Magin, Jon v. Monsanto Company ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2997
JON MAGIN,
Plaintiff-Appellant,
v.
MONSANTO COMPANY, PHARMACIA
CORPORATION and CP KELCO, INCORPORATED,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 1366—James F. Holderman, Judge.
____________
ARGUED MARCH 30, 2005—DECIDED AUGUST 23, 2005
____________
Before BAUER, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge. Jon Magin filed this action against
1
Monsanto Company, Pharmacia Corporation and CP Kelco,
U.S., Inc. (“CP Kelco”) to recover severance benefits that he
1
In mid-2000, Monsanto Company merged with Pharmacia &
Upjohn Corporation; the combined companies then operated
under the name Pharmacia Corporation. For ease of reference, in
this opinion we shall employ the term “Monsanto/ Pharmacia”
to refer both to Monsanto Company and to the new combined
Pharmacia Corporation.
2 No. 04-2997
claimed were owed to him. In his second amended com-
plaint, Mr. Magin alleged violations of the Employee
Retirement Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001et seq., as well as state common law claims for breach of
contract, promissory estoppel, promissory fraud and unjust
enrichment. The district court granted summary judgment
in favor of the defendants. Mr. Magin appealed. After
oral arguments, we instructed each party to file a supple-
mental memorandum setting forth how its position is
justified by the text of the Monsanto Company Divestiture
Incentive Plan, the Monsanto Company Salaried and Non-
Union Hourly Employees’ Separation Plan (“Monsanto
severance plan”) and the Asset Purchase Agreement. For the
reasons set forth in the following opinion, we now affirm
the judgment of the district court.
I
BACKGROUND
A. Facts
On September 28, 2000, Monsanto/Pharmacia sold its
Kelco biopolymers business (“Kelco Division”) to CP Kelco
2
pursuant to an Asset Purchase Agreement. At that time,
2
Several months after closing on its purchase of the Kelco
Division, CP Kelco filed suit against Monsanto/Pharmacia in
federal district court alleging that Monsanto/Pharmacia had
fraudulently induced it to buy the Kelco Division through
various misrepresentations. See CP Kelco U.S., Inc. v. Pharmacia
Corp., No. 01-240 (D. Del.). Monsanto/Pharmacia filed a counter-
claim alleging that CP Kelco had breached the same provisions
of the Asset Purchase Agreement that are at issue in this case by
failing to pay the former Monsanto/Pharmacia employees their
(continued...)
No. 04-2997 3
Mr. Magin was the vice president of the Kelco Division. In
an August 1999 letter, Monsanto/Pharmacia advised Mr.
Magin of a new pay incentive it was offering in light of the
upcoming sale:
A lot has happened over the last few weeks as we
continue the process of preparing the [Kelco Division]
for sale. . . . To stay focused on doing the right things for
the business and to stay focused on your own personal
key performance indicators takes discipline, focus, and
yes, even incentives! To the latter point, it is our intent
to be sure that the total incentive and compensation
opportunity that exists for you at Monsanto is powerful
and motivating enough to keep you focused on the task
at hand throughout this transition. We hope that the
combination of base pay, your annual common incen-
tive plan, stock options, our established severance plans
and now, a new Divestiture Incentive Plan, together,
accomplish that goal.
R.50, Ex.C-1 at 1. The Divestiture Incentive Plan provided
for two types of payments: (1) an incentive payment based
on the performance of the Kelco Division up to the clos-
ing date of the sale, and (2) a “Go with Buyer” payment. In
a second letter, the “Go with Buyer” payment was explained
to Mr. Magin as follows:
[T]he “Go with Buyer” incentive payment will be tied to
your employment status in the following manner:
• if you are offered a comparable job (defined as a job
with the same base pay) . . . with the Buyer, you will
be eligible for the “Go with Buyer” payment if you
2
(...continued)
full severance. The action has been dismissed by the consent
of the parties and with the approval of the district court.
