Opinion
No. 98 C 5902
February 7, 2000
MEMORANDUM OPINION AND ORDER
Plaintiff Jerome G. Krok ("Krok") filed a five count amended complaint against defendants Burns Wilcox, Ltd., d/b/a Illinois R.B. Jones ("Burns Wilcox"), David Price ("Price"), Gerald Horton ("Horton"), Herbert Kaufman ("H. Kaufman"), and Alan Kaufman ("A. Kaufman"), alleging breach of contract under Illinois law against Burns Wilcox only (Count I), violations of the Illinois Wage Payment and Collection Act (Count II), attorneys' fees under the Attorneys' Fees in Wage Actions Act (Count III), tortious interference with contract under Illinois law against the individual defendants (Count IV), and unjust enrichment under Illinois law (Count V). Defendants have collectively filed a motion for summary judgment pursuant to Federal Rules of Civil Procedure 56 on all counts in the amended complaint. Plaintiff Krok has filed a cross motion for partial summary judgment on Counts I-III only. For the following reasons, defendants' motion for summary judgment is GRANTED in part and DENIED in part and plaintiff Krok's motion for partial motion for summary judgment is DENIED.
Defendants H. Kaufman and A. Kaufman were dismissed from this suit by the court on April 16, 1999 for lack of personal jurisdiction. Krok names these individuals in his amended complaint in order to preserve the issue of personal jurisdiction for appellate review. The remaining defendants, however, may be referred to collectively as "defendants" throughout this opinion.
STATEMENT OF FACTS
The following statement of facts comes from plaintiffs Local Rule 12 and defendants' Local Rule 56.1 statements of material facts and accompanying exhibits. On September 1, 1999, this court implemented the new local rules which now reference the statements as Local Rule 56.1(a)(3) and 56.1(b)(3).
Plaintiff Krok is a citizen of Illinois and former employee of Illinois R.B. Jones. Defendant Burns Wilcox is a Michigan corporation that currently owns Illinois R.B. Jones. Illinois R.B. Jones was acquired by Burns Wilcox in 1995. Krok began working for Illinois R.B. Jones in 1977 and was the General Manager for over twenty years. In early April 1995, when Burns Wilcox acquired Illinois R.B. Jones, Krok began working under Burns Wilcox. On May 2, 1995, Krok drafted a letter to defendant Horton, an Executive Vice President and General Manager of Burns Wilcox, confirming the details of his compensation package. On May 17, 1995, Horton responded by letter to Krok confirming the compensation package and stating that Krok "will receive a bonus of 10% of the pre-tax profit of Illinois R.B. Jones (IRBJ) after adjustments for administrative expenses but exclusive of any charges for amortization as respects IRBJ." Additionally, any amount Illinois R.B. Jones received for contingent commissions were to be included in the office's income for purposes of determining Krok's bonus. The parties do not dispute that these two letters constituted Krok's employment contract ("contract").
In October of 1996, Krok obtained a contingent commission, the Heath Commission on behalf of Illinois R.B. Jones. On October 25, 1996, CE Heath (Insurance Broking) Limited tendered a check to Illinois R.B. Jones for $1,269,582.47 for the underwriting manager and broker services under the Heath Commission. At the end of the fiscal year, defendants credited only one half of the Heath Commission to the Illinois R.B. Jones profit and loss statement for 1996. The result being that Krok received only one-half of what he alleges should have been his annual bonus under the compensation package, a difference of more than sixty thousand dollars. Burns Wilcox refused to respond to Krok's requests concerning why only one half of the Heath Commission was credited to the profit and loss statement for 1996 and why he only received half of the bonus.
On May 26, 1997, defendant Price, a Senior Vice President of Burns Wilcox, and Horton came to Chicago, Illinois for a scheduled meeting with Krok. At that meeting, Price and Horton informed Krok that his employment was terminated effective June 1, 1997. At that time, Price and Horton refused to pay Krok what Krok believed he was to receive under the bonus provision of his employment contract. Instead, defendants offered Krok the sum of $50,000, paid over a period of time, as long as he signed a release and a covenant not to compete. Krok refused to sign defendants' proposed agreement.
