Tabfg, LLC v. Richard Pfeil , 746 F.3d 820 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3557
TABFG, LLC,
Plaintiff-Appellee,
v.
RICHARD PFEIL,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:08-cv-06979 — Robert W. Gettleman, Judge.
ARGUED APRIL 15, 2013 — DECIDED MARCH 20, 2014
Before RIPPLE, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. TABFG, a limited liability corpora-
tion, brought suit against Richard Pfeil alleging, among other
claims, tortious interference with a contract. After a bench trial,
the district court entered judgment in favor of TABFG, and
awarded a judgment in the amount of $957,659.68, comprised
of a principal amount of $674,121.87 plus prejudgment interest
2 No. 12-3557
of $279,530.36 and costs of $4,007.45. Pfeil now appeals that
determination, and we affirm.
In April 2003, a joint venture was formed between two
limited liability companies, TABFG and NT Prop Trading (“NT
Prop”), for the purpose of trading securities for financial gain.
TABFG was the entity responsible for all of the trading for the
joint venture, and was comprised of three individual members
and managers, Cal Fishkin, Igor Chernomzav, and Kent
Spellman. NT Prop was tasked with funding the venture, and
included two members who were also limited liability
corporations—NT Financial and Pfeil Commodity Fund (“Pfeil
Commodities”). The sole member, manager and owner of Pfeil
Commodities was Richard Pfeil (“Pfeil”), who was known as
the “money man” for the joint venture and is the defendant in
this case. NT Prop was managed by two individuals, William
Anthony, who was Pfeil’s attorney, and Larry Nocek.
Under the terms of the Joint Venture Agreement, NT Prop
would provide the money to fund the trading by TABFG. The
agreement called for an initial funding in the amount of $2
million, followed by a subsequent infusion of an additional
$2.5 million. At first, this arrangement appeared to function
well. NT Prop provided the initial $2 million in start-up
money, which came from Pfeil Commodities, and the traders
proved adept at their craft, earning profits of $3.4 million.
A problem arose, however, which threatened the ability of
the joint venture to continue in its mission. Before forming
TABFG, Fishkin and Chernomzav (hereinafter the “Traders”)
were employees of Susquehanna International Group LLP
(“SIG”), a company that engaged in the trading of equities,
No. 12-3557 3
futures, and other derivative products and securities. In that
employment, the Traders were signatories to an employment
contract that contained restrictive covenants which limited
their ability to compete with their former employer upon
leaving their jobs. The parties to the Joint Venture Agreement
were aware of those limitations, and provided in that agree-
ment for the payment of attorneys’ fees and other costs
necessary to escape the strictures of that employment contract.
Toward that end, the Traders filed a lawsuit against SIG
seeking a declaratory judgment to invalidate the restrictive
covenants. SIG responded by adding TABFG and NT Prop to
their lawsuit as additional counterclaim defendants seeking
disgorgement of all profits, thus creating consternation among
the parties to the joint venture that the money in that venture
could be imperiled. On September 16, 2003, SIG obtained an
injunction in a Pennsylvania district court enjoining the
Traders for nine months after their departure from SIG from
trading any security that they had traded within the last three
months of their employment with SIG, and enjoining them
from associating with each other on a securities trading
business for nine months. That prevented the Traders from
working together to trade on behalf of TABFG, and spelled the
end of the joint venture because their combined trading
prowess was the cornerstone of the venture. The Joint Venture
Agreement provided that “[u]pon termination of the Joint
Venture, a Reconciliation Statement will be prepared by NT
Prop and delivered to the parties within fifteen (15) days after
termination, and all profits and the Hold Back, if any, shall be
concurrently distributed to the respective parties.” The district
court concluded that the venture effectively ended when the
4 No. 12-3557
injunction was entered, and that the terms of the Joint Venture
Agreement required a disbursement of funds as of October 2,
2003. The district court found that the Joint Venture Agreement
provided for an even split of the profits between TABFG and
NT Prop less expenses and payments. A letter of October 3,
2003, from counsel for the Traders sought a distribution of
funds under the Joint Venture Agreement, and noted that a
refusal by NT Prop to distribute such finds would constitute a
breach. The Traders in that letter also expressed a willingness
to continue to trade under the Joint Venture Agreement, but
acknowledged that such a course of action might not be in the
best interest of the parties.
