MEMORANDUM OPINION
This matter is before the court on Plaintiff Foodcomm International’s (“Food-comm”) partial motion for summary judgment and on Defendants’ partial motion for summary judgment. For the reasons stated below, we deny both motions for summary judgment in their entirety.
BACKGROUND
Foodcomm alleges that in 1999 it hired Defendant Christopher Paul Leacy (“Lea-cy”) to become its sales manager for the purchase and sale of Australian chilled beef in the United States. Foodcomm also contends that it hired Defendant Patrick James Barry (“Barry”) as a salesperson to assist Leacy. According to Foodcomm, as the work of Leacy and Barry progressed, they became more intricately involved in the dealings of Foodcomm and the level of their responsibilities expanded. In April 2001, Defendant Empire Beef Company, Inc. (“Empire”) allegedly sent representatives to meet with Foodcomm representatives to discuss a redistribution agreement between Foodcomm and Empire (“Redis
Foodcomm now moves for summary judgment on the breach of fiduciary duty claims (Counts I and II) and on the civil conspiracy claim (Count V). Defendants have moved for summary judgment on the constructive trust and unjust enrichment claim brought against Outback (Count IV), the civil conspiracy claim to the extent that it is brought against Empire and Outback (Count V), and the constructive trust and unjust enrichment claim brought against Empire (Count VI). Defendants also move for summary judgment on the issue of damages resulting from lost profits.
LEGAL STANDARD
Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). In seeking a grant of summary judgment the moving party must identify “those portions of ‘the pleadings, depositions, answers to interrogatories, -and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett,
DISCUSSION
I. Breach of Fiduciary Duty Claims (Counts I and II)
Foodcomm moves for summary judgment on the breach of fiduciary duty claims (Counts I and II).
A. Choice of Law for Breach of Fiduciary Duty Claims
Although Defendants make certain references to California state law in their answer to Foodcomm’s motion for summary judgment, Illinois law clearly applies to the breach of fiduciary duty claims in this action. Such a determination has already been made in this action by the Seventh Circuit in
Foodcomm Int’l. v. Barry,
B. Whether Barry and Leacy were Fiduciaries
Foodcomm argues that there is conclusive evidence that shows that Barry and Leacy were fiduciaries of Foodcomm.
1. Whether Prior Ruling Resolved Issue
Foodcomm argues that the Court in Foodcomm, has already found that Leacy and Barry were fiduciaries of Food-comm. In Foodcomm the Court addressed Defendants’ argument that Barry and Leacy were not fiduciaries and the Court stated: ‘We disagree.” Id. In support of its conclusion, the Court pointed to pieces of evidence that indicate that Barry and Leacy were fiduciaries of Foodcomm and the Court concluded by stating: “These are the hallmarks of a fiduciary, and employees, as agents of their employer, do not fall outside the purview of a breach of fiduciary duties.” Id. Defendants contend that the statements made by the Court in Foodcomm were merely based upon the record before the Court at that juncture, and were not intended to bind the parties or this court at the summary judgment stage.
The Seventh Circuit has indicated that “[a] court must be cautious in adopting findings and conclusions from the preliminary injunction stage in ruling on a motion for summary judgment....’”
Thomas & Betts Corp. v. Panduit Corp.,
2. Evidence of a Fiduciary Relationship
Foodcomm argues that the evidence overwhelmingly shows that Barry and Leacy were fiduciaries of Foodcomm. Under Illinois law, a plaintiff bringing a breach of fiduciary duty claim bears “[t]he burden of proving the existence of a fiduciary relationship....”
In re Rothenberg,
In
Foodcomm
the court noted that, based upon the record before it at that juncture, Barry and Leacy appeared to have “had exclusive charge over all of Fo-odcomm’s purchasing of Australian chilled beef, and their job descriptions at Food-comm involved significant autonomy and discretion.”
a. Salaries
Foodcomm argues that, apart from the owners of Foodcomm, Leacy and Barry were Foodcomm’s highest paid employees. .Defendants deny in part Foodcomm’s assertion. Defendants cite a chart of Foodcomm employees’ salaries that indicates that, besides Leacy, in 2002 four other non-owner employees made more money than Barry. (R FSF Par. 38)(R FSF Tab 12). Defendants concede that Leacy was the highest paid employee other than the owners. Thus, whether Barry was one of Foodcomm’s highest paid employees is a genuinely disputed fact. Also, the mere fact that Leacy received a high salary is not sufficient to warrant a finding as a matter of law that he was a fiduciary. Foodcomm will have an opportunity to present evidence concerning the salaries of Leacy and Barry at trial before the trier of fact.
