Manish S. Shah, United States District Judge.
George Carroll and Robert Lansing cofounded a real-estate investment business in which each owned equal interests. Years later, however, the relationship between the two co-owners soured, and Lansing elected to invoke the "buy/sell" provisions of various governing agreements. Pursuant to those agreements, Lansing offered to purchase Carroll's shares in the business for approximately 14.5 million dollars, and simultaneously made an offer to sell Lansing's own shares to Carroll for the same price. Carroll chose to buy Lansing's shares, but was unable to close on the purchase within the prescribed period of time. When Carroll then refused to allow Lansing to buy his interests for the previously-set amount, Lansing sued Carroll for breach of contract. Lansing also purported to purchase Carroll's interests anyway through a transfer agreement, which Carroll never signed.
Carroll filed a counterclaim against Lansing, asserting a breach-of-fiduciary-duty claim based on Lansing's alleged "conversion" of Carroll's ownership interests. Carroll also brought counterclaims against the entities that had provided Lansing with the funds necessary to carry out the conversion, alleging that these entities — Realty Portfolio Holdings LP, a limited partnership; and its limited partner, Celebrate Life Trust — participated in the alleged breach. In addition, Carroll asserted counterclaims against the trust and one of its settlors, Richard Stephenson, for aiding and abetting that breach. Realty Portfolio filed a motion to dismiss the participation claim against that entity, which was denied. Celebrate Life Trust and Richard Stephenson now move to dismiss the counterclaims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons discussed below, the motion is denied.
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a claim for relief contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The purpose of this requirement is to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). To satisfy these "notice" pleading requirements, the complaint need not set forth detailed factual allegations. Id. (citation omitted). But it must present enough "factual matter, accepted as true, [that the] `claim to relief... is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). Motions under Rule 12(b)(6) are meant "to test the sufficiency of the complaint, not ... the merits" of the plaintiff's case. Weiler v. Household Fin. Corp., 101 F.3d 519, 524 n.
This is, at bottom, a business divorce between two individuals, but the tangle of related entities and trusts involved in the case requires some explanation. The procedural history also warrants some detailed recitation since, through no fault of the parties, the suit has been assigned to three different district judges during several years of motion practice over the pleadings.
In the 1990s, George Carroll and Robert Lansing created a real-estate investment business. As part of this business, Carroll and Lansing established a series of ten investment funds — the "Westminster funds" — through which individuals and entities could invest in small- and medium-sized properties. See [129] ¶ 31.
The governing document for Litchfield (the shareholders' agreement) included a "buy/sell" provision, which set forth a process whereby one shareholder could either dissociate from the corporation (by selling his shares to the other owner) or take full control of the company (by buying the other owner's shares). See [129] ¶ 2; see also [129-TAC] ¶¶ 2, 32. The buy/sell provision required that any offer made under its terms be at once an offer to buy and to sell-that is, if one co-owner offered to buy the other's shares for a stated price, the
On November 1, 2010, Lansing invoked the buy/sell provisions in both the Litchfield shareholders' agreement and the Westminster operating agreements. See [129] ¶¶ 2, 9. Pursuant to the provisions, Lansing offered to buy Carroll's shares and, simultaneously, to sell Lansing's own shares to Carroll for approximately 14.5 million dollars. See id. ¶¶ 2, 55. Carroll elected to buy Lansing's interests and so accepted Lansing's "sell" offer on November 26, 2010 — triggering a 120-day closing period on that sale (ending on March 29, 2011). See id. ¶¶ 10, 57. Carroll was unable to obtain the funds necessary to complete the transaction, however, and the March 29 closing did not take place. See id. ¶¶ 12, 63.
Several days later, on April 3, 2011, Lansing informed Carroll that, because Carroll was unable to complete the purchase of Lansing's shares, Lansing now had the right to purchase Carroll's interests under the governing buy/sell provisions (and pursuant to the terms of Lansing's November 2010 offer). See id. ¶ 65. When Carroll refused to comply, Lansing filed on June 17, 2011 a complaint against Carroll in federal court, alleging, inter alia, that Carroll had breached the governing agreements. See id. ¶ 70; see also [1] ¶¶ 59-65. As remedy, Lansing sought (among other forms of relief) specific performance of the buy/sell provisions invoked in 2010 — which, according to Lansing, required Carroll to sell his ownership interests to Lansing. See [1] at 22.
