"To support an action for fraud, the alleged misrepresentation must be one of fact and not an expression of opinion." People ex rel. Peters v. Murphy-Knight, 248 Ill. App.3d 382, 387, 187 Ill.Dec. 868, 872, 618 N.E.2d 459, 463 (1st Dist. 1993) (citing Duhl v. Nash Realty, Inc., 102 Ill. App.3d 483, 57 Ill.Dec. 904, 429 N.E.2d 1267 (1st Dist. 1981); Equity Capital Corp. v. Kreider Transp. Serv., Inc., 967 F.2d 249 (7th Cir. 1992)). A statement that "merely expresses an opinion or that relates to future or contingent events, rather than past or present facts, does not constitute an actionable representation."

(Dkt. 83 at 7 (citing Dkt. 131 at ¶ 63-64, 66)). Under Illinois law, Sky3's failure to disclose a material fact may constitute a false statement of material fact but only if Sky3 had a duty to disclose that fact. See Trustees of AFTRA Health Fund v. Biondi, 303 F.3d 765, 777 (7th Cir. 2002); Equity Capital Corp. v. Kreider Transp. Serv., Inc., 967 F.2d 249, 253 (7th Cir. 1992); see also, e.g., Aeroground, Inc. v. CenterPoint Properties Tr., No. 10 C 652, 2010 WL 2169493, at *4 (N.D. Ill. May 27, 2010) (citing Equity Capital Corp., 967 F.2d at 253); Lefebvre Intergraphics, Inc. v. Sanden Mach. Ltd., 946 F. Supp. 1358, 1366 (N.D. Ill. 1996). Where Plaintiffs allege concealment of material facts under Illinois law, the elements of the fraud claim are modified such that they must prove: "(1) the concealment of a material fact; (2) that the concealment was intended to induce a false belief, under circumstances creating a duty to speak; (3) that the innocent party could not have discovered the truth through a reasonable inquiry or inspection, or was prevented from making a reasonable inquiry or inspection, and relied upon the silence as a representation that the fact did not exist; (4) that the concealed information was such that the injured party would have acted differently had he been aware of it; and (5) that reliance by the person from whom the fact was co

However, "Illinois courts at times consider a party's failure to disclose material information (i.e., omission) to be a false statement of fact, but only if the alleged defrauder owed a duty to disclose that information to the [opposing] party." Equity Capital Corp. v. Kreider Transp. Service, Inc., 967 F. 2d 249, 253 (7th Cir. 1992). The relevant elements under Illinois law to show the failure to disclose material information, or concealment, amounted to fraudulent misrepresentation are as follows:

"To support an action for fraud, the alleged misrepresentation must be one of fact and not an expression of opinion." People ex rel. Peters v. Murphy-Knight, 248 Ill. App.3d 382, 187 Ill.Dec. 868, 618 N.E.2d 459, 463 (1993) (citing Equity Capital Corp. v. Kreider Transp. Serv., Inc., 967 F.2d 249, 253-54 (7th Cir. 1992); Duhl v. Nash Realty, Inc., 102 Ill. App.3d 483, 57 Ill.Dec. 904, 429 N.E.2d 1267, 1274 (1981)). "A statement that merely expresses an opinion or that relates to future or contingent events, rather than past or present facts, does not constitute an actionable representation."

It cannot support a fraud claim because, in "an action for fraud, the alleged misrepresentation must be one of fact and not an expression of opinion." People ex rel Peters v. Murphy-Knight, 248 Ill.App.3d 382, 187 Ill. Dec. 868, 618 N.E.2d 459, 463 (1993); see Equity Capital Corp. v. Kreider Transp. Serv., Inc., 967 F.2d 249, 254 (7th Cir. 1992) ("Under Illinois law, `a representation is one of opinion rather than fact if it only expresses the speaker's belief, without certainty, as to the existence of a fact.'" (quoting Marino v. United Bank of Ill, N.A., 137 Ill.App.3d 523, 92 Ill.Dec. 204, 484 N.E.2d 935, 937 (1985))). Thus, putting aside that Cain always was free to consult other lawyers about his prospects for suing American General, Osman's opinion that Cain did not have a claim under the False Claims Act could not constitute a "false statement of material fact."

Hardin, Rodriguez Boivin Anesthesiologists, Ltd. v. Paradigm Ins. Co., 962 F.2d 628, 640 (7th Cir. 1992) (quoting Davlan v. Otis Elevator Co., 816 F.2d 287, 289 (7th Cir. 1987)). We review the court's denial of a plaintiff's motion for a new trial for an abuse of discretion. Fed.R.Civ.P. 61; Equity Capital Corp. v. Kreider Transp. Service, Inc., 967 F.2d 249, 253 (7th Cir. 1992). B. General Verdict

Spaulding retorts that even if Abbott owed Spaulding no duty to disclose as a fiduciary, Abbott did not have "license to lie when asked point blank about" its interpretation of the parties' contracts. Equity Capital Corp. v. Kreider Transp. Serv., Inc., 967 F.2d 249, 253 (7th Cir. 1992). The trouble with Spaulding's argument is that Abbott did no such thing.

Whether such a duty exists is a question of law. Equity Capital Corp. v. Kreider Trans. Serv., Inc., 967 F.2d 249, 253 (7th Cir. 1992). The duty to disclose arises only when a fiduciary relationship is present or when the defendant's acts contribute to the plaintiffs misapprehension and the defendant intentionally fails to correct the plaintiff.

Under Illinois law, a party fraudulently induced into signing a contract is, as a general matter, entitled to rescind the deal. Equity Capital Corp. v. Kreider Transp. Service, Inc., 967 F.2d 249 (7th Cir. 1992). Illinois courts have considered a party's failure to disclose material information (i.e. omission) to be fraud if the alleged defrauder owed a duty to disclose that information to the party across the bargaining table.

In evaluating whether GSA has stated a cause of action for fraud, we must first determine whether the representations made were statements or omissions of material fact and not mere promises or expressions of opinions. See, e.g., Lefebvre Intergraphic, Inc. v. Sanden Machine Limited, 946 F. Supp. 1358, 1364 (N.D.Ill. 1996) (citing People ex rel. Peters v. Murphy-Knight, 248 Ill. App.3d 382, 387, 187 Ill.Dec. 868, 872, 618 N.E.2d 459, 463 (1st Dist. 1993)); Equity Capital v. Kreider Transp. Serv., Inc., 967 F.2d 249 (7th Cir. 1992)). A statement that "merely expresses an opinion or that relates to future or contingent events, rather than past or present facts, does not constitute an actionable representation."