Nat'l Union Fire Pit v. Garrity, James M.

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-1648, 03-1665, 03-1669
WILLIAMS ELECTRONICS GAMES, INC. et al.,
Plaintiffs-Appellants,
v.
JAMES M. GARRITY et al.,
Defendants-Appellees.
MILGRAY ELECTRONICS, INC.,
Defendant/Counter-Plaintiff/
Cross-Plaintiff/Cross-Appellant,
v.
WILLIAMS ELECTRONICS GAMES, INC.,
Plaintiff/Counter-Defendant/
Cross-Appellee,
and
LAWRENCE J. GNAT and RICHARD S. SLUPIK,
Defendants/Cross-Defendants/
Cross-Appellees.
____________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 97 C 3743—Robert W. Gettleman, Judge.
____________
2 Nos. 03-1648, 03-1665, 03-1669
ARGUED FEBRUARY 24, 2004—DECIDED APRIL 29, 2004
____________
Before POSNER, RIPPLE, and EVANS, Circuit Judges.
POSNER, Circuit Judge. Williams, the manufacturer of
Mortal Kombat and other video games, brought suit for fraud
and related misconduct, federal and state (Illinois law
governs the state law claims), against two of its components
suppliers, Arrow and Milgray. (National Union, Williams’s
insurer, joined as a plaintiff, but need not be discussed
separately.) Williams charges the suppliers with, among
other things, having bribed one of its buyers, Greg Barry, to
buy from them. Williams also named as a defendant James
Garrity, a salesman for Arrow. Milgray counterclaimed. It
charged that Williams had conspired with two of Milgray’s
employees, Gnat and Slupik (against whom Milgray filed
cross-claims), to defraud Milgray by purchasing compo-
nents from a company named Microcomp that Gnat and
Slupik had created and were operating in violation of their
duty to their employer.
The jury rendered a verdict for Williams against Garrity
for $78,000 but exonerated the other defendants. The judge
then rejected Williams’s equitable claims. Williams ap-
peals—as does Milgray, because the judge rejected its claims
against Williams, Gnat, and Slupik. We’ll discuss Williams’s
claims first.
Barry received more than $100,000 in cash bribes from
Arrow and Milgray over a four-year period during which
these two suppliers sold Williams some $100 million in
component parts. Eventually Williams discovered Barry’s
bribe-taking and fired him. The company may have been
careless in failing to discover the bribes sooner; it may even
have known about the bribes but not cared because it
thought it was getting a good price and excellent service
Nos. 03-1648, 03-1665, 03-1669 3
from Arrow and Milgray. That is a matter of fierce dispute
but Williams does admit being aware that some of its sup-
pliers, not limited to Arrow and Milgray, were giving gift
certificates ranging from $25 to $500 to its employees at
Christmas time. Williams had no policy against its employ-
ees’ accepting Christmas gifts, provided that any gift in
excess of $100 was disclosed to and approved by a company
audit board, except that buyers (such as Barry) were
forbidden to accept any gift, period. The cash bribes re-
ceived by Barry were not considered by either donor or
recipient to be Christmas gifts.
Commercial bribery is a garden variety of fraud, e.g., Ash
v. Wallenmeyer, 879 F.2d 272, 273 (1989), appeal after re-
mand, Ash v. Georgia-Pacific Corp., 957 F.2d 432 (7th Cir.
1992); see Ginsburg v. United States, 909 F.2d 982, 989-91 (7th
Cir. 1990); Walker v. Marshall Field & Co., 179 Ill. App. 3(1913), here consisting of the suppliers’ concealing from
Williams the fact that they were bribing its buyer. The judge
gave a standard fraud instruction. It required the jury to
find that Williams had justifiably relied on the facts known
to it in continuing to purchase from Arrow and Milgray—or
in other words that Williams hadn’t known about the
bribes. At the request of the defendants, however, the judge
also gave instructions on the affirmative defenses of ratifica-
tion and in pari delicto. He instructed the jury that if Wil-
liams had known or “should have known” of the defen-
dants’ bribing Barry, it should find that Williams had
ratified the fraud and could not recover damages. And
likewise if Williams had been in pari delicto (equally at fault)
with the defendants, which it would be, the judge told the
jury, if Williams either (1) “was aware of a general practice
of bribery of its buyers by its suppliers” or (2) “knew or was
recklessly indifferent to the fact that Greg Barry was
soliciting and/or accepting kickbacks from Williams’
vendors.” The jury found that Williams had proved fraud,
in accordance with the instruction on fraud, but also found
4 Nos. 03-1648, 03-1665, 03-1669
that the corporate defendants (Garrity did not assert these
defenses) had proved both affirmative defenses; and so
Arrow and Milgray were exonerated.