On October 27, 1997, Krok filed a wage claim before the Illinois Department of Labor ("Department"). On April 21, 1998, a hearing was held. On June 29, 1998, the Department issued a Wage Payment Demand, in which it found Burns Wilcox had committed several violations of the Illinois Wage Payment and Collection Act in connection with the wrongful refusal to pay the balance of the bonus due Krok. Defendants were to comply with the Wage Payment Demand within 15 days of notice. Shortly thereafter, on July 14, 1998, Burns Wilcox filed an exception to the Wage Payment Demand. On July 31, 1998, by letter to Burns Wilcox's attorney, Krok demanded payment from Burns Wilcox on the Wage Payment Demand. Payment was not tendered at that time. The Department subsequently denied the exception to the Wage Payment Demand on September 8, 1998. In that denial, the Department requested that Burns Wilcox make payment under the Wage Payment Demand with 15 days. On September 21, 1998, Burns Wilcox's attorney sent a check in the amount of the Wage Payment Demand. In an attached letter, Burns Wilcox's attorney stated: "Enclosed please find Burns Wilcox Ltd.'s Check No. 096949 in the sum of $63,485.41 in full satisfaction of Jerome Krok's wage claims as ordered by the Illinois Department of Labor on September 8, 1998." The following day, Krok's attorney returned the check and informed Burns Wilcox's attorney that the matter was now subject to this federal lawsuit which was filed on September 22, 1998.
STANDARD OF REVIEW
Under Rule 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in the nonmovant's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513 (1996). This court's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.
A party who bears the burden of proof on a particular issue, however, may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553 (1986). There is no issue for trial "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511.
ANALYSIS
I. Breach of Contract (Count I) and Violation of Illinois Wage Payment and Collection Act (Count II)
Count I of Krok's amended complaint is a breach of contract claim under Illinois law against Burns Wilcox only. Krok alleges that Burns Wilcox breached his employment contract when it failed and refused to pay Krok his 1996 bonus to which he was entitled. Count II of Krok's amended complaint is a claim under the Illinois Wage Payment and Collection Act against all defendants. Krok alleges that Burns Wilcox violated the Act by failing to pay Krok his earned bonus for 1996 and by attempting to coerce Krok into sign a release and non-competition agreement to receive only a portion of his alleged earned bonus for 1996. Krok also alleges that the individual defendants actively asserted control over the financial affairs of Burns Wilcox during the time Burns Wilcox denied payment of his earned bonus for 1996.
A. Legal Principles
The Illinois Wage Payment and Collection Act ("Act") allows an employee to bring a private cause of action to recover wages owed to him or her. 820 ILCS 115/11(c). The Act makes it illegal for any employer or agent of the employer to willfully refuse to pay wages owed an employee. 820 ILCS 115/14(a). A wage is defined in the Act as "any compensation owed an employee by an employer pursuant to an employment contract or agreement between the 2 parties. . . ." 820 ILCS 115/2. Agents of an employer or officers of a corporation who knowingly allow the employer to violate the Act is deemed to be an employer under the Act. 820 ILCS 115/13. Thus, in order to determine whether defendants violated the Act, this court must turn to Krok's employment contract. Defendants claim Krok was not entitled to the claimed bonus because, under his employment contract, Krok was required to be employed at the end of 1997 in order to receive the bonus, which was properly deferred over two years in accordance with the company's longstanding practice of deferring large contingent commissions. On the other hand, Krok contends that the Heath Commission was deferred merely to avoid paying him the bonus he earned under his employment contract.