Also on June 17, Lansing reiterated his position that he had a right to purchase Carroll's shares, and he sent to Carroll a corresponding draft "transfer agreement" to be executed by both owners at a closing on June 21, 2011 (a date that Lansing later pushed back to June 29, 2011). See [129] ¶¶ 68, 74. Also included in the draft agreement was a provision requiring Carroll and Carroll's wife to resign from the various positions they held in the Westminster/Litchfield business. See id. ¶ 68.
Carroll refused to sign the transfer agreement provided to him by Lansing. See id. ¶¶ 71-73. On June 29, 2011, Lansing nonetheless purported to close on the purchase of Carroll's shares by signing the agreement himself. Id. ¶ 74. Lansing signed the document not only on his own behalf (i.e., in his individual capacity), but also as manager and sole member of Realty Holdings GP LLC, the general partner of Realty Portfolio Holdings LP. See id. ¶¶ 24, 74. Realty Portfolio, a limited part-nership created on June 6, 2011, provided the money needed to purchase Carroll's shares on June 29 of that year. See id. ¶¶ 69, 100. As of that date, the (sole) limited partner of Realty Portfolio was Celebrate Life Trust. See id. ¶ 101. Carroll asserts that one of the trust's settlors, Richard Stephenson, selected the trust as the entity to invest in Realty Portfolio as a limited partner (and thus to contribute
After Lansing executed the transfer agreement, he informed Carroll that, as a result of the transfer, Carroll no longer possessed any interests in the Westminster/Litchfield business and would no longer receive any payouts from that venture. See id. ¶ 74. Two weeks later, on July 15, 2011, Lansing closed Litchfield's Los Angeles office and removed Carroll and Carroll's wife, Laura, from their positions as officers and directors of Litchfield and the Westminster funds. See id. ¶ 77-78. Lansing also amended his complaint in the pending breach-of-contract action against Carroll. In addition to the original contract claim, the amended complaint included, inter alia: an additional breach-of-contract claim, this time based on Carroll's refusal to voluntarily relinquish his shares on June 29, 2011, see [14] ¶ 63; and a request for a declaratory judgment that Lansing and Realty Portfolio had already acquired Carroll's interests pursuant to the "closing" on that date, see id. ¶¶ 49-59 (Count I).
In August 2011, Carroll demanded that Lansing and Realty Portfolio disclaim any right to Carroll's ownership interests, but neither Lansing nor Realty Portfolio responded. See [129] ¶¶ 80-81. Carroll then filed a motion to dismiss the newly-added contract and declaratory-judgment claims. See [15] ¶ 3. In an April 2012 order, Judge Manning granted Carroll's motion. See [23]. Judge Manning concluded that Lansing's interpretation of the governing agreements was not supported by the plain meaning of the buy/sell provisions, and that, consequently, Lansing had never acquired the right to seize control of Carroll's shares under those provisions (even after Carroll failed purchase of Lansing's shares in March 2011). See id. at 9-15.
Lansing amended his complaint, now limiting his claims to Carroll's alleged breach of contract in March 2011. See [30] ¶¶ 44-49.
Following Judge Lefkow's ruling, both parties amended their respective claims. Carroll amended his counterclaim to now include allegations that Celebrate Life Trust, too, had participated in Lansing's fiduciary breach (Count I), and that both Celebrate Life and Richard Stephenson had aided and abetted the wrongful transaction
Although Carroll's claims against the trust and against Stephenson have been brought in diversity,
Under Illinois law, a (non-fiduciary) third party such as Celebrate Life Trust may be liable for a fiduciary's breach of duty if the third party actively participates in that breach — that is, if: (1) the third party commits an act or omission that furthers or completes the breach of duty; and (2) at the time of the act or omission, the third party knows (or possesses the "legal equivalent" of knowledge) that the fiduciary's actions amount to a breach. See Chabraja v. Martwick, 248 Ill.App.3d 995, 998, 188 Ill.Dec. 230, 618 N.E.2d 800 (1993) (citing G. Bogert, Trusts & Trustees, 2d Ed., 1982, § 901 at 258-59). The third party must also benefit from the breach. See, e.g., Kehoe v. Saltarelli, 337 Ill.App.3d 669, 677, 272 Ill.Dec. 66, 786 N.E.2d 605 (2003).