The instructions on the affirmative defenses were erron-
eous at a quite fundamental level. As countless cases affirm,
a victim’s negligence is not a defense to an intentional tort,
such as fraud. Chapman v. Hosek, 475 N.E.2d 593, 599 (Ill.
App. 1985); Ty Inc. v. Softbelly’s Inc., 353 F.3d 528, 537 (7th
Cir. 2003); Eastern Trading Co. v. Refco, Inc., 229 F.3d 617,
625 (7th Cir. 2000); In re Mercer, 246 F.3d 391, 421 (5th Cir.
2001). (For that matter, it is no longer a complete defense to
an unintentional tort, having been replaced by the partial
defense of comparative negligence. E.g., Spinozzi v. ITT
Sheraton Corp., 174 F.3d 842, 847 (7th Cir. 1999); Alvis v.
Ribar, 421 N.E.2d 886, 896-97 (Ill. 1981). That should have
been a clue as to how the law would treat the victim’s
negligence in the setting of an intentional tort.) Yet by
instructing the jury that it should return a verdict for the
defendants if it found that Williams “should have known”
that Barry was taking bribes, the judge allowed the jury to
exonerate the defendants on the basis of the carelessness of
their victim in failing to discover that it was a victim.
The error was compounded by a misunderstanding of the
legal meaning of ratification. Had Williams after discover-
ing Barry’s bribe-taking decided that it was on the whole
beneficial to Williams (maybe because it allowed Williams
to pay him a lower salary!), and had decided not to fire
him or otherwise discipline him, that would be ratification,
much as if a restaurant owner decided after discovering that
his headwaiter was accepting tips in order to seat patrons to
condone the practice (still common, especially in night-
clubs). Cf. State v. Brewer, 129 S.E.2d 262, 276 (N.C. 1963). Or
as if Barry, as Williams’s agent, had made an unauthorized
transaction on Williams’s behalf that Williams, after discov-
ering the transaction, had decided was in its interest after
Nos. 03-1648, 03-1665, 03-1669 5
all, and so it would retain the benefits of it. E.g., Eastern
Trading Co. v. Refco, Inc., supra, 229 F.3d at 625; Hurd v.
Wildman, Harrold, Allen and Dixon, 707 N.E.2d 609, 616 (Ill.
App. 1999); Progress Printing Corp. v. Jane Byrne Political
Committee, 601 N.E.2d 1055, 1067-68 (Ill. App. 1992). Obvi-
ously it couldn’t retain the profits of the transaction but
shuck off the costs on the ground that it had never autho-
rized the transaction and therefore wasn’t bound by it. See
Extra Equipamentos e Exportação Ltda. v. Case Corp., 361 F.3d
359, 360 (7th Cir. 2004).
But that isn’t the defendants’ theory. It is that Williams
knew all along about Barry’s bribe-taking. If so, this would
exonerate the defendants, all right, because it would mean
there had been no fraud in the first place, not that the fraud
had been washed away by ratification. No ratification
instruction should have been given, let alone one that mis-
stated the law by supposing that ratification can be pre-
mised on a careless accident.
