APS Sports Collectibles, Inc. v. Sports Time, Inc. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 00-2260
APS SPORTS COLLECTIBLES, INC.,
Plaintiff-Appellant,
v.
SPORTS TIME, INC., a Corporation,
HARLAN J. WERNER, MICHAEL K. SPEAKMAN,
THOMAS CHEN, PATRICK KWAN,
LEE J. KOLLIGAN, ROBERT BYER,
BILL A. MOLLER, and PAUL SIEGAL,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 93-4160—William L. Beatty, Judge.
____________
ARGUED SEPTEMBER 5, 2001—DECIDED JULY 22, 2002
____________
Before CUDAHY, ROVNER, and DIANE P. WOOD, Circuit
Judges.
CUDAHY, Circuit Judge. This is diversity case involving
a dispute about money between APS Sports Collectibles,
Inc. and Sports Time, Inc. The focus of their controversy
is a loan default and a transfer of assets from a now
bankrupt corporation, AW Sports, to the defendant. A few
months after APS extended a loan to AW Sports, AW Sports
2 No. 00-2260
was purchased by Sports Time in a stock-for-stock ex-
change. After various items of its inventory and equipment
were transferred to Sports Time, AW Sports entered bank-
ruptcy. APS subsequently filed suit against Sports Time
on APS’s loan to AW Sports, joining various current and
former officers of Sports Time and AW Sports as defen-
dants. The district court dismissed all the counts of APS’s
complaint except one count of fraudulent transfer under the
Illinois Uniform Fraudulent Transfer Act (UFTA), 740 ILCS
160/1 et seq.
After full discovery, the district court granted summary
judgment for the noncorporate defendants, and the case
against Sports Time proceeded to trial. APS received a fa-
vorable jury verdict, and the district court in turn awarded
damages in the amount of $266,594. APS now appeals (1)
the dismissal of a purported good faith and fair dealing
cause of action under Illinois law, (2) the grant of summary
judgment for the noncorporate defendants and (3) the
method used by the district court to calculate damages. For
the reasons discussed below, we affirm.
I.
This case involves three close corporations and various
corporate officers and/or shareholders in their individual
capacities. The plaintiff, APS Sports Collectibles, Inc.
(APS), is an Illinois corporation in the business of distribut-
ing magazines and sports collectibles, such as sports trad-
ing cards. The defendant, Sports Time, Inc., is a Nevada
corporation, which was formed to sell and distribute similar
sports collectibles. Another entity that is at the center of
this lawsuit is the now defunct company, AW Sports, Inc.,
which is a California corporation formerly in the business
of manufacturing trading cards. APS and AW Sports en-
tered into a loan agreement, providing for a $629,333 loan
to AW Sports, essentially secured in part by AW Sports’
No. 00-2260 3
promise to manufacture and deliver to APS certain trading
cards. During the term of the loan agreement, Sports Time
purchased all the outstanding stock of AW Sports through
an exchange of stock. Thereafter, various officers/share-
holders of AW Sports and Sports Time assumed new posi-
tions in the two entities. APS has joined as defendants,
in their individual capacity, the following officers and/or
shareholders: Harlan J. Werner, Michael K. Speakman,
Thomas Chen, Patrick Kwan, Lee J. Kolligan, Robert Byer,
Bill Moller and Paul Siegal.
During the early 1990s, AW Sports had several attrac-
tive licensing agreements with various celebrities and
athletes. However, the company was undercapitalized and
needed cash to manufacture its merchandise. So, as we
have indicated, in August of 1992, APS lent AW Sports
$629,333 in exchange for a promise to manufacture and
ship to APS a set of 1992 NFL trading cards. Shipments
of the finished product that were received and sold by
APS were then credited against the outstanding loan. AW
Sports had agreed to liquidate the loan in full by April 4,
1993 (i.e., within 150 days). As further security, AW Sports
pledged sufficient shares of its corporate stock to repre-
sent a controlling interest. At that time, 600 shares of AW
Sports were outstanding. However, physical possession of
the stock certificates was never gained by APS nor were
the certificates placed in escrow,1 and there is some ques-
tion whether, in the event of default, AW Sports agreed to
convey existing shares of AW Sports, or merely to exercise
its right under the corporate charter to issue additional
1
Under Article 8 of the Uniform Commercial Code, “A security
interest in a security is enforceable and can attach only if it is
transferred to the secured party or a person designated by him
pursuant to a provision of Section 8-313(1).” 810 ILCS 5/8-321(1).