Relying on Allen v. Amber Manor Apartments P'ship, 95 Ill.App.3d 541, 51 Ill.Dec. 26, 420 N.E.2d 440 (1981), Celebrate Life argues that even if Lansing did breach his duty to Carroll, the trust merely invested in a limited partnership (Royalty Portfolio)-an action for which the trust cannot be held liable, since a limited partner's "cash contribution is substituted for personal liability." [167] at 5 (quoting Allen, 95 Ill.App.3d at 547, 51 Ill.Dec. 26, 420 N.E.2d 440). The reliance on Allen is misplaced. Allen merely explains the legal principle that a limited partner's liability "for the debts and obligations of the firm" typically is capped at the amount initially invested by the limited partner. 95 Ill.App.3d at 547-48, 51 Ill.Dec. 26, 420 N.E.2d 440. The question at hand, however, is not whether Realty Portfolio — the limited partnership in which Celebrate Life invested — has failed to repay a debt or to fulfill an obligation to another party (and thus whether, and to what extent, Celebrate Life may be personally liable for that deficiency). The question is whether Celebrate Life Trust, in agreeing to invest in Realty Portfolio, knowingly participated in a fiduciary breach by Robert Lansing. I find that Carroll has alleged sufficient facts, accepted as true, to plausibly suggest that the answer to the latter question is "yes."
According to Carroll, Celebrate Life Trust knew, before it invested in Realty Portfolio, that any funds provided to Realty would be used by Lansing to purchase Carroll's shares in the Westminster/Litchfield business (i.e., in the "closing" to take place on June 29, 2011). See [129] ¶ 101. Moreover, says Carroll, the trust's attorneys reviewed the agreements governing Carroll and Lansing's business relationship — including the buy/sell provisions in dispute — before the trust agreed to provide any capital to Realty Portfolio.
The trust argues that Carroll's reference to Judge Manning's 2012 opinion is improper, and cannot support Carroll's claim that the trust knowingly participated in a fiduciary breach, because the opinion issued nearly a year after the relevant time period (i.e., when Celebrate Life decided to invest in Realty Portfolio). See [167] at 10-11. But the trust mischaracterizes what Carroll alleges. Carroll does not assert that the attorneys for the trust foresaw in 2011 precisely how Judge Manning would interpret in 2012 the language of the buy/sell provisions. Such an allegation would indeed be implausible. Carroll instead contends that the attorneys for Celebrate Life Trust knew (or, at least, must have known) that the buy/sell provisions would not permit Lansing to take control of Carroll's shares on June 29 because the plain meaning of the provisions told them as much. See [129] ¶ 102. That Judge Manning later confirmed Carroll's interpretation of the agreements to be correct merely supports the inference that, when Celebrate Life's attorneys looked at those agreements in 2011, they knew — or possessed "the legal equivalent of such knowledge," Chabraja, 248 Ill.App.3d at 998, 188 Ill.Dec. 230, 618 N.E.2d 800 — that Lansing was headed for a breach. At the motion-to-dismiss stage, this is enough. See Brown v. Budz, 398 F.3d 904, 914 (7th Cir.2005) ("Where pleadings concern matters peculiarly within the knowledge of the defendants, conclusory pleading ... should be liberally viewed" (quoting Tankersley v. Albright, 514 F.2d 956, 964 n. 16 (7th Cir.1975))).
This case is therefore distinguishable from Ottawa Sav. Bank v. JDI Loans, Inc., 374 Ill.App.3d 394, 312 Ill.Dec. 836, 871 N.E.2d 236 (2007), on which counter-defendants rely, see [147] at 10-11; [167] at 6. In Ottawa, the court explained that the plaintiffs had not successfully pleaded — indeed, could not successfully plead — that the defendants had induced or participated in a fiduciary breach, because the defendants had never seen the contract creating the fiduciary's duty in the first instance. See 374 Ill.App.3d at 403, 312 Ill.Dec. 826, 871 N.E.2d 236. Not so here. As discussed above, Carroll alleges that Celebrate Life Trust, through its attorneys, did see the agreements from which Lansing's fiduciary duty to Carroll arose (and saw them before the trust agreed to fund the allegedly wrongful transaction). See [129] ¶¶ 74, 101-02.
Celebrate Life also contends that Carroll's participation claim must fail because Carroll has not pleaded any facts indicating that the trust's attorneys "directly contacted" the trust or "specifically warn[ed it] that Lansing did not have the right to purchase" Carroll's interests. [167] at 12. This argument misses the point. Under Illinois law, an attorney's knowledge is imputed to the client — that is, it is presumed that the client knows what the attorney knows, "notwithstanding whether
Counter-defendants note that in an earlier opinion, Judge Lefkow declined to dismiss a similar participation claim against Realty Portfolio, in part because Realty signed the transfer agreement between Lansing and Carroll — which, to Judge Lefkow, suggested "active misbehavior" on the part of Realty Portfolio and thus supported an inference that that entity had furthered or completed Lansing's fiduciary breach. See [147] at 6 (quoting [93] at 3). As there is no allegation that the trust, too, executed the same agreement, counter-defendants posit that the trust did not "actively" participate in the conversion of Carroll's interests (and so could not have furthered or completed Lansing's breach under Illinois law). See, e.g., [167] at 4-5.
