Gavin/Solmonese LLC v. Kunkel

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Gavin/Solmonese LLC.,

Plaintiff, Case No. 16-cv-1086

v. Judge John Robert Blakey

Stephen L. Kunkel,

Defendant.

MEMORANDUM OPINION AND ORDER

This case involves a dispute between Plaintiff, Gavin/Solmonese LLC, and its

former employee, Defendant Stephen L. Kunkel. Plaintiff filed its First Amended

Complaint (FAC) on April 21, 2016, asserting claims for: (1) breach of fiduciary duty

(Count I); (2) unjust enrichment (Count II); (3) tortious interference with contract

(Count III); (4) tortious interference with prospective economic advantage (Count IV);

and (5) fraud (Count V). [19].

On May 9, 2016, Defendant filed a motion to dismiss, [24], which this Court

granted as to Counts III, IV, and V, but denied as to Counts I and II. [35].

Defendant now seeks summary judgment on Plaintiff’s remaining breach of

fiduciary duty and unjust enrichment claims. [100]. Defendant also seeks to strike

certain statements from two declarations introduced in opposition to the motion for

summary judgment. [111]. For the reasons stated below, this Court denies

Defendant’s motion for summary judgment and denies Defendant’s motion to strike.

I. Background & Evidentiary Issues

The following facts come from Defendant’s Local Rule 56.1 statement of facts

[99], Plaintiff’s response to Defendant’s statement of facts, [106], Plaintiff’s Local

Rule 56.1 statement of additional facts, [107], and Defendant’s response to Plaintiff’s

statement of additional facts, [116].1

A. Defendant’s Motion to Strike

Defendant moves this Court to strike certain portions of the Declarations of

Ross Waetzman (Waetzman Declaration), [109], and Edward T. Gavin (Gavin

Declaration), [108], as improper summary judgment evidence. [111]. Specifically,

Defendant maintains that: (1) both declarations attempt to create issues of fact by

contradicting sworn deposition testimony; and (2) the Gavin Declaration contains an

intentionally false statement. [112] at 1. As such, Defendant asks this Court to strike

the otherwise relevant statements under the Sham Affidavit Doctrine.

1. The Sham Affidavit Doctrine

Regarding the Sham Affidavit Doctrine, the Seventh Circuit has held that

“parties cannot thwart the purposes of Rule 56 by creating ‘sham’ issues of fact with

affidavits that contradict their prior depositions.” Bank of Illinois v. Allied Signal

Safety Restraint Sys., 75 F.3d 1162, 1168 (7th Cir. 1996). Thus, when deciding

summary judgment motions, “courts must disregard contradictory affidavit

1 At the parties’ motion hearing, Defendant orally moved for this Court not to consider the Declaration

of Gail Meinen, [110-11] Exhibit NN, and “notes” written by Ross Waetzman, [124], because Plaintiff

failed to timely file them. Because this Court need not consider or otherwise rely upon either document

in its analysis, it denies Defendant’s motion as moot.

statements that are material to the motion and that create a “sham” factual dispute.”

Arce v. Chi. Transit Auth., 311 F.R.D. 504 (N.D. Ill. 2015).

To determine whether a contradictory statement constitutes a “sham,” courts

in this circuit “examine the particular circumstances of a change in testimony to see

whether it is plainly incredible or merely creates a credibility issue for the jury.” Id.

(citing Patton v. MFS/Sun Life Fin. Distribs., Inc., 480 F.3d 478, 488 (7th Cir. 2007)).

The Seventh Circuit has made clear that courts should make this determination “with

caution,” as credibility and weight are generally issues of fact for the jury, and “we

must be careful not to usurp the jury’s role.” Flannery v. Recording Indus. Ass’n of

Am., 354 F.3d 632, 638 (7th Cir. 2004) (citing Bank of Illinois, 75 F.3d at 1170).

Therefore, the Sham Affidavit Doctrine applies “upon a threshold determination of a

‘contradiction,’ which only exists when the statements are ‘inherently inconsistent’”

and the discrepancies are “incredible and unexplained.” Id.; McCann v. Iroquois

Mem’l Hosp., 622 F.3d 745, 751 (7th Cir. 2010) (quoting Commercial Underwriters

Ins. Co. v. Aires Envtl. Servs., Ltd., 259 F.3d 792, 799 (7th Cir. 2001)). In contrast,

when the change is “plausible and ‘the party offers a suitable explanation such as

‘confusion, mistake, or lapse in memory,’” a change in testimony affects only its

credibility, not its admissibility.” McCann, 622 F.3d at 751 (citing Commercial

Underwriters, 259 F.3d at 799).

2. The Waetzman Declaration

Waetzman works as a director for Plaintiff. [110-4] Exhibit E at 4.2

Defendant’s counsel deposed Waetzman as a 30(b)(6) representative on May 25, 2017.

Id. at 1. Defendant argues that while under oath, Waetzman admitted that he was

aware Defendant sat on the Tamarack Ski Resorts (Tamarack) Board of Directors,

and that Defendant informed Waetzman that he was traveling and on calls related

to Tamarack business while working at Soo Tractor. [112] at 2. Specifically, the

deposition testimony is as follows:

Q: Are you aware whether or not [Defendant] disclosed that he sat on a

number of boards of directors when he began to work at –

A: The only board that I’m aware of that he was on was Tamarack. And

he asked me – he said that I would help him with that kind of work, that

that’s something we could do together. And then later on he indicated

that he was just doing that work on his own. And he started asking

people at [Soo Tractor] to help him with that work.

[110-4] Exhibit E at 89. Defendant contends that this deposition is therefore

inconsistent with Waetzman’s declaration, which states: “[Defendant] did not disclose

that he was a Board Member of the Tamarack Board.” [109] ¶ 6. Due to this

discrepancy, Defendant argues that Plaintiff violated the Sham Affidavit Doctrine

and that this Court should strike paragraph six of the Waetzman Declaration. [112]

at 7.

