Indeck Energy Services, Inc. v. DePodesta ( 2021 )

2021 IL 125733IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 125733)
INDECK ENERGY SERVICES, INC., Appellee, v. CHRISTOPHER M. DEPODESTA et al.,
Appellants.
Opinion filed July 29, 2021.
CHIEF JUSTICE ANNE M. BURKE delivered the judgment of the court, with
opinion.
Justices Theis, Neville, and Michael J. Burke concurred in the judgment and
opinion.
Justice Overstreet dissented, with opinion, joined by Justices Garman and
Carter.
OPINION
¶1 Plaintiff, Indeck Energy Services, Inc. (Indeck), sued two of its former
employees alleging, inter alia, breach of contract, breach of fiduciary duties, and
usurpation of a corporate opportunity. On the breach of contract claim (count I) and
the usurpation of a corporate opportunity claim (count V), the Lake County circuit
court directed findings in favor of defendants. On the breach of fiduciary duties
claim (count IV), the court ruled in favor of plaintiff following a bench trial.
¶2 On appeal, the appellate court affirmed the trial court’s rulings on counts I and
IV but reversed on count V. 2019 IL App (2d) 190043. Defendants appeal to this
court, challenging the appellate court’s reversal of the directed finding on count V.
Indeck seeks cross-relief on counts I and IV. For the reasons that follow, we reverse
the appellate court’s judgment in part and affirm in part.
¶3 BACKGROUND
¶4 Indeck Energy Services, Inc., is a privately held developer, owner, and operator
of independent power generation projects. The company develops, owns, and
operates both conventional and alternative fuel power plants. Gerald Forsythe is
Indeck’s owner and Lawrence Lagowski its president.
¶5 Defendant, Christopher M. DePodesta, was vice president of business
development for Indeck and, thus, an officer of the company from November 2010
until his resignation on November 1, 2013. In this position, DePodesta had overall
responsibility for Indeck’s electrical generation project development efforts. His
duties included “supervising and assembling the research regarding suitable areas
and sites within those areas for development of power generation projects;
supervising the due diligence concerning the same; investigating the feasibility of
developing certain classes or types of projects; and acquiring the sites, permits, and
ultimately implementing the same.” DePodesta was also responsible for suggesting
new business development ideas and opportunities to Lagowski, as well as
suggesting potential new business partners. DePodesta had authority to sign
documents and contracts on behalf of Indeck, approve expenditures, and make
hiring decisions, all for matters under $10,000.
¶6 Defendant, Karl G. Dahlstrom, was director of business development for Indeck
from 2011 until his resignation on November 4, 2013. Dahlstrom’s duties were the
same as DePodesta’s. Additionally, his “job was to go find opportunities and bring
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them back” to Indeck, including opportunities “about development of turbines,
[and] potential partners.”
¶7 DePodesta supervised Dahlstrom and Kelly Inns, an engineer. These three
comprised Indeck’s business development team. Both DePodesta and Dahlstrom
signed confidentiality agreements upon their employment with Indeck.
¶8 Defendant Halyard Energy Ventures, LLC (HEV), was founded in late 2010 by
Dahlstrom. HEV is a consulting, management, and administration firm that
develops electrical power generation projects. DePodesta later became a member
of HEV.
¶9 Merced Capital (Merced) is a privately held investment advisor that specializes
in “alternative investment strategies.” Merced Partners III, L.P. (Merced III), is an
investment fund and an affiliate of Merced. Merced III, in turn, owns Carson Bay
Energy Holdings IV, LLC (Carson Bay). Hendrick Vroege worked simultaneously
for both Carson Bay and Merced. In 2013 and at the time of trial, Carson Bay owned
two “grey market” GE simple cycle gas turbines. 1
¶ 10 Merced III and HEV formed Merced Halyard Ventures, LLC (MHV), in
November 2014 after defendants’ resignations from Indeck, to develop, construct,
and operate electrical power generation plants.
¶ 11 In 2011, Indeck’s board of directors provisionally approved the development of
natural gas power plant projects in a region of Texas known as the Electrical
Reliability Council of Texas (ERCOT). Lagowski directed DePodesta and
Dahlstrom to determine “whether or not it made sense to develop natural gas
[projects] and, if so, where to go to develop.” The two, along with Inns, prepared a
“Natural Gas Development Plan” (Plan) recommending Indeck develop plants in
ERCOT. Defendants identified a site for development in Wharton County, Texas.
Additionally, they identified four other sites for development in ERCOT. On
February 20, 2012, Lagowski advised the business development team they must
speak with him before signing any contract on the Texas projects.
1
Grey market turbines are not being sold by the manufacturer and have never been installed or
operated.
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¶ 12 In 2013, Indeck submitted initial screening studies to ERCOT for several
potential sites to develop natural gas power generation projects. On March 5, 2013,
Indeck and Carson Bay entered into a mutual confidentiality agreement (MCA), 2
which was signed by DePodesta on behalf of Indeck. The MCA set forth the parties’
intentions in entering into it: “The Parties wish to enter into discussions regarding
the development by Indeck of simple cycle gas turbine projects in the Electric
Reliability Council of Texas and an opportunity to be presented by the Company
[Carson Bay] to Indeck.” The MCA precluded the parties from soliciting or hiring
each other’s employees. On March 7, Dahlstrom sent an e-mail to Daniel Barpal,
manager of Carson Bay, copying in DePodesta, stating “Dan, the [MCA] has been
executed! Let’s build some power plants together.” It was Barpal’s understanding
that Indeck was looking to purchase the turbines. However, at trial, he testified
Indeck was only 1 of 100 leads for their sale. Based on this e-mail, a conference
call was held the next day between DePodesta, Dahlstrom, Barpal, Vroege, and
another Merced employee, Eric Werwie.
¶ 13 In the beginning of March 2013, Lagowski, DePodesta, Dahlstrom, and
William Garth, Indeck’s director of finance, all understood they would attend the
Platts Conference in Las Vegas, Nevada, starting April 8. DePodesta represented
to Lagowski that he and Dahlstrom would make initial contacts on behalf of Indeck
in contacting suppliers of financial products, potential development partners or
project buyers, private equity firms, and grey market turbine providers at the
conference. Carson Bay was identified as one of the private equity firms and a grey
market turbine opportunity provider. One day after confirming their presence at the
conference in Las Vegas with Lagowski, DePodesta and Dahlstrom scheduled a
meeting with Vroege, Werwie, and Barpal in Houston for April 9, 2013. They did
not advise Lagowski of this change in plans or their scheduled meeting.
¶ 14 On March 28, Lagowski e-mailed the development team advising them that
Forsythe and the Indeck board of directors had approved going ahead with the
Wharton site as a “proof of concept.”
2
Indeck developed the MCA and entered into it with third parties to protect its confidential and
proprietary information. The form was “locked” so that no one could make substantive changes to
it without Indeck’s knowledge.
-4-
¶ 15 On April 9, DePodesta and Dahlstrom attended the dinner in Houston with
Vroege, Barpal, and Werwie. According to Vroege, DePodesta and Dahlstrom told
him that Indeck wanted a “free option” on the turbines Carson Bay sought to sell.
According to Lagowski’s testimony, neither were authorized to state this demand.
