Gerhard Von der Ruhr v. T. Thompson ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-1496, 08-1956 and 08-1971
G ERHARD V ON DER R UHR,
M ARC V ON DER R UHR, individuals,
and SEPTECH, INC., a Nevada Corporation,
Plaintiffs-Appellants,
Cross-Appellees,
v.
IMMTECH INTERNATIONAL, INC.,
Defendant-Appellee,
and
T. S TEPHEN T HOMPSON, G ARY C. P ARKS, et al.,
Defendants-Appellees,
Cross-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 5335—Robert W. Gettleman, Judge.
A RGUED JANUARY 16, 2009—D ECIDED JUNE 30, 2009
2 Nos. 08-1496, 08-1956 and 08-1971
Before B AUER, F LAUM and W OOD , Circuit Judges.
B AUER, Circuit Judge. Septech, Inc. sued Immtech, Inc.
for breach of a licensing contract between the two compa-
nies. Septech’s president, Gerhard Von der Ruhr, sued
Immtech for breaching an option contract that he held to
purchase Immtech stock. Von der Ruhr also sued three
Immtech officers, T. Stephen Thompson, Gary C. Parks,
and Rick L. Sorkin, for tortiously interfering with the
option contract. In ruling on two motions in limine, after
briefing and an evidentiary hearing, the district court
prohibited Von der Ruhr from presenting lay opinion
testimony about his expectation of Septech’s profits from
the licensing agreement and disallowed Septech’s lost
profits theory altogether because it lacked sufficient
evidentiary support.
As to the stock options, the district court reserved
judgment on defendants’ motion for judgment as a
matter of law; the jury found that Immtech breached
the option contract with Von der Ruhr and that the indi-
vidual officers tortiously interfered with the contract. The
district court denied the defendants’ renewed motion for
judgment as a matter of law. Septech now appeals the
district court’s ruling on the motions in limine and the
Immtech officers appeal the denial of their motion or
renewed motion for judgment as a matter of law. Finding
no error, we affirm.
Nos. 08-1496, 08-1956 and 08-1971 3
I. BACKGROUND
A. The Sepsis Licensing Agreement
Gerhard Von der Ruhr founded several medical technol-
ogy companies, including Immtech and Septech. Immtech
developed and patented a pharmaceutical product called
mCRP, a modified human protein, which Immtech
hoped could treat the disease sepsis. Septech claims that
through an assignment of rights from another of Von der
Ruhr’s companies, it received from Immtech an exclu-
sive worldwide license for the mCRP patent, as well as
the right to purchase mCRP from Immtech, and the
right to the services of Dr. Potempa, Immtech’s Chief
Scientific Officer and the person who discovered the
mCRP technology. Septech claims that after Von der Ruhr
resigned from Immtech, Septech attempted to utilize
the licensing agreement to purchase mCRP from
Immtech in order to run clinical trials and that Immtech
did not honor the agreement. Septech believes that if the
agreement had not been breached, Septech would have
further developed and realized great profits from this
new drug. Whether Septech held rights to the original
licensing agreement and whether Immtech breached
that agreement are both disputed by the parties, but are
not at issue here. Rather, this appeal focuses on whether
Septech can prove lost profits damages if there was a
breach.
Through Von der Ruhr’s lay opinion testimony, Septech
intended to establish that if Immtech had fulfilled its
obligations, Septech would have entered into an agree-
ment with a corporate partner, an undetermined major
4 Nos. 08-1496, 08-1956 and 08-1971
pharmaceutical company, that would have been responsi-
ble for the details and costs of conducting the necessary
clinical trials and walking the product through the FDA
clearance process. Von der Ruhr was to testify that under
the terms of the agreement that would have been negoti-
ated, the corporate partner would be responsible for all
elements and costs of manufacturing and marketing the
drug and Septech would receive five percent of the
drug’s total sales. Von der Ruhr was to testify that, upon
being introduced to the market, this new drug would
have immediately captured, and for the next ten years
would have maintained, at least half of the gross revenue
of the only other drug to treat sepsis on the market at
the time, an Eli Lilly product called Xigris. Finally,
Septech intended for Von der Ruhr to testify that
Septech’s lost profits damages, discounted to their present
value, totaled $42 million.