This Court denies Defendant’s motion to strike paragraph six of the Waetzman

Declaration. First, consistent with paragraph six, Waetzman repeatedly testified

2 In some instances, Plaintiff has filed multiple exhibits under a single docket number. To prevent

confusion when citing to such an exhibit, this Court will clarify both the docket number and the

individual exhibit letter.

that while Defendant worked for Plaintiff, Waetzman did not know Defendant sat on

Tamarack’s Board. See, e.g., [110-4] Exhibit E at 88, 93−94, 98−99. Waetzman’s

statement that “[t]he only board that I’m aware of that [Defendant] was on was

Tamarack. And . . . he said that I would help him with that kind of work,” admittedly

creates some confusion when taken out of context. Id. at 89. But, it remains

consistent with Waetzman’s immediately preceding answer: “I understood that

[Defendant’s Tamarack work] was an engagement that [Defendant] . . . was

performing for Gavin/Solmonese. I now understand that [Defendant] was doing

[Tamarack Board member] work without Gavin/Solmonese’s knowledge.” Id. at 88.

A complete reading thus demonstrates that Waetzman simply elaborated upon his

earlier belief that Defendant worked with Tamarack only on Plaintiff’s behalf. This

testimony does not constitute a contradiction “inherently inconsistent” with

paragraph six. Flannery, 354 F.3d at 638. Rather, it is, at most, a statement of

“confusion” that ultimately affects “credibility, not its admissibility.” McCann, 622

F.3d at 751. This Court therefore declines to strike paragraph six of the Waetzman

Declaration, [109] ¶ 6, and instead reserves any credibility disputes for the jury.

3. The Gavin Declaration

Gavin serves as Plaintiff’s President. [99] ¶ 12. Defendant’s counsel deposed

Gavin on June 21, 2017. [110-3] at 1. Defendant identifies a variety of deposition

statements as contradicting Gavin’s Declaration. [112] at 2−6. For example,

Defendant argues that: (1) Gavin admitted in his deposition testimony that he knew

of only McMichael Mierau’s allegations against Defendant prior to Soo Tractor’s

terminating Plaintiff, and did not know about Alex Peterson’s allegations, [110-3] at

92; (2) Gavin admitted that prior to Plaintiff’s termination, he was not aware of

Peterson’s allegations against Defendant, id. at 124; and (3) on January 28, 2015—

the day after Soo Tractor terminated Plaintiff—Gavin wrote an email to Soo Tractor’s

owner Allen Mahaney, for the first time mentioning Mierau’s allegations against

Defendant, [110-3] at 91. [112] 2−6.

Defendant argues that these deposition statements conflict with the Gavin

Declaration, which states, in relevant part:

¶ 15: In late December 2014, [Plaintiff] learned that [Defendant] had

sexually harassed and spanked young male subordinates at Soo

Tractor.

¶ 16: When confronted with allegations that [Defendant] had sexually

harassed and spanked young male subordinates at Soo Tractor,

[Defendant] denied these allegations.

¶ 17: Shortly after Defendant denied these allegations of sexual

harassment and spanking, [Plaintiff’s] counsel received a recording that

Alex Peterson, one of [Defendant’s] victims, had made of one of the

incidents. [Plaintiff’s] counsel informed me of this recording.

¶ 18: On the morning of January 28, 2015, before receiving a letter from

Soo Tractor terminating [Plaintiff’s] services, I sent Mahaney an email

informing him of the allegations regarding [Defendant].

[108] ¶¶ 15−18 (emphasis added).

This Court declines to strike any portion of Gavin’s Declaration. First,

Defendant argues that by using the plural “subordinates,” paragraph 15 “falsely

states” that, in late December 2014, Plaintiff knew of allegations that Defendant had

sexually harassed and spanked multiple young male subordinates at Soo Tractor.

[112] at 7. But, looking at Gavin’s deposition testimony as a whole, this Court finds

that this is an issue of credibility for the jury to decide. Gavin’s deposition testimony

clearly states that by December 20th he had been informed about Mierau’s

allegations, which included statements that Defendant had spanked another

employee in addition to Mierau. [110-3] at 91; [110-5] Exhibit I at 56−57, 147. Thus,

the testimony does not constitute a contradiction that is “inherently inconsistent”

with paragraph 15. Flannery, 354 F.3d at 638.

Second, Defendant argues that the order of paragraphs 15 through 18 “gives

the false impression that Gavin informed Mahaney about multiple employee

allegations against [Defendant] on January 28, 2015.” [112] at 8. Absent any

showing that the Gavin Declaration testimony actually contains false statements,

rather than it simply giving a possible false impression based upon the order of its

paragraphs, this Court declines to apply the Sham Affidavit Doctrine. See Flannery,

354 F.3d at 638 (Explaining that courts should apply this doctrine “with caution” so

as to not “usurp the jury’s role.”) (citing Bank of Illinois, 75 F.3d at 1170).3

Third, Defendant argues that the ordering of paragraphs in the Gavin

Declaration also “creates the false impression that Gavin informed Mahaney about

more details, including that the allegations were sexual in nature and involved

spanking.” [112] at 8. Not so. The relevant email, referenced in Gavin’s testimony,

clearly states that “a deeply troubled employee raised allegations directed at

3 Plaintiff’s argument that “Gavin’s Declaration insinuates that paragraphs 15−18 occurred in

chronological order, creating the false impression that prior to January 28, 2015, [Plaintiff] received a

recording of one of the incidents from Peterson”, [112] at 8, fails for this same reason.

[Defendant].” [110-13] Exhibit VV; [110-3] at 91. Paragraph 18 merely reflects this

exact language and is therefore not contradictory in any way.

Thus, this Court denies Defendant’s motion to strike. [111].

B. The Parties

Plaintiff is a management consulting firm that provides corporate turnaround

solutions and organizational effectiveness strategies to clients throughout the United

States. [110-4] Exhibit E at 17−18. As part of these services, Plaintiff evaluates a

client’s current business, provides an assessment, and formulates a preliminary

action plan for implementing a turnaround strategy. Id.; [110-3] at 33. Occasionally,

Plaintiff also assists clients in executing its recommendations, either by providing

interim management services or assisting with the sale of the business. Id. at 34−35.

In August 2013, Plaintiff hired Defendant as Managing Director of its Chicago,

Illinois office. [99-2]. In this role, Defendant served as an “at-will employee,” rather

than a corporate officer or director. [99] ¶ 4. Plaintiff paid Defendant an annual

salary starting at $250,000, plus a discretionary bonus and Defendant’s health

insurance. [99-2]. On March 31, 2015, Plaintiff increased Defendant’s annual salary

to $300,000. Id.