4 No. 04-2997
accept the offer and are employed for 12 continuous
months following the date of close. The payment will
be made 12 months after close. You will not be eligible
for any Monsanto severance payment;
• if you are not offered a comparable position (as
defined above) with either the new company or with
Monsanto, you will be eligible for the Monsanto
severance plan following the close of the sale; how-
ever, you will not be eligible for any “Go with Buyer”
incentive payment;
• your severance will be determined based on negotia-
tions with the Buyer. If your employment is termi-
nated without cause by the Buyer within 12 months of
the date of the close of the sale, you will receive no
less than an amount equivalent in total to your “Go
with Buyer” incentive . . . .,
• if you voluntarily terminate your employment with
the Buyer within 12 months of the date of the close of
the sale, you will not be eligible to receive the “Go
with Buyer” incentive payment . . . .
Id., Ex.C-2 at 1. Soon after the sale of the Kelco Division,
Monsanto/Pharamacia paid Mr. Magin a divestiture
incentive payment of $250,000. When Mr. Magin was
terminated by CP Kelco in February 2001, he requested and
received a “Go with Buyer” payment of $65,000.
In addition, while an employee of Monsanto/Pharmacia,
Mr. Magin had participated in the Monsanto severance
plan. The plan’s stated purpose was “to provide limited
financial assistance to certain Employees who are Involun-
tarily Separated from an Employer” while they seek em-
ployment. Id., Ex.A-1 at 1. The plan established three
categories of severance benefits:
No. 04-2997 5
3.1 An Employee who is Involuntarily Separated
(other than under Section 2.10(e) [the section of the plan
that covers termination for poor performance]) and
signs a Waiver shall be eligible to receive Enhanced
Benefits.
3.2 An Employee who is Involuntarily Separated
(other than under Section 2.10(e)) and does not sign a
Waiver shall be eligible to receive Standard Benefits.
3.3 An Employee who is Involuntarily Separated
under Section 2.10(e) shall be eligible to receive limited
Benefits, regardless of whether or not he executes a
Waiver.
Id. at 4. The plan defined “involuntary separation” as
termination of an Employee’s employment with all Employ-
ers as a result of one of the following: (a) elimination of the
Employee’s job with no offer of a comparable job by an
Employer; (b) divestiture by an Employer of the business or
location where the Employee is employed with no offer of employ-
ment by the purchaser or an Employer; (c) job elimination with
an offer of employment by an Employer which requires
relocation (but only if the Employee rejects such offer); (d)
expansion of an Employee’s position beyond his skills as a
result of organizational changes or requirements; or (e) the
Employee’s Poor Performance.
Id. at 3 (emphasis added). “Waiver” was defined as “the
Agreement and Release form offered to an Employee who
is Involuntarily Separated which releases an Employer from
claims arising from such Employee’s employment and
termination of employment with such Employer.” Id.Also, a 1998 Summary Overview of the Monsanto sever-
ance plan, explained:
To what kinds of involuntary separations do the Enhanced
and Standard Separation Benefits apply?
6 No. 04-2997
The Enhanced or Standard benefits are applicable to
people who lose their jobs because of one of the follow-
ing circumstances:
A person’s job is eliminated with no offer of a compara-
ble job;
A person’s job is eliminated through a divestiture with
no offer of comparable job by either the purchaser or
Monsanto;
A person’s job is eliminated and the comparable job
offered requires relocation; or
The person’s job has expanded beyond his/her skills as
a result of organizational changes or requirements.
Id., Ex.A-2 at 2.
The summary also explained the different types of
severance benefits available:
• Enhanced benefits are provided for certain involun-
tary separations if the person executes a waiver
(Enhanced Separation Benefits).
• Standard benefits are provided for certain involuntary
separations and the person refuses to execute a waiver
(Standard Separation Benefits).
• Limited benefits are provided for involuntary separa-
tions due to inability to perform job. No waiver is
required (Limited Separation Benefits).
Id. at 1.
The sale of the Kelco Division was governed by an Asset
Purchase Agreement. The agreement provided that CP
Kelco would offer employment to certain Monsanto/
Pharmacia employees and would pay severance to those
employees if they were terminated within a year of employ-
ment:
No. 04-2997 7
Section 6.1 Offers of Employment.