The district court did not allow this testimony and
also precluded Septech’s lost profits theory.
B. Von der Ruhr’s Stock Options
Von der Ruhr held several options to purchase Immtech
stock, one of which was an option for 56,000 shares at
$.15 per share issued May 1, 1991 and to be exercised by
May 1, 2001. After a series of stock splits and reverse
stock splits, Immtech informed Von der Ruhr, and
Immtech documents indicate, that the option was for
24,390 shares at $.34 per share. The option could be exer-
cised in whole or in part.
Nos. 08-1496, 08-1956 and 08-1971 5
Von der Ruhr attempted to exercise the option in
April 2001. Together with a check, he sent a letter stating,
“Enclosed please find a check for $8292.60 to exercise
24390 options.” This comes out to $.34 per share. Upon
receiving the request, Parks, Immtech’s CFO, prepared a
letter to Immtech’s transfer agent instructing that the
stock be issued. However, that letter was never sent.
Instead it was marked, “Hold per TST [Thompson] &
Sorkin.” The officers claim that when they received Von
der Ruhr’s letter they consulted with Immtech’s attor-
neys because Von der Ruhr had filed a separate
lawsuit against Immtech a few days before they received
the redemption request, regarding a different set of
shares that Von der Ruhr claimed he had not received.
Parks informed Thompson and Sorkin that the correct
price was not $.34 per share, but $.3409594 per share for
a total of $8,316 and reported that Von der Ruhr’s check
was “technically . . . $23.40 short.” Toward the end of
June, Parks sent Von der Ruhr a letter, which Parks
claims was drafted by legal counsel, stating that Von der
Ruhr’s request “fails to identify exactly which options
you are intending to exercise” and asking him to clarify.
Parks admitted at trial that he knew which options Von
der Ruhr was trying to exercise. Parks’ letter continued
that if Von der Ruhr was intending to exercise the May 1,
1991 option, that the purchase price was $8,399.72.1 Parks
1
On appeal, the officers claim that the correct exercise price
was $8,400, the original amount needed to exercise the 56,000
(continued...)
6 Nos. 08-1496, 08-1956 and 08-1971
returned Von der Ruhr’s check and the shares were
never delivered. Von der Ruhr never responded to the
request for clarification or sent another check, but that
fact is, at this point, not important. The jury found that
Immtech breached the option contract by not issuing
the stock and no one appeals that issue. For the purposes
of this appeal then, Von der Ruhr did everything neces-
sary to exercise the option and was entitled to receive
the shares.
The district court did not disturb the jury’s verdict that
this constituted a breach of the option contract and that
the Immtech officers tortiously interfered with that con-
tract.
II. DISCUSSION
On appeal, Septech argues that the district court erred
by prohibiting Von der Ruhr’s lay opinion testimony and
Septech’s lost profits theory. Immtech responds that it
was proper to prohibit the testimony and theory because
they lacked foundation. The Immtech officers cross-appeal,
claiming that the district court erred by denying
their motions for judgment as a matter of law, allowing
them to be personally liable for the tortious interference
claim. Von der Ruhr argues that he presented sufficient
evidence to support the jury’s verdict.
1
(...continued)
shares, because the stock splits were all proportional adjust-
ments that did not affect the substantive terms of the option.
Nos. 08-1496, 08-1956 and 08-1971 7
“We review [the] district court’s rulings on [the] motions
in limine for an abuse of discretion” because “decisions
regarding the admission and exclusion of evidence are
peculiarly within the competence of the district court.” Heft
v. Moore, 351 F.3d 278, 283-84 (7th Cir. 2003) (internal
quotations and citations omitted).2 We review the
district court’s denial of the officers’ motions for judg-
ment as a matter of law de novo. Castellano v. Wal-Mart
Stores, Inc., 373 F.3d 817, 819 (7th Cir. 2004). Illinois
law governs the substantive legal issues in this diversity
action.
A. Lay Opinion Testimony
Septech attempts a difficult task in this case: (1) to prove
lost profits damages (2) in a complex market (3) from a
product that has never been sold (4) without any expert
testimony. And on appeal it is burdened with the addi-
tional weight of (5) proving that the district court’s deci-
sion on this issue was an abuse of discretion. Septech
argues that the district court improperly precluded Von
der Ruhr’s lay opinion testimony, which would have
provided proof on several elements of its lost profits
2
Septech argues that the district court improperly evaluated
Von der Ruhr’s proposed opinion by the standards for expert
testimony and that we must evaluate this issue de novo. We
see no evidence that the district court confused the two stan-
dards. The court’s reasoning demonstrates that it was
keenly aware of the distinction between the requirements for
lay versus expert opinion testimony.