Lagowski further testified (credibly, according to the circuit court’s findings) that
Indeck was not looking for a free option, which was an unreasonable position, and
he could not think of a quicker way to kill a deal. Vroege, either at the Houston
meeting or shortly thereafter, advised DePodesta and Dahlstrom that Merced was
interested in contributing the turbines, then worth approximately $60 million, as
equity in an Indeck project, in lieu of selling them. Lagowski testified that
DePodesta did not advise him of this interest. Instead, DePodesta told Lagowski
that Carson Bay would agree to take its turbines off the market for 30 to 60 days
for use in an Indeck project if Indeck made a substantial, 10-15% nonrefundable
down payment. 3 Lagowski testified this option did not make sense because Indeck
did not know whether it had a viable project yet and, at this time, Indeck was not in
a position to purchase the turbines. At some point, DePodesta advised Carson Bay
that Indeck could not “swing” the down payment. On April 16, Dahlstrom e-mailed
Barpal, Vroege, Werwie, DePodesta, and Garth, stating Indeck was not able to
move forward with the opportunity. Rather, Indeck was looking for a free option to
acquire the turbines at a given price during a given time period.
¶ 16 On June 13, 2013, DePodesta, Dahlstrom, and Inns traveled to Texas for
meetings to kick off the Wharton project the following day. On this same day,
DePodesta e-mailed Dahlstrom an outline of capital startup requirements to start
their own company to develop natural gas power generation projects. The following
morning, Dahlstrom told Inns she should look for a new job because “he did not
think Indeck was committed to development.”
¶ 17 On July 22, 2013, Dahlstrom sent an e-mail to Garth requesting “the most up to
date pro forma” 4 for the Wharton project. Garth sent the requested document to
3
There is evidence in the record that Carson Bay consistently required such a deposit.
4
A pro forma is a financial model used to forecast project economics and measures potential
returns for projects. It serves as a preliminary determination as to whether or not building the project
would be successful. It includes land costs, construction costs, operating costs, and environmental
costs as well as revenue projections. The pro forma for a project is updated as new information
comes in.
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Dahlstrom. Dahlstrom then e-mailed Vroege asking if he had time to “catch up
regarding the GE equipment.” The two spoke later that same day. The trial court
found that Dahlstrom’s ultimate goal in discussing the turbines was to gauge Carson
Bay’s interest in partnering with defendants, not Indeck, on the development of
bigger power plants. On July 23, Dahlstrom sent an invitation requesting a meeting
with Lagowski, Dahlstrom, and Garth for them to discuss “Texas Development
Regarding Multiple Developments,” and one of the items for discussion was “Path
forward?” Later that day, Dahlstrom accessed business development data from
Indeck’s computer for the Wharton project and sent an e-mail to DePodesta
attaching a copy of a capital requirements spreadsheet. The trial court found they
discussed information from Indeck in preparing their numbers for discussions with
Vroege.
¶ 18 The next morning, DePodesta and Dahlstrom spoke to Vroege and asked him if
he “had interest in developing and funding a greenfield development company to
develop power plants in Texas.” It was Dahlstrom’s understanding that Vroege did
have such an interest and wanted to hear more about the opportunity to develop and
fund greenfield plants in Texas. During this meeting, the three agreed to meet in
Minnesota in August, at which time DePodesta and Dahlstrom would present what
they described as “our ERCOT development plan.” After this call, Dahlstrom
accessed Indeck’s computer to edit a nondisclosure agreement they intended to send
to Vroege on behalf of HEV.
¶ 19 DePodesta testified that the purpose of the July 24 meeting with Lagowski and
Garth was to “give this one big push to how Indeck used to do things,” i.e., having
several developments going at one time. However, DePodesta did not ask Indeck
whether it would be open to working with Carson Bay and Vroege and, in fact, did
not even mention Carson Bay or the turbines. According to his testimony, at the
meeting, they “were talking through trying to keep multiple developments going”
and that he “understood that the cost of the development is something that would
be an issue at Indeck.” He admitted he did not mention that he had discussed with
Vroege that morning Vroege’s apparent interest in funding multimillion dollar
developments for a greenfield development company, the “possibility of
developing projects with Carson Bay or EBF [Merced] or any of its affiliates,” or
the fact Carson Bay could contribute its turbines. DePodesta and Dahlstrom
indicated that, at this meeting, Indeck confirmed it would adhere to its strategy of
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“proof of concept” and proceed first to develop the Wharton project before other
developments in ERCOT it had identified.
¶ 20 Following this meeting, Dahlstrom e-mailed Vroege (now using his HEV e-
mail account), copying in DePodesta on his HEV e-mail account, stating, “[t]hank
you for taking the time to talk with us this morning. We enjoyed working with you
and EBF to date and look forward to the opportunity to present our ERCOT
development plan. Attached you will find our standard MNDA [(mutual
nondisclosure agreement)].” This agreement stated it was between EBF and HEV
and provided spaces for DePodesta and Dahlstrom to sign as managing partners of
HEV. The agreement was dated and executed July 29, 2013, and recited that “[t]he
Parties desire to exchange certain proprietary and commercially sensitive
information in connection with a possible business relationship relating to the
development of a portfolio of power plants in the ERCOT region.”
¶ 21 Between July 24 and August 5, Dahlstrom put together the “Halyard Energy
Power Development Strategy” and admitted he started with Indeck’s Plan and made
revisions to that before it became their document. Dahlstrom also admitted he used
Indeck’s time, equipment, materials, and facilities to put his plan together.
¶ 22 On August 6, 2013, DePodesta and Dahlstrom traveled to Minnesota to present
their “Halyard Energy LLC ERCOT Power Development Strategy” to Vroege and
Werwie. 5 The next day, Dahlstrom e-mailed Vroege and Werwie, stating “we feel
as though EBF is the perfect strategic fit for what we are trying to accomplish” and
that they “would like to move forward in discussions regarding a potential
partnership” and that “the next step would be for EBF to draft a proposed letter
agreement.”
¶ 23 On August 19, Merced III drafted a letter of intent (LOI), which DePodesta
suggested changes to. During the next few weeks and months, defendants used their
Indeck business days and its equipment to negotiate the terms of the LOI and create
HEV documents. Both used measures to wipe these documents and information
from their computers to prevent discovery of what they were doing.
5
The trial court found Dahlstrom had copied various of Indeck’s files or folders from his
computer and used them and other Indeck documents to create documents they submitted to EBF.
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¶ 24 On August 28, Vroege, Werwie, DePodesta, and Dahlstrom presented their
proposed venture plan to Merced’s investment committee, noting the “focal point”
of the venture was to place Carson Bay’s two turbines in the best development site
and move for development as quickly as possible. They stated the “central premise
is to create a real option to build a simple-cycle peaking[6] plant within one year by
permitting a site and having the equipment on the shelf,” which “creates a place to
put the equipment.” The investment memo indicated defendants would be leaving
Indeck and working exclusively for them managing the daily operations.
¶ 25 On August 30, DePodesta, Dahlstrom, and HEV executed the LOI with Merced
III to form a limited liability company to develop three natural-gas-fired, simple
cycle power plants in Texas. Merced III agreed in this document to make available
or contribute Carson Bay’s two turbines for specific projects. The document further
provided that defendants and HEV would deal exclusively with Merced III for the
next 30 days to negotiate an LLC agreement and management agreement and that
defendants were not to inform Indeck about the LOI or their negotiations.
