Leland Stevens v. Interactive Financial Advisors , 830 F.3d 735 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 15-2130
LELAND O. STEVENS and LELAND O.
STEVENS, INCORPORATED,
Plaintiffs-Appellants,
v.
INTERACTIVE FINANCIAL ADVISORS,
INCORPORATED and REDTAIL
TECHNOLOGY, INCORPORATED,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 2223 — Matthew F. Kennelly, Judge.
ARGUED JUNE 1, 2016 — DECIDED JULY 29, 2016
Before WOOD, Chief Judge, and BAUER and FLAUM, Circuit
Judges.
BAUER, Circuit Judge. Plaintiff-appellant, Leland O. Stevens
(“Stevens”), is a self-employed financial advisor. He claims that
defendants-appellees, Independent Financial Advisors, Inc.
(“IFA”) and Redtail Technologies, Inc. (“Redtail”) (collectively,
2 No. 15-2130
“the defendants”), stole his clients’ nonpublic personal
information. Believing that he had a property right to this
private information, Stevens sued the defendants for conver-
sion and other claims on behalf of himself and his eponymous
corporation. The district court granted summary judgment for
the defendants on some of Stevens’ claims, and a jury found
for the defendants on the remaining claims. Stevens now
appeals the district court’s grant of summary judgment, as well
as a supplemental jury instruction that the district court gave
during trial. We affirm both of the district court’s actions.
I. BACKGROUND
After twenty years as an insurance salesman, Stevens
wanted to sell investment products. Because neither he nor his
company was registered with the Securities and Exchange
Commission, Stevens needed to associate himself with a
registered investment advisor to sell securities under federal
law. See 15 U.S.C. § 80b-3(a); 17 C.F.R. § 200.2(e). He did so in
2003, when he associated with IFA, a loosely confederated
investment advisory firm. The two parties first entered into an
oral agreement whereby Stevens became an individual
advisory representative for IFA. The parties eventually
memorialized the agreement in a June 2009 written contract.
As an independent advisory representative, Stevens could
provide investment advice and sell securities under the
umbrella of IFA; anyone who purchased securities from
Stevens was considered a client of both Stevens and IFA.
Though Stevens alone procured the clients, he and IFA shared
the fees.
No. 15-2130 3
In exchange for sharing clientele and fees with IFA, Stevens
had access to IFA’s market resources and other proprietary
information. This included access to a centralized cloud-based
data system, which Redtail operated under IFA’s direction.
Stevens uploaded client information into this database,
including sensitive nonpublic information like names, ad-
dresses, and social security numbers. Besides uploading
information from clients who purchased investment products
from him, Stevens also uploaded information from clients who
purchased only insurance products. Because these clients did
not purchase securities, they were not IFA clients. IFA did not
know that Stevens had entered the non-IFA client information
into the database.
In October 2009, IFA learned that Stevens had become
involved in a Ponzi scheme. IFA severed its association with
Stevens and ordered Redtail to block Stevens from accessing
the database. It also transferred Stevens’ securities-purchasing
clients to other independent advisory representatives. Stevens
claimed that by blocking access to the nonpublic personal
information of his clients, IFA effectively stole his property. He
sued the defendants for conversion, violation of the Illinois
Trade Secrets Act, tortious interference with business expec-
tancy, and injunctive relief. Because there is complete diversity
and because the amount in controversy exceeds $75,000,
Stevens properly brought these state law claims in federal
court. See 28 U.S.C. §§ 1332(a)(1), 1332(c)(1). He filed suit in the
Western District of Virginia, and the case was later transferred
to the Northern District of Illinois. All parties agree that
Illinois’ substantive law governs. See McCoy v. Iberdrola
Renewables, Inc., 760 F.3d 674, 680 (7th Cir. 2014).