Foodeomm also claims that Leacy and Barry had significant responsibilities in their jobs and had exclusive control over the purchasing of Australian chilled beef. Foodeomm asserts that it hired Leacy as its exclusive Sales Manager for importing Australian chilled beef. (FSF Par. 23). Defendants dispute Foodcomm’s characterization of Leacy’s position as a Sales Manager and contend that Leacy was merely hired as a salesman. (R FSF Par. 23). Defendants contend that Leacy did not have exclusive control over the purchasing of beef and point to Leacy’s deposition testimony during which Leacy testified that he only handled about 70 percent of the purchasing and that Greg Bourke (“Bourke”), the Vice President of Food-comm, handled 30 percent of the purchasing. (Leacy Dep. 27-28). Foodeomm in response points to Bourke’s declaration which indicates that the responsibilities of Barry and Leacy expanded until they dealt with all purchasing and that they handled 100 percent of the purchasing when their employment with Foodeomm ended. (Bourke Decl. Par 8). Defendants acknowledge that the responsibilities of Lea-cy and Barry expanded somewhat during their employment, but disagree with Bourke’s contention that they handled 100 percent of purchasing when they left Fo-odcomm. Foodeomm, has not pointed to any conclusive evidence that shows that Bourke’s contentions regarding purchasing are accurate and Leacy’s deposition testimony on the subject is inaccurate. Thus, whether Leacy and Barry had exclusive control over the purchasing of Australian chilled beef is a determination that must be made by the trier of fact.
See Payne v. Pauley,
In addition, we note that Defendants point to a variety of other evidence that creates genuinely disputed facts concerning the scope of the other responsibilities of Leacy and Barry when they terminated their employment with Foodeomm. (R FSF Par. 23, 32, 44). A determination of what those responsibilities entailed would be pertinent in order to assess whether Leacy and Barry had formed a fiduciary relationship with Foodeomm. Thus, because there are genuinely disputed facts, we cannot determine what were the responsibilities of Leacy and Barry at the time of them departure from Foodeomm. Such a determination can only be made by the trier of fact.
c. Discretion and Autonomy
Foodeomm argues that Leacy and Barry had significant discretion and autonomy in performing their work for Foodeomm. As is indicated above, there are genuinely disputed facts concerning the scope of the responsibilities of Leacy and Barry. Such a determination concerning their responsibilities would be relevant for a determination in regards to the amount of discretion or autonomy they had in performing those responsibilities. Foodeomm characterizes Leacy and Barry as its representatives, acting as the sole arm of Foodeomm in dealing with Empire, while being vested with autonomy to carry out their duties. Defendants, however, point to evidence that indicates contrary facts. Defendants point for example, to evidence that indicates that Bourke took an active role in maintaining Foodcomm’s relationship with Empire. (R FSF Par. 44). If Bourke was actively involved in ensuring that Food-comm maintained a cordial relationship with Empire then the work of Leacy and Barry dealing with Empire would likely
C. Whether Leacy and Barry Breach their Fiduciary Duties
Foodcomm argues that Leacy and Barry breached their fiduciary duties. Under Illinois law, in order to prevail on a breach of fiduciary duty claim a plaintiff must establish: 1) “the existence of a fiduciary duty on the part of’ the defendant, 2) that the defendant breached that duty, and 3) “damages proximately resulting therefrom.”