Numerous discussions ensued between the parties as to the
amounts due from NT Prop to TABFG under the agreement,
and NT Prop created spreadsheets in an effort to detail the
amounts owed. The parties failed to agree as to the final
accounting, but Fishkin on behalf of TABFG literally begged
Pfeil to distribute what was owed to TABFG so that it would
have the funds needed to mount a defense in the lawsuit by
SIG.
On January 6, 2004, Pfeil caused NT Prop to distribute
$360,000 to TABFG, $533,023.69 to NT Financial, and
$2,742,182.02 to Pfeil Commodities, which he solely owned and
which funds he acknowledged went to him personally and for
his own personal use. Pfeil and Nocek signed an agreement
two days later, on January 8, 2004, purporting to authorize that
distribution, and Pfeil signed it as a manager although the only
managers of NT Prop in fact were Nocek and Anthony. After
the distribution, approximately $200,000 was left in the assets
of the joint venture, which was mainly spent for legal fees and
No. 12-3557 5
taxes. In September, 2004, NT Prop was involuntarily dissolved
by the Illinois Secretary of State.
TABFG subsequently filed a lawsuit against Pfeil, alleging
among other claims that Pfeil tortiously interfered with the
contractual obligations of NT Prop in its Joint Venture Agree-
ment under which the distribution of profits was supposed to
be evenly split between TABFG and NT Prop, less expenses
and payments. Under Illinois law, which applies to this claim,
a claim of tortious interference requires proof of a legally
enforceable contract of which the defendant had knowledge,
and the defendant’s intentional interference inducing a breach
by a party to the contract, resulting in damages. Stafford v. Puro,
63 F.3d 1436, 1441 (7th Cir. 1995); Dallis v. Don Cunningham &
Assoc., 11 F.3d 713, 717 (7th Cir. 1993). Essentially, TABFG
asserted that when Pfeil, who was not an officer, director or
manager of NT Prop, engineered a distribution of the bulk of
the joint venture funds to himself, he tortiously caused NT
Prop to breach its contractual obligations under the Joint
Venture Agreement to TABFG on that date.
After a bench trial, the district court judge agreed with
TABFG, and awarded judgment to TABFG against Pfeil. In so
holding, the district court judge explicitly found Pfeil to be not
credible in his testimony, and found Fishkin and Chernomzav
very credible. In reviewing the decision of the district court, we
review factual findings for clear error, with special deference
to the district court’s determinations of credibility that are not
contradicted by extrinsic evidence. Furry v. United States, 712
F.3d 988, 993 (7th Cir. 2013); United States v. Stadfeld, 689 F.3d
705, 709 (7th Cir. 2012).
6 No. 12-3557
Pfeil raises two challenges to the district court’s decision.
First, he asserts that the claim of tortious interference is barred
by the statute of limitations. Second, he asserts that his distri-
bution of the funds was protected by privilege, and therefore
he cannot be held liable for that distribution. We take these
arguments in turn.
The relevant statute of limitations for a claim of tortious
interference with contract is five years, and Pfeil argues on
appeal that the limitations period began to run on October 2,
2003. According to Pfeil, the Joint Venture Agreement was
effectively terminated when the Pennsylvania district court
entered the injunction against the Traders, thus triggering the
requirement in the Joint Venture Agreement that NT Prop
prepare a Reconciliation Statement and distribute the funds
within 15 days. Pfeil asserts that the failure to distribute the
funds within that time period constituted a breach of contract
on October 2, 2003, and therefore that is the relevant date of
breach for limitations purposes.
As an initial matter, we note that this argument was first
made to the district court in the Motion to Alter or Amend the
Judgment after the adverse trial verdict was rendered against
Pfeil. A party cannot withhold a statute of limitations claim
like a trump card, to be played in the event that the trial ends
unfavorably. That is essentially what happened here. In his
Answer to the Complaint, Pfeil raised as an affirmative defense
the following statute of limitations claim, though he never
argued it further after that time:
Plaintiff’s claims are barred by the statute of limita-
tions. Plaintiff knew or had reason to know of the
No. 12-3557 7
distributions allegedly made by NT Prop prior to
January 2004 and failed to file the instant lawsuit
within the applicable statute of limitations period.