According to Illinois law, a court must first look to the plain language of the contract at issue. Atlantic Mut. Ins. Co. v. Metron Eng'g and Constr. Co., 83 F.3d 897, 898 (7th Cir. 1996) (interpreting Illinois law); see also Lumpkin v. Envirodyne Indus., Inc., 933 F.2d 449, 456 (7th Cir. 1991). Where facts are undisputed, the interpretation of a contract may be a question of law. Lewis-Connelly v. Board of Educ., 277 Ill. App.3d 554, 557, 660 N.E.2d 283, 285 (1996). If the contract language is unambiguous and provides an answer to the disputed issue, the court's inquiry is over. Id. If, however, the contract is ambiguous but the extrinsic evidence is undisputed, then the interpretation of the contract is an issue that the court must decide as a matter of law. Baker v. America's Mortgage Servicing, Inc., 58 F.3d 321, 326 (7th Cir. 1995); Lumpkin, 933 F.2d at 456. As a whole, the primary objective in contract interpretation is to give effect to the intentions of the parties as determined from language of the contract. Omnitrus Merging Corp. v. Illinois Tool Works, Inc. 256 Ill. App.3d 31, 628 N.E.2d 1165, 1168 (1993).
Because both parties cite to Illinois law, this court accepts that the parties' have agreed that Illinois law governs the enforcement of this contract. Additionally, based on the facts before the court, Illinois appears to have the most significant contacts with the parties and transactions. Curran v. Kwon, 153 F.3d 481, 488 (7th Cir. 1998).
Under Illinois law, a contract term is ambiguous "if the language is reasonably or fairly susceptible to more than one construction." Id. Contractual language is not ambiguous simply because the parties disagree upon the meaning of the contractual terms. Id. at 1170; see also Frydman v. Horn Eye Center, Ltd., 286 Ill. App.3d 853, 676 N.E.2d 1355, 1359 (1997). Rather, a contract is ambiguous only if both parties were reasonable in adopting their different interpretations of the contract. Murphy v. Keystone Steel Wire Co., 61 F.3d 560, 564 (7th Cir. 1995) (interpreting Illinois law). A court must construe the contract as a whole to derive the intentions of the parties and read any related documents together. Id. at 565.
If the court finds that a contract term is ambiguous, extrinsic or parol evidence may be presented to a trier of fact. Home Ins. Co. v. Chicago and Northwestern Transp. Co., 56 F.3d 763, 766 (7th Cir. 1995) (citing Sunstream Jet Exp., Inc. v. International Air Serv. Co., 734 F.2d 1258 (7th Cir. 1984)). This evidence is allowed in order to assist the trier of fact in determining the intent of the parties in entering into the contract. Sunstream Jet Exp., 734 F.2d at 1268. A court must always keep in mind, however, there must be "either contractual language on which to hang the label of ambiguous or some yawning void . . . that cries out for an implied term." Baxter Healthcare Corp. v. O.R. Concepts, Inc., 69 F.3d 785, 791 (7th Cir. 1995) (citing Bidlack v. Wheelabrator Corp., 993 F.2d 603, 607 (7th Cir. 1993) (en banc)). Nevertheless, extrinsic evidence should not be allowed to "add terms to a contract if it is plausibly complete without the term." Bidlack, 993 F.2d at 608. In the end, a court should not rewrite a contract to suit one of the parties, but must enforce the terms as written. Wright v. Chicago Title Ins. Co., 196 Ill. App.3d 920, 925, 554 N.E.3d 511, 514 (1990).
B. Terms of Employment Contract
The initial dispute between the parties turns on a reading of Krok's employment contract. Defendants vigorously argue that Krok was only entitled to the claimed bonus if he was employed by Burns Wilcox on the last day of the year in which Illinois R.B. Jones's pre-tax profits were credited to the company's year-end statement. Thus, in this case, because Krok was terminated in 1997 and the claimed bonus was credited to the 1997 pre-tax profits in accordance with the company's longstanding practice of deferring a large contingent commission, such as the Heath Commission, he could not have received any bonus based on the 1997 pre-tax profits of Illinois R.B. Jones. Krok argues that this contention is belied by the record before the court because nothing in Krok's employment contract reflects that he must be working on the last day of the year in order to receive the bonus. Nevertheless, Krok argues that he was in fact an employee on the last day of the year in which the Heath Commission was obtained and should have been credited to the 1996 pre-tax profits. Essentially, Krok claims that Burns Wilcox wrongfully allocated the Heath commission over two years in order to deprive him of the bonus he earned under his employment contract.