APS also failed to follow an alternate method for obtaining a
security interest, which is provided in § 8-321(1)(h).
4 No. 00-2260
shares of stock sufficient to give APS a controlling interest.
As part of the loan agreement, AW Sports agreed that it
would “retain through the life of the loan good and clear
title to the stock, free of any encumbrance.”
On December 2, 1992, while the 150-day repayment
period was running, Sports Time entered into an acquisi-
tion agreement with AW Sports whereby all outstanding
shares of AW Sports would be converted to Sports Time
stock in a stock-for-stock exchange. Under the terms of
the agreement, all the assets, obligations and debts of AW
Sports were transferred to Sports Time. Moreover, the
stock purchase agreement between Sports Time and AW
Sports explicitly recognized the outstanding debt to APS.
An AW Sports financial statement on December 15, 1992,
listed a product inventory valued at $350,000 and equip-
ment worth $621,000. This was two weeks before the
closing of the acquisition of AW Sports by Sports Time on
January 2, 1993.
APS was not informed of Sports Time’s acquisition of
AW Sports until after the deal was complete. During the
course of the 150-day loan repayment period, some of the
trading cards that were promised to APS were delivered
to it at later dates than those specified in the loan agree-
ment. Once they were delivered to APS, sales were disap-
pointing, and the satisfaction of AW Sports’ outstand-
ing debt to APS was delayed. In March of 1993, it became
apparent that AW Sports was about to default on its loan.
Therefore, a meeting between APS, AW Sports and Sports
Time was held in St. Louis. Despite these discussions, the
loan went unpaid as of the April 3 due date. On April 19,
APS sent a letter to officers of both AW Sports and Sports
Time demanding payment of the debt. On May 3, a second
letter was sent demanding that an escrow of AW Sports’
corporate stock be set up and, further, demanding payment
for the overdue loan.
No. 00-2260 5
On May 20, only seventeen days after the second letter
from APS, AW Sports filed a petition in bankruptcy listing
APS as a secured creditor who was owed $629,333. AW’s
bankruptcy petition listed the value of its inventory at only
$16,800 and its equipment at $1,325. These figures repre-
sented an approximate $950,000 drop in asset value since
AW Sports’ December 1992 financial statement. During
the five-month period since December, neither Sports
Time nor AW Sports made any payment to APS on the out-
standing promissory note.
In June of 1993, APS filed this lawsuit against Sports
Time and various current and former officers and share-
holders of Sports Time and AW Sports. The corporate en-
tity, AW Sports, was protected from being named as a
defendant in this litigation by the automatic bankruptcy
stay. At the close of discovery, Sports Time and the non-
corporate defendants filed a motion for summary judg-
ment, which the district court granted, with the exception
of one count under the Illinios Uniform Fraudulent Trans-
fer Act (UFTA), 740 ILCS 160/1 et seq., which APS was
required to replead.
In October 1995, the defendants filed for summary judg-
ment on the surviving UFTA claim, while APS requested
the district court to reconsider its earlier dismissal of a
good faith and fair dealing cause of action. On January 16,
the district court granted summary judgment for the
individual defendants on the UFTA claim and refused to
reconsider the dismissal of the good faith and fair dealing
claim. The UFTA claim against Sports Time was then tried
to a jury in September of 1996. Although APS received a
favorable jury verdict, special interrogatories revealed some
confusion by the jury about whether the fraudulent trans-
fer, which it found, involved shares of AW stock rather than
the underlying corporate assets.
After a new trial was ordered and the case was trans-
ferred to another district court judge, APS renewed its mo-
6 No. 00-2260
tion to reinstate its good faith and fair dealing claim, which
was once again denied. In July of 1997, a jury again re-
turned a verdict for APS. After conducting a hearing on
damages, the district court entered a judgment for APS
in the amount of $266,594. APS then filed a post-trial
motion, arguing that the language of the UFTA required
a different approach to calculating damages. The district
court denied APS’s motion. This appeal followed.
II.
APS presents three issues on appeal: (1) the district
court erred when it ruled that Illinois law does not autho-
rize an independent tort action for breach of the duty of
good faith and fair dealing; (2) the district court improperly
granted summary judgment for the noncorporate defen-
dants; and (3) the district court used an incorrect method
to calculate damages under the UFTA. Because all of these
issues raise questions either of statutory interpretation, or
of the propriety of summary judgments, or otherwise of
matters of law rather than matters of fact, the standard
of review is de novo. See O'Reilly v. Hartford Life & Acci-
dent Ins. Co., 272 F.3d 955, 959 (7th Cir. 2001) (summary
judgment); Tobin for Governor v. Ill. State Bd. of Elections,
268 F.3d 517, 521 (7th Cir. 2001) (motion to dismiss);
Hotaling v. Chubb Sovereign Life Ins. Co., 241 F.3d 572,
579 (7th Cir. 2001) (interpretation of an Illinois statute).
