Klein, Michael P. v. George G. Kerasotes ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2313
MICHAEL P. KLEIN,
Plaintiff-Appellant,
v.
GEORGE G. KERASOTES CORPORATION, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois
No. 05-3215—Jeanne E. Scott, Judge.
____________
ARGUED FEBRUARY 14, 2007—DECIDED SEPTEMBER 14, 2007
____________
Before MANION, WOOD, and EVANS, Circuit Judges.
WOOD, Circuit Judge. This case involves a dispute that
arose when Michael P. Kerasotes was forced to sell his
shares in a closely held family corporation, the George P.
Kerasotes Corporation (“the Corporation”), back to the
Corporation. Kerasotes, now replaced on appeal by his
Chapter Seven bankruptcy trustee, Michael P. Klein, is
trying to raise a number of claims in connection with
that transaction, including that the sale was compelled,
the valuation of the stock was misrepresented, and the
price the Corporation paid for his stock was improperly
discounted. The only question before this court is whether
the Illinois Securities Law of 1953, 815 ILCS 5/1 et seq.,
2 No. 06-2313
applies to claims made by a seller of stock such as
Kerasotes. Although we appreciate the policy arguments
Klein has advanced in support of a negative answer, we
conclude that the plain language of the statute encom-
passes both purchasers and sellers of stock. That means
that Klein’s claims against both the Corporation and
its directors are barred by the statute of repose found in
the Illinois law. Accordingly, we affirm the district court’s
grant of summary judgment.
I
According to Klein, until the Corporation offered to
buy out Kerasotes’s 1900 shares in April of 1995, he was
unaware that he owned any stock in it. Thus, it was to his
surprise that he received a letter from the Corporation
informing him that he had stock, that the Corporation
wanted to buy it back, and that it had valued the stock
at $140 per share, for a total payout of $266,000. The
Corporation as a whole valued itself at $7,850,000. Al-
though that number meant that the per share value of its
approximately 25,350 outstanding shares was $309.65, it
discounted Kerasotes’s shares 10% because they were non-
voting shares. It then discounted the resulting figure by
another 50% for non-marketability to arrive at the final
price. Kerasotes swore that he had no choice but to take
the Corporation’s offer: “I was not allowed to negotiate
any of these terms and was told that if I did not agree to
them, I would receive nothing.” (Presumably he would
have retained the shares, but the record does not reveal
what would have happened if he had refused.) He ulti-
mately signed a Stock Redemption Agreement on May 23,
1995.
Some time after the sale, Kerasotes began to suspect
that he had not received the full value of his shares. On
February 9, 1999, as he was in the process of negotiating
No. 06-2313 3
a Transfer Agreement with the Corporation to transfer
the assets that the Corporation owed him into a trust
fund, Attorney Thomas Lamont sent a letter on Kera-
sotes’s behalf asking about the propriety of the earlier
Stock Redemption and demanding that the prior Agree-
ment be renegotiated. The Corporation refused the renego-
tiation demand, but it agreed to make a lump sum pay-
ment into a trust of the remaining amounts.
In 1999, the defendants again told Kerasotes that the
Corporation was worth $7,850,000. That representation
was materially false. In fact, its value was in excess of
$49 million as of 1998 (more than 600% higher than the
value used for Kerasotes), and there is no evidence that it
had slipped in the interim. Kerasotes did not learn about
the true value of the company until September 24, 2003,
when he received this information through discovery in a
probate action.
On August 3, 2005, Kerasotes filed this diversity suit
in federal court against Flora B. Kerasotes, Marjorie M.
Kerasotes, Harvey B. Stephens, and Marshall N. Selkirk,
each a director and trustee of the Corporation, and against
the Corporation itself. (Two of these defendants share
the same surname as the plaintiff ’s; when we refer simply
to “Kerasotes,” we mean Michael Kerasotes.) He asserted
that all had breached their fiduciary duties to him and
were liable for punitive damages; he also asserted common
law fraud against the individual defendants. Finding
that all theories of recovery fell within the Illinois Securi-
ties Law and that the five-year statute of repose contained
in 815 ILCS 5/13(D) had run, the district court granted
partial summary judgment against Kerasotes for all
claims he had brought against the individual defendants
and the Corporation. Kerasotes’s complaint also raised
claims against Attorney Lamont, which remain in the
district court and, we were told, are stayed pending the
resolution of this appeal. Because the district court
4 No. 06-2313
expressly found, pursuant to FED. R. CIV. P. 54(b), that
there was no just reason for delay in entering a final
judgment with respect to the individual defendants and
the Corporation, Klein (by this time acting as Trustee) was
entitled to appeal that decision immediately.