Romanek v. Connelly,
We also note that even if Food-comm had pointed to sufficient evidence that indicates Leacy and Barry were fiduciaries, there are a variety of genuinely disputed facts that bear upon the determination of whether Leacy and Barry breached their alleged fiduciary duties. For example, Foodcomm contends that Leacy and Barry conspired to present Empire “with a business plan to create, Outback Imports, Inc., an Empire Beef-owned entity that would provide the same services as were already being provided by Foodcomm, and directly compete with Foodcomm.” (Mem. FSJ 3-4). However, Foodcomm fails to specifically point to any evidence that would support such a conclusion. Foodcomm as the movant bears the burden of pointing to such evidence that shows that it is entitled to prevail as a matter of law.
See Celotex Corp., 477
U.S. at 323,
Defendants on the other hand have pointed to evidence that indicates that there are genuinely disputed facts concerning whether Leacy and Barry breached their alleged fiduciary duties. For example, Foodcomm contends that Leacy was attempting to hide from Foodcomm his secret business discussions with Empire. To support its point, Foodcomm states that in March 2002 Leacy told Bourke that only Leacy would have further contact with Empire and that Leacy told Bourke that he should not have contact with Empire. (FSF Par. 75). However, the only support that Foodcomm cites for such a proposition is the testimony of Bourke at the preliminary injunction hearing. (FSF Par. 75). Defendants point out that a close examination of Bourke’s testimony shows that Food-comm’s characterization of his testimony is inaccurate. Bourke testified that Leacy told him that Leacy would contact Empire to “smooth things over.” (Prelim. Hearing 174). Bourke then was asked whether he and Leacy “agreed” that Leacy should contact Empire instead of Bourke and Bourke did not deny that characterization of the decision. (Prelim. Hearing 174-75). It is not clear from such testimony whether it was Leacy who came up with the idea that only he should have contact with Empire or whether Bourke and Lea-cy who reached an agreement together. Although either inference is possible, we are required to make such inferences in favor of Defendants, the non-movants on this issue.
Anderson,
In addition, Foodcomm tries to show that Leacy was secretive and breached his fiduciary duties by arguing that Leacy never told Bourke or anyone else at Food-comm that Empire decided to stop doing business with Foodcomm. (FSF Par. 78). Defendants admit the truth of that fact, but point to evidence that shows that there was no need for Leacy to inform Food-comm of that fact because the relations between Empire and Foodcomm had already broken down and Bourke had recognized that the decision by Empire to cease its relations with Foodcomm was a foregone conclusion. (R FSF Par. 78). Whether or not Foodcomm is correct or Defendants are correct, and which inferences should be made from the evidence is a matter that can only be determined by the trier of fact. Therefore, whether Lea-cy and Barry breached their alleged fiduciary duties is a matter, that must be addressed by the trier of fact. Based on the above, we deny Foodcomm’s motion for summary judgment on the breach of fiduciary claims (Counts I and II).
Foodcomm moves for summary judgment on Foodcomm’s claim against Defendants for civil conspiracy. Empire and Outback also seek summary judgment on Foodcomm’s civil conspiracy claim.
A. Civil Conspiracy Choice of Law
When a federal court has diversity subject matter jurisdiction in a case and does not have federal question subject matter jurisdiction, the court must apply “the choice-of-law rules of the forum state.... ”
Smurfit Newsprint Corp. v. Southeast Paper Mfg.,
Empire and Outback argue that California law should be applied in determining Foodcomm’s civil conspiracy claims. The Seventh Circuit noted that “[t]he parties implicitly agree[d] that Illinois law applies to Foodcomm’s claims.”
Foodcomm,
In the instant action, the alleged civil conspiracy between the Defendants has a more significant relationship to Illinois. First, Barry and Leacy solicited each other in Illinois. Second, Barry and Leacy at times solicited Empire while in Illinois. Third, Barry and Leacy prepared their business plan on Foodcomm’s computers in Illinois. Fourth, the Defendants intended to form Outback in Illinois. Fifth, Outback’s headquarters and sole office was located in Chicago, Illinois. Sixth, on or about September 18, 2002, Food-comm learned that Barry and Leacy were “trading for or from a New firm in Chicago called Outback Imports,” (FSAF Par. 104), and on October 2, 2002, Barry solicited business by sending an email announcing that he had “launched a company ... in partnership with Chris Leacy ... based in Chicago[, Illinois] ... called Outback Imports.... ” (FSAF Par. 105). Seventh, Barry and Leacy were domiciled in Illinois at the time the complaint was filed. Finally, even when Barry and Leacy worked solely for the Outback Imports division of Empire, Barry and Leacy worked in Illinois. Therefore, since the alleged breach of fiduciary duties by Barry and Leacy occurred in Illinois, the alleged civil conspiracy occurred in Illinois, Barry, Leacy, and Outback were domiciled in Illinois, and the relationship between Foodcomm and the Defendants is centered in Illinois, Illinois law applies to the civil conspiracy claim.