The defense of in pari delicto is intended for situations in
which the victim is a participant in the misconduct giving
rise to his claim, Pinter v. Dahl, 486 U.S. 622, 636 (1988);
Crawford v. Colby Broadcasting Corp., 387 F.2d 796, 798 (7th
Cir. 1967), as in the classic case of the highwayman who
sued his partner for an accounting of the profits of the
robbery they had committed together. Note, “The
Highwayman’s Case,” 9 L.Q. Rev. 197, 197-99 (1893) (Everet
v. Williams (Ex. 1725)); Byron v. Clay, 867 F.2d 1049, 1051-
52 (7th Cir. 1989); see also Cisna v. Sheibley, 88 Ill. App.
385 (1899). It has been extended to the case—illustrated
not by the in pari delicto defense asserted by Arrow and
Milgray but by the separate in pari delicto defense asserted
by Milgray—in which each party is accused of having
wronged the other; Milgray, as we’ll see, claims that
Williams committed fraud against it at the same time that it
was committing fraud against Williams.
6 Nos. 03-1648, 03-1665, 03-1669
That is not the character of the in pari delicto defense that
Arrow and Milgray asserted jointly against Williams.
Clause (2) of the instruction (“knew or was recklessly
indifferent to the fact that Greg Barry was soliciting and/or
accepting kickbacks from Williams’ vendors”) barred
Williams from recovering against either defendant if the
jury found that Williams knew that, or was recklessly in-
different to whether, Barry was taking bribes. This part of
the instruction didn’t define a defense distinct from rati-
fication, but merely repeated in different words the instruc-
tion on ratification, except that for negligence it properly
substituted reckless indifference, which the law treats for
most purposes including this one the same as knowledge.
E.g., Vigortone AG Products, Inc. v. PM AG Products, Inc., 316
F.3d 641, 645 (7th Cir. 2002); AMPAT/Midwest, Inc. v. Illinois
Tool Works Inc., 896 F.2d 1035, 1041-42 (7th Cir. 1990). Clause
(1) (“was aware of a general practice of bribery of its buyers
by its suppliers”) likewise repeated the defense of ratifica-
tion in the guise of in pari delicto (as if it helps a jury to have
instructions translated into Latin!), but reinjected negligence
as a basis for barring Williams by suggesting that Williams’s
knowledge of a “general practice,” presumably a reference
to the Christmas gifts, should have alerted it to the possibil-
ity that Barry was taking big bribes.
Apart from the fact that the two affirmative-defense in-
structions were at once erroneous and confusingly overlap-
ping, they made a confusing mish-mash with the instruction
on prima facie fraud. The jury found that Williams had been
justified in relying on the facts known to it, yet how could
it find that and at the same time find that Williams both had
ratified the fraud and had been equally at fault with the
defendants? There is a possible path, as we’re about to see,
but we can have no confidence that it is the one the jury
actually took.
Nos. 03-1648, 03-1665, 03-1669 7
So Williams is entitled to a new trial on fraud—but not, as
it urges, to a judgment based on the jury’s finding of prima
facie fraud. The jury may have based its findings of ratifica-
tion and equal fault simply on negligence by Williams—the
instructions would have permitted that—in which event
Williams would be entitled to a judgment. But, again given
the confusing medley of instructions, we cannot have any
confidence that that was the jury’s thought process.
The separate in pari delicto instruction that the judge gave
with respect to Milgray’s claim against Williams and its
former employees required the jury to bring in a verdict
for Milgray if it found (as it did) that “Williams, acting
through its agent Barry, knowingly participated in Slupik’s
and/or Gnat’s unlawful diversion of business from Milgray
to Microcomp.” (Remember that Gnat and Slupik were
employees of Milgray who formed a company that sold
components to Williams in competition with Milgray.) This
instruction did not commit the error of injecting the issue of
the victim’s negligence into an intentional-tort case, but it
had no basis in law, because it required no showing that
Williams benefited from, or even knew anything about,
Gnat’s and Slupik’s conduct. All the instruction required the
jury to find was that Williams was “acting through its agent
Barry,” which we take to mean, and which the jury probably
understood to mean as well, nothing more than that Barry
was Williams’s agent.
Barry doubtless harmed Milgray by buying from
Microcomp, and Milgray could sue him for that harm.