8 Nos. 08-1496, 08-1956 and 08-1971
theory. Immtech responds that the district court was
correct to prohibit the lay opinion testimony because it
was not grounded in personal knowledge or experience.
Federal Rule of Evidence 701 dictates that lay
testimony in the form of opinions or inferences [be]
limited to those opinions or inferences which are
(a) rationally based on the perception of the witness,
(b) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue,
and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.
The last requirement is intended “to eliminate the risk
that the reliability requirements set forth in Rule 702 will
be evaded through the simple expedient of proffering an
expert in lay witness clothing.” Fed. R. Evid. 701 advisory
comm. nn.
In the realm of lost profits, lay opinion testimony is
allowed in limited circumstances where the witness
bases his opinion on particularized knowledge he pos-
sesses due to his position within the company. Id. For
example, the owner of an established business with a
documented history of profits may testify to his expecta-
tion of continued or expanded profits when that opin-
ion is based on his “knowledge and participation in the
day-to-day affairs of [his] business.” Id. (quoting Lightning
Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d Cir. 1993)). This is
allowed “only because that testimony is tied to [the wit-
ness’] personal knowledge . . . .” Compania Administradora
de Recuperacion de Activos Administradora de Fondos
Nos. 08-1496, 08-1956 and 08-1971 9
de Inversion Sociedad Anonima v. Titan Int’l, Inc., 533 F.3d
555, 560 (7th Cir. 2008).
Von der Ruhr’s proposed testimony does not fit these
parameters. Rather, he intended to testify to his expecta-
tion of millions of dollars in profits from a brand new drug,
which had not been approved by the FDA, which still
needed a corporate partner, and for which no competitive
market analysis had been conducted. It is difficult to
imagine how anyone in this situation could possess the
necessary personal knowledge to give a useful lay
opinion based on his perception and it is clear that Von
der Ruhr did not have such knowledge.
Von der Ruhr had no personal experience with ob-
taining a corporate licensing agreement for a pharma-
ceutical or treatment of any kind, had never brought a
pharmaceutical to market, and had never made a profit
from a pharmaceutical. Septech has utilized licensing
agreements to commercialize two diagnostic tests, one to
measure blood sugar and the other to test for residual
alcohol. Because Von der Ruhr’s position with Septech
gives him a particularized knowledge about how Septech
utilizes licensing agreements, he might have been permit-
ted to explain how a licensing model is designed to work
once a corporate partner is found. But Septech needed
evidence that a corporate partner would have been
found; the success of Septech’s diagnostic tools did not
give Von der Ruhr any insight into whether a major
pharmaceutical company would have entered into a
licensing agreement with Septech for this new sepsis drug.
When asked about his basis for believing that a major
pharmaceutical company would have wanted to take
10 Nos. 08-1496, 08-1956 and 08-1971
this new drug through the FDA clearance process, Von der
Ruhr replied that the drug was safe, effective, and had
a proven market. It is disputed as to whether the drug
was known to be safe and effective, but even if it was, that
did not give Von der Ruhr any personal experience with
finding a corporate partner for a new pharmaceutical that
had not been approved by the FDA. It may have been
possible to find such a partner, but Von der Ruhr cannot
testify to that out of his personal knowledge. Von der Ruhr
was confident that: “You can talk to anybody in the
pharmaceutical industry. They love to take technology
that has advanced to that point, absolutely.” Talking
with someone from the pharmaceutical industry who
was knowledgeable about this topic would have been
useful, but was not offered. Instead, the district court
was required to decide whether it should allow
Von der Ruhr to tell the jury how he believed the pharma-
ceutical industry would have responded to the oppor-
tunity to spearhead Septech’s new product.
