Extra Equipamentos E Exportaçáo Ltda. v. Case Corp. , 541 F.3d 719 ( 2008 )

RIPPLE, Circuit Judge,

concurring in part and dissenting in part.

The district court granted summary judgment in favor of Case with respect to both Extra’s fraud and promissory fraud claims. The panel majority affirms the district court with respect to both counts. I join the panel majority’s determination that the district court properly dismissed Extra’s fraud claim. With respect to Extra’s promissory fraud count, however, I would reverse the judgment of the district court and remand the case for trial.

I

A.

In this diversity action, Extra Equipa-mentos E Exportagáo, Ltda. (“Extra”) asserts claims of fraud and promissory fraud against Case Corporation (“Case”). Case is a manufacturer of farm and construction. equipment; Case Brasil is a wholly owned subsidiary of Case organized under the laws of Brazil. From 1992 until 2001, Extra operated as a distributor of Case equipment under a distribution agreement with Case Brasil (the “1992 distribution agreement”).

In 1999, Case began having serious concerns about the allegedly illegal or improper conduct of executives at Case Brasil. From 1997 until 1999, Mario Hirose allegedly had been operating a “charge-back” scheme¹ to inflate both Case Brasil’s profits and the bonuses of Case Brasil’s management; Hirose also allegedly was extorting from Persio Briante, Extra’s owner and president, R$50,000 per month as a condition for continuing the 1992 distribution agreement. Although Case became aware of, and was investigating, the alleged corruption at Case Brasil, it was unable to garner sufficient evidence to terminate Hirose and his corrupt colleagues. In 1999, based on Hirose’s corrupt conduct, Extra sued Case Brasil in Brazilian court.

At the same time that it was investigating Case Brasil executives, Case also was seeking to have a proposed merger approved by CADE, a Brazilian agency with the regulatory authority to approve business mergers. Extra had filed objections to the merger. Case was aware of these objections; indeed, at one time, Case executives met with Briante and his counsel regarding these objections. Briante’s lawyer informed Brian Cahill, a senior in-house counsel at Case, that Briante was most concerned about alleged improper charge-backs to Extra’s open account and that the CADE objections were filed to get Case’s attention.

Cahill met with Briante in October 1999. On behalf of Case, Cahill had three issues to discuss: (1) additional information needed to fire Hirose and his associates; (2) objections to the pending merger; and (3) the charge-back issue. The parties could not resolve these issues; later, however, Briante’s lawyer called Cahill to indicate Briante’s interest in another meeting and also to express concern for Briante’s safety if he should meet with Case people again in Brazil. It was therefore agreed that Briante would fly to the United States and would meet with Case management in an airplane hangar at an airport in Wauke-gan, Illinois.

The parties met in Waukegan. Extra was represented by Briante, who had with him Extra’s Brazilian and American attorneys as well as Extra’s financial advisor. Case was represented by James Sharman, Cahill and William Dietrick, a Case outside attorney. Sharman introduced himself as a Case Vice-President and head of Case’s Latin American operations. It is undisputed that Sharman is not an officer of Case Brasil. Cahill testified in a deposition that he did not inform Extra’s representatives that Sharman was not an officer of Case Brasil.

After a full day of negotiations, the parties reached an agreement (the “Release”). The Release recites that it is between Extra and Case Brasil; James Sharman signed the Release on behalf of Case Bra-sil. Throughout this litigation, moreover, Case has maintained that the “actual party” to the Release was Case Brasil. R.173 at 1-2.

The Release contains a no-reliance clause:

No Reliance On The Other Party: Both parties represent and warrant that in making this Release they are relying on their own judgment, belief and knowledge and the counsel of their attorneys of choice. The parties are not relying on representations or statements made by the other party or any person representing them except for the representations and warranties expressed in this Release.

R.157, Ex. 9 at 5-6. Under the terms of the Release, Case was assured of Briante’s full cooperation and support in rectifying Case’s problems with its Brazilian operations. Case Brasil, for its part, assured that it would provide to Extra a “standard” Case “Commercial Representative Agreement and Technical Services Agreement.” Id., Ex. 9 at 1. With respect to the charge-back issue, Case Brasil agreed to cap at R$2 million the total amount of monies that Extra owed to Case Brasil. In exchange, Extra dropped the suit that it had instituted in 1999 in Brazilian courts. Additionally, Extra released all claims that it might have had against Case Brasil, including any claims regarding the charge-back scheme, Hirose’s alleged extortion and objections to Case Brasil’s then-pending merger.