Defendants further agreed to keep this information confidential for one year
following the termination of the LOI in the event it was terminated prior to financial
closing. Thus, defendants could not inform Indeck even if their deal failed and they
remained employed with Indeck. Thereafter, the parties began negotiating the terms
of a limited liability agreement of MHV, i.e., the agreement for HEV and Merced
to work together.
¶ 26 During the week of October 7, 2013, acting as Indeck’s director of business
development, Dahlstrom attended confidential meetings with investment bankers
in New York City with Lagowski and Indeck’s director of finance regarding the
Wharton project. According to Lagowski, one bank was enthusiastic and offered a
“particular opportunity” to finance Indeck’s Wharton project because Indeck’s
capital cost was very low compared to other transactions in the mergers and
acquisitions sector. At the end of that week, Dahlstrom e-mailed Vroege and
confirmed that he and DePodesta intended to move forward very soon and that he
6
A peaking plant is one that starts up to provide electricity during periods of high demand,
rather than being in constant operation.
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had just finished four days of meetings with investment bankers discussing
financing options in the energy market.
¶ 27 On October 15, 2013, Dahlstrom copied and removed from Indeck’s premises
thousands of documents and files, including business development documents
related to the Wharton project. DePodesta also copied thousands of documents and
files from Indeck’s computers. On October 30, DePodesta received a draft LLC
agreement, which the trial court found contained identical terms as the agreement
ultimately signed by defendants.
¶ 28 DePodesta resigned from Indeck on November 1, 2013, and Dahlstrom on
November 4. Both admitted they did not tell anyone at Indeck that they had signed
the LOI with Merced III, that they intended to pursue an opportunity with a new
LLC, that they intended to set up a new LLC with affiliates of EBF, or that they
were going to be involved in developing peaking plants in ERCOT.
¶ 29 On November 6, 2013, the MHV LLC agreement and management agreement
were signed. Under the LLC agreement, HEV would receive a 20% profit interest
in MHV after Merced III had recouped all initial investments plus a 10% preferred
annual rate of return. HEV would be a member of MHV but would have no voting
interest. The agreement did not preclude Merced from investing in other
development companies. The agreement further provided that HEV would be
responsible for, and manage, the day-to-day operation of MHV’s business pursuant
to the management agreement. Under the management agreement, HEV would
work exclusively on behalf of MHV to provide consulting and management
services to develop portfolios of projects, and each would receive $1.25 million.
¶ 30 By the time of trial, with the financial backing of Merced and Merced III, HEV
had developed plans for two fully permitted, construction-ready peaking plant
projects in Texas, the Halyard Wharton Energy Center and Halyard Henderson
Energy Center. In January 2018, HEV, as operating partner of MHV, issued a
confidential information memorandum (CIM) to a limited number of qualified
parties interested in pursuing acquisition of up to 100% of MHV’s direct equity
interest in Halyard Wharton Energy Center. HEV’s CIM represented that,
following funding of the project, it “will enter into a Gas Turbine Generator
Purchase and Sale Agreement with Carson Bay,” for the purchase of two GE
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7FA.03 model turbines. At the time of trial, this agreement had not been signed,
and bids for the project had been postponed.
¶ 31 In March 2014, Indeck filed a four-count complaint against defendants. Count
I, titled “Breach of Confidentiality Agreement,” sought an injunction to enforce the
agreement and enjoin defendants from using and disclosing Indeck’s confidential,
proprietary, and trade secrets information. Counts II and III are not at issue before
this court. In count IV, titled, “Disgorgement,” Indeck alleged that DePodesta owed
Indeck high fiduciary duties based on his position as an officer and vice president.
Indeck similarly alleged that Dahlstrom owed it high fiduciary duties based on his
position of trust with Indeck. Indeck alleged defendants breached their duties by
“competing with Indeck Energy as Halyard Energy while they were employed
by Indeck Energy; by disclosing Indeck Energy’s confidential, proprietary and
trade secret [i]nformation as the development plans and strategies of Halyard
Energy; by soliciting investors in or financing for Halyard Energy using Indeck
Energy’s confidential, proprietary and trade secret [i]nformation; and by
entering into agreements with such investors and/or financing sources.”
Indeck sought disgorgement of “any and all compensation, bonuses and other
benefits they received from Indeck Energy while they were employed by and in
breach of their fiduciary duties to Indeck Energy,” as well as “any and all benefits
they have received or will receive from their wrongdoing after their employment
with Indeck Energy, including any financing they have obtained and any rights they
have obtained in developments or entities that seek to develop independent power
generating projects.”
¶ 32 After learning defendants had signed the LLC agreement, Indeck amended its
complaint and added count V, titled “Usurpation of Corporate Opportunity.” Indeck
alleged DePodesta and Dahlstrom had a duty to “fully and fairly present
opportunities to the company’s President and senior management that were in its
line of business so that informed decisions could be made whether to pursue these
opportunities.” DePodesta was also required to “present all material facts and
circumstances regarding these opportunities” including “disclosing all material
facts involving opportunities to obtain or acquire turbines that could be used in the
development of Indeck Energy’s proposed projects.” According to the complaint,
in early 2013, defendants became aware of opportunities Indeck could pursue with
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Carson Bay, Merced/EBF, and Merced III, which it referred to as the “Carson Bay-
Merced Opportunities” or “Opportunities.” The complaint alleged that these
“Opportunities” “contemplated establishing a continuing relationship between
Indeck Energy and Carson Bay, its affiliates and its representatives to develop
several simple cycle gas turbine projects in the ERCOT area of Texas. These
opportunities also included an ‘opportunity’ that Carson Bay would present to
Indeck Energy.” In connection with the “Opportunities,” the complaint alleged that
Indeck and Carson Bay entered into an MCA on March 5, 2013, which provided:
“The Parties wish to enter into discussions regarding the development by Indeck
[Energy] of simple cycle gas turbine projects in the Electrical Reliability Council
of Texas and an opportunity to be presented by the Company to Indeck.” The
“opportunity” to be presented by Carson Bay “involved two GE turbines that
Carson Bay had obtained and held for some time” and, in particular, that “Carson
Bay offered the opportunity to Dahlstrom and DePodesta for Indeck Energy, but
which Dahlstrom and DePodesta did not share with Indeck Energy to contribute the
turbines in exchange for equity in one of Indeck Energy’s projects in Texas.” The
complaint then alleged that on April 1, 2013, defendants “decided to usurp the
opportunities that belonged to Indeck Energy to develop projects with Carson Bay
and its affiliates, and to further usurp the opportunity Carson Bay presented to
exchange its turbines in exchange for equity in an Indeck energy ERCOT project.”
The complaint then detailed the wrongful conduct and activities defendants
engaged in over the next several months to usurp the “Opportunities” and asserted
their “breaches of their fiduciary duties foreclosed and prevented them from
exploiting the Carson Bay-Merced Capital Opportunities.” The complaint alleged
that defendants’ breaches have “caused significant injury to Indeck Energy. The
loss of $60 million in equity (from the exchange of turbines for equity) in the Indeck
Wharton project creates significant risk and additional costs in financing the
project—indeed, that additional risk heightens the chances that the entire Indeck
Wharton project could fail.” Additionally, the breaches “foreclosed potential future
project opportunities that Indeck Energy could have developed with Merced Capital
and Carson Bay,” as well as “the ability to develop other projects in the ERCOT
area with Merced Capital and/or its facilities.” Indeck sought disgorgement of “any
and all benefits, including increased compensation, profit interests, they have
received or may receive from usurping the Carson Bay-Merced Capital
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Opportunities” and “assignment of any and all direct or indirect interest, including
profit participation, Defendants hold in the Merced Halyard projects.”