In September 2013, Soo Tractor Sweeprake Co. (Soo Tractor), a steel

fabrication company that produces farming equipment, retained Plaintiff to provide

advisory services. [99-3]. Soo Tractor is incorporated in Iowa and its manufacturing

facilities and headquarters are located in Sioux City. [99] ¶ 7. In October 2013, Soo

Tractor retained Plaintiff to implement its recommendations. Id. ¶ 5. The parties

memorialized this agreement by entering into a Management Agreement (the

Agreement), effective October 21, 2013. Id.; [99-3]. Iowa law governs the Agreement,

and both parties retained the right to terminate it at will upon seven days’ notice.

[99] ¶¶ 6, 9.

Under the Agreement, Plaintiff agreed to provide Soo Tractor with an interim

Chief Executive Officer (CEO) to assist with implementing Plaintiff’s

recommendations. [99-3] at 1−2. Plaintiff selected Defendant to serve in this role.

[99] ¶ 8. Pursuant to the Agreement, Defendant performed his duties as an

independent contractor, rather than a Soo Tractor employee. [99-3] at 6. The parties

dispute whether Defendant’s CEO role required him to relocate to and perform the

majority of his services for Soo Tractor in Iowa, [99] ¶ 21, as opposed to Plaintiff’s

Chicago office, [107] ¶ 2. Nevertheless, both parties agree that Defendant spent a

significant amount of time working out of Soo Tractor’s Sioux City facility. See [99]

¶ 8; [106] ¶ 8.

Plaintiff also appointed its President, Ted Gavin, and Defendant to Soo

Tractor’s Board of Directors due to the company’s “unique circumstances.” [110-15]

Exhibit ZZ at 4. Specifically, Soo Tractor’s bank conditioned any refinancing upon

the company obtaining independent board members, and “Soo Tractor was under a

tight timeline to receive refinancing.” Id.; [106] ¶ 62.

C. The “Success Fee”

Plaintiff retained a right to a “success fee” upon Soo Tractor’s sale, albeit under

certain circumstances. [99] ¶ 10. Specifically, the Agreement provided:

If requested in writing by Client, Manager shall seek purchaser(s) for

all or part of Client’s business, and shall be Client’s exclusive agent

therefore. Manager shall assist Client in preparing a Confidential Sales

Memorandum, canvassing prospective purchasers, obtaining execution

of non-disclosure agreements in cooperation with Client’s legal counsel,

soliciting proposals from prospective purchasers, negotiating financing

terms and documentation in cooperation with Client’s legal counsel,

making recommendations to Client concerning the purchase proposal(s)

submitted, and supporting the due diligence process through to

closing(s).

Id.; [99-3] at 2. Plaintiff could earn a success fee under the Agreement upon meeting

three conditions: (1) Soo Tractor requesting in writing that Soo Tractor sell the

business; (2) the sale closing occurring within one year from the Agreement’s

execution; and (3) Plaintiff performing and completing such documentation,

solicitation, and due diligence tasks “routinely associated with a sale for each such

transaction . . . through closing.” [99] ¶ 11; [99-3] at 5.

1. Whether Plaintiff Modified the Agreement Through its

Negative Notice Letter

The parties spend considerable time disputing the Agreement’s one-year

execution deadline for any sale and whether the parties extended it. Defendant

contends that per its language, the Agreement—and thus the execution deadline—

could “not be amended, changed, modified, or supplemented except in writing by each

party, for which purposes an exchange of electronic mail or faxes clearly indicating

mutual agreement shall be acceptable.” Id. ¶ 14. Plaintiff agrees, but argues that

the parties did just that in November 2014. [106] ¶ 14.

Specifically, Plaintiff asserts that on November 18, 2014, Ted Gavin sent a

letter to Allen Mahaney, Soo Tractor’s owner, through John Anderson, Mahaney’s

attorney. [99] ¶ 12. The letter states in relevant part:

Dear Allen,

I have received your memorandum dated November 17, 2014, a copy of

which is attached. Gavin/Solmonese will carry out your wishes using

our reasonable efforts as you have instructed. As you have directed, we

will reset the sale timeline to start on January 2, 2015 with a goal of a

completed sale no later than April 30, 2015. Accordingly, certain dates

in the Management Agreement between Soo Tractor Sweeprake Co. and

Gavin/Solmonese LLC will be adjusted to reflect your instructions. . . .

If you have any questions related to this issue, or disagree with any of

the points raised herein, please let me know immediately. Otherwise, if

this is consistent with your wishes, you need do nothing – I will attach

it to the executed Management Agreement and we will proceed

accordingly.

[99-5].

a. Disputes Regarding the Letter

Neither party disputes that: (1) Mahaney never signed, nor returned, the

letter, [99] ¶ 13; and (2) Anderson never indicated to Plaintiff that he received it. [99-

1] at 51. The parties do dispute: (1) whether Gavin sent the letter in the first place;

(2) whether the letter required a signature to be effective; and (3) if not, whether the

letter reflected a prior agreement between Plaintiff and Mahaney.

First, Gavin testified that he remembers sending the letter, but admits that he

cannot recall how he did so. [99] ¶ 15; [110-3] at 72. Anderson cannot recall receiving

the letter. [96-6] at 94−95. The parties do not dispute that as of today, Gavin does

not “have any Metadata” showing the letter’s creation. [99] ¶ 17. Plaintiff notes,

however, that Gavin created the letter on a laptop that the company subsequently

decommissioned, wiped, and disposed of in the normal course of business when Gavin

switched to a new computer in early 2015. [110-15] Exhibit DDD at 3. Therefore,

Plaintiff states that there could have been Metadata on the decommissioned laptop.

[106] ¶ 17.

Second, Plaintiff maintains that the letter did not require Mahaney’s signature

because the letter: (1) simply reflected the parties’ earlier agreement to adjust the

deadline, [107] ¶ 3; and (2) as a “Negative Notice Letter,” did not require a signature,

[99-1] at 51. Defendant counters that the letter did not constitute writing sufficient

to amend the Agreement, [116] ¶ 3, and as discussed below, did not reflect an earlier

agreement between the parties.

Third, the parties dispute whether the letter memorialized an earlier directive

and/or conversation between the parties about extending the one-year execution

deadline. Defendant asserts that Mahaney made the decision to sell Soo Tractor in

November 2014, without Plaintiff’s assistance or knowledge, and planned to

terminate Plaintiff as soon as he secured a confirmed buyer. [99] ¶ 60. Defendant

also states that Mahaney and Gavin never agreed to a success fee for a potential 2015

sale, and in fact, Mahaney told his accountant that he “did not want [Plaintiff]

involved in selling the business.” [99] ¶ 18. Plaintiff counters that on November 17,

2014, Mahaney sent a memorandum to the Soo Tractor Board of Directors instructing

it to sell Soo Tractor by April 30, 2015. [106] ¶ 18. At that time, Gavin and Defendant

still sat on the Board of Directors, id., and thus Plaintiff took this as a directive to

assist in a sale. Id. ¶¶ 14, 18. Gavin also testified that around that same time,

Mahaney personally told him to send a document memorializing Plaintiff’s

“authorization to sell the company” in order to extend the one-year deadline. Id. ¶

18; [110-3] at 44−45.