II
Our review, of course, is de novo, Atterberry v. Sherman,
453 F.3d 823, 825 (7th Cir. 2006), and we have drawn all
reasonable inferences in the light most favorable to
Kerasotes, the non-moving party. The district court
found that the defendants were entitled to summary
judgment because it concluded that Kerasotes’s claims
were subject to the statutes of limitation and repose
contained in the Illinois Securities Law, 815 ILCS 5/13(D).
The three-year statute of limitations contained in § 13(D)
of the Securities Law does not begin to run until “the party
bringing the action has actual knowledge of the alleged
violation of the Act.” In addition to this rule, however,
there is an additional two-year cap, meaning that the
total period of repose expires five years after the viola-
tion, no matter when it was discovered. See 815 ILCS
5/13(D)(2).
The principal question on appeal is whether § 13(D) of
the Securities Law applies to Kerasotes’s claims. According
to its terms, the Securities Law applies to all “action[s] . . .
for relief under [the Securities Law] or upon or because
of any of the matters for which relief is granted by [the
Securities Law] . . . .” 815 ILCS 5/13(D). Kerasotes did not
expressly invoke the Securities Law in his complaint;
instead, he chose to allege common law claims of fraud,
breach of fiduciary duty, and punitive damages. This is
of little importance, however. As a procedural matter it
is well established that plaintiffs in federal court have
no duty to allege legal theories. See, e.g., McDonald v.
Household Int’l, Inc., 425 F.3d 424, 427-28 (7th Cir.
No. 06-2313 5
2005). If the complaint states a claim cognizable under
the Securities Law, then recovery under that statute
would be possible. In a diversity case like this one, the
federal court must apply the applicable state statute of
limitations. Walker v. Armco Steel Corp., 446 U.S. 740,
751-52 (1980). Under Illinois law, which all agree governs
here, claims that do not directly invoke the Securities
Law may still fall within its statute of limitations. See
Tregenza v. Lehman Brothers, Inc., 678 N.E.2d 14, 15 (Ill.
App. 1997). For example, in Tregenza, the Appellate
Court of Illinois held that common law causes of action
for breach of fiduciary duty, fraud, and negligent mis-
representation, when brought by a stock purchaser, fall
within the statute of limitations provided by the Securities
Law because “[they] are reliant ‘upon . . . matters for
which relief is granted’ by the securities law.” Id. Whether
Kerasotes’s claim amounts to an “action for relief under
[the Securities Law] or upon or because of any of the
matters for which relief is granted by [the Securities Law]”
depends on what acts are encompassed within the Securi-
ties Law.
The Illinois Securities Law of 1953 is Illinois’s version of
the “blue sky” laws that exist in most states. “Blue sky”
laws got their name from the case of Hall v. Geiger-Jones
Co., 242 U.S. 539 (1916), in which the Supreme Court
lauded the passage of state securities laws to curb “ ‘specu-
lative schemes which have no more basis than so many
feet of blue sky;’ or, as stated by counsel in another case,
‘to stop the sale of stock in fly-by-night concerns, visionary
oil wells, distant gold mines, and other like fraudulent
exploitations.’ ” Id. at 550. The Illinois Securities Law
was motivated by the same concern. In the words of the
Appellate Court of Illinois, “[t]he objective of the [Securi-
ties] Act is to protect innocent persons who may be in-
duced to invest their money in speculative enterprises
6 No. 06-2313
over which they have little control . . . .” People v. Bartlett,
690 N.E.2d 154, 156 (Ill. App. 1998).
Section 12 of the Securities Law includes two anti-fraud
provisions that made it a violation of the law for “any
person” to “engage in any transaction, practice or course of
business in connection with the sale or purchase of securi-
ties which works or tends to work a fraud or deceit upon
the purchaser or seller thereof,” 815 ILCS 5/12(F), or to
“employ any device, scheme or artifice to defraud in
connection with the sale or purchase of any security,
directly or indirectly,” 815 ILCS 5/12(I). According to the
definitions section of the statute, “ ‘[s]ale’ or ‘sell’ shall
have the full meaning of that term as applied by or
accepted in the courts of this State, and shall include
every contract of sale or disposition of a security or
interest in a security for value.” 815 ILCS 5/2.5.