¶ 33 Following Indeck’s presentation of its case-in-chief, the trial court directed a
finding in favor of defendants on count I. It concluded that (1) Indeck’s
confidentiality agreement was unenforceable because it was overbroad, (2) Indeck
failed to prove it would be irreparably harmed, and (3) Indeck failed to prove it had
sustained injury. As such, Indeck had failed to prove injunctive relief was available.
¶ 34 In addition, on March 21, 2017, the trial court directed a finding in favor of
defendants on count V. In ruling on this count, the trial court noted it was
undisputed the turbines were still on the market at the time of trial. It found there
was no evidence Indeck had ever offered to buy the turbines or make a deposit to
take them off the market. Thus, “Indeck has not seriously challenged Defendants’
position that any turbine opportunity that existed in 2013 was not taken by the
Defendants because it is still available today.” Accordingly, “Plaintiff has not set
forth a prima facie case for usurpation of any corporate opportunity involving the
turbines.” The trial court directed a finding on the “turbine opportunity” in favor of
defendants. With respect to the “funding opportunities,” the court found there was
no evidence “Merced promised HEV an exclusive development agreement for
projects in ERCOT or that Indeck made any attempt to partner with Merced after
Defendants resigned.” The court then found that “Defendants’ argument that no
funding opportunity was usurped and that any funding opportunity that Indeck
might had [sic] in 2013 is still available to Indeck today is persuasive.” As such, it
directed a finding on the “funding opportunity” in favor of defendants.
¶ 35 Following the completion of the trial, on December 10, 2018, the trial court
rendered judgment in favor of Indeck on count IV. The trial court found both
defendants owed a duty of loyalty to Indeck during the period of their employment
and that the evidence at trial established both violated their duty of loyalty as of
March 13, 2013. The court found defendants breached their duty in the following
ways. Defendants (1) set up a meeting with Vroege, which was designed to ensure
Lagowski would not attend, (2) stated Indeck wanted a free option on the turbines
without having authority to make such a representation and knowing it would
discourage further discussions with Indeck, (3) discussed Merced’s potential
investment in HEV but never disclosed such discussion to Indeck, (4) contacted
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Vroege from Indeck’s offices on July 23, 2013, to tell him they were starting their
own company, (5) contacted Vroege on July 24, using Indeck phones, to further
discuss the possibility of Merced funding defendants’ venture, (6) accessed
Indeck’s materials to prepare for an HEV meeting with Vroege, (7) prepared the
HEV power development strategy using Indeck’s form on Indeck’s time and using
Indeck’s computers, (8) downloaded thousands of Indeck records intending to take
those records to support their new venture, (9) attempted to destroy downloaded
files and records of downloading activity, (10) traveled to Minnesota to present the
HEV power development strategy to Merced during the work week while being
paid by Indeck, (11) engaged in demonstrable business activity when they entered
into an MCA with Merced, (12) negotiated a letter of intent on Indeck’s time and
using its equipment that required them not to disclose their negotiations to Indeck
even though their jobs required them to bring development opportunities to
Indeck’s attention, and (13) negotiated the MHV LLC agreement and management
agreement while at Indeck using its equipment. The court also found that Dahlstrom
encouraged Kelly Inns to look for a new job at the time they were preparing to
leave, knowing that if all three left there would be greater damage to Indeck.
¶ 36 The trial court granted Indeck’s request to disgorge defendants’ salaries from
March 13, 2013, until their resignations. The court denied Indeck’s request to
disgorge any and all compensation they received from Merced via HEV. According
to the court, Indeck argued essentially that defendants must disgorge anything they
received “in perpetuity” as a result of the violation of their fiduciary duties. The
court disagreed. The court noted, first, “the argument that every penny Defendants
received from Merced/HEV was due to their disloyalty to Indeck is speculative at
best. It was certainly not proven at trial.” Second, defendants’ breaches ended when
they resigned. In this regard, the court stated,
“Indeck has not brought a case to the Court’s attention that holds that after a
breach of fiduciary duty has ended, a Plaintiff is entitled to compel a Defendant
to disgorge any future salary earned from a subsequent employer as a result of
the fact that the Defendant negotiated with the subsequent employer during a
period of disloyalty.”
Thus, the trial court denied this claim. The court also denied Indeck’s request to
impose a constructive trust on potential future benefits. The court agreed with
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defendants that it cannot disgorge a “hypothetical future benefit.” In this respect,
the court noted that ERCOT is a “volatile and speculative market” and that no one
knows whether defendants will obtain any future benefits. Thus, any damages are
purely speculative and uncertain. Additionally, the court pointed out that “a
hypothetical future benefit is not an identifiable fund traceable to a breach such that
it can become the res of a proposed trust.” Accordingly, the court denied this claim.
¶ 37 Indeck appealed. The appellate court affirmed the trial court’s judgment on
count I, agreeing with defendants that it need not review the enforceability of the
confidentiality agreement because such a disposition was not essential and would
not affect the trial court’s decision to decline to enter an injunction. 2019 IL App
(2d) 190043, ¶ 87. The court pointed out that Indeck had not challenged the trial
court’s ruling that it failed to prove it would be irreparably harmed and failed to
prove it sustained injury. Thus, such arguments were forfeited, and “regardless of
whether the Confidentiality Agreement is enforceable, the trial court’s directed
finding in defendants’ favor stands on these other grounds.” Id. ¶ 89.
¶ 38 The appellate court also affirmed the trial court’s judgment on count IV and
rejected Indeck’s argument that the trial court erred in denying disgorgement of the
management fees as well as erred in declining to order a constructive trust over
defendants’ 20% profit interest. Id. ¶ 73. With respect to the management fees, the
appellate court held that the trial court reasonably found defendants’ breaches
ended when they resigned and reasonably found speculative Indeck’s argument that
all money defendants received from Merced/HEV was due to their disloyalty.
Specifically, the appellate court determined that all the acts the trial court set forth
occurred during defendants’ employment and none continued after their
resignation. Id. ¶ 80. With respect to a constructive trust, the appellate court pointed
out that the trial court found profits were purely speculative and hypothetical.
Additionally, it noted that Indeck’s own expert testified he could not opine, to a
reasonable degree of certainty, what profits defendants would receive. The
appellate court agreed the evidence showed development in ERCOT was
speculative and uncertain in many respects and concluded, “[g]iven this evidence,
the speculative nature of any profits from MHV formed a reasonable basis for the
trial court’s order declining to impose a constructive trust on those profits.” Id. ¶ 85.