2. The Sale Itself

Due to Plaintiff’s ultimate termination, it did not secure a buyer for Soo

Tractor. [99] ¶ 19. Plaintiff does, however, note that it assisted in the sale process,

for example by: (1) “cleaning up the books, getting the financials closed, identifying

what type of due diligence information should be marshaled and prepared for

parties,” [110-3] at 54; (2) enhancing Soo Tractor’s operational performance and

researching potential buyers, [110-4] Exhibit E at 26−28; (3) preparing a

nondisclosure agreement, [110-3] at 153−54; and (4) identifying 500 target companies

for sale and narrowing down that list, [110-4] Exhibit E at 28, 70.

D. Defendant’s Conduct at Soo Tractor

While assigned to Soo Tractor, Defendant engaged in misconduct toward young

male employees, including: (1) approving benefits such as unlimited overtime and

recommending promotions and wage increases for certain young men, despite their

lack of qualifications, [107] ¶¶ 5−6; (2) doing so despite knowing that Soo Tractor

wanted to limit overtime and drastically reduce operating costs, id. ¶ 11; and (3)

giving out these benefits to young men for purposes of getting close to them and

engaging in sexualized conduct, mainly spanking, id. ¶¶ 5, 9.4

4 Defendant responds to many of Plaintiff’s Local Rule 56.1 statements regarding the misconduct by

stating merely that they are “inconsistent with the record as a whole” and “irrelevant to the several

1. Benefits to Specific Employees

Defendant promoted young male Soo Tractor employees—including McMichael

Mierau, Alex Peterson, and Joey Perera, to positions or responsibilities for which they

were not qualified. Id. ¶¶ 6, 8. The promotions placed these employees on the

“Special Projects Team,” which resolved inventory and warranty issues, among other

tasks, and came with raises and unlimited overtime. Id. ¶ 6. For example, Defendant

increased Mierau and Peterson’s wages multiple times in less than a year, resulting

in overall hourly pay increases in excess of 50% for Mierau and 15% for Peterson, not

including overtime payments. Id. ¶ 7. Moreover, Defendant’s misconduct included

arranging for Soo Tractor to pay for Peterson’s, Mierau’s, and Perera’s personal legal

expenses at significant cost to Soo Tractor, as well as preventing Mahaney and his

advisors from accessing law firm invoices to Soo Tractor that reflected these expenses.

Id. ¶ 12.

Further, Defendant replaced or terminated employees who had confrontations

with Defendant’s favored employees—known as “Steve’s boys”—yet failed to

discipline or hold accountable “Steve’s boys” who misbehaved at, or missed, work. Id.

¶ 13. For example, Defendant arranged for Soo Tractor to pay Peterson, Mierau, and

Perera when they did not work and did not discipline them when they failed to seek

prior approval for time off, but threatened other employees for taking unapproved

bases on which Defendant seeks, and upon which the Court should order, summary judgment.” See,

e.g., [116] ¶¶ 5−8, 12−18, 20. Absent any reference to record evidence to dispute these statements,

this Court exercises its broad discretion to enforce the local rules governing summary judgment and

deems admitted the following paragraphs in Plaintiff’s statement of additional facts: [107] ¶¶ 5−8,

11−18, 20. See Petty v. City of Chicago, 754 F.3d 416, 420 (7th Cir. 2014).

time off. Id. ¶ 14. Defendant similarly favored certain employees by allowing them

to take extended lunches, paying for expensive lunches and dinners, and providing

them with free hockey tickets—all at Soo Tractor’s expense. Id. ¶ 15. At the same

time, Defendant required these favored employees to provide personal services to

him, such as dog walking and working on Defendant’s personal business interests.

Id. ¶ 16.

2. Physical Misconduct

Plaintiff says that Defendant made Mierau, Perera, and Peterson “take their

pants down and allow him to physically spank their naked and partially clothed

buttocks using belts, paddles and/or his hands while they were on the clock being

paid by Soo Tractor and in Soo Tractor’s offices.” Id. ¶ 9. Defendant disputes whether

he spanked Perera and Mierau. See [116] ¶ 9. Defendant “instructed, threatened,

and/or attempted to bribe” the employee(s) he abused not to report his misconduct by:

(1) recommending and approving the promotions and wage increases discussed above;

(2) providing them with gifts, loans, and payment of their personal debts, as discussed

above; and (3) threatening to deduct wages if employees did not submit to spanking.

[107] ¶¶ 17−18, 20.

3. Reporting & Investigating Defendant’s Conduct

The parties agree that Peterson reported Defendant’s behavior to Soo Tractor’s

Human Resource Director, Amanda Sturenberg, and his supervisor, Jerami

Stratmeyer, before Soo Tractor terminated Plaintiff in January 2015. [99] ¶ 50; [116]

¶ 10. The parties spend considerable time, however, debating whether Peterson made

any additional reports before Plaintiff’s termination, [106] ¶ 31, as well as whether

Mierau reported Defendant’s behavior before Plaintiff’s termination. [106] ¶ 30; [116]

¶ 10.

For example, Plaintiff contends that on May 8, 2014, Peterson showed

Stratmeyer photos of his buttocks after Defendant spanked him. [106] ¶ 31.

Plaintiffs also maintain that Peterson tried to show Sturenberg the photos, but she

did not want to see them. Id. Plaintiff also points to testimony from Plant Manager

Mike Felts, who stated that a Soo Tractor employee informed him in July 2014 that

Peterson had “sexual photos, connected with his relationship with [Defendant].” Id.

¶ 32; [110-7] Exhibit N at 39. At this time, Felts testified that he told Mahaney about

“rumors” that Defendant “was doing some stuff with some of these young men,” and

that the “stuff” was “sexually inappropriate.” Id. Moreover, Felts testified that

around Thanksgiving 2014, Mierau called Ross Waetzman—a director for Plaintiff—

sounding “very distressed, emotional, distraught” to tell him about Defendant’s

behavior. [106] ¶ 41; [110-4] Exhibit E at 176−178. Defendant, however, counters

that Peterson never shared photos with anyone at Soo Tractor and that Mierau never

reported the spanking to Soo Tractor. [116] ¶ 10; [99] ¶ 41.