Von der Ruhr also claimed to have “talked to a number
of investment bankers who have very good contacts to
the pharmaceutical industry who have always em-
phasized ‘bring me a product that we can take to clinical
trials, and we’ll establish a relationship.’ ” He claimed to
have talked with one prominent financial figure who is
well known in the pharmaceutical industry who told him
“that if you have a product that has shown safety and
efficacy, there will be enough corporate, potential corpo-
rate partners who would love to partner with you . . . .”
Again, this does not demonstrate personal knowledge of
the pharmaceutical industry or how it would have re-
Nos. 08-1496, 08-1956 and 08-1971 11
sponded to an offer to form a licensing agreement with
Septech to bring this new drug to market. Nor was Von
der Ruhr qualified to testify to how investment bankers
would have responded to the prospect of this new pharma-
ceutical—especially when Von der Ruhr never claimed
to have had any conversations about this product.
Again, Von der Ruhr did not have any particularized
knowledge of the market for a sepsis treatment or the
competition in that market. Septech claims that:
Septech already commercialized to [sic] tests and have
[sic] realized profits—through a licensing agreement.
Again, this is Mr. Von der Ruhr’s special, particular-
ized and intimate knowledge of his company
licensing products to corporate partners for a profit.
Therefore, it is undeniable that Mr. Von der Ruhr
had personal and relevant knowledge regarding
the sepsis market and his competition, understood the
viability of the sepsis technology and had well-
founded expectations about the potential profits it
could generate.
We see no connection between Septech’s successful
development of two diagnostic tests and Von der Ruhr’s
personal knowledge of a completely independent market.
Furthermore, to support this claim of Von der Ruhr’s
personal knowledge of the sepsis market, Septech cites
only to a series of materials that Von der Ruhr read. While
experts are allowed to give testimony based outside of
their personal experience or observation, lay witnesses
are not. In Lightning Lube, 4 F.3d at 1175, the business
owner was permitted to rely in part on a report he
12 Nos. 08-1496, 08-1956 and 08-1971
created with the assistance of an accountant in deter-
mining his damages calculation. But his testimony was
also based on his “knowledge and participation in the day-
to-day affairs of his business,” which had actually realized
profits. Id. at 1174-75. The Third Circuit affirmed the
district court’s conclusion that “in preparing a damages
report the author may incorporate documents that were
prepared by others, while still possessing the requisite
personal knowledge or foundation to render his lay
opinion admissible under Fed. R. Evid. 701.” Id. at 1175(quoting 802 F. Supp. 1180, 1193 (D.N.J. 1992)).
In this case, Von der Ruhr had no first hand knowledge
of the sepsis market and would have relied entirely on
information he had been told or had read. “This is the kind
of testimony traditionally provided by an expert: ‘[I]t could
have been offered by any individual with specialized
knowledge of the [sepsis] market.’ ” Compania, 533 F.3d
at 560 (quoting United States v. Conn, 297 F.3d 548, 555
(7th Cir. 2002)). Von der Ruhr did not have any personal
knowledge or experience to contribute.
Von der Ruhr also lacked sufficient personal knowledge
to testify that Septech’s new drug would have captured
fifty percent of the gross revenues of Xigris and maintained
that market share for the ten-year life of the patent. The
level of speculation this testimony requires is demon-
strated by the fact that Von der Ruhr’s damages calcula-
tion projects capturing fifty percent of the gross sales of
Xigris with no regard to the percentage of prescribed
sepsis treatment doses Septech’s drug would capture. Von
der Ruhr believed that one dose of Xigris cost the patient
Nos. 08-1496, 08-1956 and 08-1971 13
more than $10,000, but did not care what a dose of
Septech’s drug would have cost. The following
exchange took place at the evidentiary hearing:
Q. Do you have any personal knowledge of what it
would cost a patient for a single dosage of mCRP?
A. That would have been a question for the corporate
partner. They set the price.
Q. So you don’t know?
A. Well, that is immaterial. The corporate partner
would set the retail price. We wouldn’t. We
would get a 5 percent royalty fee.
It is difficult to understand how Von der Ruhr was quali-
fied to opine that Septech’s corporate partner would
have sold at least $100 million worth (half of Xigris’ sales)
of this new drug each year without knowing or even
caring how many doses would have been administered
and at what cost per dose.
When asked for the basis of his fifty percent figure, Von
der Ruhr gave a concise, but unsatisfying answer: “Two
reasons, number one, the market has incredible potential.