I disagree. While the trust may not have been as active a participant in the transfer as Realty Portfolio, this does not mean that the trust was not an active participant at all. As discussed above, Carroll alleges facts sufficient to permit an inference that Celebrate Life Trust provided funds to Lansing, through its investment as a limited partner in Realty Portfolio, despite knowing that the provision of such capital would facilitate a breach of Lansing's fiduciary duty. If true, these allegations convert what Celebrate Life prefers to characterize as an innocuous business investment into a knowing participation in Lansing's misbehavior. A knowing participation is a sufficiently "active" one in Illinois. See Appley v. West, 832 F.2d 1021, 1031 (7th Cir.1987) (observing that when a plaintiff has alleged that a third party knowingly facilitated a fiduciary's breach, or facilitated such a breach in bad faith, "there is a legal theory [in Illinois] on which [the plaintiff] can possibly recover," and "[he] should be given the opportunity to proceed with discovery and to test [his] evidence").
Carroll has also alleged facts sufficient to support an inference that Celebrate Life Trust derived a benefit from its knowing participation in Lansing's breach. According to Carroll, Celebrate Life has benefitted — through its investment as limited partner of Realty Portfolio — from owning a majority interest in the shares of the Westminster/Litchfield business that Realty Portfolio and Lansing purportedly took from Carroll on June 29, 2011. See id. ¶ 103.
I therefore find that Carroll has stated a plausible claim for relief against Celebrate Life Trust for participating in Lansing's alleged fiduciary breach. Counter-defendants' motion to dismiss Count I of the counterclaim, as that claim pertains to Celebrate Life Trust, is denied.
In Illinois, courts also recognize a cause of action for aiding and abetting a fiduciary's breach. To prevail on an aiding-and-abetting claim, the plaintiff must prove: (1) that the defendant aided a party who performed a wrongful, injury-causing act; (2) that the defendant was aware of its role at the time it provided the assistance; and (3) that the defendant knowingly and substantially assisted the violation. See Hefferman v. Bass, 467 F.3d 596, 601 (7th Cir.2006) (citing Thornwood, Inc. v. Jenner & Block, 344 Ill.App.3d 15, 278 Ill.Dec. 891, 799 N.E.2d 756 (2003)); see also Time Savers, Inc. v. LaSalle Bank, N.A., 371 Ill.App.3d 759, 772, 309 Ill.Dec. 259, 863 N.E.2d 1156 (2007).
The trust contends that Carroll has failed to state a proper aiding-and-abetting claim because he has not alleged facts suggesting that the trust knowingly assisted in Lansing's purported misdeeds. See [147] at 13. In support of this contention, Celebrate Life reiterates its earlier arguments concerning Carroll's "participation" claim against the trust. See id. at 13-14. For the reasons discussed above, however, I do not find these arguments to be persuasive. Carroll's allegations, accepted as true, permit the conclusion that Celebrate Life Trust knowingly furthered — and thus knowingly participated in — Lansing's breach. Those same allegations (both incorporated by reference in, and restated in, Count III, see [129] ¶¶ 111, 118) similarly support the conclusion that Celebrate Life knowingly "assisted" in that violation.
My inquiry therefore turns on whether the facts as alleged reasonably suggest: first, that the trust substantially assisted in Lansing's "conversion" of Carroll's shares by contributing funds to the purchase, and second, that the trust was aware of its role as "aider and abetter" when it provided that money. See Hefferman, 467 F.3d at 601. I find that Carroll's allegations are sufficient on both fronts.
According to Carroll, Celebrate Life provided more than 99% of the capital Lansing needed to effect the (allegedly) wrongful purchase of Carroll's interests in the Westminster/Litchfield business. See [129] ¶ 118. If the act of providing funds to Lansing constitutes participation in — or, here, assistance of — Lansing's breach, then providing the vast majority of those funds certainly qualifies as "substantial" participation or assistance. Moreover, Carroll alleges that when the trust provided the funds, it knew that Lansing did not himself have the money needed to carry out the purchase. See id. The trust, in other words, knew that by investing in Realty Portfolio, it was facilitating a (wrongful) transaction that may not otherwise have taken place. Carroll therefore has alleged facts sufficient to permit an inference that Celebrate Life Trust was aware of its role in Lansing's purported breach.