That is a distinct argument from the one made in the post-
judgment motion and before this court on appeal. In that
affirmative defense, Pfeil alleges that TABFG had knowledge
of distributions by NT Prop prior to the January 2004 distribu-
tion, and that the limitations period began to run as of those
earlier distributions. On appeal and in the post-judgment
motion, however, Pfeil asserts that the Joint Venture Agree-
ment was breached on October 2, 2003, when distributions
were required following the termination of the contract but not
made, and therefore that the distribution in January 2004 could
not trigger the limitations period because that distribution
clause had already been breached on October 2nd. In fact, Pfeil
recognized that its argument could be perceived as distinct
from its affirmative defense in the answer, and in the Motion
to Alter or Amend the Judgment Pfeil sought leave to amend
that affirmative defense to reflect the new approach. The
failure to raise a specific statute of limitations argument may
constitute a waiver even if other statute of limitations argu-
ments are raised. Dexia Credit Local v. Rogan, 629 F.3d 612, 626
(7th Cir. 2010). Here, the failure to raise, or pursue, the statute
of limitations argument before judgment was entered after trial
presents the issue of waiver. TABFG never argued waiver,
however, and the district court also did not consider that
possibility. We have often noted that parties can waive waiver
by failing to assert it, and because the district court and the
parties addressed the issue solely on the merits, and there is in
fact no merit to the argument, we limit our discussion to the
8 No. 12-3557
merits as well. See Cromeens, Holloman, Sibert, Inc. v. AB Volvo,
349 F.3d 376, 389 (7th Cir. 2003).
The failure to disburse the payment within the 15 days was
not treated by any party as an abrogation of the duty to
distribute the payment itself, and it is apparent that the failure
to disburse within the 15 days was not a material breach. In
fact, the parties routinely disregarded the timeliness require-
ments of the contract. See Arrow Master, Inc. v. Unique Forming
Ltd., 12 F.3d 709, 716 (7th Cir. 1993) (noting Illinois cases
holding that there is no material breach where conduct
indicates acquiescence such as an acceptance of delays and an
absence of demand for performance). The contract required NT
Prop to fund the original $2 million, and although $1 million
was paid, the additional $1 million was delayed beyond the
time provided in the Joint Venture Agreement. Pfeil, who was
known as the “money man” behind those payments, also
delayed and ultimately failed to release the subsequent $2.5
million required by the contract. The failure to disburse within
the 15 days was treated no differently by the parties, who
continued to negotiate the amounts owed in the disbursement
through the ensuing months until Pfeil distributed the money
on January 6. It was only at that point that there was a breach
of the disbursement requirement of the contract, because that
was the point at which it became clear that the money would
not be disbursed in the manner required by the contract. Pfeil
in fact argued in a motion in limine that evidence of any breach
prior to January 2004 should be excluded, a position firmly
counter to the contention now that the claim is outside the
statute of limitations because a breach occurred prior to
January 2004. The court properly determined that the obliga-
No. 12-3557 9
tion to disburse continued until the January 2004 date, and that
the statute of limitations for the tortious interference claim
began to run as of the date of that breach.
Pfeil next argues that his action in distributing the funds
was privileged, and therefore that he cannot be held liable for
that action. The Illinois Supreme Court has recognized a
privilege in tortious interference cases where the interest which
the defendant was acting to protect is one which the law deems
to be of equal or greater value than the plaintiff’s contractual
rights. HPI Health Care v. Mt. Vernon Hosp., 545 N.E.2d 672, 677
(Ill. 1989). Illinois has therefore granted a conditional privilege
to managers or corporate officers that protects them from
personal liability for their decisions made on behalf of the
corporation. Id.; Nation v. American Capital, Ltd., 682 F.3d 648,
651–52 (7th Cir. 2012); Stafford, 63 F.3d at 1442. The privilege is
necessary because a corporation acts through its agents, and
the duty that those agents owe to the corporation’s sharehold-
ers outweighs their duty to the corporation’s contract creditors.
Stafford, 63 F.3d at 1442; HPI Health Care, 545 N.E.2d at 677. The
business judgment rule is the basis for the privilege. Nation,
682 F.3d at 652. “Because the interests of corporate officers,
directors, and shareholders are sufficiently aligned with those
of the company, they generally cannot be liable in tort when
they interfere with the company’s contract for the benefit of the
company.” Id. The utility of such a rule is clear. For instance, a
company facing a liquidity crisis may need to take measures to
address the cash flow problems such as deferring payments to
vendors and renegotiating terms with suppliers. Such actions
taken to protect the future of the company and the ongoing
viability of those business relationships should not result in
10 No. 12-3557
tort liability to those agents acting in the company’s best
interests. See Nation, 682 F.3d at 653. Those agents are not
protected from any and all decisions, however. The privilege
extends only to acts undertaken on behalf of the corporation,
and corporate officers “are not justified in acting 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.” Stafford, 63 F.3d at 1442, citing HPI Health Care,
545 N.E.2d at 678
Pfeil maintains that the district court misapplied the law.