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¶ 39 The appellate court reversed the circuit court on count V, concluding that the
trial court erred in determining plaintiff had not presented sufficient evidence to
show usurpation. Id. ¶ 56. In reviewing the usurpation claim, the court noted that a
claim for usurpation was a “ ‘subspecies of the fiduciary duty of loyalty.’ ” Id. ¶ 60
(quoting Eric Tally, Turning Servile Opportunities to Gold: A Strategic Analysis of
the Corporate Opportunities Doctrine, 108 Yale L.J. 277, 279 (Nov. 1998)). The
court then addressed whether a corporate opportunity existed and whether there was
a misappropriation of that opportunity. Id. ¶ 61. It noted the circuit court found
plaintiff had not proven defendants could be liable on the two corporate
opportunities. Id. ¶ 63. The appellate court noted, however, that only the funding
opportunity was at issue on appeal. Id. ¶ 64. Plaintiff’s position was that the
evidence established defendants usurped the opportunity to partner with Merced
and its affiliates to develop projects in ERCOT. Id. The appellate court concluded
this was a corporate opportunity. Id. ¶ 65. It then found defendants usurped that
opportunity. The appellate court noted that, in November 2013, defendants formed
MHV to “develop, construct, and operate electric-power-generation projects in
ERCOT, an activity identical to the ultimate goal of the Funding Opportunity.”
(Emphasis in original.) Id. ¶ 66. Defendants did not tender or disclose this to
plaintiff nor seek consent. According to the appellate court, this “answer[ed] in the
affirmative the corporate-usurpation question.” Id.
¶ 40 The appellate court disagreed with defendants’ argument that, when an
opportunity is not exclusively bound to a particular partner, there has been no
usurpation. Id. ¶ 68. The appellate court found the trial court erroneously focused
on the fact the opportunity was still available. Instead, according to the appellate
court, “The proper focus was whether the opportunity [defendants] took was within
Indeck’s line of business (it was) and whether it was disclosed, tendered, and
consented to (it was not).” Id. ¶ 69.
¶ 41 The appellate court stated this case presents unusual facts and acknowledged
usurpation cases typically involve an opportunity that is available to one party or
the other, but not both. Id. ¶ 70. Nonetheless, the court concluded:
“the facts here lead to a clear conclusion that Indeck presented sufficient
evidence in its case-in-chief that [defendants] breached their duties to Indeck.
Because there is sufficient evidence that defendants usurped a corporation
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opportunity, we find, under these facts, that it is immaterial whether additional
opportunities were (or still are) available for Indeck to partner with Merced or
its affiliates. To hold otherwise would not be consistent with the prophylactic
purpose of the fiduciary rules to allow [defendants] to exploit an opportunity
(even if it is one of many) consistent with Indeck’s business, without first
disclosing and tendering the opportunity to Indeck and obtaining its consent.”
(Emphasis in original.) Id.
¶ 42 We granted DePodesta and Dahlstrom’s petition for leave to appeal. Ill. S. Ct.
R. 315 (eff. Oct. 1, 2019). Indeck requests cross-relief, asking this court to disgorge
defendants’ management fees and impose a constructive trust on their profit interest
as well as to address the validity of the confidentiality agreement.
¶ 43 ANALYSIS
¶ 44 I. Count V, Usurpation of Corporate Opportunity
¶ 45 In count V of its complaint, plaintiff alleged that defendants usurped for their
own advantage the corporate opportunity “to develop several simple cycle gas
turbines in the ERCOT area of Texas” with Merced and Carson Bay. In addressing
this allegation, the trial court divided the corporate opportunity into two
components—the “turbine opportunity,” which refers specifically to the
development of two peaking power plants in the ERCOT area using the two grey
market, simple cycle gas turbines owned by Carson Bay, and the “funding
opportunity,” which refers more generally to the ability to develop other projects in
the ERCOT area with Merced. The trial court directed a finding in favor of
defendants on count V following plaintiff’s case-in-chief. The trial court found that,
although defendants had breached their fiduciary duties to plaintiff, plaintiff had
failed to establish any usurpation of a corporate opportunity because both the
turbine opportunity and the funding opportunity were still available to plaintiff at
the time of trial.
¶ 46 The appellate court reversed the trial court’s ruling, holding that it was
“immaterial” whether a corporate opportunity still existed for plaintiff. 2019 IL
App (2d) 190043, ¶ 70. According to the appellate court, once plaintiff established
that DePodesta and Dahlstrom had breached their fiduciary duties by failing to
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disclose or tender the funding opportunity to plaintiff, that “answer[ed] in the
affirmative the corporate-usurpation question.” Id. ¶ 66. In other words, the
appellate court concluded that plaintiff could establish a claim for usurpation of a
corporate opportunity merely by showing that defendants had breached their
fiduciary duties. We disagree.
¶ 47 To prevail on a claim for breach of fiduciary duty, it must be alleged and
ultimately proved (1) that a fiduciary duty exists, (2) that the fiduciary duty was
breached, and (3) that such breach proximately caused the injury of which the party
complains. Lawlor v. North American Corp. of Illinois, 2012 IL 112530, ¶ 69;
Neade v. Portes, 193 Ill. 2d 433, 444 (2000). In a claim for usurpation of a corporate
opportunity, the injury of which the plaintiff complains is the taking or seizing of a
corporate opportunity by its fiduciary. See, e.g., Mullaney, Wells & Co. v. Savage,
78 Ill. 2d 534, 545-46 (1980) (“it is a breach of fiduciary obligation for a person to
seize for his own advantage a business opportunity which rightfully belongs to the
corporation”); Lindenhurst Drugs, Inc. v. Becker, 154 Ill. App. 3d 61, 67 (1987)
(the corporate opportunity doctrine prohibits a fiduciary of a corporation from
misappropriating corporate property and from usurping business opportunities that
belong to the corporation). Usurpation of a corporate opportunity is a distinct cause
of action for breach of fiduciary duty that involves a particular type of injury: the
taking or seizing of a corporate opportunity and the commensurate loss of that
opportunity by the corporation. A corporate opportunity, in turn, is a proposed
business activity that is “ ‘reasonably incident to the corporation’s present or
prospective business and is one in which the corporation has the capacity to
engage.’ ” Advantage Marketing Group, Inc. v. Keane, 2019 IL App (1st) 181126,
¶ 35 (quoting Dremco, Inc. v. South Chapel Hill Gardens, Inc., 274 Ill. App. 3d
534, 538 (1995)); Kerrigan v. Unity Savings Ass’n, 58 Ill. 2d 20, 28 (1974). The
“basic question” in all corporate opportunity cases is whether the fiduciary “has
appropriated something for himself that, in all fairness, should belong to the
corporation.” In re Trim-Lean Meat Products, Inc., 4 B.R. 243, 247 (Bankr. D. Del.
1980); see William Lynch Schaller, Corporate Opportunities and Corporate
Competition in Illinois: A Comparative Discussion of Fiduciary Duties, 46 J.
Marshall L. Rev. 1, 18 (2012) (“Strictly speaking, corporate opportunity cases are
characterized by a particular and narrow fact pattern: (1) a third party presents an
identifiable, concrete deal relating to the corporate employer’s business ***; (2) the
deal is a ‘zero-sum’ game in the sense that only the corporate employer or its
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fiduciary—but not both—can seize it, leaving the loser permanently shut out; and
(3) the fiduciary diverts the deal to himself, whether before or after his
resignation.”).
¶ 48 In this case, plaintiff failed to establish that defendants wrongfully appropriated
either the turbine opportunity or the funding opportunity. With respect to the turbine
opportunity, although defendants did develop plans to build two peaking power
plants in the ERCOT area with Merced (the Halyard Wharton Energy Center and
the Halyard Henderson Energy Center), as of the time of trial, those plans had
failed. Defendants’ unsuccessful attempt to build the plants does not give rise to a
claim of misappropriation of corporate opportunity. McGowan v. Ferro, 859 A.2d
1012, 1038 (Del. Ch. 2004); Carlson v. Hallinan, 925 A.2d 506, 520 (Del. Ch.