In December 2014, Defendant informed Bruce Smith, outside counsel for Soo

Tractor, of the various allegations against him. [99] ¶ 43; [99-21] at 48−49. Smith

began an internal investigation, but never completed it or relayed details about the

investigation to Mahaney, as Soo Tractor terminated his law firm’s services before

the investigation’s completion. [99] ¶¶ 43−45. In April 2015, Mierau and Peterson

filed discrimination charges with the Iowa Civil Rights Commission and U.S. Equal

Employment Opportunity Commission, respectively, based upon sexual harassment

by Defendant. [99] ¶ 28.

E. Plaintiff’s Termination & Mahaney’s Knowledge

On January 27, 2015, Soo Tractor terminated Plaintiff by letter. Id. ¶ 50; [99-

24]. Defendant maintains that Mahaney’s friend, Jim Mack, and accountant, Richard

Grenko, secured a buyer for Soo Tractor, and Mahaney subsequently terminated

Plaintiff “because they were depleting the company’s assets.” [99] ¶ 65. Plaintiff

counters that as Soo Tractor personnel escorted Waetzman out of the building upon

the termination, Felts informed Waetzman that “this situation with Mierau and . . .

all the other issue[s] with these young boys” caused the termination. [106] ¶ 65; [110-

4] Exhibit E at 137.

Defendant states that Mahaney first learned of the allegations against

Defendant the day after Soo Tractor terminated Plaintiff—January 28, 2015—when

Gavin sent Mahaney an email explaining that “a deeply troubled employee raised

allegations directed at [Defendant] and it would not be appropriate to have [him] on

site. We are investigating these allegations and the company’s counsel is looking over

our shoulder through this process.” [106] ¶ 51; [110-3] at 91. Plaintiff states that

Gavin did not receive the termination letter until after he sent this email. [106] ¶ 49.

Mahaney became terminally ill in 2014 and died on or about February 15,

2015. [99] ¶ 15.

F. Defendant’s Board Activities

Prior to accepting a position with Plaintiff, Plaintiff knew that Defendant had

financial interests in various business and served on multiple corporate boards of

directors. Id. ¶ 90. Specifically, Defendant disclosed to Plaintiff that he served on

boards for Crownline Boats, Birch Telecom, Ames/Axia, Kil-Bar Engineering, the

TWA Post-Confirmation Board of Directors, Compass Aeronautics, Zomax

Technologies, and Sterling/Tenetronics, among others. Id. ¶ 72.

In early 2013, prior to working for Plaintiff, Invesco Senior Secured

Management (ISSM) approached Defendant about potentially sitting as an

independent board member of Tamarack Ski Resorts. Id. ¶ 73; [99-32] ¶ 3. Tamarack

subsequently appointed Defendant to its Board of Directors in or around March 2014.

[99-32] ¶ 3. Defendant claims that he told Gavin about this opportunity at the time

Tamarack appointed him, [99] ¶ 75, and notes that Mahaney discussed Defendant’s

Board work with Gavin, [116] ¶ 23. Plaintiff denies that Defendant disclosed his

Tamarack board position, and counters that Mahaney’s discussion with Gavin

consisted of a memo in which Mahaney accused Defendant of “[p]ossibly charging Soo

Tractor for time on tele-conferences with other company boards.” [110-11] Exhibit

LL. Tamarack paid Defendant $25,000 for sitting on its Board. [106] ¶ 77.

While serving on the Tamarack Board, Defendant suggested to the Board that

his firm—Plaintiff—could take over management of the ski resort. [99] ¶ 76.

Defendant identified this as a potential “lead” to Plaintiff. [116] ¶ 23. But, the Board

ultimately chose not to change the resort’s management, [99] 76, and Defendant

subsequently declared Tamarack a “dead lead” to Plaintiff. [116] ¶ 23. Plaintiff

sometimes required “Steve’s boys” to work on Tamarack projects while they were on

Soo Tractor’s clock. Id. ¶ 16.

II. Summary Judgment Legal Standard

Summary judgment is proper where there is “no dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A

genuine dispute as to any material fact exists if “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment has the

burden of establishing that there is no genuine dispute as to any material fact. See

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

In determining whether a genuine issue of material fact exists, this Court must

construe all facts and reasonable inferences in the light most favorable to the non-

moving party. See CTL ex rel. Trebatoski v. Ashland Sch. Dist., 743 F.3d 524, 528

(7th Cir. 2014). The non-moving party has the burden of identifying the evidence

creating an issue of fact. Harney v. Speedway SuperAmerica, LLC, 526 F.3d 1099,

1104 (7th Cir. 2008). To satisfy that burden, the non-moving party “must do more

than simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

Thus, a mere “scintilla of evidence” supporting the non-movant’s position does not

suffice; “there must be evidence on which the jury could reasonably find” for the non-

moving party. Anderson, 477 U.S. at 252.

III. Summary Judgment Analysis

A. Count I: Breach of Fiduciary Duty

1. Governing Law

Before turning to the merits of the parties’ arguments, this Court first

determines what substantive law applies to Plaintiff’s breach of fiduciary duty claim.

Here, the parties dispute whether Illinois or Iowa law governs Plaintiff’s claim.

Defendant argues that under a choice-of-law analysis, the place of contracting,

negotiation, performance, location of the contract’s subject matter, as well as the

parties’ domicile, residence, incorporation, and business location, all weigh in favor

of Iowa law. [100] at 10−11. Plaintiff counters that Illinois law applies because: (1)

Illinois law formed the basis of this Court’s July 2016 ruling on Defendant’s motion

to dismiss; (2) applying Illinois, as opposed to Iowa law, will not make a difference in

the outcome of this case, and thus this Court need not perform a choice of law

analysis; and (3) even under a choice of law analysis, the relevant factors require that

Illinois law governs Plaintiff’s claim. [105] at 5−7. This Court agrees with Plaintiff;

because Defendant fails to identify any actual conflict between the two states’

relevant laws, it need not conduct a choice-of-law analysis.

Federal courts sitting in diversity apply the choice-of-law rules of the state in

which they sit. Dobbs v. DePuy Orthopedics, Inc., 842 F.3d 1045, 1048 (7th Cir. 2016).