The law also contains multiple remedial provisions.
Section 13(A) provides a rescissionary remedy making
“every sale of a security made in violation of the provisions
of this Act . . . voidable at the election of the purchaser.”
815 ILCS 5/13(A). Section 13(G) provides an injunctive
remedy as follows:
Whenever any person has engaged or is about to
engage in any act or practice constituting a violation of
this Act, any party in interest may bring an action . . .
to enjoin that person from continuing or doing any
act in violation of or to enforce compliance with this
Act. Upon a proper showing, the court shall grant a
permanent or preliminary injunction or temporary
restraining order or rescission of any sales or pur-
chases of securities determined to be unlawful under
this Act . . . .
815 ILCS 5/13(G)(1).
Kerasotes’s argument rests on the premise that a stock
seller has no remedies under the Illinois Securities Law.
No. 06-2313 7
This is true under many state blue sky laws, including
the Uniform Securities Act of 1956, which has been
adopted by thirty-four states. The Uniform Securities Act
makes only sellers—and not purchasers of securities—
liable for fraud, as its language demonstrates: “Any per-
son who . . . (2) offers or sells a security by means of any
untrue statement of a material fact . . . [is] liable to the
person buying the security from him . . . .” Unif. Securities
Act § 410(a). Section 13(A) of the Illinois Securities Law is
similar to the Uniform Securities Act to the extent that
it makes the rescissionary remedy in § 13(A) available
only “at the election of the purchaser.” (Emphasis added.)
As the Appellate Court of Illinois noted in Space v. E.F.
Hutton, “It is evident by the very wording of section 13(A)
that the remedies under the Illinois Blue Sky law are
available only to purchasers of securities.” 544 N.E.2d
67, 70 (Ill. App. 1989).
The district court was aware of the limitations of § 13(A),
but it concluded that there was more than that to the
statute. In finding that Kerasotes’s claim was time-barred,
it looked instead to § 13(G), which says that “any party
in interest” may seek “rescission of any sales or purchases
of securities determined to be unlawful under this Act.”
Relying at this point on the district court’s decision in Guy
v. Duff & Phelps, Inc., 628 F.Supp. 252 (N.D. Ill. 1985),
Kerasotes argues that notwithstanding this language,
this section does not provide a remedy for purchasers.
There were a number of reasons why the plaintiff ’s suit
was unsuccessful in Guy, and there is no reason why a
district judge in the Central District of Illinois should
have been bound by the reading of the statute suggested by
one of her colleagues in the Northern District. That said,
the Guy opinion raised several points that we think should
be addressed. It thought that recognizing a remedy for
sellers under the Securities Law would be tantamount to
“granting a new private retrospective remedy to sellers”
8 No. 06-2313
that was not part of the statute. Id. at 263. Such a remedy,
it believed, would create an anomaly: If sellers have a
remedy under § 13(G), they would have the same rights as
purchasers without having to comply with the procedural
notice and tender requirements contained in §§ 13(A)
and (B) (with which a seller could not possibly comply,
since by definition after the sale it would no longer possess
the securities). This was a change, the court concluded,
that the Illinois legislature was unlikely to have made in
such a cryptic way to this “meticulously worded statute.”
Id. at 264.