We will discuss each of these issues in order.
A.
According to APS, Illinois law authorizes an independent
cause of action for breach of the duty of good faith and
fair dealing. However, the cases it cites in support of this
notion all involve insurance disputes in which an Illinois
court upheld a tort claim, and thus compensatory damages,
No. 00-2260 7
if an insurer had refused to negotiate settlements in good
faith. See, e.g., Emerson v. American Bankers Ins. Co., 585
N.E.2d 1315, 1320, 223 Ill. App. 3d 929, 935-36 (1992)
(holding that compensatory damages are available for the
“breach of the duty of good faith and fair dealing”);
Kohlmeier v. Shelter Ins. Co., 525 N.E.2d 94, 104, 170 Ill.
App. 3d 643, 657 (1988) (same). In response, the defendants
contend that under Illinois law the covenant of good
faith and fair dealing is not an independent source of duties
for parties to a contract, but instead an implied term that
“guides the construction of explicit terms in an agreement.”
Beraha v. Baxter Health Care Corp., 956 F.2d 1436, 1443
(7th Cir. 1992) (citing Illinois cases).
Fortunately, we need not belabor this issue because the
Illinois Supreme Court has recently resolved it. In Voyles
v. Sandia Mortgage Corp., 751 N.E.2d 1126, 196 Ill. 2d
288, 296 (2001), which involved a dispute between a mort-
gage company and one of its customers, the Court held that
breach of the covenant of good faith and fair dealing is
not an independent cause of action under Illinois law ex-
cept “in the narrow context of cases involving an insurer’s
obligation to settle with a third party who has sued the
policy holder.” 751 N.E.2d at 1131. Voyles, which was de-
cided after APS filed its brief in this case, is dispositive
of this issue.
B.
APS’s second issue on appeal involves the question
whether any of the current or former officers and/or share-
holders of Sports Time and AW Sports can be liable in their
individual capacity for a fraudulent transfer claim under
the UFTA. As a threshold matter, it is undisputed that
the agreement between APS and AW Sports is a contrac-
tual arrangement between two corporate entities. The
only signatory for AW Sports to any of the documents that
8 No. 00-2260
were involved in the transaction was Lee Kolligan, who
was acting in his capacity as the company’s vice-president.
Under Illinois law, “ ‘A Corporation is a legal entity which
exists separate and distinct from its shareholders, officers,
and directors, who are not, as a general rule, liable for
the corporation’s obligations.’ ... Limited liability will ordi-
narily exist even though the corporation is closely held or
has a single shareholder.” In re Estate of Wallen, 633
N.E.2d 1350, 1357, 262 Ill. App. 3d 61, 68 (1994) (quoting
and citing Gallagher v. Reconco Builders, Inc., 415 N.E.2d
560, 563, 91 Ill. App. 3d 999, 1004 (1980)).
In this case, APS agreed to lend $629,333 to AW Sports
in exchange for a promise to manufacture and deliver a
specified volume of trading cards. The physical delivery
and resale of the cards served to reduce the balance of the
loan, which was scheduled for full repayment by April 4,
1993. As collateral for the loan, the corporate entity, AW
Sports, executed a security agreement with the corporate
entity, APS, which pledged as collateral “such amount of
shares of common stock in AW Sports, Inc., a California
corporation, sufficient to secure the necessary votes for
Board of Director and Shareholder action, at this time and
throughout the duration of the Agreement.” It was unclear
from the face of the Agreement, however, whether the col-
lateral consisted of existing stock, unissued stock or some
combination of the two sufficient to confer control of AW
Sports. The district court therefore ruled that any combina-
tion providing control of AW Sports would be permissible.
Yet, as the district court also determined, APS and AW
Sports failed to comply with the requirements of Article 8
of the Uniform Commercial Code, 810 ILCS 5/8-101 et seq.,
requiring physical transfer of stock certificates from debtor
to creditor in order for the security agreement to be enforce-
able. Such a transfer would have secured to APS a control-
ling interest in AW Sports in the event that AW Sports
defaulted on the loan. APS has not appealed the finding
No. 00-2260 9
that nondelivery of the stock to APS rendered the security
agreement unenforceable. As a result, when officers of AW
Sports received stock from Sports Time in a stock-for-stock
transaction, APS had no legal entitlement to the 600 shares
of AW Sports stock involved in the AW Sports-Sports Time
deal, which were apparently all owned by various AW
Sports corporate officers in their individual capacities.