Eli Lily [sic] has just scratched the surface. And, number
two, I believe that mCRP is a better product.” Von der
Ruhr never claimed to have conducted a real market
analysis for Septech’s new drug. The basis for his belief
that Septech had developed a better product than Xigris
is unclear, especially when Von der Ruhr admitted that
he did not know the patient requirements for prescribing
Xigris, the contraindicatations for prescribing Xigris, or
the side effects of Xigris (though he did remember
14 Nos. 08-1496, 08-1956 and 08-1971
reading an article in the New England Journal of
Medicine about side effects). Neither did Von der Ruhr
explain how doctors or consumers would have immedi-
ately recognized that Septech’s product was better than
Xigris. But most importantly, even if Von der Ruhr could
have further defended his beliefs, it would not have
been through his personal knowledge or perception.
Instead of qualifying experts or conducting a true
market analysis, Septech offered Von der Ruhr’s testimony
for the proposition that if there is a $200 million per year
market that is shared by two companies and one
company has a “better product,” that company will
generate at least $100 million per year.3
Finally, Von der Ruhr demonstrated at the evidentiary
hearing that he had no knowledge, personal or specialized,
as to what other potential sepsis treatments were in the
developmental pipeline, or how their introduction
might affect the sepsis treatment market. Neither did
his analysis consider how Eli Lilly might have responded
to the introduction of Septech’s drug.
None of the cases Septech cites to in its brief help its
cause. In Compania, 533 F.3d at 560-61, the lay witness
was not permitted to present a valuation estimate even
though he had extensive experience in the industry
3
We do not suggest, nor did the district court find, that
experts are required to prove lost profits damages, see TAS
Distributing Co. v. Cummins Engine Co., 491 F.3d 625, 634 (7th Cir.
2007); we merely observe that Von der Ruhr was not the
appropriate agent to introduce this evidence.
Nos. 08-1496, 08-1956 and 08-1971 15
because the proposed testimony was not based on his
relationship with the particular goods in question. The
business owner in Lightening Lube, 4 F.3d at 1174-75, had
realized actual profits from that business in the relevant
industry, giving him a basis for his expectation of contin-
ued and expanded profits. In Tampa Bay Shipbuilding &
Repair Co. v. Cedar Shipping Co., 320 F.3d 1213, 1216-23
(11th Cir. 2003), the lay witnesses were involved in the
details of repairing the ship in dispute and based their
testimony on “particularized knowledge garnered from
years of experience within the field.” In In re LTV Steel Co.,
285 B.R. 259, 264 (Bankr. N.D. Ohio 2002), it was undis-
puted that the proposed testimony was “rationally based
on the perception of the witness” according to Rule 701.
Finally, the rule in R.I. Spiece Sales Co. v. Bank One, N.A.,
No. 1:03-CV-175-TS, 2005 WL 3005484 (N.D. Ind. Nov. 9,
2005), goes against permitting Von der Ruhr’s testimony.
In that case, the court stated that a lay witness with
“special knowledge of the business and its operations
may also testify as to the facts of the business that
underlie profit expectations” but “may not make infer-
ences from the data . . . .” Id. at *1. The court allowed a
business owner to calculate his lost profits based on
“actual past performance.” Id. at *2. Furthermore, Lighting
Lube and Tampa Bay presented an opposite procedural
position from this case because the appellate courts were
reviewing the district courts’ decisions to allow the testi-
mony for an abuse of discretion. Here we review the
district court’s decision to preclude the testimony for an
abuse of discretion.
We find no such abuse.
16 Nos. 08-1496, 08-1956 and 08-1971
B. Lost Profits Damages
After Von der Ruhr’s lay opinion testimony is rejected
as improper, Septech has no one to testify, among other
things, that it would have obtained a corporate partner,
what the terms of the corporate licensing agreement
would have been, or how much of the market this new
drug would have captured and maintained. Therefore, it
cannot prove its entitlement to lost profits damages.
Septech admits as much, explaining that “the court ex-
cluded the testimony of Mr. Von Ruhr [sic] and consequen-
tially the lost profit calculation of Septech, Inc.” Because
Septech’s lost profits theory depended on Von der Ruhr’s
testimony, we need not discuss Illinois’ new business
rule, TAS Distributing, 491 F.3d at 633-34, or the require-
ment that a plaintiff establish lost profits with “rea-
sonable certainty,” id. at 631, either of which would
have likely precluded Septech’s lost profits theory.