Extra, in compliance with the terms of the Release, provided Case with information about the operations of Case Brasil, namely that Hirose was extorting money or other favors from Case dealers, which allowed Case to terminate Hirose’s employment. Indeed, Sharman and Cahill flew to Brazil the following day to fire Hirose; other Case officials fired Hirose’s staff.

At this point in the litigation, the record does not permit a definitive determination as to the extent to which Case Brasil failed to comply with the Release or whether Case Brasil repudiated the contract. According to Extra, Case Brasil has ignored, almost completely, its obligations under the Release by failing to tender proper Commercial Representative and Technical Services agreements to Extra. Case Bra-sil officers called the Release “stupid” and said that it “made no sense at all.” In 2001, moreover, Case Brasil attempted to force Extra into signing a novation that would have released Case Brasil from its obligations under the Release. In that document, Case Brasil asked Extra to recognize a debt of R$10,365,000, despite the R$2 million cap set in the Release. After Extra refused to sign the novation, Case Brasil terminated Extra’s line of credit and refused to sell to Extra any spare parts of Case equipment. Case Brasil informed Extra that Extra’s credit would be restored if Extra signed the novation. According to Extra, Case Brasil executives repeatedly demanded that Extra desist from attempting to enforce the terms of the Waukegan agreement and threatened Extra’s position as a distributor of Case equipment if Extra did not comply with Case Brasil’s demands.

Case, in contrast, contends that Case Brasil has performed fully and that termination of the 1992 distribution agreement was permissible under the terms of the distribution agreement itself and occurred only after negotiations to extend the agreement (through Case’s tendering of the Commercial Representative and Technical Services agreements to Extra) had failed. In any event, Case contends, after Case Brasil’s perceived breach of the 1992 distribution agreement, Extra sued Case Brasil in Brazil for wrongful termination; Brazil’s highest court held that Case Brasil could terminate, although it might owe Extra some damages. This issue still is being litigated in Brazilian courts.

B.

Extra asserts claims of fraud and promissory fraud against Case. In our previous disposition in this case, we reversed the judgment of the district court, which had dismissed Extra’s suit on the ground that Case Brasil was an indispensable party to the suit,² and remanded the case for further proceedings. See Extra Equipamentos E Exportaqáo v. Case Corp., 361 F.3d 359 (7th Cir.2004) [hereinafter Extra /]. In reversing the judgment of the district court, we noted repeatedly that Extra’s suit was based on Case’s alleged fraud in negotiating the Release. See id. at 360-61, 362-63. Specifically, we noted that Extra was contending that Case had manipulated its corporate form to dupe Extra into signing the Release while concomitantly preserving Case Brasil’s ability to repudiate the Release. Id. On remand, the district court denied Case’s motion to dismiss. After the parties had conducted discovery, Case filed a motion for summary judgment.

The district court granted summary judgment on all claims based on the Release’s no-reliance clause and on this court’s decision in Rissman v. Rissman, 213 F.3d 381, 383-84 (7th Cir.2000).³ In this case, the district court explained that Rissman applied only with “limited value” because a no-reliance clause “is typically a shield one party uses to deflect the opposing party’s claims of fraud.” R.174 at 8. Although the district court recognized that Case is not a party to the Release, which was between Case Brasil and Extra, it believed that “the non-reliance clause [nevertheless] bears on the critical issue” whether “Extra’s reliance on Case’s oral representations [was] reasonable[J” Id. The court ruled that Extra’s reliance on Case’s representations was not reasonable, as a matter of law. In support of this determination, the district court explained that, when Extra met with Case to negotiate the Release, Extra was “under the impression” that Sharman was representing Case Brasil because both Sharman and Cahill had said so. As a result, Sharman was “any person representing” the parties, under the terms of the no-reliance clause. Under Illinois law, both fraud and promissory fraud require proof of reliance. Consequently, the district court dismissed both the fraud and the promissory fraud claim.