These observations have some force, but we think
that they are trumped by two contrary factors that sup-
port the application of the Securities Law to the claims
at issue here. First and foremost, the language of the
statute makes it difficult to see how sellers of stock have
no remedy under § 13(G). General policies cannot override
the explicit language of a statute. Here, the express
language of the relevant provisions of §§ 12 and 13 supply
no justification for excluding stock sellers. Section 12 not
only applies to “any person” but it also specifically prohib-
its activities in connection with “the sale or purchase” of
securities. 815 ILCS 5/12(F) & 12(I). Similarly, § 13 targets
the actions of “any person” and allows “any party in
interest” to bring an action. To decide that sellers are
not included under the Securities Law would require the
court to disregard this plain language. Cf. Grimhaus v.
Comerica Securities, Inc., 2003 WL 21504185, *2 (N.D. Ill.
2003) (“The [Securities Law] allows any ‘party in interest,’
not just purchasers of securities, to bring a civil action to
enjoin a violation of the Act. While section 5/13(G)(1)
provides solely for prospective relief, it would allow some
relief to the plaintiffs.”) (emphasis in original; citation
omitted).
Second, finding that stock sellers have a remedy under
§ 13(G) does not give them an undeserved break. The
No. 06-2313 9
greater problem would lie in a finding that they had no
remedy. With respect to stock purchasers who seek a
remedy under § 13(G), stock sellers have identical obliga-
tions. Moreover, a finding that the Securities Law affords
no remedy would not bar sellers from bringing common
law claims. If the Law indeed excluded them altogether,
they presumably would be able to raise common law
claims without having to meet any of the Securities
Law’s limits, like the statutes of limitation and repose.
We see no indication that this is what the Illinois legisla-
ture was trying to do.
The rationale supporting a relatively short statute of
limitations for stock purchasers applies equally to stock
sellers. In Tregenza v. Great American Communications
Co., 12 F.3d 717 (7th Cir. 1993), this court addressed the
reason why the one-year statute of limitations and the
three-year statute of repose that apply to claims under
the federal securities laws is triggered by inquiry notice:
Three years is an age in the stock market. If the
suspicious investor had a wide choice of times at
which to sue within a three-year period rather than
being required to sue no more than one year after
the earliest possible date, the opportunistic use of
federal securities law to protect investors against
market risk would be magnified. These plaintiffs
waited patiently to sue. If the stock rebounded from
the cellar they would have investment profits, and if
it stayed in the cellar they would have legal damages.
Heads I win, tails you lose.
Id. at 722. Relying directly on this language, the Illinois
Appellate Court concluded that common law actions
premised upon matters for which the Securities Law
grants relief fall within its statue of limitations. See
Tregenza, 678 N.E.2d at 15.
10 No. 06-2313
We have noted before that “[i]f the investor can wait
before selecting the relief he wants, he can shift all of the
ordinary investment risk to the defendant. If things turn
out well, the investor will keep the gains and still demand
as damages the difference between the prices of the stock
and its market value on the day of the transaction; if
things turn out poorly the investor will demand rescis-
sion.” Jordan v. Duff & Phelps, Inc., 815 F.2d 429, 440
(7th Cir. 1987). This reality is no less true for sellers, who
have precisely the same reasons for wanting wide latitude
in choosing when to file their actions—the desire to
transfer risk to the purchaser. This rationale supports a
reading of the statute under which the same statute
of limitations applies to both parties in a securities
transaction.
Finally, Kerasotes’s argument that we should toll the
five-year period of repose because the fraud was ongoing
is unavailing. A period of repose cannot be further
tolled under Illinois law; a repose statute “terminate[s]
the possibility of liability after a defined period of time,
regardless of a potential plaintiff’s lack of knowledge.”
Cunningham v. Huffman, 609 N.E.2d 321, 325 (Ill. 1993).
Because a “statute of repose is triggered by the ‘act or
omission or occurrence’ causing an injury, rather than by
the . . . discovery of the injury,” id., the time that
Kerasotes had for filing his suit began to run from the
day when he sold his stock. For this purpose, it is note-
worthy that he was aware by at least February 9, 1999,
that the defendants had potentially committed fraud.
Had he promptly filed his lawsuit then, he would have
been within the five-year period of repose even though
his discovery took place after the initial three-year stat-
ute had run. He did not, however. We conclude that the
district court correctly ruled that Illinois law now bars
his suit against these defendants.
We therefore AFFIRM the judgment of the district court.
No. 06-2313 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-14-07