But the fact that Barry was bribed not only by Milgray, to
Milgray’s benefit, but also by two employees of Milgray, to
Milgray’s detriment, does not establish fault on the part of
Williams. An agent’s knowledge is not imputed to his
principal when the agent is acting adversely to the principal,
Ash v. Georgia-Pacific Corp., supra, 957 F.2d at 436; Lease
8 Nos. 03-1648, 03-1665, 03-1669
Resolution Corp. v. Larney, 719 N.E.2d 165, 170 (Ill. App.
1999), as Barry was. “[I]n general when an agent acts entirely
on his own behalf, doing things that could not possibly be
interpreted as the merely overzealous or ill-judged perfor-
mance of his duties as agent, he is acting outside the scope
of the agency and the principal is not bound.” Hartmann v.
Prudential Ins. Co. of America, 9 F.3d 1207, 1210 (7th Cir.
1993) (emphasis in original). It is not as if Gnat’s and
Slupik’s fraud benefited Williams; it just made Milgray
another victim, along with Williams itself, of Barry’s fraud.
It did not make Williams equally at fault with Barry.
Lawyers Title Ins. Corp v. Dearborn Title Corp., 118 F.3d 1157,
1164 (7th Cir. 1997). The instruction was an example of
blaming the victim, with a vengeance.
Williams might be liable to Milgray under one theory or
another, but it was not a participant in the fraud against
Milgray, especially when we consider that, so far as ap-
pears, Williams lost, and Milgray on balance benefited, from
Barry’s conduct. The only fault of Williams mentioned by
the instruction is Barry’s bribe-taking; the jury was not
asked to find that Williams authorized or ratified Barry’s
conduct or even that it was negligent in failing to prevent it.
The defendants argue that if we reverse the judgment
in their favor, damages should be capped at $78,000, the
amount of the verdict against Garrity, the Arrow salesman
who bribed Barry on Arrow’s behalf. It happens that that
was the amount of the bribes that Garrity paid. But it
corresponds neither to the damages that Williams may have
sustained as a result of Garrity’s bribing Barry (and remem-
ber that Milgray as well as Arrow bribed him) nor to the
profits that the defendants may have made from the bribery
by overcharging Williams, though the bribes might as
we’ll see be a lower-bound estimate of the damages that
Arrow, Garrity’s employer—and Arrow alone—inflicted on
Nos. 03-1648, 03-1665, 03-1669 9
Williams. The $78,000 figure is a token of the jury’s confu-
sion and an unreliable guide to either Williams’s total loss
or the defendants’ gain.
We have mentioned the defendants’ gain as well as
Williams’s loss because in addition to seeking damages for
the fraud perpetrated upon it, Williams asked the judge to
impose a constructive trust in its favor on the profits that
the defendants had made from their bribery. The victim of
commercial bribery, who usually as here is the principal of
an agent who was bribed, can obtain by way of remedy
either the damages that he has sustained (the damages
remedy) or the profits that the bribe yielded (the restitution
or unjust enrichment remedy). 2 Dan B. Dobbs, Dobbs Law
of Remedies, Damages-Equity-Restitution § 10.6, p. 698 (2d ed.
1993). The total profits would consist of the bribe itself (re-
ceived by Barry, of course, not by Garrity or Arrow), plus
the revenue that the bribe generated for the briber, minus
the cost of goods sold and any other variable costs incurred
in making the sales that generated that revenue. See Hill v.
Names & Addresses, Inc., 571 N.E.2d 1085, 1096-97 (Ill. App.
1991); Taylor v. Meirick, 712 F.2d 1112, 1120-22 (7th Cir.
1983).
Commercial bribery is a deliberate tort, and one way to
deter it is to make it worthless to the tortfeasor by stripping
away all his gain, since if his gain exceeded the victim’s loss
a damages remedy would leave the tortfeasor with a profit
from his act. Id. at 1120. The amount of the bribe paid is of
course not a profit to the briber, but an expense, and it
should not enter into the net profit calculation sketched
above. It can be used as a minimum estimate of damages,
however, on the theory that no one would pay a bribe who
didn’t anticipate garnering net additional revenue at least
equal to the amount of the bribe; and that additional rev-
enue is, at least as a first approximation, an additional
10 Nos. 03-1648, 03-1665, 03-1669
expense to the person whose agent was bribed. Continental
Management, Inc. v. United States, 527 F.2d 613, 619 (Ct. Cl.