4 No. 15-2130
In time, the defendants moved for summary judgment. The
district court granted the defendants’ motion on the claims
relating to the information of clients who had purchased
securities from Stevens. The district court noted that federal
securities law prevented a financial institution like IFA from
disclosing the nonpublic information of its clients to a non-
affiliated third party like Stevens. See 15 U.S.C. § 6801; 17
C.F.R. § 248.10. This prevented Stevens from having an
absolute, unconditional right to immediate possession of the
property, as required to sustain a conversion claim under
Illinois law. See In re Karavidas, 999 N.E.2d 296, 310 (Ill. 2013)
(quotation marks and citations omitted). Unable to fulfill this
element of a conversion claim, the district court held that the
entire claim failed as a matter of law.
The district court did not grant summary judgment for the
conversion claim related to the information of the non-IFA
clients (those who purchased only insurance from Stevens).
The same restrictions governing the sale of securities do not
govern the sale of insurance, and relevant state law does not
proscribe IFA from sharing that information with Stevens.
Those claims instead went to trial. During its deliberations, the
jury sent the district court a question in writing, “Can we
consider [filing] the lawsuit a demand for property?” The
district court stated that filing a lawsuit does not constitute a
demand for the purposes of a conversion claim under Illinois
law. The jury then returned a verdict in favor of the defen-
dants.
Stevens appealed.
No. 15-2130 5
II. DISCUSSION
Stevens’ arguments on appeal only relate to his conversion
claims. To prove conversion under Illinois law, a plaintiff must
show that: (1) he has a right to the property at issue; (2) he has
an absolute and unconditional right to the immediate posses-
sion of the property; (3) he made a demand for possession; and
(4) the defendant wrongfully and without authorization
assumed control, dominion, or ownership over the property.
In re Karavidas, 999 N.E.2d at 310 (quotation marks and
citations omitted). Stevens presents two arguments on appeal.
First, he argues that the district court erred by holding that he
could not prove that he had an absolute and unconditional
right to the immediate possession of the nonpublic information
of the IFA clients. Thus, granting summary judgment on the
conversion claim relating to IFA clients was erroneous. Second,
he argues that filing a lawsuit satisfies the demand element of
the conversion claim, and that the district court erred by
instructing the jury differently.
We disagree with both of Stevens’ arguments. First, the
district court properly understood relevant federal securities
law and correctly applied this law to Stevens’ conversion claim
regarding the IFA clients. Second, Stevens forfeited his
argument regarding the district court’s answer to the jury
question because he did not object to the district court’s
response at trial. Regardless, the district court committed no
error; it properly described what constitutes—or, more
precisely, what does not constitute—a demand under Illinois
conversion law.
6 No. 15-2130
A. Summary Judgment For Claims Related to IFA Clients
Once IFA terminated its relationship with Stevens in 2009,
it could not provide him with the nonpublic information of the
IFA clients under federal law. As a result, Stevens did not have
an absolute and immediate right to immediate possession of
the information. See Horbach v. Kaczmarek, 288 F.3d 969, 978 (7th
Cir. 2002) (citations omitted) (under Illinois law, “[t]he essence
of conversion is the wrongful deprivation of one who has a
right to immediate possession of an object unlawfully held”
(quotation marks omitted)). He could not sustain a conversion
claim as a matter of law, so summary judgment for the
defendants was appropriate.
We review the grant of summary judgment de novo,
construing the facts in the light most favorable to the non-
moving party—here, Stevens. E.g., Roberts v. Columbia Coll.
Chicago, 821 F.3d 855, 861 (7th Cir. 2016) (citation omitted).
Summary judgment is appropriate and the moving party is
entitled to judgment as a matter of law where “there is no
genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a);
accord. Hummel v. St. Joseph Cty. Bd. of Comm’rs, 817 F.3d 1010,
1015–16 (7th Cir. 2016). Here, summary judgment for the
defendants on the claims related to the IFA clients was appro-
priate because Stevens points to no evidence or law that allows
a circumvention of federal securities law.