C. Tortious Interference with Contract
Thompson, Parks, and Sorkin argue that there was
insufficient evidence for the jury to find against them
personally and that the district court should have
granted their motion or renewed motion for judgment as
a matter of law. Von der Ruhr argues that the jury heard
sufficient evidence to justify its verdict. We review a
denial of a motion for judgment as a matter of law de novo,
“examining the record as a whole to determine whether
the evidence presented, combined with all reasonable
inferences permissibly drawn therefrom, was sufficient
to support the jury’s verdict.” Walker v. Bd. of Regents of
Nos. 08-1496, 08-1956 and 08-1971 17
the Univ. of Wis. System, 410 F.3d 387, 393 (7th Cir. 2005)
(quoting Millbrook v. IBP, Inc., 280 F.3d 1169, 1173 (7th Cir.
2002)). In making this determination, we are mindful of
the fact that “[c]redibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge.”
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
150-51 (2000) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986)). Therefore, we “must disregard all
evidence favorable to the [officers] that the jury [was] not
required to believe.” Reeves, 530 U.S. at 151. The jury’s
verdict must stand unless the officers “can show that ‘no
rational jury could have brought in a verdict against
[them].’ ” Woodward v. Correctional Medical Services of
Ill., Inc., 368 F.3d 917, 926 (7th Cir. 2004) (quoting E.E.O.C.
v. G-K-G, Inc., 39 F.3d 740, 745 (7th Cir. 1994)).
There is no dispute that the option contract was
breached. Neither are the elements of tortious interference
at issue. The only issue on appeal is whether it was
proper to allow the jury to impose personal liability on
Thompson, Parks, and Sorkin. Corporate officers normally
enjoy protection from personal liability for acts they
commit on behalf of the corporation. See George A. Fuller Co.
v. Chicago College of Osteopathic Medicine, 719 F.2d
1326, 1333 (7th Cir. 1983) (discussing Illinois law). To get
around this qualified privilege in a tortious interference
claim in Illinois, a plaintiff must “establish that the
officers induced the breach to further their personal goals
or to injure the other party to the contract, and acted
contrary to the best interest of the corporation.” George A.
Fuller Co., 719 F.2d at 1333 (citations omitted).
18 Nos. 08-1496, 08-1956 and 08-1971
Parks sent Von der Ruhr a letter in 1999 stating that the
price per share for his options after the stock splits was
$.34. Immtech documents from December 1998 and Octo-
ber 2000 also indicate that the proper price was $.34
per share.4 Additionally, another major Immtech share-
holder, Dr. Anderson, held the same stock option and was
able to exercise it at $.34 per share. Yet when Von der Ruhr
tried to exercise his options at $.34 per share—a price
Immtech told him was proper—his efforts were
hindered and he was given a new price. This sudden acute
sensitivity to detail when Von der Ruhr tried to exercise
his options could have caused the jury to believe that the
officers were interested in harassing Von der Ruhr.
Parks obviously believed that Von der Ruhr validly
exercised his options because, upon receiving Von der
Ruhr’s request, he quickly drafted a letter to Immtech’s
transfer agent authorizing the release of the shares. Yet
Thompson and Sorkin somehow instructed that the
letter should not be sent and it was marked “Hold per
TST & Sorkin.” The jury could have found these actions
suspicious.
The jury also could have found it troubling that,
although Parks admitted at trial that he knew which
4
Parks did send Von der Ruhr a letter in March of 2000
stating that the total strike price of the option was $8,316, but
it did not specify a price per share. Furthermore, this evidence
does not preclude the jury from finding against the officers;
the jury was not required to be persuaded by one document
over another.
Nos. 08-1496, 08-1956 and 08-1971 19
options Von der Ruhr was attempting to exercise, Parks
sent Von der Ruhr a letter stating that Von der Ruhr
failed “to identify exactly which options [he was] intending
to exercise.” The jury could have found it foolish and
contrary to Immtech’s best interest to risk breaching a
contract with Von der Ruhr because, as Parks reported to
Thompson and Sorkin, “[t]echnically, he is $23.40 short.”
