JOAN H. LEFKOW, 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.
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.
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
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:
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.
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:
A POSEN LIBRARY Progress Report dated November 24, 2008, includes the following:
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.
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:
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,
Young forwarded to Levin the Posen Library's "Project Guidelines for Volume Editors," although Levin testified that 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,
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.
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
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,
By email dated May 27, 2009, Levin wrote to Posen the following:
Posen responded in agreement that there had been "a good and fruitful meeting between all of you."
Levin met Posen again in London in June 2009. Posen reported on that meeting in an email dated June 8, 2009, which reads as follows:
Although there had been a few email exchanges after June 8,
By email dated September 25, 2009, Levin supplied Posen with information, described as "both an encapsulation and an expansion of what we discussed at our initial meeting." He expressed his desire to preside over the musical and music-related content of all ten volumes in an official capacity of "music and musicology editor of the series." Levin also noted, "It is important to underscore that I am well aware that this is an anthology of all aspects of Jewish culture and civilization, so that the musical component must be selective rather than comprehensive or exhaustive. But in order to select and determine the best examples in each category, my procedure is first to consider the full range of possible candidates."
Posen responded to Levin on September 20, 2009,
Edwin Seroussi was retained to work on the POSEN LIBRARY. He submitted an invoice for $2,500 for his services. His work included preparation of "listing of Israeli popular and commercial music for Volume X."
On October 6, 2009, Levin supplied "a random listing of sources/source reading that I would envision in an 11th volume of the Posen Library." (In this communication, Levin noted, "Whether or not there would be [ ] an 11th Volume, I believe that it is crucial that each of the ten volumes include a FEW such source readings.") Posen forwarded the material to Young and Rappaport by email dated October 7, 2009, with a copy to Levin. In that email, Posen asked Levin if this "is the list of MUSICAL entries for Volume X?" Young, in response, noted that the material from Levin was "impressive" but that "we have to keep him focused on Volume X. He seems to be proposing an 11th Volume." According to Young, "[t]he next step is to get [Levin's] list of MUSICAL entries for Volume X."
By letter dated October 8, 2009, Levin advised Brent at Yale University Press that he had spoken with Posen:
By email dated October 7, 2009, Posen advised Levin as follows:
Levin responded to Posen by email on October 11, 2009, as follows:
On October 12, 2009, Posen responded to Levin:
Levin wrote to Posen on October 28, 2009, "I am proceeding with work on assembling the lists of titles for Volume X. . . ."
According to Levin, he spoke with Posen on or about October 31, 2009, and in that conversation Posen "offered Professor Levin [as music editor of all volumes] what Mr. Posen said was the same remuneration as that of the Volume Editors, $25,000 per volume times the ten (10) principal volumes." There are no contemporaneous documents referencing this claimed agreement.
Levin testified that his duties as music editor would include selecting and abridging the music-related writings.
Levin supplied the POSEN LIBRARY with nine proposed writings in early January 2010. Levin's writings consisted of edits to works by other scholars, for example, one was an abridged version of an article by Mark Slobin titled "American Klezmer Its Roots and Offshoots."
By email dated February 5, 2010, Rappaport stated to Levin that she might have to ask him to shorten some of the articles he had submitted and inquired about the status of the bibliographies:
In response, Levin advised,
Levin indicated it would be better to include the biographical information in the "separate music-related volume" they had previously discussed.
Young wrote to Rappaport stating, "The list of music Neil is sending us in electronic form will be lengthy, but asking him to cut now will only delay the delivery of it." Young also testified that, because Levin had suggested that he couldn't edit it down, he "may have said, just give us the list you have, then, whatever they are, and we'll see how we can use them." According to Young, the POSEN LIBRARY was "hoping" to use parts of the bibliographies that could not go into Volume 10 in some manner, such as placing a complete bibliography online in some form.
Levin transmitted five bibliographies to Rappaport from April through September, 2010.
By email dated April 14, 2010, Levin inquired if they were on the same track in terms of space limitations, indicating that it would help to know the space limitations.
By email dated April 22, 2010, Young complimented Levin on the portions of the materials he had submitted and urged him to finish the remainder of the work promptly. He added,
On September 3, 2010 a volume editor for Volume 10 reported to Rappaport her comments on Levin's lists (Levin asserts that his final list of 945 entries was submitted on September 8, so this review may not have been of the entire submission).