In Illinois, “[a] choice-of-law determination is required only when a difference in law

will make a difference in the outcome.” Bridgeview Health Care Ctr., Ltd. v. State

Farm Fire & Cas. Co., 10 N.E.3d 902, 905 (Ill. 2014); Spitz v. Proven Winners N. Am.,

LLC, 759 F.3d 724, 729 (7th Cir. 2014) (instructing that a “choice-of-law

determination is required only when the [party seeking a choice-of-law

determination] has established an actual conflict between state laws.”). The party

seeking the choice-of-law determination “bears the burden of demonstrating” an

outcome-determinative difference in the relevant laws. Bridgeview, 10 N.E.3d at 905.

Here, Defendant not only fails to identify such a difference between Illinois and

Iowa law, but also expressly asserts that the outcome is the same under both states’

laws. See [100] at 12, 26 (explaining that Illinois law leads to the same result as Iowa

law); Gould v. Artisoft, Inc., 1 F.3d 544, 549 n.7 (7th Cir. 1993) (“Where the parties

have not identified a conflict between the two bodies of state law that might apply to

their dispute, we will apply the law of the forum state—here, Illinois.”).5 This Court

thus applies Illinois law to the parties’ breach of fiduciary duty dispute.

2. Genuine Disputes of Material Facts Exist as to Count I

To prevail on its breach of fiduciary duty claim, Illinois law requires that

Plaintiff establish: (1) that a fiduciary duty existed; (2) Defendant breached that duty;

and (3) that the breach proximately caused damages. Chicago Title Ins. Co. v.

5 Moreover, for purposes of Plaintiff’s breach of fiduciary duty claim, Iowa law mirrors Illinois law.

Under Iowa law, an employee can be held to the same fiduciary duties as an agent, subject to liability

for breach of a fiduciary duty. PFS Distrib. Co. v. Raduechel, 492 F. Supp. 2d 1061, 1074 (S.D.Iowa

2007) (citing Condon Auto Sales & Service, Inc. v. Crick, 604 N.W.2d 587 (Iowa 1999)). The duty of

loyalty for an employer-employee relationship is generally confined to instances of “direct competition,

misappropriation of profits, property, or business opportunities, trade secrets and other confidences,

and deliberately performing acts for the benefit of one employer which are adverse to another

employer.” Id. The “key is whether the breach committed by the employee resulted in ‘substantial

assistance to the competitor.’” Id. Further, Iowa law also allows for salary forfeiture—which Plaintiff

seeks as part of its damages—under such circumstances. PFS Distrib. Co. v. Raduechel, 574 F.3d 580,

597−598 (8th Cir. 2009).

Sinikovic, 125 F. Supp. 3d 769, 777 (N.D. Ill. 2015) (citing Gross v. Town of Cicero,

Ill., 619 F.3d 697, 709 (7th Cir. 2010)).

a. A Fiduciary Duty of Loyalty Existed

First, Defendant argues that he worked for Plaintiff as an at-will employee,

rather than a corporate officer or director, and thus that he did not owe any fiduciary

duty of loyalty to Plaintiff. [100] at 9−10. But, as this Court found in its prior motion

to dismiss opinion, Illinois courts have long held that employees “who are not officers

or directors are also bound by fiduciary obligations.” [35] at 11 (quoting LCOR Inc. v.

Murray, No. 97 C 1302, 1997 WL 13672, at *7 (N.D. Ill. Mar. 20, 1997)); see also Laba

v. Chicago Transit Auth., No. 14 C 4091, 2016 WL 147656, at *6 (N.D. Ill. Jan. 13,

2016) (“Illinois law recognizes that employees, as well as officers and directors, owe a

duty of loyalty to their employer”) (internal citations and quotations omitted)).

Moreover, these “fiduciary obligations include an undivided duty of fidelity and

loyalty, which includes acting solely in the interest of the employer.” [35] at 11 (citing

RKI, Inc. v. Grimes, 177 F. Supp. 2d 859, 877 (N.D. Ill. 2001)). Thus, this Court rejects

Defendant’s argument that, as an at-will employee, he did not owe a fiduciary duty

of loyalty to Plaintiff.

Second, Defendant argues that, at best, Defendant owed a fiduciary to Soo

Tractor, rather than Plaintiff. See [100] at 14. But Defendant performed his duties

as an independent contractor, not as a Soo Tractor employee. [99-3]. Further,

Defendant received his compensation (in the form of salary, discretionary bonuses,

and healthcare) from Plaintiff, rather than Soo Tractor. [99-2]. Therefore, Defendant

clearly owed Plaintiff, as its employee, a fiduciary duty of loyalty.

b. Whether Defendant Breached a Fiduciary Duty of

Loyalty

Illinois courts recognize that “self-dealing scenarios,” as opposed to instances

of “negligent or substandard job performance,” typically form the basis for viable

breach of fiduciary duty claims. Beltran v. Brentwood N. Healthcare Ctr., LLC, 426

F. Supp. 2d 827, 831 (N.D. Ill. 2006). Courts applying Illinois law have construed

“self-dealing scenarios” to include employees “improperly competing with their

employer, soliciting the employer’s customers, enticing co-workers away from the

employer, diverting business opportunities, engaging in self-dealing and/or otherwise

misappropriating the employer’s property or funds.” Id. at 831 (internal citations

omitted). Employees’ fiduciary duties “are not limited to usurpation of the employer’s

interest, but extend to a myriad of infidelities and betrayals.” See Robinson v. SABIS

(R) Educ. Sys., No. 98 C 4251, 2000 WL 343251, at *2 (N.D. Ill. Mar. 31, 2000) (citing

TMF Tool Co. v. Siebengartner, 899 F.2d 584, 589 (7th Cir. 1990) (treasurer found

liable to his employer for breach of fiduciary duty for not timely forwarding loan

money, commingling funds with his own money, and not explaining the reasons for

delay in forwarding loan money)).