(a) Transferred Employees. No later than 30 days follow-
ing the date hereof, Buyer shall offer employment . . . with
Buyer, effective on the Closing Date, to all of the Employees
who are actively employed as of the date of this Agreement
. . . . Seller and its Affiliates agree to release from their
employment those Employees who are offered and accept
employment with Buyer (“Transferred Employees”) to
enable them to commence their employment with Buyer.
Each offer of employment made by Buyer will be in writing
(which does not need to be given individually to each
Employee but may be given to groups of Employees who
are similarly situated) and will at least equal the total
compensation opportunity (including the Employee’s salary
or wages (including, as applicable, shift differentials,
incentives and premiums)) provided by Seller to each
Employee immediately prior to Closing Date . . . .
(b) Termination of Employees. If Buyer terminates the
employment of any Transferred Employee without Cause
during the 12-month period following the Closing Date or
on such later date on which such Transferred Employee
commences work for Buyer (the “Employment Date”) and
such Transferred Employee is not offered “comparable
employment” by Buyer or an Affiliate of Buyer through the
12-month anniversary of the Employment Date, or, if prior
to the 12-month anniversary of the Employment Date, Buyer
terminates a Transferred Employee who has refused to
consent to a request by Buyer for such Transferred Em-
ployee to relocate, Buyer shall pay to such Transferred
Employee an amount at least equal to the base severance
pay that such Transferred Employee would have received
under Seller’s severance plan disclosed on the Disclosure
Schedule upon such a termination of employment of the
Transferred Employee by Seller . . . . For purposes of this
8 No. 04-2997
Section 6.1(b), “comparable employment” shall mean
employment in accordance with Section 6.1(a), above.
Id., Ex.B at 31-32. To reflect that CP Kelco would pay
severance benefits as set forth in the Asset Purchase Agree-
ment, Monsanto/Pharmacia and CP Kelco negotiated a $20
million credit on the purchase price for the Kelco Division.
See R.66, Ex.A at 1.
Following the sale of the Kelco Division, Mr. Magin
was transferred to the employ of CP Kelco, where he
continued to work until his employment was terminated on
February 22, 2001. The termination letter provided to Mr.
Magin stated that CP Kelco would pay him severance under
its own formula:
Under the Agreement of Sale, CP Kelco is required to
provide to the Monsanto transferred employees sever-
ance benefits in “an amount at least equal to the base
severance pay under the [Monsanto severance] plan.”
Under that plan, the “base severance pay” would be
equal to 1/4 month’s base pay for each year of service.
The Hercules Plan provides 2 weeks per year of service,
and therefore, CP Kelco will give you the Hercules Plan
which will provide greater severance benefit to you. The
number of weeks of severance you will receive is 25.29
weeks. Your severance entitlement will be paid in a
lump sum in the first pay period in February.
R.104, Tab D ¶ 19. This amount was more than the standard
benefits available under the Monsanto severance plan, but
less than the enhanced benefits available under that plan.
Following his termination from CP Kelco, Mr. Magin filed
this suit seeking enhanced severance benefits from both CP
Kelco and Monsanto/Pharmacia.
No. 04-2997 9
B. District Court Proceedings
Mr. Magin’s second amended complaint raised the
following claim against Monsanto/Pharmacia: Count I,
ERISA violation due to failure to pay severance benefits
under the Monsanto severance plan; Count II, breach of
contract for failure to pay an incentive under the Divestiture
Incentive Plan; Count III, ERISA violation for failure to pay
the divestiture incentive; Count IV, breach of fiduciary duty;
Count V, promissory estoppel; Count VI, promissory
fraud/detrimental reliance; and Count VII, unjust enrich-
ment. Against CP Kelco, the complaint alleged: Count VIII,
ERISA violation due to failure to pay enhanced severance
benefits; Count IX, breach of contract; and Count X, unjust
enrichment.