Unfortunately, APS fails to articulate a coherent theory
why the individual defendants should be held liable under
the UFTA. Under Illinois law, a claim for a fraudulent
transfer “requires a debtor/creditor relationship.” A.P. Prop-
erties, Inc. v. Goshinsky, 714 N.E.2d 519, 522, 186 Ill. 2d
529 (1999). The UFTA defines a “debtor” as “a person who
is liable on a claim.” 740 ILCS 160/2(f). Although AW
Sports is the most logical party to be designated as a debt-
or, see 740 ILCS 160/8, it is not a defendant in this lawsuit
because of the automatic stay imposed under the Bank-
ruptcy Code. In addition, since none of the individual de-
fendants in this case was a party to the APS loan transac-
tion, their status as debtors cannot be established under
any of the agreements entered into by APS and AW Sports.
Nonetheless, APS seems to argue that the individual
defendants are liable under the UFTA because of their
status as “insiders” of a debtor corporation. 740 ILCS
160/2(g)(2) (listing various categories of “insiders,” includ-
ing “director of the debtor,” “officer of the debtor,” “person
in control of the debtor”). For example, APS points out
that defendants Werner, Speakman, Chew, Kwan and
Kolligan were all “insiders” who approved a corporate res-
olution promising a controlling interest in AW Sports
as collateral for the APS loan. Yet, these same individuals
also benefitted when AW Sports was purchased by Sports
Time in a stock-for-stock exchange.
While these allegations may well be true, they fail to
state a valid claim. Under the UFTA, “insider” is a defined
10 No. 00-2260
term that is used to establish whether a transfer is fraudu-
lent. See, e.g., 740 ILCS 160/2(g)(2) (defining the term
“insider”); 160/5(b)(1) (listing “transfer or obligation” to
an “insider” as one of the factors that can be relied upon
to determine intent to hinder, delay, or defraud any cred-
itor of the debtor); 160/6(b) (stating that a transfer is fraud-
ulent “if the transfer was made to an insider for an anteced-
ent debt, the debtor was insolvent at that time, and the
insider had reasonable cause to believe that the debtor was
insolvent”). However, once the fraudulent nature of the
transaction is established, 740 ILCS 160/8 provides the
creditor with various equitable remedies for the acts of
“debtors” and “transferees.” Similarly, 160/9 permits a mon-
ey judgment against “(1) the first transferee of the asset
or the person for whose benefit the transfer was made; or
(2) any subsequent transferee other than a good-faith trans-
feree who took for value or from any subsequent trans-
feree.” In short, an individual’s status as an “insider” in the
present circumstances simply has no relevance for the
purpose of assigning liability under the UFTA.2 Despite the
fact that the UFTA has been adopted in whole or in part by
2
It is certainly possible that other facts might make an insider,
or corporate officer, liable under the UFTA because of his or her
status as “first transferee,” “subsequent transferree” or “debtor.”
See, e.g., New Horizon Enter. v. Contemporary Closet Design, Inc.,
570 N.W.2d 12, 16-17 (Minn. Ct. App. 1997) (assigning personal
liability to corporate officer because he was a “first transferee” of
an asset within the meaning of the UFTA, thus making it un-
necessary for the court to address a “piercing the corporate veil”
argument). However, APS failed to develop the factual application
of this theory in an action against an individual defendant. The
argument has therefore been waived. See, e.g., Muhich v. Commis-
sioner of Internal Revenue, 238 F.3d 860, 864 n.10 (7th Cir. 2001)
(“Where, as here, a party fails to develop the factual basis of a
claim on appeal and, instead, merely draws and relies upon bare
conclusions, the argument is deemed waived.”).
No. 00-2260 11
approximately thirty states, APS provides no legal author-
ity for its theory that, essentially, corporate insiders are
personally liable for the acts of a corporation.