Plaintiff argues that Defendant breached his fiduciary duty of loyalty by: (1)

abusing his position to prey on young male subordinates; and (2) usurping a business

opportunity from Plaintiff by way of Defendant’s Tamarack board position. See [105]

at 8, 12. Defendant argues that the record evidence demonstrates his behavior

constituted, at most, negligent or substandard job performance, and thus he did not

breach a duty of loyalty as a matter of law. [100] at 15.

i. Employee Misconduct Breach

In this Court’s prior motion to dismiss opinion, it applied Robinson based upon

Plaintiff’s allegations that Defendant promoted employees to positions within Soo

Tractor for which they were otherwise unqualified and paid them for periods in which

they were not working. [35] at 10−12. In Robinson, SABIS hired Robinson as the

personnel Specialist at a SABIS-operated school. 2000 WL 343251, at *1. This role

required her to oversee payroll and timekeeping operations, maintain personnel

records, manage school janitors, supervise safety and security operations, and

oversee school facility operation and maintenance. Id. at *3. Robinson used this role

to place “friends and acquaintances whom she had hired as janitors and security

guards on the payroll as ‘permanent substitute teachers,’” which resulted in higher

pay than those individuals “were entitled to receive.” Id. Further, Robinson “paid

employees in non-teaching positions for work that she knew was never performed and

caused one employee to be paid for a period when that employee was not even present

at the school.” Id. The Robinson court denied Robinson’s motion to dismiss a breach

of fiduciary duty claim, finding that her actions were “decidedly not in SABIS’s

interest and consequently constitute a breach of fiduciary duty.” Id. At the motion

to dismiss stage, this Court found Plaintiff’s allegations sufficient, like those in

Robinson, and denied Defendant’s motion to dismiss as to the fiduciary duty claim.

[35] at 10−12.

Defendant now argues that while this Court “was obligated to accept

[Plaintiff’s] allegations as true” when it relied upon Robinson at the motion to dismiss

stage, the “undisputed facts now demonstrate otherwise.” Not so.

The facts surrounding the employee misconduct demonstrate that there are

multiple, genuine issues of material fact that preclude summary judgment for

Defendant. For example, the record contains factual support that Mierau, Peterson,

and Perera were promoted to positions or responsibilities for which they were not

qualified on the “Special Projects Team.” [107] ¶¶ 6, 8. Defendant increased Mierau

and Peterson’s wages multiple times in less than a year, Id. ¶ 7, and arranged for Soo

Tractor to pay all three employees when they did not work, just as in Robinson. Id.

¶ 14; Robinson, 2000 WL 343251, at *1. Defendant paid for these employees’ personal

legal expenses, as well as for expensive lunches and dinners and hockey tickets, at

Soo Tractor’s expense—even though Soo Tractor wanted to limit overtime and

drastically reduce operating costs. Id. ¶¶ 11−12, 15. Moreover, Plaintiff provides

record evidence indicating that Defendant made these decisions in an effort to further

his desire to “get close to” these young employees, rather than benefit Soo Tractor.

See, e.g., [107] ¶¶ 5, 17−18, 20. In short, there are many facts from which a reasonable

jury could conclude that Defendant went beyond “negligent or substandard job

performance” and engaged in self-dealing behavior, thus breaching a fiduciary duty

of loyalty to Plaintiff.

ii. Improper Board Activity Breach

Usurping, or diverting, business opportunities from an employer constitutes a

breach of the duty of loyalty under Illinois law. See Beltran, 426 F. Supp. 2d at 831.

Plaintiff argues that a genuine dispute of fact exists as to whether Defendant usurped

a business opportunity from Plaintiff by serving as a Tamarack Board member. [105]

at 13. Defendant counters that “the fact that an employee allegedly did something

wrong and did not tell his employer about it, does not without more, automatically

mean that the employee breached a fiduciary duty.” [100] at 15. But again, this

Court cannot find, as a matter of law, that Defendant did not, in fact, usurp a business

opportunity from Plaintiff, because the record contains disputed issues of fact on this

point.

For example, Plaintiff puts forth record evidence that: (1) Defendant served on

Tamarack’s Board of Directors, [99-23] ¶ 3; (2) Defendant never disclosed his

Tamarack board position to Plaintiff, [110-4] Exhibit E at 88, 93−94, 98−99; (3)

Defendant identified Tamarack as a potential lead for Plaintiff in March 2014, but

later declared that lead dead, [107] ¶ 23; and (4) during that same period, Tamarack

paid Defendant $25,000 for Tamarack-related work that he did on Soo Tractor

property and with Soo Tractor’ employees’ assistance, [107] ¶ 16.

Plaintiff counters that even if the above facts are true, Defendant could not

have taken a “business opportunity” from Plaintiff because Plaintiff is not in the

business of providing independent board members to companies. [99] ¶ 78. But,

Plaintiff maintains that it did, at least on one occasion, serve on a company’s board

of directors without performing any additional services for that company. [110-5]

Exhibit ZZ at 4. Thus, based upon the record as a whole, this Court finds that a

reasonable jury could determine that Defendant usurped a business opportunity from

Plaintiff by virtue of his Tamarack board position.

c. Whether Defendant’s Alleged Breach Proximately

Caused Damages

To prevail on its breach of fiduciary duty claim, Plaintiff must also establish

that the alleged breaches proximately caused damages. Sinikovic, 125 F. Supp. 3d at

777 (citing Gross v. Town of Cicero, Ill., 619 F.3d 697, 709 (7th Cir. 2010)).

Defendant argues that Plaintiff’s breach of fiduciary duty claim fails as a

matter of law because Mahaney decided to terminate Plaintiff for financial reasons,

not because of Defendant’s conduct. [100] at 16. But, the parties dispute almost every

fact regarding why Mahaney terminated Plaintiff. For example, Defendant

maintains that Mack and Grenko secured a buyer for Soo Tractor, and that Mahaney

subsequently terminated Plaintiff “because they were depleting the company’s

assets.” [99] ¶ 65. Plaintiff counters that as Soo Tractor personnel escorted

Waetzman out of the building after the termination, Felts informed Waetzman that

“this situation with Mierau and . . . all the other issue[s] with these young boys”

caused the termination. [106] ¶ 65; [110-4] Exhibit E at 137.

Notably, Plaintiff also points to a memorandum Mahaney sent in November

2014 to Soo Tractor’s Board of Directors, which states that he had “grave concern[s]

about [Defendant’s] leadership of Soo Tractor” based upon:

• Repeated delay in receipt of monthly financial reporting

• Overall lack of communication with [Mahaney] about the status

of the company operations, issues and future plans

• Tremendous employee tension related to actions taking during

the last year

• Confiscating and opening [Mahaney’s] personal mail

• Accessing [Mahaney’s] Radius Steel computer and email

• Travel expenses that [Mahaney] question[ed] whether they

pertain to the company

• Possibly charging Soo Tractor for time on tele-conferences with

other company boards

• Bringing dogs into the office . . . .