On Monsanto/Pharmacia’s motion, the district court
dismissed the state-law claims against Monsanto/
Pharmacia (Counts II, V, VI and VII) as preempted by
ERISA. See 29 U.S.C. § 1144(a). Monsanto/ Pharmacia then
filed a motion for summary judgment on the remaining
counts; the district court granted the motion. With respect
to Count I, the district court held that Monsanto/ Pharmacia
was not liable to Mr. Magin for severance under the
Monsanto severance plan because CP Kelco plainly had
assumed the duty, under the Asset Purchase Agreement,
to pay any severance benefits due to transferred em-
ployees that it terminated. The court further determined
that Mr. Magin had no standing to claim that Monsanto/
Pharmacia had violated ERISA because, after he was
terminated, Monsanto/Pharmacia was not his employer
or the administrator of the Monsanto severance plan. Id.; see
29 U.S.C. §§ 1132, 1002(5), 1002(16).
The district court also ruled that Mr. Magin’s claim that
Monsanto/Pharmacia had failed to pay him benefits
promised under the Divestiture Incentive Plan had no basis
10 No. 04-2997
when he had admitted “that he received all payments due to
him” under that plan. R.109 at 1. Finally, the
court dismissed Mr. Magin’s breach of fiduciary duty
claim on the basis that ERISA allows plaintiffs to seek
money damages only on behalf of the plan, and Mr. Magin
was seeking damages on his own behalf. See 29 U.S.C.
§ 1132(a)(1)(B).
The district court also granted CP Kelco’s motion for
summary judgment. As an initial matter, the court held that
Mr. Magin’s alternative state-law claims for breach
of contract (Count IX) and unjust enrichment (Count X)
were preempted by ERISA. With respect to the ERISA claim,
the district court recognized that the Asset Purchase
Agreement obligated CP Kelco to pay Mr. Magin “an
amount at least equal to the base severance pay that [he]
would have received under [Monsanto’s] severance plan.”
R.108 at 1. The district court also noted that the Monsanto
severance plan entitled an employee to enhanced benefits,
as opposed to standard benefits, only if he was “Involun-
tarily Separated” and “sign[ed] a Waiver.” Id. The court
concluded that Mr. Magin did not qualify for enhanced
benefits:
It is undisputed that Magin did not sign a Waiver.
Magin argues that he was never offered a Waiver and
was told that he would receive Enhanced Benefits.
However, the plain language of the Plan, which defines
“Waiver,” makes clear that the employer was under
no obligation to offer an Involuntarily Separated em-
ployee the opportunity to sign a Waiver. Section 2.17 of
the Plan states that a “ ‘Waiver’ shall mean the Agree-
ment and Release form offered to an Employee who is
Involuntarily Separated which releases an Employer
from claims arising from such Employee’s employment
and termination of employment with such Employer.”
No. 04-2997 11
Under the Plan, Magin had to have been offered a
Waiver to be entitled to Enhanced Benefits. Nothing
indicates that the employer was required to so offer a
Waiver. The language makes it clear that any such offer
was at the sole discretion of the employer, and no other
interpretation is reasonable. Therefore, as the Plan is
unambiguous, this court will not consider any extrinsic
evidence. Pursuant to the Plan, a Waiver does not come
into existence until it is offered to an employee. Because
one was not offered to Magin, he was not entitled to
Enhanced Benefits.
Id. (citation omitted; emphasis in original). This appeal
followed.
II
DISCUSSION
A. Standard of Review
We review a district court’s grant or denial of summary
judgment de novo. Blickenstaff v. R.R. Donnelley & Sons Co.
Short Term Disability Plan, 378 F.3d 669, 680 (7th Cir. 2004).
We construe all facts and reasonable inferences from the
record in a light most favorable to the nonmoving party. Id.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); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
“The claim for separation benefits is really a claim to enforce
a contract.” Anstett v. Eagle-Picher Indus., Inc., 203 F.3d 501,
503 (7th Cir. 2000). If no genuine issues of material fact are
present, then contract interpretation is well-suited for
12 No. 04-2997
summary judgment. Id.B. Monsanto/Pharmacia
Counts I and IV of Mr. Magin’s complaint seek to recover
under ERISA the benefits that Mr. Magin claims Mon-
santo/Pharmacia owes him under the Monsanto severance
3
plan. ERISA entitles a plan “participant or beneficiary”
to file a civil action “to recover benefits due to him under
the terms of his plan.” 29 U.S.C. § 1132(a)(1)(B). The statute
provides that “[a]ny money judgment under this subchapter
against an employee benefit plan shall be enforceable only
against the plan as an entity and shall not be enforceable
against any other person unless liability against such person
is established in his individual capacity under this
subchapter.” Id. § 1132(d)(2). Even though, in a suit
for benefits, the plaintiff ordinarily “should name the plan
as a defendant,” we have allowed suits against the employer
in its role as plan administrator. Mein v. Carus Corp., 241
F.3d 581, 584 (7th Cir. 2001) (citing Varity Corp. v. Howe, 516
U.S. 489 (1996)).