1975); Donemar, Inc. v. Molloy, 169 N.E. 610, 611 (N.Y. 1930).
Arrow presumably jacked up its prices to Williams by at
least $78,000 to cover the cost of the bribes that it was pay-
ing Barry to swing business its way, as otherwise it would
have lost rather than made money from bribing him. The
implication is that had it not been for the bribes, Arrow’s
prices to Williams would have been at least $78,000 lower.
So that amount is a minimum estimate of the loss to Wil-
liams caused by Arrow’s bribing Barry.
Restitution is available in any intentional-tort case in
which the tortfeasor has made a profit that exceeds the
victim’s damages (if the damages exceed the profit, the
plaintiff will prefer to seek damages instead), whether or
not the tort involved a breach of fiduciary duty, Roberts
v. Sears, Roebuck & Co., 617 F.2d 460, 464 (7th Cir. 1980)
(fraud); Cross v. Berg Lumber Co., 7 P.3d 922, 932-36 (Wyo.
2000); Douglas Laycock, “The Scope and Significance of
Restitution,” 67 Tex. L. Rev. 1277, 1286 (1989), though com-
mercial bribery normally will involve such a breach. The
only thing that turns on the precise character of the defen-
dant’s wrongdoing is, in some cases, the availability of
equitable as distinct from legal restitution. Just as damages
can be obtained either in a suit at law, or, in an equity suit,
under the “clean up” doctrine, May Dept. Stores Co. v. Federal
Ins. Co., 305 F.3d 597, 603 (7th Cir. 2002); Medtronic, Inc. v.
Intermedics, Inc., 725 F.2d 440, 442 (7th Cir. 1984); Vowell v.
Fairfield Bay Community Club, Inc., 58 S.W.3d 324, 328 (Ark.
2001); Clark v. Teeven Holding Co., 625 A.2d 869, 881 (Del. Ch.
1992), or by the imposition of a constructive trust on moneys
wrongfully withheld from the plaintiff, May Dept. Stores Co.
v. Federal Ins. Co., supra, 305 F.3d at 603; Wal-Mart Stores, Inc.
Associates’ Health & Welfare Plan v. Wells, 213 F.3d 398, 400-
01 (7th Cir. 2000), or by surcharging a trustee for the losses
Nos. 03-1648, 03-1665, 03-1669 11
that he has caused to the trust, Restatement (Second) of Trusts
§ 205(a) (1959); John H. Langbein, “What ERISA Means by
‘Equitable’: The Supreme Court’s Trail of Error in Russell,
Mertens, and Great-West,” 103 Colum. L. Rev. 1317, 1335-38
(2003), so restitution, too, can be awarded in either a suit at
law or a suit in equity. Great-West Life & Annuity Ins. Co. v.
Knudson, 534 U.S. 204, 213 (2002); SEC v. Lipson, 278 F.3d
656, 663 (7th Cir. 2002); Health Cost Controls of Illinois, Inc. v.
Washington, 187 F.3d 703, 710 (7th Cir. 1999); Reich v.
Continental Casualty Co., 33 F.3d 754, 756 (7th Cir. 1994). If as
in this case the wrong consists of a breach of fiduciary
obligation—the kind of breach traditionally actionable in
suits in equity (fiduciary obligations were an invention of
the English chancery court, In re Estate of Karmey, 658
N.W.2d 796, 799 n. 3 (Mich. 2003) (per curiam); Beckman v.