According to Pfeil, a person subject to privilege cannot be held
liable unless that person was acting only for his own personal
benefit and acted contrary to the interests of the corporation.
See Nation, 682 F.3d at 653; Von Der Ruhr v. Immtech Intl., 570
F.3d 858, 866 (7th Cir. 2009). Pfeil maintains that the district
court considered only the first part of that test, and upon
finding that Pfeil distributed the money for his own personal
interest, ended the inquiry and held that the privilege did not
therefore shield him from liability. Pfeil asserts that his actions
were in the interests of NT Prop, and therefore he cannot be
held liable.
There are several problems with this argument, not the
least of which is that Pfeil was not a manager, director or
officer of NT Prop, and was not authorized to act on NT Prop’s
behalf. Pfeil has presented no argument that he was somehow
the de facto manager of NT Prop, and in fact argued at various
times against any attempt to equate him with NT Prop. He was
merely the sole member of one of two members of NT Prop,
albeit the person who ultimately provided virtually all of the
funds for the enterprise. Absent authority to act on behalf of
No. 12-3557 11
NT Prop, the privilege does not attach. The district court,
however, did not explore whether Pfeil was authorized to act
on behalf of NT Prop, noting merely that he was pulling the
strings all along. Given the lack of fact findings as to his role in
the corporate structure, we will not address whether the
privilege applies as an initial matter, and instead will consider
only the district court’s decision that the conditional privilege
was overcome.
The district court held that Pfeil’s act in distributing the
money was a personal one, not a corporate one at all, and that
it was done solely for his own personal benefit. The court also
rejected as not credible Pfeil’s contention that he believed the
hold-back provision in the contract reduced the amount owed
to TABFG to less than $360,000. The court noted that under the
plain language of the Joint Venture Agreement the hold-back
provision did not apply, and that it was clear that TABFG was
owed significantly more than $360,000.
We have repeatedly recognized that actions taken solely for
one’s own personal benefit are not actions taken in the interests
of the corporation. Stafford, 63 F.3d at 1442; Dallis, 11 F.3d at
717; see also HPI Health Care, 545 N.E.2d at 678. Moreover, Pfeil
himself testified that he was unaware of the terms of the
distribution agreement, or the numbers in the spreadsheets
prepared by NT Prop, although he was aware of the existence
of those documents. Therefore, by his own admission, he did
not attempt to determine the legal responsibilities of NT Prop
before distributing the funds, nor did he attempt to allocate
that distribution in a manner consistent with the numbers in
the spreadsheet developed by NT Prop to determine the
proper distribution. Furthermore, as the district court pointed
12 No. 12-3557
out, the bulk of the money was put into Pfeil’s own pocket, not
into a trust or escrow or other account designed to protect the
interests of NT Prop. The district court found Pfeil not credible
in indicating that he was not aware of the numbers, but that
too leads to the conclusion that he was not acting in the interest
of NT Prop, because he did not distribute the funds in the
manner required by that agreement and there was no apparent
corresponding benefit to NT Prop in his failure to do so. The
spreadsheet prepared by NT Prop revealed that significantly
more money was owed TABFG than the $360,000 paid. The
only benefit from Pfeil’s skewed distribution of that money
was to Pfeil personally. The failure to ascertain the legal
obligations of NT Prop and the allocation of the funds for his
own personal benefit support the district court’s determination
that Pfeil was acting solely in his own interest and not in the
best interest of NT Prop. Moreover, the district court’s holding
that TABFG did not receive the funds to which it was entitled
under the Joint Venture Agreement further establishes that the
distribution was not in NT Prop’s interest. There is no evidence
that in failing to comply with that legal obligation Pfeil gained
some other benefit to NT Prop, and in fact NT Prop was
involuntarily dissolved within 9 months of that distribution.
The findings by the district court establish that Pfeil acted
solely for his own personal benefit, and that the distribution
was not in the interest of NT Prop, and therefore Pfeil is not
shielded from liability by privilege.
The decision of the district court is AFFIRMED.