2006) (opinion clarified in Carlson v. Hallinan, No. CIV.A. 19808, 2006 WL
1510759 (Del. Ch. May 22, 2006)). Had defendants succeeded in their efforts, we
would of course be presented with a different case. However, because defendants’
plans did not come to fruition, there were no wrongful gains made by defendants
and no wrongful appropriation.
¶ 49 The funding opportunity referenced by the trial court stems from allegations in
plaintiff’s complaint that defendants’ actions “foreclosed potential future project
opportunities that Indeck could have developed with Merced Capital and Carson
Bay,” as well as “the ability to develop other projects in the ERCOT area with
Merced Capital and/or its facilities.” In other words, plaintiff alleged that
defendants had appropriated for themselves the exclusive right to work with
Merced on projects in the ERCOT area and, therefore, any further such
opportunities were lost to plaintiff. The trial court expressly rejected this
proposition as a factual matter, stating:
“With respect to the funding opportunities, there is no evidence that Merced
promised [defendants] an exclusive development agreement for projects in
ERCOT or that [plaintiff] made any attempt to partner with Merced after
Defendants resigned from [plaintiff]. It appears that the Plaintiff may have
assumed that there was only one partnership opportunity with Merced, but
Plaintiff presented no evidence of that fact in its case in chief. Defendants’
argument that no funding opportunity was usurped and that any funding
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opportunity that Indeck might [have] had in 2013 is still available today is
persuasive on this record.”
We have carefully reviewed the record and find nothing to contradict the trial
court’s conclusion, which is not against the manifest weight of the evidence. We
therefore agree with the trial court that defendants did not wrongfully appropriate
for themselves the exclusive right to work with Merced on projects in the ERCOT
area.
¶ 50 Apart from the turbine opportunity and the funding opportunity, plaintiff did
not identify, or attempt to prove the existence of, any other corporate opportunity
wrongfully appropriated by defendants. We conclude, therefore, that plaintiff failed
to establish the injury necessary to prevail in a corporate usurpation claim.
¶ 51 The appellate court reasoned that allowing plaintiff’s claim for usurpation of a
corporate opportunity to go forward—even in the absence of any evidence that
defendants had taken or seized a corporate opportunity—was necessary to serve the
prophylactic purposes of fiduciary rules. 2019 IL App (2d) 190043. The problem
with this reasoning, however, is that it is contrary to the fundamental principle that
a plaintiff must establish an injury to recover for a breach of fiduciary duty. Lawlor,
2012 IL 112530, ¶ 69; Neade, 193 Ill. 2d at 444. Indeed, the appellate court’s rule
would allow a plaintiff corporation to recover damages in a suit for usurpation of a
corporate opportunity even if the corporation were able to use the opportunity itself,
and even if there were no wrongful gains that could be recovered from the fiduciary.
We can see no justification for this result.
¶ 52 Defendants breached their fiduciary duties during their employment with
plaintiff, and as a result of those breaches, the trial court required the defendants to
disgorge their salaries for most of 2013. However, plaintiff failed to prove the injury
necessary for its claim of usurpation of a corporate opportunity, i.e., that defendants
wrongfully appropriated the opportunity “to develop several simple cycle gas
turbines in the ERCOT area of Texas.” Accordingly, we reverse the judgment of
the appellate court and affirm that of the circuit court on count V.
¶ 53 II. Count IV, “Disgorgement” Based on
Breach of Fiduciary Duty
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¶ 54 With respect to count IV, plaintiff contends the trial court erred in holding that
defendants’ fiduciary duties ended when they resigned from Indeck. According to
plaintiff, the trial court’s ruling conflicts with decisions that hold, as a matter of
law, that the fiduciary duty of officers continues after resignation for transactions
begun during the employment and founded upon information obtained from that
employment. Plaintiff further maintains that the trial court’s ruling provides
incentive for officers to breach their duties and then leave their employment and
benefit from their disloyalty. In connection with this issue, plaintiff contends the
trial court erred in failing to order defendants to disgorge management fees and
impose a constructive trust on defendants’ profits.
¶ 55 Defendants, in contrast, contend the judgments of the lower courts should be
affirmed. According to defendants, plaintiff’s argument rests upon a faulty premise,
i.e., that the trial court ruled their fiduciary duties ended when they resigned.
Defendants assert that the trial court did not so rule. Rather, the trial court ruled that
defendants’ “breaches” ended with their resignations. Additionally, according to
defendants, the trial court never found they breached their duties in connection with
the Merced transaction, and plaintiff never alleged or argued they did. Defendants
also argue that the trial court’s refusal to order disgorgement of the management
fees and impose a constructive trust on the profits should be affirmed.
¶ 56 The question of whether a defendant breached his duty is a question of fact.
Thompson v. Gordon, 241 Ill. 2d 428, 438-39 (2011); Keywin v. Chicago Transit
Authority, 238 Ill. 2d 215, 226 (2010). Similarly, the question of when, and if, a
breach ended is likewise a question of fact. We will not disturb the trial court’s
ruling on a question of fact unless it is against the manifest weight of the evidence.
Veco Corp., 243 Ill. App. 3d at 160. A ruling is against the manifest weight of the
evidence only if an opposite conclusion is clearly evident.
¶ 57 We are mindful of the relevant count at issue. The claim under count IV is for
disgorgement and a constructive trust based on breach of fiduciary duties alone.
There are no allegations of usurpation of corporate opportunity or reliance on
events or conduct subsequent to defendants’ resignations. Plaintiff did not amend
count IV when it later added count V and included allegations of post-resignation
activities. Under count IV, the trial court expressly found that defendants’ breaches
ended upon their resignations from Indeck. This is a factual determination entitled
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to due deference, and we cannot say it is against the manifest weight of the
evidence.
¶ 58 Moreover, the appropriate remedy for a breach of fiduciary duty lies within the
equitable discretion of the court. Tully v. McLean, 409 Ill. App. 3d 659, 681 (2011).
The purpose of disgorgement is to deprive the wrongdoer of the gains from the
breach. Id.; see also Deborah A. DeMott, Causation in the Fiduciary Realm, 91
B.U. L. Rev. 851, 852, 857 (2011) (disgorgement is an appropriate remedy to
deprive the fiduciary of the benefit obtained through the breach; liability does not
attach to assets acquired in a manner unrelated to the breach); Restatement (Third)
of Restitution and Unjust Enrichment § 43 (2011) (a third party must account to the
beneficiary of the duty for benefits the third party obtains “in consequences” of the
fiduciary’s breach).
¶ 59 As the trial court noted, plaintiff offered no caselaw establishing that
disgorgement is available after a breach of fiduciary duty has ended. If the breach
ended, which the trial court so found, defendants’ management fees and profits
would not be tied to that breach. As such, they were not gains from their
wrongdoing and, therefore, not recoverable under disgorgement principles.
¶ 60 “A constructive trust is an equitable remedy that may be imposed to redress
unjust enrichment caused by a party’s wrongful conduct.” Charles Hester
Enterprises, Inc. v. Illinois Founders Insurance Co., 114 Ill. 2d 278, 293 (1986).
The proceeds of the alleged wrongful conduct must exist as an identifiable fund
traceable to that conduct, such that it can become the res of the proposed trust.