The Gramm-Leach-Bliley Act famously repealed the
Depression-era Glass-Steagall Act’s “ban on affiliations
between commercial and investment banks.” Watters v.
Wachovia Bank, N.A., 550 U.S. 1, 29 (2007) (calling Gramm-
Leach-Bliley a “seminal piece of banking legislation” for this
No. 15-2130 7
reason); see Pub. L. No. 106-102, § 101, 113 Stat. 1338 (1999).
Gramm-Leach-Bliley also enacted multiple safeguards to
protect the privacy of customers of financial institutions.
Regarding nonpublic personal information specifically, the
statute notes: “It is the policy of the Congress that each
financial institution has an affirmative and continuing obliga-
tion … to protect the security and confidentiality of its custom-
ers’ nonpublic personal information.” 15 U.S.C. § 6801(a). The
Act also vested relevant agencies with the ability to “establish
appropriate standards for the financial institutions” in order to
further this policy of protecting consumer information. 15
U.S.C. § 6801(b). Specifically, the Securities and Exchange
Commission has the authority to regulate investment advisors
like IFA. See 15 U.S.C. § 6805(a)(5); see also 15 U.S.C. § 80b-4a.
Pursuant to its statutory authority, the SEC promulgated
Regulation S-P, which forbids investment advisors from
“directly or through any affiliate, disclos[ing] any nonpublic
personal information about a consumer to a nonaffiliated third
party.” 17 C.F.R. § 248.10(a). The regulation states that “[a]n
individual is [the advisor’s] consumer if he or she provides
nonpublic personal information to [the advisor] in connection
with obtaining or seeking to obtain brokerage services or
investment advisory services.” 17 C.F.R. 248.3(g)(2)(i) (empha-
sis added). It defines a “nonaffiliated third party” as “any
person” except an investment advisor’s affiliate or a joint
employee of both the investment advisor and a company that
is not the investment advisor’s affiliate. 15 C.F.R. § 248.3(s)(1).
Finally, an “affiliate” is “any company that controls, is con-
trolled by, or is under common control with the … investment
advis[o]r.” 15 C.F.R. § 248.3(a). The SEC has been vigorous in
8 No. 15-2130
its enforcement of Regulation S-P, punishing advisors who
have disclosed client information to nonaffiliated third parties.
See, e.g., Santos, S.E.C. Release No. 4346, 2016 WL 786444 at *2
(Feb. 29, 2016); Gisclair, S.E.C. Release No. 3703, 2013 WL
5740459 at *6–8 (Oct. 23, 2013).
Here, IFA could not have provided Stevens with the
nonpublic personal information of the IFA clients that he
procured. First, the clients in this case are consumers under the
regulation; the heart of the controversy is the nonpublic
personal information that they provided when seeking
financial advice. See 17 C.F.R. 248.3(g)(2)(i). Second, and more
importantly, Stevens ceased being an affiliate of IFA when the
relationship between the two parties ended. With the relation-
ship terminated, Stevens was no longer controlled by or under
common control with IFA, the investment advisor. Nor was he
a joint employee of IFA and a nonaffiliated third party. He was
instead an unaffiliated third party for the purposes of Regula-
tion S-P, and IFA could not disclose to him any nonpublic
personal information of the clients on the database. Nor could
Redtail, an affiliate of IFA controlled by IFA, give Stevens this
information.
Stevens argues that because he procured the clients and
uploaded the information at issue, he has an ownership claim
to the information superseding IFA’s claim to the information
and the mandate of Regulation S-P. But ownership is not
relevant to analysis under Regulation S-P. See In re S.W. Bach &
Co., 435 B.R. 866, 891 (Bankr. S.D.N.Y. 2010) (citing NEXT Fin.