Krok's employment contract is rather scant in regards to the potential bonus he could earn. It states in pertinent part:
You will receive a bonus of 10% of the pre-tax profit of Illinois R.B. Jones (IRBJ) after adjustments for administrative expense but exclusive of any charges for amortization as respects IRBJ. This bonus is inclusive of your $10,000 guarantee. Annual bonus payments are made after certification of the financial records by the Corporations Certified Public Accounting firm.
(Amended Complaint, Ex. A B). While it does not state in the contract that Krok's bonus would also be based on the contingent commissions he has obtained, defendants have admitted that the profit calculation for each year would include contingent commissions such as the Heath Commission. Besides this extrinsic information, nothing in the contract specifically indicates whether Krok was required to be working on the last day of the year in order to receive a bonus. Moreover, there is nothing in the contract which states that Burns Wilcox must allocate and credit all contingent commissions obtained during the year to the profit and loss statement in the year in which it was obtained. Thus, the actual contract provides little help in resolving the dispute between the parties. Consequently, while Krok's employment contract provides a basis for Krok's bonus, there is a yawning void that cries out for an implied term. Baxter, 69 F.3d at 789; Bidlack, 993 F.2d at 608. As already indicated, the contract does not even state that contingent commissions are to be included in the bonus, even though defendants admit that they are to be included. Accordingly, this court finds that Krok's employment contract is ambiguous.
The parties primarily rely on extrinsic evidence in order to establish their respective positions as to the proper interpretation of the contract. Defendants first contend that it properly allocated the Heath Commission over two years and that in order for Krok to receive the bonus, he must have been employed on the last day of the year, the year being 1997. A review of the record before the court establishes that Krok knew that in order to receive a bonus, he had to be employed on December 31, the last day of the year. (Krok's Depo. p. 46). Nevertheless, Krok argues this requirement is irrelevant because he was employed on the last day of 1996, the year in which Illinois R.B. Jones received the Heath Commission and the year the Heath Commission should have been credited to Illinois R.B. Jones' profit and loss statement.
Krok argues that he never admitted that he was required to be employed on the last day of the year in order to receive the bonus. However, a review of Krok's deposition clearly establishes that he knew he had to be employed on December 31, the last day of the year, to receive the bonus. In fact, Krok states, "As I recall, you had to be employed on December 31, then you would get your bonus, as I got the first one." While shortly before this answer, the deposition questioning surrounded a contract that was never executed, the question posed clearly invoked an answer on when the annual bonus payment would be given in each year.
Defendants have presented valid extrinsic, parol evidence that the Heath Commission was properly allocated and credited over two years. On the other hand, Krok has presented valid extrinsic, parol evidence that it was not the company's longstanding practice of deferring large contingent commissions such the Heath Commission over several years. Finally, Krok has also presented evidence that an employee is entitled to a bonus based on a contingent commission, such as the Heath Commission, as long as they are employed on the date that the gross contingent commission is received from the insurance carrier. The disputed evidence establishes there are genuine issues of material fact that must be presented to the trier of fact.
Accordingly, this court must deny the cross motions for summary judgment on Counts I-III because this court has found Krok's employment contract is ambiguous and there is support in the record presented for the dispute of an issue of material fact. The issue of whether defendants' allocation of the Heath Commission over two years was valid under Krok's employment contract must await a resolution at trial where the facts can be evaluated and found without the analytic constraints imposed on this court by a motion for summary judgment. The issue is inappropriate for resolution on summary judgment.