Farmer, 579 A.2d 618, 651 n. 42 (D.C. 1990); 3 Austin
Wakeman Scott & William Franklin Fratcher, The Law of
Trusts § 197 (4th ed. 1988))—the usual form that restitution
takes is to impress a constructive trust on the profits of
wrongdoing, with the defendant the trustee and the plain-
tiff, of course, the beneficiary. Health Cost Controls of Illinois,
Inc. v. Washington, supra, 187 F.3d at 710-11; Chicago Park
District v. Kenroy, Inc., 402 N.E.2d 181, 186 (Ill. 1980); Village
of Wheeling v. Stavros, 411 N.E.2d 1067, 1069-70 (Ill. App.
1980).
But if all that the plaintiff is seeking is a sum of money
equal to the defendant’s profit, an order of restitution will
do fine, Great-West Life & Annuity Ins. Co. v. Knudson, supra,534 U.S. at 212-14, and the device of a constructive trust is
surplus; the device comes into its own only when the
plaintiff is seeking title to specific property in the defen-
dant’s hands. Which means, by the way, that the imposition
of a constructive trust can be sought as an equitable remedy
for a legal as well as an equitable wrong (on both points see
Health Cost Controls of Illinois, Inc. v. Washington, supra, 187
12 Nos. 03-1648, 03-1665, 03-1669
F.3d at 710-11; also Frederickson v. Blumenthal, 648 N.E.2d
1060, 1061-62 (Ill. App. 1995)), just as, in a suit for damages
for breach of contract, the court can order an equitable
accounting if the computation of damages involves com-
plexities that would baffle a jury. Kirby v. Lake Shore &
Michigan Southern R.R., 120 U.S. 130, 134 (1887). For com-
pleteness, we note that when restitution is sought in a law
case and the plaintiff is not seeking to impress a lien on
particular property, but just wants an award of profits, he
cannot obtain a constructive trust, because there is no res
(that is, no fund or other specific piece of property) for the
trust to attach to. Great-West Life & Annuity Ins. Co. v.
Knudson, supra, 534 U.S. at 212-14; People ex rel. Hartigan v.
Candy Club, 501 N.E.2d 188, 191 (Ill. App. 1986); 2 Dobbs,
supra, § 6.1(3). He can still get restitution in such a case, but
as a legal remedy for a legal wrong, not as an equitable
remedy for a legal or an equitable wrong.
Williams’s situation was in between. It was not seeking to
impose a lien on particular property, so it had no basis for
seeking a constructive trust. But the wrong for which it was
seeking a remedy (properly described as restitution, or,
what is synonymous as a practical matter, an accounting for
profits, Great-West Life & Annuity Ins. Co. v. Knudson, supra,534 U.S. at 213 n. 2; People ex rel. Hartigan v. Candy Club,
supra, 501 N.E.2d at 190; 1 Dobbs, supra, § 4.3(1), rather than
as the imposition of a constructive trust) was an equitable
wrong, a breach of fiduciary obligation, and so Williams
was entitled to seek equitable restitution. And therefore
it could seek (legal) damages from a jury and then, if it
thought it could obtain a larger recovery by way of restitu-
tion, an order of restitution from the judge, since equitable
remedies are determined by judges rather than by juries.
Hill v. Names & Addresses, Inc., supra, 571 N.E.2d at 1095-96;
Medcom Holding Co. v. Baxter Travenol Laboratories, Inc., 984
F.2d 223, 228-30 (7th Cir. 1993). Of course it could not keep
Nos. 03-1648, 03-1665, 03-1669 13
both damages and profits, only the larger of the two. And of
course when an equitable remedy is sought in conjunction
with a legal remedy the legal claim is tried first and the
jury’s findings bind the judge, in order to vindicate the right
to a jury trial on legal claims. Dairy Queen, Inc. v. Wood, 369
U.S. 469, 479 (1962); Snider v. Consolidation Coal Co., 973 F.2d
555, 559 (7th Cir. 1992).
The jury having exonerated the defendants, the judge
refused to order equitable relief; but since we are setting
aside the jury’s verdict, the judge’s ruling on equitable relief
falls with it. Again for completeness, we note that since
restitution is a legal as well as an equitable remedy, Wil-
liams could have sought such relief from the jury. No one
doubts that Williams was entitled to have a jury try its claim
of fraud; despite the equitable origins of remedies for fraud
a suit complaining of fraud is treated as a case at law if a
legal rather than an equitable remedy is sought, Strom v.