Finding that the officers needlessly breached the option
contract over $23.40, the jury could have believed that
the officers acted for vindictive reasons.
The jury’s concern that the officers were motivated by
a desire to injure Von der Ruhr might have been height-
ened by the fact that the options could have been
exercised in whole or in part. Thompson testified that it
would not have been appropriate to issue only some of
the shares because Von der Ruhr’s letter indicated that
he wanted a certain number of shares for a certain
amount of money and his figures did not align. Of course,
the jury could have found that the figures did align
because the options should have been honored at $.34 per
share. Or the jury could have concluded that if personal
animus was not involved, the officers would have at
least delivered the number of shares to which they
believed Von der Ruhr was entitled, since Parks knew
which set of options Von der Ruhr was attempting to
exercise.
The jury also knew about the history between Von der
Ruhr and Immtech. Von der Ruhr founded Immtech, but
resigned as a board member and Chairman a few years
before this attempt to exercise his options because he
20 Nos. 08-1496, 08-1956 and 08-1971
disapproved of certain steps the company was taking to
prepare for an initial public offering. Von der Ruhr told
Thompson that he doubted the wisdom of some of
Immtech’s financing decisions and expressed concern that
the financing was moving too slowly. Von der Ruhr
informed Thompson that he was resigning because, as he
mentioned on several occasions, he opposed requiring
certain shareholders to sign lock-up agreements, prevent-
ing them from selling their stock for a period of time
after the IPO.
Von der Ruhr’s refusal to sign the lock-up agreement
prompted Sorkin to write a letter to Thompson in March
of 1999 “demanding Immtech to rescind all of Mr. Von der
Ruhr’s options and warrants for cause.” Also related to
the contentious lock-up agreement, Parks wrote a letter
to Sorkin in October of 2000 documenting Von der Ruhr’s
shares and outstanding options, in which Parks stated
about the document: “Frankly it takes a lot of the wind
out of Gerhard’s sails.”
Von der Ruhr and Immtech were in active conflict over
a different set of stock options at the time Von der Ruhr
attempted to exercise the options at issue in this case.
Von der Ruhr filed a lawsuit against Immtech a few days
before it received his request to exercise the current set
of options. Also around the time that Von der Ruhr
attempted to exercise the shares at issue in this case, he
complained to Thompson about Immtech’s tax treatment
of some of Von der Ruhr’s prior options. The trial exhibits
thoroughly document a history of tension and disagree-
ment between Von der Ruhr and Sorkin, Parks, and
Nos. 08-1496, 08-1956 and 08-1971 21
Thompson. The jury was entitled to consider the offi-
cers’ actions in light of the broader context of the uncom-
fortable relationship between Von der Ruhr and
the Immtech officers.
The officers claim that they simply acted according to
advice from Immtech’s attorneys, but following the
advice of an attorney is not an absolute shield from liabil-
ity. Furthermore, no attorneys testified or were named at
trial; the jury was free to disbelieve the officers’ claim
that they relied on attorneys. For example, Parks’ letter
to the transfer agent was marked, “Hold per TST &
Sorkin.” It did not mention any advice of counsel. The
report Parks prepared for Thompson and also sent to
Sorkin notifying them of the recalculated price per
share, stated about the disputed option: “I am holding
per your instructions.” Again, this gives no indication
that the officers were acting on the advice of their attor-
neys. Alternatively, if the officers did solicit advice
from counsel, that advice was of questionable value
because it resulted in a breach of contract. The jury
could have found that the officers would not have
followed such advice if they were not motivated by
disdain for Von der Ruhr.
The officers point to other evidence that supports their
assertion that they acted innocently and that they were
necessarily proceeding deliberately and cautiously
because of the history between Von der Ruhr and
Immtech. Certainly there is evidence that supports this
conclusion and it may be true. But that is not our decision
to make. The law requires that we simply ask whether
22 Nos. 08-1496, 08-1956 and 08-1971
there was sufficient evidence presented to support the
jury’s verdict. Walker, 410 F.3d at 393. There was. The
jury’s verdict was not irrational and we will not disturb it.
See Woodward, 368 F.3d at 926.
III. CONCLUSION
For the reasons discussed above, we A FFIRM the rulings
of the district court.
6-30-09