On appeal, Mr. Magin argues that he is entitled to en-
hanced benefits from Monsanto because he did not receive
a comparable position at CP Kelco. This argument fails in
several respects. First, the governing severance plan of
Monsanto speaks simply in terms of an “offer of employ-
3
Nothing in Mr. Magin’s submission on appeal indicates that he
challenges the district court’s conclusion that the Monsanto
severance plan constitutes an ERISA plan for purposes of Counts
I and IV, his claims against Monsanto/Pharmacia. Similarly,
Mr. Magin has raised no challenge to the district court’s ruling
that his alternative state-law claims against Monsanto/
Pharmacia are preempted by ERISA.
No. 04-2997 13
ment.” While the summary plan description does use the
term “comparable,” it does not employ the term as a
distinguishing factor between enhanced and standard
benefits. In any event, by acceptance of “Go with Buyer”
benefits, which are conditioned on the employee receiving
a comparable position with the purchaser, Mr. Magin is in
effect estopped from making any claim to the contrary here.
Mr. Magin also submits that the sale of the Kelco Division
to CP Kelco triggered Monsanto/Pharmacia’s obligation to
pay him benefits under the Monsanto severance plan.
Specifically, he claims that he became eligible for severance
benefits on the date of the sale because, even though he had
no period of unemployment, his employment with
Monsanto/Pharmacia was terminated in order for him to be
4
placed on the CP Kelco payroll. Monsanto/Pharmacia
acknowledges that it released Mr. Magin from its employ-
4
To support his submissions, Mr. Magin relies on Anstett v.
Eagle-Picher Industries, Inc., 203 F.3d 501 (7th Cir. 2000). In Anstett,
we held that the plaintiffs were entitled to severance benefits
because they were “terminated” when the employer sold their
division to another corporation, even though the plaintiffs had
been reemployed immediately by the buyer. Id. at 502-03. Our
conclusion rested on the specific language of the plan at issue and
the particular facts, which included: (1) that the seller knew that
a sale of a division could trigger severance benefits absent
language in the policy limiting eligibility; (2) that the seller
presumably had negotiated the purchase price based on the
expectation that it would pay the separation benefits; and (3) that
the buyer did not offer the employees a comparable separation
benefits package. Id. at 505-06. In such circumstances, we noted,
the seller would reap a windfall if not held to its obligation to pay
severance. Id. at 506. Moreover, we were concerned that the
employees be protected from the “possibly precarious employ-
ment future” with the buyer. Id.14 No. 04-2997
ment on the day of the sale, September 28, 2000, so that he
could commence his employment with CP Kelco. However,
CP Kelco assumed the duty to pay severance to employees
who were transferred to CP Kelco and whose employment
CP Kelco terminated within twelve months of employment.
CP Kelco specifically agreed to pay such employees sever-
ance benefits in an amount at least equal to the base sever-
ance pay that they would have received under the
Monsanto severance plan. R.50, Ex.B at 32 (“Buyer shall pay
to such Transferred Employee an amount at least equal to
the base severance pay that such Transferred Employee
would have received under Seller’s severance plan.”).
Indeed, CP Kelco received a $20 million credit against the
purchase price of the Kelco Division for the purpose of
paying severance benefits to employees transferred from
Monsanto/Pharmacia. It is undisputed that Mr. Magin’s
employment was transferred to CP Kelco and that his “pay
remained the same” at CP Kelco. R.76, Ex.B at 47.