Grp., Inc., S.E.C. Release No. 349, 2008 WL 2444775 at *26 (ALJ
June 18, 2008)) (noting that Regulation S-P applies “[r]egardless
No. 15-2130 9
of who ‘owns’ the customer information”). The statutory duty
to protect a customer’s nonpublic information under both
Gramm-Leach-Bliley and Regulation S-P falls squarely “‘on the
covered financial institution, not the individual representa-
tive.’” Id. (quoting NEXT, 2008 WL 2444775 at *26); see 15
U.S.C. § 6801(a); 17 C.F.R. § 248.10(a). An investment advisor’s
duty under the regulation quashes any ownership claim; it was
incumbent on IFA to not disclose its clients’ information to
nonaffiliated third parties, even if the unaffiliated third party
initially generated the clients.
Regulation S-P carves out a single exception to the duty of
non-disclosure to a nonaffiliated third party: an investment
advisor like IFA could follow a specifically enumerated opt-out
procedure. See 15 U.S.C. §§ 6802(b); 17 C.F.R. § 248.10(a)(1). But
this exception does not apply here, because IFA explicitly
eschews this opt-out procedure. In its compliance policy
manual, IFA states that it “does not need to provide the right
for its clients to opt out of sharing with nonaffiliated third
parties.”1 Its non-disclosure duty was clear and unavoidable:
it could not reveal the nonpublic information to Stevens when
he was no longer affiliated with the firm.
1
IFA exempts certain third parties from this rule: service providers, such
as “attorneys, auditors, consultants, brokers, custodians, and other
consultants”; those parties who help process and service transactions; and
those parties who are required or allowed to receive the information by
law, such as parties connected to an audit or subpoena. Stevens, a termi-
nated former investment advisory representative, falls into none of these
three exempted categories.
10 No. 15-2130
As the district court noted, Stevens may indeed have “some
right” to the client information. But any such right does not
override the requirements of Regulation S-P. The regulation
prevents him from taking immediate possession of the client
information. As a result, Stevens cannot prove an element of
his conversion claim as a matter of law. Summary judgment for
the defendants on the conversion claim relating to IFA clients
was proper.
B. Jury Instruction in Trial For Claims Related to Non-
IFA Clients
Stevens also argues that the district court misstated Illinois
law when it told the jury that filing a conversion lawsuit does
not constitute a demand for property. We regard a court’s
response to a question from the jury regarding the law as a
supplemental jury instruction, and generally review such
instructions for abuse of discretion. See United States v. Carani,
492 F.3d 867, 874 (7th Cir. 2007) (citations omitted). But we
have no evidence that Stevens objected to the court’s response,
or that any exceptional circumstances prevented him from
objecting. Thus, his argument is forfeited. See Fed. R. Civ. P.
51(d); Perry v. City of Chicago, 733 F.3d 248, 253 (7th Cir. 2013)
(citations omitted) (absent showing of exceptional circum-
stances, an effect on a party’s substantial rights, and a resulting
miscarriage of justice, appellate review not available in civil
cases if party does not object at trial).
Even if Stevens had objected, the district court did not
abuse its discretion in its instruction to the jury. When review-
ing a court’s response to a jury question, we determine
whether the response: (1) fairly and adequately addressed the
No. 15-2130 11
issues; (2) correctly stated the law; and (3) answered the jury’s
question specifically. Morgan v. City of Chicago, 822 F.3d 317,
342 (7th Cir. 2016) (quotation marks and citation omitted).
Here, the district court more than adequately addressed the
narrow issue and directly answered the jury’s single question.
The salient question on appeal is whether it correctly stated
relevant Illinois law. We hold that it did.
The Illinois Supreme Court has never explicitly established
the rule that filing a lawsuit does not constitute a demand, so
a federal court sitting in diversity jurisdiction must “use [its]
own best judgment to estimate how the Illinois Supreme Court
would rule as to its law.” Zahn v. N. Am. Power & Gas, LLC, 815
F.3d 1082, 1087 (7th Cir. 2016) (brackets, quotation marks, and
citation omitted). In making this estimation, federal courts
should “give great weight to the holdings of the state’s
intermediate appellate courts[,] and ought to deviate from
those holdings only when there are persuasive indications that
the highest court of the state would decide the case differ-
ently.” Id. at 1087–88 (quoting Allstate Ins. Co. v. Menards, Inc.,
285 F.3d 630, 637 (7th Cir. 2002)); see also Fid. Union Trust Co. v.
Field, 311 U.S. 169, 177–78 (1940) (“An intermediate state court
in declaring and applying the state law is acting as an organ of
the [s]tate[,] and its determination, in the absence of more
convincing evidence of what the state law is, should be
followed by a federal court in deciding a state question.”).