Carroll asserts that Richard Stephenson also aided and abetted Lansing's breach by designating Celebrate Life Trust as the funding source for the unlawful purchase of Carroll's shares. See id. ¶ 119. Stephenson argues that Carroll has not stated a proper aiding-and-abetting claim against him because: (1) the counterclaim does not establish how Stephenson "knew" that Lansing's planned purchase could constitute a fiduciary breach; and (2) the counterclaim lacks allegations "giving rise to an inference that Stephenson knowingly directed Lansing" to breach his duty. See [147] at 14-16. Neither argument is persuasive.
First, I disagree that the counterclaim fails to suggest how Stephenson knew that Lansing's purchase of Carroll's shares might constitute a fiduciary breach. Carroll alleges that in June 2011, Stephenson shared the same attorneys as Celebrate
Stephenson's second argument is also unavailing, as it does not apply the appropriate test. Stephenson contends that Carroll's allegations are deficient because they fail to suggest that Stephenson ever directed Lansing to breach his duty toward Carroll. See [147] at 15. To successfully plead an aiding-and-abetting claim, however, Carroll must allege only that Stephenson knowingly assisted Lansing in committing a breach (and was aware of his role in said breach) — not that Stephenson individually instructed or "directed" Lansing to commit a particular act. See Hefferman, 467 F.3d at 601. And here, Carroll has pleaded facts sufficient to infer a knowing assistance by Stephenson. According to Carroll, Stephenson: (1) knew that Lansing's intended acquisition would constitute a fiduciary breach (as discussed above); (2) had the ability to nonetheless put his family's money behind that breach, see [129] ¶ 119 ("Stephenson controls all aspects of his family's investments through a ... web of trusts and [other] entities."); and (3) exercised that ability by "designat[ing] the pre-existing Celebrate Life Trust as the funding source of 99.8% of Realty Portfolio's capital," id. And, as Stephenson knew (again according to Carroll) that Lansing did not otherwise have the financial means to purchase Carroll's shares, Stephenson was allegedly aware of his role in facilitating the wrongful transaction. See id. ¶ 120.
Counter-defendants' motion to dismiss Count III of the counterclaim, as that claim pertains to Celebrate Life Trust and Richard Stephenson, is therefore denied.
Accepting as true the facts presented in Carroll's counterclaim, [129], and drawing from those facts all reasonable inferences in his favor, I find that the counterclaim plausibly suggests that Carroll is entitled to relief from Celebrate Life Trust and from Richard Stephenson. Carroll has put both the trust and Stephenson on sufficient notice of Carroll's claims against them. For the reasons discussed above,
The Illinois courts sometimes do refer to "participation," "inducement," and "collusion" together. See, e.g., Alpha Sch. Bus Co., Inc. v. Wagner, 391 Ill.App.3d 722, 738, 331 Ill.Dec. 378, 910 N.E.2d 1134 (2009) (citing Paul H. Schwendener, Inc. v. Jupiter Elec. Co., 358 Ill.App.3d 65, 74, 293 Ill.Dec. 893, 829 N.E.2d 818 (2005)); Kehoe, 337 Ill.App.3d at 677, 272 Ill.Dec. 66, 786 N.E.2d 605. Regardless of the specific term (or terms) employed, the case law collectively turns on the same fundamental inquiry — the one I engage here: whether the plaintiff has alleged facts suggesting that the third-party knowingly or intentionally involved themselves in a fiduciary's wrongful behavior. See Chabraja, 248 Ill.App.3d at 999, 188 Ill.Dec. 230, 618 N.E.2d 800 (noting that "active" participation may comprise misuse of information the defendant knew to be confidential) (citation omitted); see also In re Pritzker, 2004 WL 414313, at *7 (explaining that under Illinois law, the "active participation" requirement demands that "the parties knew or had reason to believe at the time of their alleged participation that the acts were wrongful."); cf. Dexia Credit Local v. Rogan, No. 02 C 8288, 2003 WL 22349111, at *8 (N.D.Ill. Oct. 14, 2003) ("A person or entity can be held liable [in Illinois] for colluding in a breach of fiduciary duty ... by engaging in activities that are perfectly usual and legal as long as those activities are done with the requisite knowledge or intent." (citing Appley v. West, 832 F.2d 1021, 1030 (7th Cir.1987))) (emphasis added).