See, e.g., Spinozzi v. ITT Sheraton
Empire and Outback argue that Illinois applies the “internal affairs doctrine” in determining the appropriate choice of law, which would then require this court to apply California law to the civil conspiracy claim. (D. Mot. 4). Under Illinois law, the “internal affairs doctrine” is only applicable “[w]hen the subject is liability of officers and directors
for their stewardship of the corporation,
the law presumptively applicable is the law of the place of incorporation.”
Resolution Trust Corp. v. Chapman,
B. Summary Judgment on Civil Conspiracy Claims
Foodcomm and Defendants contend that they are entitled to judgment as a matter of law as to the civil conspiracy claims.
Foodcomm contends that each of the elements for civil conspiracy “are readily satisfied here on the undisputed evidence.” (Mem. PSJ 5). Under Illinois law, a civil conspiracy is defined as: “(1) a combination of two or more persons, (2) for the purpose of accomplishing by some concerted action either an unlawful purpose or a lawful purpose by unlawful means, (3) in the furtherance of which one of the conspirators committed an overt tortious or unlawful act.’’
Fritz v. Johnston,
Additionally, Empire and Outback argue that Foodcomm cannot meet the legal requirements for civil conspiracy because Foodcomm cannot demonstrate that Empire and Outback had actual knowledge that Barry’s or Leacy’s conduct constituted breaches of their fiduciary duties. Civil conspiracy is an intentional tort that requires proof that a defendant “knowingly and voluntarily participates in a common scheme to commit an unlawful act or a lawful act in an unlawful manner.”
Adcock,
Empire and Outback contend that to have such actual knowledge, Empire and Outback must understand the nature of Barry’s or Leacy’s alleged duties and the breaches of those duties. Under Illinois law, “[a] defendant who understands the general objectives of the conspiratorial scheme, accepts them, and agrees, either explicitly or implicitly to do its part to further those objectives, ... is liable as a conspirator.”
Adcock,
Empire and Outback also argue that the individuals responsible for hiring Barry and Leacy “had no idea that Barry and Leacy allegedly owed fiduciary duties to Foodcomm.” (Mem. DSJ 6). Additionally, Empire and Outback contend that the individuals responsible for hiring Barry and Leacy “did not have any occasion to explore the duties of Barry and Leacy to Foodcomm because, as Levine testified, he was ‘hiring two good salesmen to sell meat to [Empire’s] existing account base.’ ” (Mem. DSJ 6). However, knowledge by Empire that: Barry and Leacy were Fo-odcomm’s employees; Leacy was in charge of the Empire account; and Leacy was involved in business negotiations between Foodcomm and Empire could lead a trier of fact to conclude that the actions of Empire and Outback were an implicit agreement to further Barry’s and Leacy’s breach of their alleged fiduciary duties. Additionally, a trier of fact could conclude that receiving the business plan from Barry and Leacy, seeking legal advice from Empire’s attorney about Leacy’s confidentiality agreement with Foodcomm, financing Outback, and distributing shareholder agreements to Barry and Leacy could constitute agreement to further the alleged breaches of fiduciary duties by Barry and Leacy. Further, a trier of fact could conclude that an agreement, either explicit or implicit, in furtherance of a breach of the alleged fiduciary duties by Barry and Lea-cy did not exist.
See Adcock,
Additionally, Empire and Outback contend that “Outback never functioned as a corporate entity” and therefore summary judgment must be decided in their favor.