Here, there is no persuasive indication that the Illinois
Supreme Court would rule that filing a lawsuit was sufficient
to meet the demand element of a conversion claim. Stevens has
not identified any Illinois appellate case holding as much. In
fact, Illinois appellate courts have held to the contrary—that a
12 No. 15-2130
pre-lawsuit demand is necessary to sustain a conversion
claim—and the Illinois Supreme Court has not overruled these
decisions. See Rybak v. Dressler, 532 N.E.2d 1375, 1387 (Ill. App.
Ct. 1988), reh’g denied, 541 N.E.2d 1115 (Ill. 1989); A.T. Kearney,
Inc. v. INCA Int’l, Inc., 477 N.E.2d 1326, 1334 (Ill. App. Ct. 1985);
Hoffman v. Allstate Ins. Co., 407 N.E.2d 156, 158 (Ill. App. Ct.
1980). We too have held that making a demand prior to filing
a lawsuit is necessary to sustain a conversion claim under
Illinois law. See Runnemede Owners, Inc. v. Crest Mortg. Corp.,
861 F.2d 1053, 1060 (7th Cir. 1988). We noted in Runnemede that
the “primary purpose” of the requirement is to facilitate the
return of the desired property to the plaintiff “before being
required to submit to unnecessary litigation.” Id.In support of his position, Stevens only cites a single
unreported federal district court opinion, which in turn cites a
single Seventh Circuit case. See MacNeil Auto. Prod., Ltd. v.
Cannon Auto. Ltd., 2010 WL 4823592, at *1 (N.D. Ill. Nov. 19,
2010), citing LaParr v. City of Rockford, 100 F.2d 564, 565–66 (7th
Cir. 1938). MacNeil’s reliance on LaParr was misplaced: LaParr’s
discussion of a “demand” relates to a controversy regarding
the appropriate reference point for interest accrual, not
regarding what satisfies the demand element of a conversion
claim. See LaParr, 100 F.2d at 568–69. LaParr references no
Illinois case that discusses the appropriate timing for a demand
for property in a conversion claim, and certainly does not
stand for the proposition that filing a lawsuit fulfills the
demand element of a conversion claim under Illinois law. A
single tangential Seventh Circuit case cited in an unpublished
federal district court opinion is hardly “convincing evidence”
of what Illinois law would be regarding the demand element
No. 15-2130 13
of a conversion claim. See Field, 311 U.S. at 178. The district
court’s answer to the jury’s question was correct, and not an
abuse of discretion.2
A final issue: Stevens argues on appeal that he was excused
from making a demand. Under Illinois law, a demand for
property is not necessary where the demand would be futile or
if the defendant has sold, disposed of, or fundamentally
changed property at issue. See, e.g., Stathis v. Geldermann, Inc.,
630 N.E.2d 926, 931 (Ill. App. Ct. 1994); A.T. Kearney, Inc., 477
N.E.2d at 1334 (citation omitted). Stevens claims that the
district court did not address this issue of law. But the district
court did address the issue, including this language in its jury
instructions. It did not misstate the law as Stevens argues.
III. CONCLUSION
We AFFIRM the actions of the district court and the jury’s
verdict.
2
Logic buttresses our determination. If filing a lawsuit constituted a
demand for property, then a demand for property would be an unnecessary
element of a conversion claim. Filing a suit would always satisfy this
element; there would be no need for a discrete demand element.