APS’s next argument, which is also somewhat difficult
to decipher, seems to assert that the individual defend-
ants should be held personally liable under the UFTA be-
cause the corporations they controlled were engaging in a
“shell game” designed to disperse the assets of AW Sports,
thus undermining APS’s lawful claims. For example, APS
points to deposition testimony of Mark Krekeler, an AW
officer, which suggests that as of August 1993, two entities,
MKS Distributors and Triple Play Sports Cards, had in
their possession an “appreciable quantity of AW product for
sale.” MKS Distributors is apparently owned by Michael
Speakman, who served as an officer of AW Sports and
became a Sports Time officer after the stock-for-stock ex-
change. In addition, Triple Play operated out of the same
address as Sports Time, indicating control by Sports Time.
APS also points to a licence for Marilyn Monroe memora-
bilia, formerly owned by AW Sports, which resurfaced in
mid-1993 in the possession of a subsidiary half owned by
Sports Time. Similarly, a lithograph printing machine form-
erly owned by AW Sports was located at Cal-Pak, a wholly-
owned subsidiary of Sports Time. Cal-Pak apparently paid
the salary of Bill Moller, who served as an officer of AW
Sports and later of Sports Time following the stock-for-stock
exchange. Based on all of these facts, APS claims that all
of the individual defendants “had the requisite knowledge
and intent to commit fraud under the UFTA.”
The primary flaw in APS’s argument, however, is that it
fails to explain which provision of the UFTA permits a court
to impose personal liability on a corporate officer for au-
thorizing a bad faith transaction that works to the detri-
ment of a creditor. The language of the UFTA simply does
not support such a result.
12 No. 00-2260
APS attempts to save its UFTA theory by invoking the
interesting turn of phrase that “the corporate veil here
was transparent.” Yet, if APS had an expectation of piercing
the corporate veil, it has failed to develop a legal and
factual basis to support such a claim. Under Illinois law, a
plaintiff attempting to make an individual liable for the
acts of a corporation must show (1) that there exists
such unity of interest and ownership that the separate
personalities of the individual and the corporation no long-
er exist; and (2) that there exist circumstances such that
an adherence to the fiction of separate corporate exist-
ence would likely produce an unjust or inequitable result.
Fiumetto v. Garrett Enterprises, Inc., 749 N.E.2d 992, 1005,
321 Ill. App. 3d 946, 958 (2001). Similarly, in order to
pierce the veil between a parent and a subsidiary, a plain-
tiff must make “a substantial showing that one corporation
is really a dummy or sham for another.” In re Estate of
Wallen, 633 N.E.2d at 1357 (quotations omitted).
Despite the benefit of discovery against the individual
defendants, APS has failed to allege and demonstrate
specific facts and indicate their relevance under the cor-
rect legal standard. As we have noted on previous occasions,
“ ‘[i]t is not this court's responsibility to research and
construct the parties’ arguments,’ ” and conclusory anal-
ysis will be construed as waiver. Spath v. Hayes Wheels
Int’l-Indiana, Inc., 211 F.3d 392, 397 (7th Cir. 2000) (quot-
ing United States v. Lanzotti, 205 F.3d 951, 957 (7th Cir.
2000)). In addition to the fact that APS’s piercing the veil
argument is undeveloped and inadequate, it also appeared
for the first time in its reply brief, which is too late. James
v. Sheahan, 137 F.3d 1003, 1008 (7th Cir. 1998) (“Argu-
ments raised for the first time in a reply brief are waived”);
accord Help At Home Inc. v. Medical Capital, L.L.C., 260
F.3d 748, 753 n.2 (7th Cir. 2001); O’Regan v. Arbitration
Forums, Inc., 246 F.3d 975, 983 n.1 (7th Cir. 2001).
No. 00-2260 13
C.
The final issue is whether the district court erred in its
calculation of damages. APS contends that the language of
the UFTA requires a calculation of damages as equal to the
amount owed at the time of the fraudulent transfer rather
than at the time of the lawsuit (when more sports cards
produced by AW had been sold by APS, thereby reducing
AW Sports’ total liability on the loan).
This argument is wholly without merit. The language
of the UFTA states that “a creditor may recover judgment
for the value of the asset transferred, as adjusted under
subsection (c), or the amount necessary to satisfy the
creditor’s claim, whichever is less.” 740 ILCS 160/9(b)-(c)
(emphasis added). The trial court calculated both of these
amounts and determined that the amount necessary to
satisfy APS’s claim was the lesser. The qualifying language
in subsection (c), which mandates a valuation of an asset at
the time of transfer if the calculation “is based on the value
of the asset,” does not apply if “the amount necessary to
satisfy the creditor’s claim” is the proper benchmark, as it
was here. Id.III.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—7-22-02