Plaintiffs' response is that we should imply a damages remedy under the Act for a defrauded seller, even though no remedy at all is provided for sellers and no damage remedy is expressly provided even for purchasers. The only case under the Act on which plaintiffs rely is Anvil Investment Co. v. Thornhill Condominiums, Ltd., 85 Ill.App.3d 1108, 41 Ill.Dec. 147, 407 N.E.2d 645 (1st Dist. 1980), in which the court approved an award to a purchaser of securities of punitive (not compensatory) damages against two persons who had violated a prohibition contained in ยง 137.12. Plaintiffs also rely generally on Sawyer Realty Group, Inc. v. Jarvis Corp., 89 Ill.2d 379, 59 Ill.Dec. 905, 432 N.E.2d 849 (1982), in which the Illinois Supreme Court discussed when a private remedy should be inferred from a statute that does not expressly provide for one. In Sawyer, the court stated that where a statute is enacted to protect a particular class of individuals, courts may imply a private cause of action for a violation of the statute even though no express remedy has been provided by the legislature.
Our courts allow them only when a wrongful act is accompanied by aggravated circumstances, including fraud, willfulness, wantonness, or malice. Courts award punitive damages to punish a defendant, teaching him not to repeat his intentional, deliberate and outrageous conduct, and to deter others from similar conduct. ( Anvil Investment Ltd. Partnership v. Thornhill Condominiums, Ltd. (1980), 85 Ill. App.3d 1108, 1118-19, 407 N.E.2d 645, 652-53.) Further, the decision to award punitive damages is left to the trier of fact; a reviewing court will not disturb its decision absent an abuse of discretion. 85 Ill. App.3d 1108, 1121, 407 N.E.2d 645, 654.
In situations of wilful and wanton misconduct, defendant's conduct operates as a breach, not only of the contract, but also of a duty imposed by law. D. Dobbs, Remedies sec. 3.9, at 207 (1973). In the tort of wilful and wanton misconduct, it is exactly defendant's state of mind which is at issue, and it is his conscious and reckless disregard for the rights or safety of others that is being punished, not the breach of contract. ( Anvil Investment Limited Partnership v. Thornhill Condominiums, Limited (1980), 85 Ill. App.3d 1108, 407 N.E.2d 645.) The exception to the general rule denying punitive damages for breach of contract only comes into play in the face of a wilful tort, for it is this wilfulness which society, via the court, seeks to punish.
First, and most importantly for purposes of this case, the jury was entitled to consider the amount of attorney's fees incurred by the plaintiff in bringing the libel action. See Hazelwood v. Illinois Central GulfRailroad, 114 Ill.App.3d 703, 711, 71 Ill. Dec. 320, 327, 450 N.E.2d 1199, 1206 (4th Dist. 1983); Anvil Investment Limited Partnership v. Thornhill Condominiums, 85 Ill. App.3d 1108, 1121, 41 Ill.Dec. 147, 156, 407 N.E.2d 645, 654 (1st Dist. 1980); Glass v. Burkett, 64 Ill.App.3d 676, 683, 21 Ill.Dec. 494, 499, 381 N.E.2d 821, 826 (5th Dist. 1978). Second, the jury was entitled to take into account the defendants' wealth.