As relevant here, Case also had moved, in the alternative, for summary judgment with respect to Extra’s promissory fraud ⁴ claim on the ground that Extra had no evidence of a scheme to defraud. The district court rejected this alternative basis for granting summary judgment. It concluded that “Extra has offered evidence to support its allegations of a scheme to defraud.” Id. at 12. Specifically, the district court noted that

according to Extra’s owner, Persio Bri-ante, as soon as Case got the information it wanted from Extra, it reneged on its various agreements. Specifically, Case failed to stop Case Brash from terminating the distribution agreement with Extra. Briante also contends that Case allowed Case Brasil to pressure Extra into forfeiting either the $2 million cap on Case Brasil’s liability or risk Case Brasil terminating the distribution agreement (which Case Brasil eventually did). Evidence of a series of broken promises, even if the promises are all related, is sufficient to prove a scheme to defraud.

Id. at 12-13.

Finally, the district court also declined to grant summary judgment with respect to the promissory fraud claim on the alternative ground that Extra could not establish proximate causation between Case’s alleged misrepresentation and Extra’s damages. Id. at 13-14.

II

A.

Extra contends that Case Brasil’s promises as set forth in the Release (that Case Brasil would provide a commercial representative agreement to renew the 1992 distribution agreement and that it would cap Extra’s liability for the charge-backs at R$2 million) were, as we explained in our previous opinion, the “bait dangled before Extra to persuade it” to provide evidence of Hirose’s fraud and extortion, dismissing its then-pending Brazilian suit, releasing any future claims that it might bring against Case Brasil, and dropping its objections to Case Brasil’s proposed merger. Extra I, 361 F.3d at 363. Indeed, as we explained in our prior opinion, Extra’s theory of the case is that “Case ... manipulated the corporate distinction between itself and Case Brasil by falsely representing that the Case official who signed the agreement [Sharman] was authorized to sign on behalf of Case Brasil.” Id. at 360 (emphasis supplied) (internal quotation marks omitted).

The panel majority’s application of the no-reliance clause simply ignores Extra’s promissory fraud theory. Under Illinois law, as a general matter, “misrepresentations of intention to perform future conduct, even if made without a present intention to perform, do not generally constitute fraud.” HPI Health Care Servs. v. Mount Vernon Hosp., Inc., 131 Ill.2d 145, 137 Ill.Dec. 19, 545 N.E.2d 672, 682 (Ill.1989). Illinois courts, however, have “recognized an exception to this rule,” under which “such promises are actionable if ‘the false promise or representation of future conduct is alleged to be the scheme employed to accomplish the fraud.’” Id. (quoting Steinberg v. Chi. Med. Sch., 69 Ill.2d 320, 13 Ill.Dec. 699, 371 N.E.2d 634, 641 (Ill.1977)); see also Desnick v. Am. Broadcasting Cos., Inc., 44 F.3d 1345, 1354 (7th Cir.1995) (“Unlike most states nowadays, Illinois does not provide a remedy for fraudulent promises (‘promissory fraud’)— unless they are part of a ‘scheme’ to defraud.” (emphasis added)). Accordingly, a promissory fraud action, under Illinois law, requires that a plaintiff prove that (1) the defendant made a false and material statement .concerning future conduct; (2) as part of a scheme to defraud; (3) knowing that the statements were false, or the statements were made with a reckless disregard of whether they were true or false; (4) the statements were made with the intent to induce action; (5) the plaintiff reasonably believed the statements and justifiably acted in reliance on those statements; (6) the plaintiff suffered damages as a result. Kapelanski v. Johnson, 390 F.3d 525, 530 (7th Cir.2004) (Illinois law); Steinberg, 13 Ill.Dec. 699, 371 N.E.2d at 641.

Based on the no-reliance clause, the district court granted summary judgment to Case with respect to both Extra’s fraud and promissory fraud claims. The no-reliance clause, the district court determined, would prevent Extra, as a matter of law, from proving reliance, which is an element of both fraud and promissory fraud.