C. Individual Liability of Price and Horton under Count II
Defendants Price and Horton claim that they should not be held individually liable even if Burns Wilcox is found liable under Count II, the Illinois Wage Payment and Collection Act. Horton claims he was never involved in the allocation decision, and, in fact, openly disagreed with the company's decision not to give Krok his claimed bonus. Price contends that he merely suggested to Herbert Kaufman that the Heath Commission be allocated over a number of years and was not involved in the ultimate decision to allocate the Heath Commission. A review of the record, however, establishes that both Price and Horton were involved in the decision not to credit the 1996 profit and loss statement with the full amount of the Heath Commission. First, in several interrogatory responses, defendant Burns Wilcox states that both Price and Horton had input in the allocation decision. Second, the record shows that both Price and Horton knew of Krok's position regarding the allocation of the Heath Commission as well as Burns Wilcox's obligation to pay Krok a bonus based upon contingent commissions. In fact, Horton admitted that he openly disagreed with the decision to allocate the contingent commission over a number of years. Whether Horton's disagreement over the decision will limit liability must be left to the trier of fact.
As the Seventh Circuit stated, "knowledge of the corporation's obligation and failure to pay it when having sufficient amounts available to do so constitutes willful behavior." Stafford v. Puro, 63 F.3d 1436, 1441 (7th Cir. 1995) (citing Johnson v. Western Amusement Corp., 157 Ill. App.3d 873, 510 N.E.2d 991, 993 (1987)). The record shows that Price and Horton were involved and had input into the allocation decision. The record also establish that Price and Horton knew of Burns Wilcox's obligation under Krok's employment contract. This knowledge may constitute a voluntary, intentional act which the Act specifically prohibits.Id. Thus, because there is an issue of material fact whether the Act was in fact violated and Price and Horton were involved in the allocation decision, this court cannot grant summary judgment to defendants Price and Horton on this issue.
Because this court has found that genuine issues of material fact exist on Count I, the breach of contract claim, and Count II, the Illinois Wage Payment and Collection Act claim, this court must also deny summary judgment on Count III, the Illinois Attorneys Fees in Wage Actions Act ("Fee Act") claim. At this point, the court cannot determine whether the wages are "justly due and owing." 705 ILCS 225/1. Moreover, defendants' argument that Krok is not the type of employee covered by the Fee Act is disingenuous at best. In addition, a determination of the issues surrounding the Fee Act claim and prejudgment interest may be addressed following a trial in this case.
D. Tendering of Check in Amount of Disputed Wages
Defendants argue, in the alternative, that this court should enter summary judgment on Counts I-III because defendants tendered the entire amount of wages to Krok within the time allotted by the Illinois Department of Labor after a hearing on the issues and is still willing and able to retender the amount the due and owing wages. Defendants claim that this tender was unconditional and not contingent on a waiver of Krok's other claims. Krok, however, contends that defendants did not tender the full amount due and owing, and moreover, the tender was conditional on a full release on Krok's claims. A review of the record establishes that it was reasonable for Krok to reject the tendered check because the amount of the tender was not in full satisfaction of Krok's wage claims. Rather, it was only a partial tender and conditioned on a full satisfaction of the wage claims.
Under the Illinois Wage Payment and Collection Act, an employer, who is ordered to pay wages due an employee and fails to do so within the time allotted, is liable for statutory penalties of 1% per calendar day for the delay. 820 ILCS 115/14(b). The record reflects that the Wage Payment Demand was issued on June 29, 1998 and tender of payment was made on September 22, 1998. The record further establishes that defendants only tendered the amount of the Wage Payment Demand without the accrued statutory penalties. Defendants argue, however, that the filing of an exception to the Wage Payment Demand effectively tolled the imposition of the statutory penalties mandated by the Act. Defendants' assertion, however, is without any authority, statutory or otherwise. Instead, the language of the Wage Payment Demand, as well as the denial of defendants' exception by the Illinois Department of Labor in September, reveals that defendants should have paid the Wage Payment Demand by July 14, 1998, 15 days after the issuance of the Wage Payment Demand, and its failure warranted statutory penalties.
First of all, the Wage Payment Demand stated that defendants "must" pay the demand within 15 days. In addition, the Wage Payment Demand stated that defendants may file an exception to the demand. As Krok points out, this is no different than when a litigant is required to pay the court-ordered judgment even if it elects to pursue an appeal of the court ordered judgment. See Fed.R.Civ.P. 62(a). Defendants attempt to distinguish this by asserting that the Wage Payment Demand was not a final judgment or final administrative decision. The statute which requires payment states, however, that payment must be made "within 15 days of issuance of a judgment on the dispute," 820 ILCS 115/9, not 15 days from issuance of a final judgment.