See, e.g., In re Estate of Talty, 376 Ill.App.3d 1082, 315 Ill.Dec. 866, 877 N.E.2d 1195, 1207 (3d Dist.2007); Anvil Inv. Ltd. P'ship v. Thornhill Condominiums, Ltd., 85 Ill.App.3d 1108, 41 Ill.Dec. 147, 407 N.E.2d 645, 654 (1st Dist.1980); Glass v. Burkett, 64 Ill.App.3d 676, 21 Ill.Dec. 494, 381 N.E.2d 821, 827 (5th Dist.1978); Chi. Title & Trust Co. v. Walsh, 34 Ill.App.3d 458, 340 N.E.2d 106, 115 (1st Dist.1975). Moreover, there is no evidence of attorneys' fees in the exhibits submitted, and Crim concedes that she has โdeferred providing the bills.โ
Specifically, Allstate contends that Defendants violated ยงยง 12 and 13 of the statute, which are largely patterned after ยง 17(a)(2) and (3) of the Securities Act of 1933. See Anvil Inv. Ltd. P'ship v. Thornhill Condos. Ltd., 407 N.E.2d 645, 651 (Ill. Ct. App. 1980). Section 12 provides, in pertinent part:
Defendants' Memorandum of Law in Opposition to Plaintiff's Motion to Remand (d/e 13), Exhibit 1, Declaration of Mitchell J. Lindauer. Hendricks also alleged that the Defendants acted fraudulently, and he prayed for punitive damages under the Deceptive Practices Act, the Securities Law, and common law fraud. Punitive damages are available on all of these claims.E.g., Dubey v. Public Storage, Inc., 395 Ill.App.3d 342, 918 N.E.2d 265, 279-80 (Ill.App. 1st Dist. 2009) (Deceptive Practices Act); Anvil Inv. Ltd. Partnership v. Thornhill Condominiums, Ltd., 85 Ill.App.3d 1108, 407 N.E.2d 645, 653 (Ill.App. 1st Dist. 1980) (Securities Law); Gehrett v. Chrysler Corp., 379 Ill.App.3d 162,882 N.E.2d 1102, 1115 (Ill.App. 2d Dist. 2008) (fraud). The $29,000.00 in compensatory damages supports the suggestion that the amount at stake on the total claim, including punitive damages and attorney fees, exceeds the jurisdictional sum of $75,000.00.
The jury was also entitled to consider the amount of attorneys' fees incurred by the plaintiff in finding punitive damages. Hazelwood, 71 Ill.Dec. at 327, 450 N.E.2d at 1206; Anvil Investment Limited Partnership v. Thornhill Condominiums, Ltd., 85 Ill. App.3d 1108, 41 Ill.Dec. 147, 156, 407 N.E.2d 645, 654 (1st Dist. 1980). Plaintiff's attorneys' fees as of the time of trial amounted to more than 1.36 million dollars โ more than two-thirds of the punitive damage award. Finally, there was evidence presented that after the verdict on liability had been rendered, Jacobson stated in public that he would not allow the verdict to affect his professional conduct.
Defendants correctly note that, in actions for fraud under the CEA, courts have applied the three-year statute of limitations provided by Illinois securities law as these allegations are similar to a claim of fraud in the sale of securities. See Shelley v. Noffsinger, 511 F. Supp. 687 (N.D.Ill. 1981); Anvil Investors Ltd. Partnership v. Thornhill Condominiums, Ltd., 85 Ill. App.3d 1108, 41 Ill.Dec. 147, 407 N.E.2d 645 (1st Dist. 1980). Since the claim is related to a securities claim, an Illinois court would probably choose the securities law statute of limitations over the two-year statute of limitations governing statutory penalties, Ill.Rev.Stat. ch. 110, ยง 13-202. Although the limitations period governing statutory penalties has been applied in cases where treble damages are provided for, as in this case, the policies behind the Illinois securities law would seem to prevail in a case of this nature over the policies underlying the statutory penalty limitations period.
Illinois courts, for example, can consider attorneys' fees as one element of punitive damages. See Hazelwood v. Illinois Central Gulf RR., 114 Ill.App.3d 703, 71 Ill.Dec. 320, 450 N.E.2d 1199 (4th Dist. 1983); Anvil Inv. Ltd. Partnership v. Thornhill Condominiums, Ltd., 85 Ill. App.3d 1108, 41 Ill.Dec. 147, 407 N.E.2d 645 (1st Dist. 1980). In fact, the chairman of the committee drafting the Illinois Insurance Code in 1937 stated that the committee was aware that some insurance companies were not as liberal as others in paying claims and stated that section 155 "should prove wholesome in its effect upon companies unreasonably withholding payment of such claims."