Thereafter, Levin was asked to select 40 entries from his bibliographies to include in the published volume 10, but he refused and would not allow the Posen Library to use his name.
In the end, the initial list of music shown to Levin in October 2008 was used in volume 10. That list also appears on the POSEN LIBRARY website. Volume 10 does include the four of the nine abridged writings that Levin submitted. (Copyright permissions were separately obtained.) By the end of the relationship between the parties, there had been no meetings and no collaboration with the Milken Foundation.
Levin is not listed as a member of the advisory boards or project staff in Volume 10.
Although Dr. Levin submitted draft collaboration proposals to the Posen Foundation in July, 2009, there were no meetings or collaboration with the Milken Archive, and no recorded music from the Milken Archive was used in the POSEN LIBRARY. According to documents produced in response to a subpoena from the Posen defendants, the Milken Archive rejected a proposal to work with the POSEN LIBRARY.
Levin has experience in writing articles for academic journals. He conceded that "[n]oone is paid for an academic article in — in journals. . . . For an academic journal, one is not only not paid, sometimes the editor is not even paid. It's totally an academic exercise. . . ."
Levin testified that he had, on occasion, received honoraria for submissions to academic journals. But he also testified that an honorarium would not apply to the type of work he was retained to do for the POSEN LIBRARY because "[t]his is professional consultation for a—a project that's costing a lot of money, and nobody's doing charity work for it."
Other than with Posen at the London meeting in November, 2008, Levin never discussed a $400 per hour financial arrangement with anyone, including Young. He never memorialized the agreement in any writing, nor did he ever submit an invoice for work at the $400 per hour rate. Levin had never worked for an hourly fee for anyone before his meeting with Posen.
Levin never submitted any request to be reimbursed for his own expenses, although he did submit one request for reimbursement for the work of a research assistant.
The court applies the familiar legal standards for summary judgment motions to determine whether a genuine issue of material fact exists requiring trial. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986).
Although it is undisputed that a written agreement was never reached between the Posen Foundation and Levin, Levin argues that there was an implied contract between them for services to the POSEN LIBRARY. He seeks compensation for this work on a quantum meruit basis for the alleged value of his services to the POSEN LIBRARY. Defendants contend that there is no genuine issue of material fact that the defendants did not publish or use the bibliographies, neither did the POSEN LIBRARY list him as an advisor to Volume 10, and therefore the Posen Library received no benefit for which it is obligated to pay Levin. Levin responds that the measure of value should not be based on whether his work product was used but, rather, whether by asking Levin (repeatedly) to submit writings and bibliographies and accepting them (even though not in the form wanted by the Posen defendants), he should be paid regardless of whether the materials were published.
Quantum meruit means "as much as he deserves" and is based on the implied promise of a recipient of services to pay for the value of those services. Carlton at the Lake, Inc. v. Barber, 928 N.E.2d 1266, 1272, 401 Ill.App.3d 528, 340 Ill.Dec. 669 (Ill. App. Ct. 2010) (quoting First Nat'l Bank of Springfield v. Malpractice Research, Inc., 688 N.E.2d 1179, 1185, 179 Ill.2d 353, 228 Ill.Dec. 202 (Ill. Ct. 1997)) (internal quotation marks omitted).
It is undisputed that defendants requested Levin to submit writings and bibliographies for use in Volume 10 and that Levin submitted writings and bibliographies for use in volume 10. Thus the first element of proof is established. Whether defendants received any benefit from Levin's service, however, can be determined only by findings of fact concerning which version of the facts is believed: (a) Levin's version that he had been given full authority over the music content of the entire POSEN LIBRARY or (b) the defendants' version that he was engaged only for Volume 10 and that they retained complete authority over the final content of the POSEN LIBRARY including volume 10. If a reasonable jury believed (a), it could find that defendants caused their own inability to use Levin's submissions by failing to honor their commitment to give Levin complete control over content and, as a result, equity requires that he be compensation in the amount he deserves, as determined by the jury. If the jury were to accept defendants' version, it could conclude that Levin rendered his work useless to defendants by refusing to allow the defendants to edit and abridge the materials subject to their editorial control, in which event Levin would likely deserve little or nothing. Although defendants rest heavily on the representations made in back-and-forth emails and the lack of any documentation of Levin's understandings, the fact remains that the relationship between the parties was largely oral, the terms of an agreement were never formalized, and the dynamic between the parties evolved over time. A great deal of the evidence depends on the credibility of the witnesses. As such, the quantum meruit claim must be submitted to a jury.