III. Causation
Foodcomm argues that Defendants “caused injury to Foodcomm in the form of loss of employee loyalty and loss of the ability to pursue the Empire Beef redistribution deal unencumbered by its own disloyal employees.” (Mem. FSF 6). In regards to the alleged harm to Foodcomm resulting from a “loss of employee loyalty,” Foodcomm has not pointed to sufficient evidence that conclusively establishes causation for any such damages and which would warrant granting judgment as a matter of law in favor of Foodcomm on that issue. In regards to the alleged harm to Foodcomm caused by the loss of its relationship with Empire, Defendants have pointed to a variety of evidence that indicates that Defendants’ alleged misconduct, even if true, did not cause such harm to Foodcomm.
For example, there is evidence that indicates that Empire was contemplating severing its relationship with Foodcomm even before Leacy and Barry engaged in their alleged secretive communications with Empire. Such evidence makes it possible to infer that the ultimate decision by Empire to sever relations was based upon the dealings that occurred prior to Leacy’s and Barry’s alleged misconduct. The parties agree that in March 2002 a conflict arose in the negotiations between Food-comm and Empire and that Leacy was sent in to try and smooth out the problems. (FSF 72-73). Foodcomm contends that Empire’s representative became upset during the negotiations over the Redistribution Agreement. (FSF Par. 71). However, Foodcomm does not indicate that the conflict was caused by Leacy or Barry attempting to interfere with Food-comm’s relationship with Empire. Rather, Foodcomm admits that the Empire representative was “upset with Bourke due to Bourke’s suggestions at the March 12 meeting that Foodcomm broker Empire Beefs purchases from ConAgra/AMH as part of the redistribution deal.” (FSF Par. 71). Bourke, Foodcomm’s General Manager, testified at his deposition that the Empire representative “was pretty up
Defendants also point to other evidence that indicates that their contacts with Empire were not the cause of Empire’s decision to terminate its relationship with Fo-odcomm. Defendants argue that Leacy and Barry did not approach Empire to discuss doing business with Empire until May 2002 and that Empire had already indicated its decision to terminate its relations with Foodcomm by that juncture. Scott Brubaker (“Brubaker”), a representative of Empire, testified at his deposition that he spoke with Bourke in September 2002 and that during that conversation Brubaker told Bourke that Empire was “no longer going to do business” with Fo-odcomm. (Brubaker Dep. 336). Bourke himself testified that when he spoke with Brubaker in September 2002 about reviving the Redistribution Agreement negotiations, Brubaker told him “that door was— is now closed....” (Bourke Dep. 365). Defendants also point to evidence that shows that Leacy and Barry did not approach Empire to discuss doing business with Empire until May 2002. (DSF Par. 81-83). Although Foodcomm contends that Leacy and Barry secretly engaged in improper contacts with Empire sooner than May 2002, such a determination cannot be made as a matter of law. Only the trier of fact can assess the evidence concerning Leacy’s and Barry’s alleged misconduct and determine whether they acted improperly, and if they did so, when such conduct took place. Finally, Defendants point out that even if there is sufficient evidence that shows that there was a remote possibility after September 2002 that Empire might rekindle its relationship with Food-comm, Foodcomm cannot automatically place the blame on Leacy and Barry for the final breakdown in its relations with Empire. Foodcomm itself put a damper on such a possible rekindling by suing Empire in the instant action in October of 2002. Thus, there are genuinely disputed facts concerning causation in the instant action that can only be addressed by the trier of fact.
IV. Damages
Foodcomm argues that it is entitled to partial summary judgment on the issue of damages. Defendants argue that Food-comm is barred from seeking any compensatory damages for lost profits and that regardless, such damages are speculative and cannot be calculated.
A. Whether Foodcomm is Barred from Recovering Lost Profits
Defendants argue that Foodcomm is barred from recovering any damages for lost profits.
1. Omission of Request in Amended Complaint
Defendants argue that since Foodcomm did not specifically request compensatory damages in the amended complaint, “Foodcomm has no legal right to claim any compensatory damages for the loss of Empire business.” (Mem. DSJ 9). However, in support of such a statement, Defendants fail to cite to any legal authority whatsoever. (Mem. DSJ 9). Federal Rule of Civil Procedure 54(c) states in pertinent part, “[ejxcept as to a party against whom a judgment is entered by default, every final judgment shall grant relief to which the party in whose favor it is rendered is entitled,
even if the party has not demanded such relief in the party’s pleadings.”