Goldman, Sachs & Co., 202 F.3d 138, 143-47 (2d Cir. 1999);
Skippy, Inc. v. CPC Int’l Inc., 674 F.2d 209, 214 (4th Cir. 1982);
Plechner v. Widener College, Inc., 569 F.2d 1250, 1258 (3d Cir.
1977); Hyde Properties v. McCoy, 507 F.2d 301, 305 (6th Cir.
1974); 8 James Wm. Moore, Moore’s Federal Practice
§ 38.30[1][e] (3d ed. 2003), and since restitution is equally a
legal and an equitable remedy, it can be sought from a jury
in a fraud case.
We turn now to Williams’s statutory claims, all of which
the judge threw out. One was that Arrow and Milgray had
conspired to fix the prices they charged Williams, in vio-
lation of section 1 of the Sherman Act. They might have
gotten together, agreed not to give volume discounts to
Williams (Williams was a very good customer, and might
have been expected to receive such discounts), and agreed
to bribe Barry not to demand any discounts from them. And
then there might be a good Sherman Act claim. But there is
14 Nos. 03-1648, 03-1665, 03-1669
no evidence of concerted action by the two suppliers. The
fact that both may have charged higher prices than they
would have done had they not been bribing Barry does not
show that they agreed on those prices, or for that matter
agreed to bribe Barry. For even if both suppliers agreed with
him separately to pay the bribes, one would expect the
prices of both to rise, since otherwise the suppliers wouldn’t
both be profiting from the bribes. But the common price
increase would not in that case be the result of collusion,
and commercial bribery that does not involve any collusion
between competitors does not violate the Sherman Act’s
prohibition against price-fixing. E.g., Bunker Ramo Corp. v.
United Business Forms, Inc., 713 F.2d 1272, 1279-85 (7th Cir.
1983); Calnetics Corp. v. Volkswagen of America, Inc., 532 F.2d
674, 687-88 (9th Cir. 1976); compare DeLong Equipment Co. v.
Washington Mills Electro Minerals Corp., 990 F.2d 1186, 1196-
1201 (11th Cir. 1993).
Another nonstarter is Williams’s RICO claim, which al-
leges an “enterprise” consisting of Arrow, Milgray, and
Barry. How could that be an enterprise? If briber and bribed
constitute, solely by virtue of that unlovely relation, a RICO
enterprise, then any time one person bribes another both
have violated RICO. We cannot see the sense of that. It is
true that bribery is one of the offenses upon which a RICO
claim can be based, 18 U.S.C. § 1961(1); Brokerage Concepts,
Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 527-28 (3d Cir.
1998), but the bribe itself is not the RICO offense; it is the
predicate act of the RICO enterprise and, as in Ash v.
Wallenmeyer, supra, 879 F.2d at 275-76, there is no enterprise
here. Cf. Bachman v. Bear, Stearns & Co., Inc., 178 F.3d 930(7th Cir. 1999).
Williams’s last statutory claim is under the Illinois
Consumer Fraud and Deceptive Business Practices Act, 815
ILCS 505/1 et seq. The judge rejected the claim on the
Nos. 03-1648, 03-1665, 03-1669 15
ground that Williams is not a consumer. Actually, it is a
consumer as defined in the Act, if the Act is read literally,
because it purchased components from Arrow and Milgray
not for resale but instead for use in manufacturing its video
games, which are products that it sells, not resells. “The
term ‘consumer’ means any person who purchases or
contracts for the purchase of merchandise not for resale in
the ordinary course of his trade or business but for his use
or that of a member of his household.” 815 ILCS 505/1(e).
However, we rejected the literal reading in First Comics, Inc.
v. World Color Press, Inc., 884 F.2d 1033, 1039-40 (7th Cir.