Defendants argue that they are entitled to summary judgment on Levin's claim of fraud because Levin has failed to satisfy any of the essential elements of proof, starting with failure to identify any false statement or omission made to him. Levin responds that defendants made numerous false representations to him. First, Young stated that the Foundation would pay Levin a consulting fee consistent with his contribution to the POSEN LIBRARY, and Posen guaranteed him compensation comparable to his fee from the Milken Foundation but, in truth, he has been paid nothing. Second, Young falsely stated to Levin that his final work product would be cut by at most 20 percent and they would work with the volume editors of Volume 10 to incorporate Levin's work by cutting down some non-music-related selections and the Foundation would publish volume 10 as two books. In truth, in October 2010, after Levin submitted his materials, defendants asked him to select 40 articles from his list of 947, a 96 percent cut. Third, Defendants falsely represented that there would be a spin-off or eleventh volume of the Posen Library (apparently the second of the two volumes referred to in (2) above), but such a volume was never published. Fourth, Defendants falsely represented to Levin that he would have sole authority over all music-related content of the POSEN LIBRARY as music editor but, in fact, defendants permitted the volume editors of Volume 10 to make edits to Levin's submissions and only at the end of his services did they state that Levin did not have this authority.
As the court recognized in Steinberg v. Chicago Medical School, 371 N.E.2d 634, 641, 69 Ill.2d 320, 13 Ill.Dec. 699 (Ill. Ct. 1977), "[a] misrepresentation in order to constitute a fraud must consist of a statement of material fact, false and known to be so by the party making it, made to induce the other party to act, and, in acting, the other party must rely on the truth of the statement." Acknowledging that "the general rule denies recovery for fraud based on a false representation of intention or future conduct,"
The facts of this case would only fit into a promissory fraud theory because it is based on false representations of future conduct. Promissory fraud, however, is a disfavored cause of action in Illinois because fraud is easy to allege and very difficult to prove or disprove. Hollymatic Corp. v. Holly Systems, Inc., 620 F.Supp. 1366, 1369 (N.D. Ill. 1985). Even the burden on a plaintiff of pleading a claim of promissory fraud is high:
"Scheme" is defined in First Nat'l Bank of Ottawa v. Dillinger, 897 N.E.2d 358, 360, 386 Ill.App.3d 393, 325 Ill.Dec. 110 (Ill. App. 2008):
Id. The Seventh Circuit has indicated that "scheme" and "plan" are words of intention, and that the intention must be shown "at the outset" of the scheme. See United States v. Brown, 209 F.3d 1020, 1023 (7th Cir. 2000) ("Under this analysis, Brown must demonstrate that `he either intended from the outset to commit [the] crimes or that he intended to commit one crime which, by necessity, involved the commission of [the others].'" (emphasis in original).
Under these principles, the issue is whether a reasonable jury could find that from the outset Posen, Young, and others associated with the Posen Foundation planned or plotted to obtain and use Levin's submissions for no compensation by making the allegedly false representations Levin identifies. In light all the evidence before the court, viewed favorably to Levin, the court concludes that no reasonably jury could find fraud in this case. The record includes countless communications among individuals associated with the POSEN LIBRARY. Levin has not pointed to a single document or snippet of testimony indicating that those individuals were less than sincere in their efforts to collaborate with the Milken Archive and Levin, much less that they plotted against him.
Although Levin testified to several different (but inconsistent) promises of specific remuneration (at one time $400/hour, at another $250,000), he has no evidence other than his own testimony to support those claims, while defendants point to several instances in which they offered certain compensation for all or some of the work. All of these offers were for compensation dramatically lower than what Levin now claims he was offered. He made no contemporaneous protest that a different agreement existed, never submitted an invoice for payment for his services, and never demanded that the claimed terms be placed in a written agreement.
Furthermore, discovery revealed no instance in which the Posen Foundation paid other editors, consultants, or contributors, including Professor Seroussi, whose work may have been comparable, an amount similar to what Levin claims and no instance in which Levin had previously commanded such compensation as a consultant or contributor.
The remainder of Levin's claimed unfulfilled promises, even if made, are unenforceable standing alone, as none alone is a scheme. In short, the court finds no evidence supporting a claim of promissory fraud. Defendants are entitled to summary judgment.
Defendant's motion for summary judgment (142) is granted as to plaintiff's claim of fraud and denied as to plaintiff's claim of breach of implied contract.