The district court erred, however, in dismissing Extra’s promissory fraud claim on the basis of the no-reliance clause. Many of the fraudulent statements upon which Extra has predicated this suit are repeated and reenforced in the Release itself, and, by its own terms, the no-reliance clause does not apply to “representations and warranties expressed in” the Release. R.157, Ex. 9 at 5-6. For example, the Release specifically contains the following terms: Before October 1999, Case Brasil promises to provide to Extra standard Case Commercial Representative and Technical Services agreements; Case Bra-sil promises that any charge-backs made by Case Brasil' against Extra’s open account would be reversed; and Case Brasil promises that it will cap Extra’s liabilities at R$2 million. R.157, Ex. 9. Because Extra’s promissory fraud claim is predicated upon the “representations and warranties expressed in” the Release itself, the no-reliance clause, by its plain language, cannot prevent Extra from establishing reliance as a matter of law on that claim. R.157, Ex. 9 at 5-6.

In addition to adhering to the plain language of the no-reliance clause, this result is consistent with the policy justifications for strictly enforcing such clauses. By memorializing conclusively the terms governing a transaction, no-reliance clauses mitigate the risks of skullduggery and faulty memory. Rissman, 213 F.3d at 384. It allows the parties to “ensure[ ] that both the transaction and any subsequent litigation proceed on the basis of the parties’ writings.” Id. As the court in Rissman recognized, where a party has incorporated allegedly fraudulent terms into the agreement, these concerns are not implicated. Rissman, 213 F.3d at 383 (noting that the plaintiff who was suing for fraud did not contend that any misrepresentation in the agreement itself was untrue or misleading).

In sum, the panel majority’s application of the no-reliance clause does not take into account Extra’s promissory fraud claim. Extra claims that Case, as part of a scheme to defraud, has manipulated its corporate form — that is, the distinction between it and its subsidiary, Case Brasil— to dupe Extra into signing the Release and divulging information that Case needed while concomitantly scheming to ensure that Extra would not obtain the benefits of the Release. Having obtained from Extra the requisite information to fire Hirose and his corrupt associates as well as a blanket release of all claims, Case failed to ensure that Case Brasil follow the terms of the Release. The no-reliance clause cannot prevent Extra from, proving reliance, as a matter of law, with respect to its promissory fraud claim.

The panel majority’s opinion further obscures the importance of the foregoing analysis by faulting Extra for maintaining that it is seeking damages rather than rescission. Supra at 12. Extra’s complaint and the Release itself, however, elucidate why Extra did not seek rescission as a remedy. As Illinois law recognizes, rescission of the Release cannot not place Extra in the status quo ante because the consideration that it tendered to Case cannot be recovered. See, e.g., Klucznik v. Nikitopoulos, 152 Ill.App.3d 323, 105 IllDec. 141, 503 N.E.2d 1147, 1150 (Ill.App.Ct.1987) (“[A] court will not grant rescission of a contract in any event where the status quo ante of the parties cannot be restored.”); see also Sweet Dreams Unlimited, Inc. v. Dial-A-Mattress Int’l, Ltd., 1 F.3d 639, 641 (7th Cir.1993) (“A successful rescission action annuls the contract and returns the parties to the status quo ante.”). As consideration for Case’s (allegedly unfulfilled) promises set forth in the Release, Extra released all claims against Case Brasil, including the suit that it had instituted in 1999 regarding Case Brasil’s charge-back scheme; the Release might also encompass any claims that Extra may have had for Hirose’s extortion of Extra and Mr. Briante. Rescission would mean little to Extra if the Brazilian statute of limitations has expired or an equivalent to our laches doctrine prevents Extra from suing on these claims. Similarly, only damages can recompense Extra for the lost opportunity that it allegedly suffered when it agreed to divulge to Case information regarding Hirose and Case Brasil’s corruption and to drop its objections to Case’s then-pending merger. Rescission, in short, is “simply not feasible” in this case. Jones v. InfoCure Corp., 310 F.3d 529, 535 (7th Cir.2002) (internal quotation marks and citation omitted).

B.

As discussed above, Illinois law requires that Extra, to win its promissory fraud claim, establish that Case engaged in a scheme to defraud. In discussing Illinois law, we have noted that “the distinction between a mere promissory fraud and a scheme of promissory fraud is elusive, and has caused, to say the least, considerable uncertainty, as even the Illinois cases acknowledge.” Desnick, 44 F.3d at 1354. Despite this uncertainty, we continued, “it is not our proper role as a federal court in a diversity suit to read ‘scheme’ out of Illinois law; we must give it some meaning.” Id. We concluded: “Our best interpretation is that promissory fraud is actionable only if it either is particularly egregious or, what may amount to the same thing, it is embedded in a larger pattern of deceptions or enticements that reasonably induces reliance and against which the law ought to provide a remedy.” Id.