Fed.R.Civ.P. 54(c)(em-phasis added). Federal Rule of. Civil Pro
In the amended complaint, Foodcomm seeks: 1) preliminary and permanent injunctions barring Barry and Leacy from working for Empire and Outback, 2) a forfeiture of Barry’s and Leacy’s compensation during the last months of their employment at Foodcomm, and 3) punitive damages. (R DSF Par. 70). Foodcomm does not specifically ask for compensatory damages in the amended complaint. (R DSF Par. 10). However, for each count in the amended complaint, Foodcomm requested that the court “award such further relief as [the] Court deems appropriate under the circumstances.” (A. Compl. Par. 57, 63, 71, 76, 81, 85). Compensatory damages would thus be included within the request for “further relief’ included in the amended complaint, and the trier of fact must determine the amount of such damages, if any.
To the extent that Defendants are contending that they were surprised by the allegedly untimely request for compensatory damages, Defendants have not shown that they were prejudiced by the request. Defendants admit that Foodcomm disclosed its intent to seek such damages in January of 2004 and Defendants did not subsequently file any motion with this court seeking additional discovery concerning compensatory damages. Two years later, in September 2006, after this case returned from an appeal, Defendants appeared before this court and still made no mention of any complaint on Foodcomm’s intent to seek compensatory damages. Instead, Defendants and Foodcomm1 agreed that the court proceed and rule based upon the summary judgment briefs that were previously filed with the court. Thus, based on the above, Defendants have failed to show that Foodcomm is barred from pursuing compensatory damages in the instant action merely because there is not a specific request for such damages in the amended complaint.
2. Whether the Request for Damages is Speculative and Incalculable
Defendants further argue that even if compensatory damages for lost profits are available to Foodcomm, this court should find as a matter of law that no compensatory damages for lost profits can be awarded because Foodcomm’s request for compensatory damages is speculative and cannot be calculated. Lost profits can be recovered when a party can prove the calculated amount “with sufficient certainty to avoid speculation or conjecture by the jury.”
Shepard, v. State Auto. Mut. Ins. Co.,
3. Expert Calculations
Defendants argue that Food-comm’s expert’s calculations regarding lost profits are speculative. Drawing all inferences in favor of Foodcomm, the non-movant on this issue, we conclude that Food-comm has presented sufficient evidence such that a reasonable jury could possibly, without speculation or conjecture, award Foodcomm lost profits as compensatory damages. It is up to the trier of fact to assess accuracy of the calculations of Foodcomm’s experts, and to determine how much damages, if any, should be awarded. Foodcomm should be allowed to present its evidence at trial concerning compensatory damages for lost profits and it is premature to conclude prior to trial that such evidence would be insufficient as a matter of law.
Defendants argue that in
Foodcomm
the Court determined as a matter of law that the lost profits resulting from Foodcomm’s separation from Empire cannot be calculated. Defendants point to the elements for a preliminary injunction that require a finding of irreparable harm and no adequate remedy at law. Defendants contend that the Court’s statements in
Foodcomm
in regard to those elements show that damages resulting from Foodcomm’s separation from Empire and lost profits cannot be calculated. However, the court in
Fo-odcomm
was solely reviewing the district court’s ruling granting Fopdcomm’s motion for a preliminary injunction.
The preliminary injunction order did not order Empire to retain its relationship with Foodcomm in order to preserve the status quo in that regard. The court was not presented with a determination of whether Foodcomm would suffer irreparable harm and lack a remedy at law if an injunction was not issued to order Empire to retain its relationship with Foodcomm. Thus, Defendants are incorrect when they assert that the Court in Foodcomm ruled as a matter of law that the lost profits that resulted from the separation between Fo-odcomm and Empire cannot be calculated. That issue was never before the Court. Based upon the above, Defendants have failed to show that Foodcomm is barred from recovering compensatory damages for lost profits.