By contrast to Anstett, awarding severance would consti-
tute a windfall to Mr. Magin when Monsanto/ Pharmacia
sought to protect its transferred employees by requiring CP
Kelco to provide them severance in exchange for a reduced
sale price, when Mr. Magin suffered no period of unem-
ployment, and when he received separation benefits from
CP Kelco. In short, because CP Kelco contractually assumed
the obligation to provide severance benefits to transferred
employees who accepted employment with CP Kelco and
were terminated within twelve months of their employ-
ment, CP Kelco alone is liable to Mr. Magin under the
Monsanto severance plan. Therefore, the district court’s
grant of summary judgment on Count I was appropriate.
Mr. Magin also contends that Monsanto/Pharmacia
breached a fiduciary duty under ERISA by misrepresenting
to him that he would receive enhanced severance benefits if
No. 04-2997 15
he stayed employed through the sale of the Kelco Division.
The district court properly dismissed this claim. “ERISA
allows for an action to enforce and seek appropriate relief
because of a breach of fiduciary duty.” Anweiler v. American
Elec. Power Serv. Corp., 3 F.3d 986, 992 (7th Cir. 1993); 29
U.S.C. § 1132(a)(2). Recovery from such actions, however,
must go to the plan as a whole, and not the individual
beneficiary. Id. (citing Massachusetts Mut. Life Ins. Co. v.
Russell, 473 U.S. 134 (1985)). Mr. Magin correctly notes that
he can maintain an individual cause of action for equitable
relief, see Varity Corp., 516 U.S. at 515; 29 U.S.C. § 1132(a)(3),
but that is not what he seeks. Rather, he seeks to recover his
personal enhanced severance benefits from
Monsanto/Pharmacia.
C. CP Kelco
Mr. Magin maintains that the district court erred by
granting CP Kelco summary judgment because “CP Kelco
owed enhanced severance if the employee elected to sign
any tendered waiver.” Reply Br. at 4. Section 6.1(b) of the
Asset Purchase Agreement provided that
[i]f Buyer terminates the employment of any Trans-
ferred Employee without Cause during the 12-month
period following the Closing Date or on such later date
on which such Transferred Employee commences work
for Buyer (the “Employment Date”) and such Trans-
ferred Employee is not offered “comparable employ-
ment” by Buyer or an Affiliate of Buyer through the 12-
month anniversary of the Employment Date . . . Buyer
shall pay to such Transferred Employee an amount at
least equal to the base severance pay that such Trans-
ferred Employee would have received under Seller’s
severance plan disclosed on the Disclosure Schedule
16 No. 04-2997
upon such a termination of employment of the Trans-
ferred Employee by Seller . . . .
R.50, Ex.B at 32. The Monsanto severance plan, in turn,
provided enhanced separation benefits only to an employee
“who is Involuntarily Separated . . . and signs a Waiver.”
Id., Ex.A-1 at 4; see also id., Ex.A-2 at 1 (Summary Overview)
(“Enhanced benefits are provided for certain involuntary
separations if the person executes a waiver . . . .”). A
“waiver” in turn referred to “the Agreement and Release
form offered to an employee who is Involuntarily Separated
which releases an Employer from claims arising from such
Employee’s employment and termination of employment
with such Employer.” Id. (emphasis added).
We agree with the district court’s conclusion that the
unambiguous terms of the Monsanto severance plan make it
clear that offering an involuntarily separated employee the
option to sign a waiver was “at the sole discretion of the
employer.” R.109 at 1. Mr. Magin was not offered a waiver,
and he not did sign a waiver; accordingly, summary
judgment against his claim under ERISA for additional
5
severance from CP Kelco was appropriate.
5
For the first time in his reply brief, Mr. Magin submits that the
district court erred by holding that ERISA preempted his state-
law claims for breach of contract and unjust enrichment against
CP Kelco. Specifically, he maintains, in a conclusory way, that the
Monsanto severance plan is not an ERISA plan because it did not
require the employer to maintain an ongoing administrative
program to meet its obligation. See Reply Br. at 11 (citing Fort
Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 11-12 (1987)). We see
no merit to this contention. In any event, even if Mr. Magin could
state a cognizable state-law claim, the claim would fail by virtue
of our holding that CP Kelco was not obligated to pay him
enhanced severance benefits.
(continued...)
No. 04-2997 17
Conclusion
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
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USCA-02-C-0072—8-23-05