Doc.
125 at p. 7, ¶ 4; Doc. 125-3. ACE understood this to be
the “final step to get the program started in [the]
fall.” Doc. 125 at p. 7, ¶ 4.
weeks later, on May 5, Dan Bump sent Cabai a revised draft
consortium agreement and a nondisclosure agreement. Doc. 107
at ¶ 41; Doc. 125-4 at 2. The revised draft consortium
agreement was never formally executed. Doc. 107 at ¶ 43,
Doc. 125 at p. 4, ¶ 43. The next day, Cabai emailed Dan
Bump: “I think this is an exciting time for COD, one
that has taken me 5 years to get them to approve. The day
Keith and Kyle walked into my lab was a wonderful day for me.
I am sad that this is what it took for COD to finally say ok,
but, the outcome is all that matters. It is here.” Doc.
125-4 at 1. Sometime later, in response to a request from
Cabai, ACE sent her its “Self Study”-the
materials a student would use to move independently through
the proposed program. Doc. 107 at ¶¶ 44, 66; Doc.
125 at pp. 4-5, ¶ 44, p. 8, ¶ 7. A self study is a
requirement for accreditation by the Commission on
Accreditation of Allied Health Education Programs
(“CAAHEP”), a large health sciences professions
accreditor. Doc. 107 at ¶¶ 14, 59.
point prior to July 2014, Cabai and ACE discussed the
possibility of Cabai's attending ACE's
“Surgical SkillLab” training-scheduled for
mid-July 2014 in Denver-without charge. Doc. 46 at
¶¶ 19, 24; Doc. 125 at p. 5, ¶ 48, p. 8,
¶ 7; Doc 125-3. On July 8, Keith Bump asked Cabai about
the status of the revised draft consortium agreement, noting
that ACE “really want[ed] to have [the agreement] in
place before the lab. As you know we are going to be sharing
proprietary information in the lab and should really have the
written agreement in place before we do that.” Doc. 107
at ¶ 45; Doc. 107-1 at 74-75. Cabai responded: “As
I explained to you prior, Karen [Solt] is out of town. [The
agreement] will not be signed prior to me coming to the lab.
If you are going to cancel my attendance then you need to let
me know in a hurry. … If I need to cancel
arrangements, I must do it now.” Doc. 107 at ¶ 45;
Doc. 107-1 at 74. Cabai also told Keith Bump that she would
not sign the nondisclosure agreement before attending the
SkillLab. Doc. 107 at ¶ 46.
receiving another email from Keith Bump, Cabai told him that
“Tom” had told her “that nothing would be
happening prior to [Solt] returning to the office.”
Doc. 107-1 at 74. (ACE asserts that the person referred to in
the email was not Tom Cameron, but rather Tom Glaser, the
College's Vice President of Finance. Doc. 125, p. 9 at
¶ 14. Because the identity of the person with whom Cabai
spoke is immaterial, he will be referred to as
“Tom.”) Cabai indicated that she was
“beginning to get concerned because I have things
booked and need to know if I need to cancel.” Doc.
107-1 at 74. Later that day, Cabai followed up with Keith
Bump, indicating that Tom “was not comfortable signing
anything without having legal approve nor with [Solt] out of
town.” Doc. 125 at p. 9, ¶ 13; Doc. 107-1 at 77.
Bump responded: “That's OK Kathy. … We will
see you in Denver next week.” Doc. 107 at ¶¶
46, 48; Doc. 125 at p. 5, ¶ 48; Doc. 107-1 at 77.
July 14-19, Cabai attended ACE's Surgical SkillLab in
Denver. Doc. 46 at ¶¶ 19, 24; Doc. 107 at ¶
48; Doc. 125 at p. 5, ¶ 48. After returning, Cabai
expressed concern that certain important subject matters were
not adequately covered by ACE's curriculum. Doc. 107 at
¶¶ 49, 77; Doc. 125 at pp. 6-7, ¶ 77; Doc.
107-1 at 80-81. Cabai's written evaluation of the
Surgical SkillLab noted “many concerns with curriculum,
things/concepts covered and concepts not addressed. Honestly
feel that many [surgical assisting] concepts were not
addressed.” Doc. 107-1 at 80. On July 30, Solt emailed
Dan and Keith Bump about those concerns. Doc. 107 at ¶
50; Doc. 107-1 at 83-85. Dan Bump responded on August 13.
Doc. 107-1 at 87-95.
further discussions, Doc. 107 at ¶ 51; Doc. 125 at p. 9,
¶¶ 16-17, Solt emailed Dan and Keith Bump on
September 8 to say that the College had “deci[ded]
… to decline to partner with ACE.” Doc. 107-1 at
97; see also Doc. 107 at ¶ 51. Solt's email
listed “concerns includ[ing] the lack of preparation
… for you to begin teaching this program for us in an
on-line format” and the time it would take to prepare
“a contemporary curriculum.” Doc. 107-1 at 97.
Cabai then rewrote the surgical assistant training
program's curriculum to comply with all CAAHEP
requirements, as ACE was not at that point CAAHEP-accredited.
Doc. 107 at ¶ 52; Doc. 125 at p. 5, ¶ 52.
(ACE's Local Rule 56.1(b)(3)(B) response objects to this
asserted fact, maintaining that Cabai's purpose was to
ensure that the curriculum no longer included materials from
ACE; in ...