Additionally, the denial of the exception by the Department of Labor also supports the conclusion that Krok is entitled to statutory penalties. It states that the Wage Payment Demand would not be set aside and ordered defendants to comply with the Wage Payment Demand. While the letter also requests that defendant submit payment within 15 days, it was not unreasonable for Krok to believe that defendants failed to comply with the statutory provision when they failed to tender full payment after the June Wage Payment Demand. Moreover, that language in the letter can be construed to indicate that, if payment is not made within 15 days, the matter would be referred for criminal prosecution under the Act. And, the tendered check did not include any attorneys' fees which Krok claims he was entitled under the Fee Act.. See supra note 5.
Therefore, this court finds it was reasonable for Krok's conclusion that the tender by defendants in September, stating that it was in full satisfaction of Krok's wage claims, was only a partial tender and would have effectively foreclosed Krok from statutory penalties or attorneys fees if he had accepted the tender. Consequently, this court must deny defendants' motion for summary judgment on Counts I-III on this alternative basis as well.
II. Tortious Interference with Contract Claim (Count IV)
In Count IV of Krok's amended complaint, Krok asserts that the individual defendants, Price and Horton, tortiously interfered with his employment contract. Defendants argue that the claim is barred by the Illinois' corporate officer privilege. Moreover, defendants claim the claim must fail because Price and Horton's conduct was not directed toward a third party as required for such a claim.
Under Illinois law, a plaintiff alleging tortious interference with contract must plead and prove: (1) the existence of a valid and enforceable contract; (2) the defendant's awareness of the contractual relationship; (3) the defendant's intentional and unjustified inducement of a breach of the contract; (4) a subsequent breach by the party caused by the defendant's wrongful conduct; and (5) damages resulting from the breach. Stafford v. Puro, 63 F.3d 1436, 1441 (7th Cir. 1995); Prince v. Zazove, 959 F.2d 1395, 1397 (7th Cir. 1992). It is well-settled in Illinois that tortious interference of contract claims can be brought against corporate shareholders, officers, and directors.Stafford, 63 F.3d at 1442. A court, however, must always keep in mind that such corporate officers may be protected from personal liability for their decisions made on behalf of the corporation unless they acted with actual malice. Id. Actual malice is defined in this context as "intentional and unjustified." Id. (citing HPI Health Care Services, Inc. v. Mt. Vernon Hosp., 131 Ill.2d 145, 545 N.E.2d 672, 677 (1989)). Thus, corporate officers cannot act "solely for their own benefit or solely in order to injure the plaintiff because such conduct is contrary to the best interests of the corporation." Id.
Before proceeding to deep into an analysis of the tortious interference claim, this court must first consider whether Price and Horton had anything to do with the decision not to pay Krok the full contingent commission bonus in 1996. Defendants claim that Horton was not involved in the allocation decision, and, in fact, openly disagreed with the company's decision not to give Krok his claimed bonus. Defendants also claim that Price was not involved in the ultimate decision to allocate the Heath Commission, but merely suggested to Herbert Kaufman that it be allocated over a number of years. As previously stated, a review of the record before the court establishes that both Price and Horton were involved in the decision not to credit the 1996 profit and loss statement with the full amount of the Heath Commission. In several interrogatory responses, defendant Burns Wilcox stated that both Price and Horton had input in the allocation decision. Moreover, the record shows that both Price and Horton knew of Krok's position and Burns Wilcox's obligation to pay Krok a bonus. As the Seventh Circuit stated, "knowledge of the corporation's obligation and failure to pay it when having sufficient amounts available to do so constitutes willful behavior." Stafford, 63 F.3d at 1441 (citing Johnson v. Western Amusement Corp., 157 Ill. App.3d 873, 109 Ill. Dec. 923, 925, 510 N.E.2d 991, 993 (1st Dist. 1987)). Thus, because there is an issue of material fact whether Price and Horton were involved in the allocation decision, this court cannot grant summary judgment on this issue.