People ex rel. Nelson v. Bates, 351 Ill. 439, 443 (1933); Moore v. Taylor, 251 Ill.
468, 472-73 (1911); see also Eychaner v. Gross, 202 Ill. 2d 228, 274 (2002); John
J. Dvorske & Michael Rosenhouse, Illinois Law & Practice Trusts § 55 (Jan. 2021
update) (essential elements of a constructive trust are the existence of identifiable
property to serve as a res upon which a trust can be imposed and possession of that
res or its product by a person who is to be charged as the constructive trustee (citing
People ex rel. Hartigan v. Candy Club, 149 Ill. App. 3d 498 (1986))); 90 C.J.S.
Trusts § 176 (Mar. 2021 update) (“Definitive, designated property, wrongfully
withheld from another, is the very heart and soul of the constructive trust theory.
Thus, it is necessary that there be a res or specific fund on which the trust may be
fixed.”).
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¶ 61 The trial court found that profits were speculative and that there was no
identifiable fund traceable to the breaches of fiduciary duties and, therefore, a
constructive trust was not available. We agree. There is no identifiable property or
fund to serve as the res upon which a constructive trust can be imposed. Nor did
defendants possess any profits at the time of trial. Thus, the elements necessary to
impose a constructive trust have not been established.
¶ 62 Accordingly, the trial court’s decision to deny disgorgement of the management
fees and refusal to impose a constructive trust on any profits was within its equitable
discretion. We agree with the appellate court that the factors present formed a
reasonable basis for the trial court’s decision. For these reasons, we affirm the
appellate court’s decision on this count.
¶ 63 III. Count I, Confidentiality Agreement
¶ 64 In count I, plaintiff sought permanent injunctive relief for breach of the
confidentiality agreement. To be entitled to a permanent injunction, a party “ ‘must
demonstrate (1) a clear and ascertainable right in need of protection, (2) that he or
she will suffer irreparable harm if the injunction is not granted, and (3) that no
adequate remedy at law exists.’ ” Vaughn v. City of Carbondale, 2016 IL 119181,
¶ 44 (quoting Swigert v. Gillespie, 2012 IL App (4th) 120043, ¶ 27). The decision
to grant or deny injunctive relief rests within the sound discretion of the trial court,
and on review we will not disturb that decision absent an abuse of discretion.
Desnick v. Department of Professional Regulation, 171 Ill. 2d 510, 516 (1996).
¶ 65 The trial court directed a finding in favor of defendants following plaintiff’s
case-in-chief, concluding Indeck’s confidentiality agreement was unenforceable
because it was overbroad. The trial court separately concluded, however, that
injunctive relief was not available to plaintiff because (1) Indeck failed to prove it
would be irreparably harmed and (2) Indeck failed to prove it had sustained injury
based on any breach. The appellate court affirmed, agreeing with defendants that it
need not review the enforceability of the Confidentiality Agreement because such
a disposition was not essential and would not affect the trial court’s decision to
decline to enter injunctive relief. Because plaintiff failed to challenge the trial
court’s finding regarding its failure to prove the elements necessary for injunctive
relief on review, the appellate court found such arguments forfeited and that the
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trial court’s directed finding stood on this ground, irrespective of whether the
confidentiality agreement was enforceable.
¶ 66 Plaintiff argues the appellate court erred in declining to address whether its
confidentiality agreement was enforceable. In support, plaintiff maintains review
of the issue is properly before this court pursuant to Berlin v. Sarah Bush Lincoln
Health Center, 179 Ill. 2d 1, 8 (1997). According to plaintiff, this court held in
Berlin that, “even though an order would not affect the judgment below, ‘[t]here is
life in the appeal because our decision could have a direct impact on the rights and
duties of the parties.’ ” See id. at 6-7. Additionally, plaintiff asserts that Berlin
stands for the proposition that, where a decision will have “important
consequences” for the parties involved, it is proper to entertain the appeal.
Specifically, according to plaintiff, review of the enforceability of a restrictive
covenant was appropriate because “[a] determination in this case [adverse to the
defendant] could mean that the [employer] must implement significant changes in
its working relationships with its medical staff.” See id. at 8; see also Mohanty v.
St. John Heart Clinic, S.C., 225 Ill. 2d 52, 63 (2006) (where a decision “ ‘ “could
have a direct impact on the rights and duties of the parties” there is life in the
appeal’ ” (quoting Berlin, 179 Ill. 2d at 8, quoting People ex rel. Bernardi v. City
of Highland Park, 121 Ill. 2d 1, 6-7 (1988)); Balmoral Racing Club, Inc. v. Illinois
Racing Board, 151 Ill. 2d 267, 287 (1992) (where a decision could have “important
consequences” for the parties before the court, it is proper to entertain the appeal).
Plaintiff maintains that a determination on the enforceability of the Confidentiality
Agreement here falls within this settled authority. In addition, plaintiff maintains
that, if the trial court’s decision is not reversed, it “would require Indeck to
‘implement significant changes’ ” in its working relationship with its staff and,
thus, a determination on this issue “could have a direct impact on the rights and
duties of the parties.” Plaintiff also argues that defendants may have further liability
under the agreement if it is found enforceable; thus, there is still “life in the appeal”
and the issue is not moot.
¶ 67 We disagree with plaintiff that the decisions cited by it control or apply here.
The issue in those cases was mootness. There is no issue of mootness here. There
is no occurrence of events since the filing of the appeal that make it impossible for
this court to render effectual relief. Berlin, 179 Ill. 2d at 7. As such, the reasoning
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expressed by this court in those cases for addressing the appeals simply does not
apply.
¶ 68 Moreover, even if principles regarding mootness applied, any decision on the
merits would necessarily constitute an advisory opinion since it would not result in
appropriate relief to plaintiff. As noted by the appellate court, plaintiff did not and
does not challenge the trial court’s ruling that it failed to prove (1) it would be
irreparably harmed if an injunction did not issue and (2) it was damaged by the
breach. The failure to prove the necessary elements for injunctive relief is an
independent basis for granting judgment in favor of defendants on count I. Since
plaintiff has not challenged these conclusions, we cannot say the trial court’s
decision was an abuse of discretion. As such, irrespective of whether the
confidentiality agreement is enforceable, the trial court’s directed finding in favor
of defendants was proper. Accordingly, the appellate court did not err in refusing
to address this issue.
¶ 69 Based on the above, we affirm the appellate court’s judgment, affirming the
trial court’s grant of a directed finding on count I of plaintiff’s complaint.
¶ 70 CONCLUSION
¶ 71 We hold that a cause of action for usurpation of a corporate opportunity requires
a plaintiff to establish that the opportunity has in fact been taken, i.e., that the
opportunity is no longer available to it. Because the funding opportunity was still
available to plaintiff at the time of trial, there was no usurpation by defendants, and
therefore, we reverse the judgment of the appellate court with respect to count V.
We affirm the judgment of the appellate court in all other regards.
¶ 72 Appellate court judgment affirmed in part and reversed in part.
¶ 73 Circuit court judgment affirmed.