[106] ¶ 24; [110-11]. Defendant counters that this memorandum does not mention

any knowledge or concern about the purported activity with Mierau or Peterson, and

that Gavin’s follow-up email to Anderson, dated November 14, refutes Mahaney’s

complaints from the memorandum. [99] ¶ 61; [99-28].

In short, there is a clear dispute as to: (1) whether Mahaney terminated

Plaintiff based upon Defendant’s misconduct and/or his Tamarack board activity; and

(2) if so, whether the termination caused Plaintiff to lose a success fee that it

otherwise would have obtained upon a sale. See, e.g., [99] ¶¶ 18, 60; [106] ¶¶ 3, 17−18;

[107] ¶ 3; [110-3] at 54, 153−54; [110-4] Exhibit E at 26−28, 70. Therefore, this Court

reserves the question of whether Defendant’s actions proximately caused damage to

Plaintiff for a jury.6

Based upon this record, this Court cannot decide, as a matter of law, that

Defendant is not liable for the breach of fiduciary duty claim. Thus, this Court denies

Defendant’s motion for summary judgment as to Count I. [100].

6 Defendant also argues that Plaintiff, as a matter of law, is not entitled to lost earnings. [100] at

23−25. But, for these same reasons, this Court reserves the question of lost earning recovery for a

jury.

3. Remaining Damages Claims

The parties spend considerable time disputing, as a matter of law, whether

Plaintiff can obtain the following types of damages: (1) salary forfeiture; (2) fees and

costs to resolve potential claims; and (3) lost business opportunities. [100] at 20−29;

[105] at 15−29.

This Court first turns to Plaintiff’s salary forfeiture argument. Under Illinois

law, “it has long been recognized that an agent is entitled to compensation only on a

due and faithful performance of all his duties to his principal.” ABC Trans Nat.

Transp., Inc. v. Aeronautics Forwards, Inc., 413 N.E.2d 1299, 1314 (Ill. App. Ct. 1980)

(internal quotations and citations omitted). Therefore, employees forfeit their “right

to all compensation paid them during the period” in which they breach their fiduciary

duty of loyalty to an employer. Id. at 1315. Forfeiture of salary damages “are

available even where the defendant employer is not otherwise injured by the breach.”

Robinson, 2000 WL 343251, at *3 n.2 (citing ABC Trans, 413 N.E.2d at 1315).

Whether Plaintiff can receive salary forfeiture is thus tied to the viability of its breach

of fiduciary duty claim. Because a genuine factual dispute exists as to whether

Defendant breached his fiduciary duty of loyalty to Plaintiff, as discussed above, this

Court reserves the question of salary forfeiture damages for trial.

Second, Plaintiff seeks recovery for fees and costs it spent resolving “potential

claims by Peterson, Mierau, and Soo Tractor” against Plaintiff. [105] at 18.

Defendant argues that recovering these damages would conflict with the Supreme

Court’s decision in Northwest Airlines, Inc. v. Transportation Workers Union of

America, AFL-CIO, which held that Congress did not intend to create a federal right

of contribution under Title VII of the Civil Rights Act of 1964, 451 U.S. 77, 98 (1981).

[100] at 22.

But, the Court in Northwest Airlines also noted that “federal courts, including

this Court, have recognized a right to contribution under state law in cases in which

state law supplied the appropriate rule of decision.” 451 U.S. at 95, 97 n.38; see also

Donajkowski v. Alpena Power Co., 596 N.W.2d 574 (Mich. 1999) (allowing employer

to bring a third-party claim against a union in gender discrimination case brought

under federal and state anti-discrimination statutes); Rodolico v. Unisys Corp., 189

F.R.D. 245, 247 (E.D.N.Y. 1999) (allowing employer to bring claim for potential New

York Human Rights Law liability). In other words, the Northwest Airlines doctrine

is “wholly inapplicable” when a claim that could result in contribution or indemnity

rests upon potential liability under a state civil rights statute or other state law.

Donajkowski, 596 N.W.2d at 579; Howard Univ. v. Watkins, 857 F. Supp. 2d 67, 72−73

(D.D.C. 2012) (declining to dismiss employer’s state law claims, which would have led

to indemnification from its employee, because the employer’s liability was based, in

part, upon state law). Thus, this Court need not decide this issue now; if Plaintiff

prevails at trial, it will be entitled to produce evidence demonstrating that it should

be indemnified for claims based upon state law.

Third, Defendant argues that Plaintiff’s claim for lost business opportunity

damages fails as a matter of law as “speculative.” [100] at 23. This Court disagrees,

because Plaintiff has put forth evidence that: (1) Defendant usurped Plaintiff’s

opportunity to work with Tamarack, as discussed above, see, e.g., [106] ¶ 78; and (2)

Plaintiff lost out on potential referrals due to Defendant’s misconduct relating to

young male subordinates, [116] ¶ 33. Because a genuine dispute remains as to

whether Plaintiff lost any business opportunity, this Court reserves this damages

question for a jury.

B. Count II: Unjust Enrichment

Plaintiff’s unjust enrichment claim similarly alleges that Defendant

improperly usurped a business opportunity from Plaintiff when he served on

Tamarack’s Board of Directors and performed services for them. [105] at 29. To

prevail on an unjust enrichment claim, Plaintiff must establish that: (1) Defendant

unjustly retained a benefit to Plaintiff’s detriment; and (2) Defendant’s retention of

that benefit violates fundamental principles of justice, equity, and good conscience.

Cleary v. Philip Morris Inc., 656 F.3d 511, 516 (7th Cir. 2011) (citing HPI Health Care

Servs., Inc. v. Mt. Vernon Hosp., Inc., 545 N.E.2d 672, 679 (Ill. 1989)). Both parties

base their unjust enrichment theories upon the same facts and argument as their

Tamarack board-related breach of fiduciary theories. See [100] at 9; [105] at 29.

Thus, as discussed above, a genuine dispute of material fact exists as to whether

Defendant improperly usurped a business opportunity from Plaintiff. This Court

therefore denies Defendant’s motion for summary judgment as to Count II. [100].

V. Conclusion

For the reasons stated above, this Court denies Defendant’s motion for

summary judgment [100] and denies Defendant’s motion to strike [111]. All dates

and deadlines stand.

Dated: March 12, 2019

Entered:

John Robert Blakey

United States District Judge

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