Turning to whether Krok has raised genuine issues of material fact to survive defendants' motion for summary judgment on the tortious interference of contract claim, this court finds that Krok has raised a genuine issue of material fact on whether Price and Horton tortiously interfered with Krok's employment contract. First of all, because this court found there existed a genuine issue of material fact on whether defendants violated the Illinois Wage Payment and Collection Act, Count II, there remains a question of fact whether Price and Horton acted illegally and therefore not protected by the corporate officers privilege. Under Illinois law, conduct which violates the Act is illegal.Stafford, 63 F.3d at 1442 (citation omitted). Consequently, if a jury finds that Price and Horton violated the Act, then there conduct in not paying Krok his bonus is illegal as a matter of law. Thus, Price and Horton would not be protected by the corporate officer privilege. Accordingly, summary judgment must be denied on this issue.
Second, a tortious interference claim and the conduct that arises therefrom does have to be directed towards a third party as defendants contend. A defendant's intentional interference must induce a breach by a party to the contract. Id. at 1441. As Krok argues. Price and Horton intentionally interfered with the contract which ultimately caused Burns Wilcox, the third party, to breach the contract. Krok claims that Price's and Horton's conduct in suggesting and allowing allocation of the Heath Commission over a two year period induced Burns Wilcox to breach Krok's employment contract. Krok has provided sufficient evidence that Price's and Horton's conduct was specifically directed at Burns Wilcox, thereby raising a genuine issue of material fact. Thus, defendants' motion for summary judgment on this issue is also denied.
Finally, Price and Horton argue that they are entitled to summary judgment on the allegation that Price and Horton caused Krok's termination in order to deprive Krok of his bonus. Essentially, Price and Horton claim that the record is devoid of evidence which contradicts defendant Burns Wilcox's reason for terminating Krok's employment, that he was not performing to the company's performance expectations. Krok has provided sufficient evidence to show that he was performing well above the company's performance expectations. Krok has presented deposition testimony of a co-worker which indicates Burns Wilcox's satisfaction with Krok's performance. Moreover, Krok points to the fact that his personnel file lacked any criticisms about his performance. Most importantly, the fact that Krok received the Heath Commission just less than one year prior to his termination, the very commission at issue in this case, raises a genuine issue of material fact that precludes a finding that Krok was not performing up to the company's expectations. This evidence thereby raises an inference that Krok was wrongfully terminated in order deprive him of his alleged earned bonus based on the Heath Commission. Thus, defendants' motion for summary judgment on this issue is also denied.
Accordingly, because genuine issues of material fact exist on whether defendants Horton and Price tortiously interfered with Krok's employment contract, summary judgment on Count IV must be denied.
III. Unjust Enrichment Claim (Count V)
In Count V, Krok asserts a cause of action for unjust enrichment under Illinois law. A claim of unjust enrichment is based, however, on a contract implied in law. People ex. rel. Hartigan v. E E Hauling, Inc., 153 Ill.2d 473, 607 N.E.2d 165, 177 (Ill. 1992). Since unjust enrichment is based on an implied contract, "where there is a specific contract which governs the relationship of the parties, the doctrine of unjust enrichment has no application." Id. (quoting La Throp v. Bell Federal Sav. Loan Ass'n, 68 Ill.2d 375, 370 N.E.2d 188 (1977)). Thus, Illinois law does not permit recovery on a theory of quasi-contract when a real contract governs the parties' relations. Murray v. Abt Assoc., Inc., 18 F.3d 1376, 1379 (7th Cir. 1994). Because a contract governs the parties' relations in this case, this court must dismiss Count V.
CONCLUSION
For the above stated reasons, defendants' motion for summary judgment is GRANTED in part and DENIED in part. Plaintiff Jerome Krok's motion for partial summary judgment is DENIED. Count V is dismissed with prejudice. The parties are strongly urged to discuss settlement. The case is set for a report on status at 10:00 a.m. on February 25, 2000.