¶ 74 JUSTICE OVERSTREET, dissenting:
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¶ 75 I respectfully dissent from the majority’s conclusion that defendants did not
usurp a corporate opportunity. The majority indicates that, in a claim for usurpation
of a corporate opportunity, the injury is the taking or seizing of a corporate
opportunity by its fiduciary. The core principle of the corporate opportunity
doctrine prohibits a fiduciary from usurping business opportunities that belong to
the corporation and from using corporate assets to develop those opportunities (see
Graham v. Mimms, 111 Ill. App. 3d 751, 763 (1982)), which I conclude is precisely
what occurred in this case. However, the majority determined that, here, there was
no usurpation of a corporate opportunity and thus no injury to plaintiff because the
funding opportunity still existed for plaintiff at the time of the trial. I do not agree
that this is the end of the inquiry.
¶ 76 The appellate court in this case emphasized the general rule that, if a fiduciary
wishes to take advantage of an opportunity that is in the corporation’s line of
business, the fiduciary must first disclose and tender the opportunity to the
corporation, then obtain the corporation’s consent before acting on his or her own
behalf. 2019 IL App (2d) 190043, ¶ 60 (citing Graham, 111 Ill. App. 3d at 765,
Mullany, Wells & Co. v. Savage, 78 Ill. 2d 534, 549 (1980), and Advantage
Marketing Group, Inc. v. Keane, 2019 IL App (1st) 181126, ¶¶ 40-42). Thus, there
are two layers of protection afforded plaintiff under this doctrine:
(1) tender/disclose the opportunity and (2) obtain consent—neither of which
occurred here. I find this irreconcilable with the majority’s conclusion.
¶ 77 The tender/disclose/consent requirements of the corporate opportunity doctrine
are long-standing principles that should not be circumvented. The rule of law
established by the majority will permit disingenuous fiduciaries to procure business
opportunities for themselves and to bypass the tender/disclose/consent
requirements of the corporate opportunity doctrine merely by providing in their
contracts that the opportunity is not exclusively available to any party.
¶ 78 Here, defendants usurped the corporate opportunity while still in the plaintiff’s
employ. The opportunity presented to defendants in 2013 is not the same
opportunity that was available to plaintiff at the time of trial. This is exemplified
by the allegations in plaintiff’s complaint, as observed by the majority, “that
defendants’ actions ‘foreclosed potential future project opportunities that [plaintiff]
could have developed with Merced Capital and Carson Bay,’ as well as ‘the ability
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to develop other projects in the ERCOT area with Merced Capital and/or its
facilities.’ ” (Emphasis added.) Supra ¶ 49. There were “potential future project
opportunities” in 2013 that were never realized by plaintiff and did not exist at the
time of trial.
¶ 79 Indeed, any funding opportunity still existing at the time of trial was not the
same as the opportunity for plaintiff to initially establish the relationship and take
advantage of any “potential future project opportunities” available in 2013. For
example, in 2013, plaintiff could have contracted for exclusive rights, negotiated
terms that favored it at that time, dealt exclusively with Merced III, negotiated the
initial opportunity to receive profit interest in MHV after Merced III recouped
initial investments, managed day-to-day operation of MHV’s business, worked
exclusively on behalf of MHV, and earned income between 2013 and the time of
trial, none of which were realized due to defendants’ failure to tender and disclose.
The definition of “opportunity” is “a favorable juncture of circumstances” and “a
good chance for advancement or progress.” Merriam-Webster’s Collegiate
Dictionary 870 (11th ed. 2020). The opportunity available to plaintiff at the time of
defendants’ actions was lost to plaintiff, even though a funding opportunity later
remained available to plaintiff pursuant to carefully crafted contract terms. In
failing to tender or disclose or obtain consent for their activities, defendants usurped
the opportunity presented at that time.
¶ 80 Ironically, in this case, defendants were specifically hired to scout for
opportunities and present them to plaintiff. Accordingly, defendants’ employment
duties included, in part, what the corporate opportunity doctrine requires—to seek
and procure business opportunities for plaintiff’s benefit, which necessarily
required tendering and disclosing the opportunities to plaintiff. Defendant
Dahlstrom testified that the funding opportunity was a “ ‘proposed activity which
[plaintiff] had the capacity to engage,’ ” thereby judicially admitting that
developing such projects was incident to plaintiff’s prospective or present business.
2019 IL App (2d) 190043, ¶ 30. Notwithstanding this knowledge, defendants
proceeded to use plaintiff’s time and equipment to procure the funding opportunity
for themselves. Id. ¶ 31. Moreover, defendants conspired with Merced III to not
disclose the negotiations to plaintiff (id.) and admitted that they did not disclose the
opportunity to plaintiff at any time, before or after they resigned their employment
with plaintiff (id. ¶ 64). Defendants took for themselves the funding opportunity as
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it was presented in 2013. Because defendants never disclosed or tendered the
opportunity to plaintiff, it follows that they did not obtain plaintiff’s consent prior
to pursuing the opportunity for themselves. Hence, all that was necessary to
establish a claim for usurpation of a corporate opportunity transpired here. See id.
¶ 60; Graham, 111 Ill. App. 3d at 761, 763; Mullany, 78 Ill. 2d at 549; Advantage
Marketing Group, 2019 IL App (1st) 181126, ¶¶ 40-42.
¶ 81 The majority decision permits defendants in this case to evade liability for
usurping a corporate opportunity merely because the operating agreement allowed
Merced III to partner with any entity. As it stands, the rule of law established by
the majority will allow dishonest fiduciaries to procure opportunities for themselves
and strategically contract their way out of the requirements of the corporate
opportunity doctrine, thereby avoiding any consequences of usurping corporate
opportunities.
¶ 82 As the appellate court pointed out, this case is unusual, as corporate opportunity
cases typically involve an opportunity that is available to one party or the other, but
not both. 2019 IL App (2d) 190043, ¶ 70. However, the appellate court
concluded—and I agree—that, because there is sufficient evidence that defendants
usurped a corporate opportunity, it is immaterial whether additional opportunities
were or still are available to plaintiff. Id. I further agree that this conclusion is
consistent with the prophylactic purpose of the fiduciary rules to forbid a defendant
to exploit an opportunity—even if it is one of many—consistent with plaintiff’s
business, without first disclosing and tendering the opportunity to plaintiff and
obtaining its consent. Id. (citing Kerrigan v. Unity Savings Ass’n, 58 Ill. 2d 20, 28
(1974)). The appellate court succinctly summarized its conclusion by stating: “The
proper focus was whether the opportunity [defendants] took was within [plaintiff’s]
line of business (it was) and whether it was disclosed, tendered, and consented to
(it was not).” Id. ¶ 69.
¶ 83 In sum, the majority indicates that, in a claim for usurpation of a corporate
opportunity, the injury is the taking or seizing of a corporate opportunity by its
fiduciary. However, the majority concludes that there was no usurpation of a
corporate opportunity and no injury to plaintiff because the funding opportunity
was available to plaintiff. Conversely, I would conclude that, under the corporate
opportunity doctrine, the injury resulted not only from what was done, i.e., the
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taking of the opportunity, but also what was not done, i.e., failing to tender/disclose
and obtain consent. As observed, defendants usurped the corporate opportunity at
the time of their actions and failed to tender/disclose the opportunity and obtain
plaintiff’s consent before doing so.
¶ 84 For these reasons, I respectfully dissent from the majority’s conclusion on this
issue and agree with the appellate court’s conclusion that defendants usurped a
corporate opportunity from plaintiff. Accordingly, I would affirm the entirety of the
appellate court’s decision.
¶ 85 JUSTICES GARMAN and CARTER join in this dissent.
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