We are not finding that Foodcomm is entitled to recover damages. We are merely ruling that Foodcomm is entitled to present its evidence concerning damages at trial. If at the close of Foodcomm’s case in chief Foodcomm has failed to present sufficient evidence concerning damages, Defendants are entitled to move for a judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a). Fed.R.Civ.P. 50,(a).
B. Partial Judgment on Issue of Damages
Foodcomm argues that it is entitled to summary judgment “as to damages reflecting the compensation paid to Barry and Leacy during their period of disloyalty.” (Mem. FSJ 12). Foodcomm contends that during the time it has determined that Leacy and Barry were disloyal to Foodcomm Leacy was paid $92,500 and Barry was paid $53,837. Foodcomm contends that it is entitled to a judgment as a matter of law as to such damages. However, as is indicated above, whether Leacy and Barry were in fact disloyal to Food-comm and whether Foodcomm is entitled to prevail on any of its claims is a matter yet to be determined by the trier of fact. Also, even if the trier of fact concluded that Leacy and Barry ■ were disloyal to Foodcomm, there are genuinely disputed facts concerning the precise period that Leacy and Barry were disloyal. Finally, Foodcomm has failed to point to sufficient evidence that shows that Leacy and Barry failed to offer Foodcomm any benefit at all during the alleged period of disloyalty. If Leacy and Barry offered some benefits to Foodcomm, then Foodcomm should not be entitled out of hand to recover their entire
V. Constructive Trust and Unjust Enrichment Claims (Counts TV and TV)
Empire and Outback move for summary judgment on the Constructive trust and unjust enrichment claims (Counts IV and VI). Under Illinois law, a constructive trust is an equitable remedy that may be imposed to redress unjust enrichment where there is either actual fraud or implied fraud resulting from a fiduciary relationship.
Steinberg v. Chicago Medical School,
Empire and Outback contend that they are entitled to summary judgment because “Outback never commenced business.” (Mem. DSJ 7-8). However, Empire and Outback note that “Michael Quinn (Empire’s controller) signed the lease [for Outback’s offices] and Empire paid the rent [for Outback’s offices].” (Reply DSJ 10 n. 9). Additionally, a shareholder agreement and stock option agreement for Barry and Leacy to become shareholders in Outback was created. (FSAF Par. 84). Further, a Certificate of Incorporation for “Outback Imports, Inc.” was filed with the New York Secretary of State on July 31, 2002. (FSAF Par. 85). In addition to the certificate of incorporation, on or about September 18, 2002, Foodcomm learned that Barry and Leacy were “trading for or from a New firm in Chicago called Outback Imports,” (FSAF Par. 104), and on October 2, 2002, Barry sent an email announcing that he had “launched a company ... in partnership with Chris Leacy ... based in Chicago ... called Outback Imports ... [that was] importing meats from Australia and trying to sell [the meats] nationally throughout the States.” (FSAF Par. 105). Although Empire and Outback contend that “Outback never commenced business,” (Mem. DSJ 7-8), and that Outback was merely a shell corporation, questions of fact remain as to whether there were any profits, and if so, whether such went directly to Outback or to the Outback Imports division of Empire.
Empire and Outback also argue that “Empire’s representatives ... had no knowledge that Barry and Leacy allegedly owed fiduciary duties to Foodcomm.” (Mem. DSJ 7-8). However, Empire and Outback have not pointed to sufficient facts to warrant summary judgment. Whether Empire was aware that Barry and Leacy owed fiduciary duties to Food-comm cannot be decided on summary judgment. First, Levine sought legal counsel from Empire’s attorney about whether Empire “would run into problems employing” Barry and Leacy. (FSAF Par. 19). Second, Levine gave Empire’s attorneys a copy of Leacy’s confidentiality agreement with Foodcomm. Third, Levine had a basic understanding that “[e]m-ployees are supposed to come in, do their job to the best of their ability, and repre
CONCLUSION
Based on the foregoing analysis, we deny Foodcomm’s partial motion for summary judgment and Defendants’ partial motion for summary judgment in their entirety.