The district court rejected Case’s claim that it was entitled to summary judgment based on Extra’s failure to proffer evidence with respect to this element of the promissory fraud claim. The district court believed that Extra has alleged sufficient evidence to create a genuine issue of material fact as to whether Case engaged in a scheme to defraud. According to Extra, Case reneged on various provisions of the Release as soon as it received the information that it sought from Extra. Moreover, Case allowed Case Brasil to ignore, almost completely, its obligations under the Release by failing to tender proper Commercial Representative and Technical Services agreements to Extra. Case Brasil officers called the Release “stupid” and said that it “made no sense at all.” In 2001, Case Brasil attempted to force Extra into signing a novation that would have excused Case Brasil from its obligations under the Release. In that document, Case Brasil asked Extra to recognize a debt of R$10,-365,000, despite the R$2 million cap set in the Release. After Extra refused to sign the novation, Case Brasil terminated Extra’s line of credit and refused to sell to Extra any spare parts of Case equipment. Case Brasil informed Extra that Extra’s credit would be restored if Extra signed the novation. According to Extra, Case Brasil executives repeatedly demanded that Extra desist from attempting to enforce the terms of the Waukegan agreement and threatened Extra’s position as a distributor of Case equipment if Extra did not comply with Case Brasil’s demands.

Whether Extra has adduced sufficient evidence that Case engaged in a scheme to defraud is a close issue. Given that this action is before us on summary judgment and given that, contrary to Case’s suggestions, the parties are disputing vigorously whether Case was complicit in Case Bra-sil’s (alleged) failure to comply with the Waukegan agreement, Extra should be allowed to proceed with its promissory fraud claim. Extra has adduced sufficient evidence to allow a jury to conclude that Case engaged in a scheme with Case Brasil to dupe Extra into signing the Release and divulging the information that Case needed while concomitantly scheming to ensure that Extra would not obtain the benefits of the Release.

Conclusion

For the foregoing reasons, I would reverse the judgment of the district court with respect to Extra’s promissory fraud claim and remand for a jury trial on that issue.

1 . The scheme operated as follows: Extra and other distributors had open accounts with Case Brasil that reflected the amounts owed by one entity to the other. As part of the scheme, Case Brasil would approve farm equipment loans for customers whom they knew could not pay off the loans. Whenever a customer defaulted on such a loan, Case Brasil's management would transfer these loans from Case Brasil's books to the open accounts kept with distributors like Extra. This resulted in losses to the distributor as well as a windfall to Case Brasil’s management because it enabled management to inflate improperly their bonuses based on false sales figures.

2 . See Fed.R.Civ.P. 19. See generally Republic of Philippines v. Pimentel, -U.S.-, 128 S.Ct. 2180, 2184-85, 2188, 171 L.Ed.2d 131 (2008) (discussing changes to the 2007 amendments to Rule 19).

3 . In Rissman v. Rissman, 213 F.3d 381, 383-84 (7th Cir.2000), we held that “a written anti-reliance clause precludes any claim of deceit by prior representations.” See also id. at 388-89 (Rovner, J., concurring) (noting that this is not a per se rule and that courts should continue to apply a totality of the circumstances approach).

4 . Under Illinois law, a plaintiff may prove promissory fraud by establishing all of the elements of fraud and, additionally, by establishing that the false statement concerns future conduct rather than an existing or preexisting material fact and that the false statement of future conduct is part of a pattern or scheme to defraud. Steinberg v. Chi. Med. Sch., 69 Ill.2d 320, 13 Ill.Dec. 699, 371 N.E.2d 634, 640-41 (Ill.1977). The elements of fraud are: (1) the defendant made a false statement of material fact; (2) the defendant knew or believed that the statements were false, or the statements were made with a reckless disregard of whether they were true or false; (3) the statements were made with the intent to induce action; (4) the plaintiff reasonably believed the statements and justifiably acted in reliance on those statements; and (5) the plaintiff suffered damages as a result. Kapelanski v. Johnson, 390 F.3d 525, 530 (7th Cir.2004) (Illinois law).