1989), lest the Act so read “supplant many common law
breach of contract and fraud cases, something the Illinois
legislature surely did not intend.” Id. at 1039. In the non-
literal reading adopted by that case, the business purchaser
is not a consumer, because his only use of the purchased
product is as an input into the making of a product that he
sells, in contrast to the individual who consumes a six-pack
of beer for pleasure or nutrition rather than incorporating
the beer into a product (his beer belly is not for sale).
In any event the section under which Williams sued does
not protect just consumers, but any person. 815 ILCS
505/10a(a); see also 10a(c). The courts have, it is true,
glossed this provision to require that the fraud be of suf-
ficient magnitude to be likely to affect the market generally,
Bank One Milwaukee v. Sanchez, 783 N.E.2d 217 (Ill. App.
2003); Speakers of Sport, Inc. v. ProServ, Inc., 178 F.3d 862,
868 (7th Cir. 1999), and thus be likely to harm consumers in
the colloquial sense of the ultimate buyer of the finished
product, or in this case the patrons of the game arcades
in which the video games manufactured by Williams are
played. But that requirement is satisfied. The fraud must
have added something, and maybe a lot, to Williams’s input
costs, and given Williams’s position in the video game
market some part of the increase would undoubtedly have
16 Nos. 03-1648, 03-1665, 03-1669
been passed on to consumers in the form of higher prices.
Passing on is impossible if a seller faces a horizontal
demand curve, meaning that the slightest increase in price
would cause his sales to plummet to zero. But that is an
unreasonable assumption with regard to a differentiated
product; there is no perfect substitute for Mortal Kombat.
Last is the appeal from the dismissal of the cross-claim
against Gnat and Slupik. Milgray fired them apparently not
knowing that they were still operating Microcomp though
they had promised years earlier to terminate this unautho-
rized competition with their employer. Milgray gave them
severance pay in exchange for a blanket release of any legal
claims they might have against Milgray; Slupik had threat-
ened to sue for age discrimination. In exchange for their
release, Gnat and Slupik received an equally broad release
of any claims that Milgray might have against them.
Milgray now argues that because Gnat and Slupik were,
as employees, fiduciaries of Milgray, they were required
before accepting the releases to disclose that they had
breached their fiduciary duty to Milgray by competing with
it through Microcomp.
The district judge was right to dismiss this claim. (He
dismissed Milgray’s counterclaim against Williams at
the same time, on the ground that the release of Gnat and
Slupik released their alleged joint tortfeasor as well. Milgray
acknowledges that the ruling was correct if Gnat and Slupik
were released.) It is true that a release, however broad in its
terms, might be obtained by fraud, or by a breach of
fiduciary obligation, and in either event it would be unen-
forceable. Havoco of America, Ltd. v. Sumitomo Corp. of
America, 971 F.2d 1332, 1341 (7th Cir. 1992); Cwikla v. Sheir,
801 N.E.2d 1103, 1112 (Ill. App. 2003); Phil Dressler &
Associates, Inc. v. Old Oak Brook Investment Corp., 548 N.E.2d
1343, 1347 (Ill. App. 1989). But Gnat and Slupik had already
Nos. 03-1648, 03-1665, 03-1669 17
been fired when they negotiated for the release. They were
no longer fiduciaries of Milgray; they were negotiating at
arm’s length. They could not without being guilty of fraud
make misrepresentations to induce the release—if asked,
they could not have denied their shenanigans with
Microcomp. But unless they were fiduciaries, they had no
legal duty to disclose damaging information merely because
it would be valuable to the person on the other side of the
negotiation. E.g., Weisblatt v. Colky, 637 N.E.2d 1198, 1200
(Ill. App. 1994); McCormick v. McCormick, 455 N.E.2d 103,
112 (Ill. App. 1983). That is about as fundamental a principle
of commercial law as there is. People would have little
incentive to hunt for bargains if they had to disclose to the
seller the true value of the seller’s property. See Laidlaw v.
Organ, 15 U.S. (2 Wheat.) 178, 194-95 (1817); Market Street
Associates Ltd. Partnership v. Frey, 941 F.2d 588, 593-94 (7th
Cir. 1991); 1 E. Allan Farnsworth, Farnsworth on Contracts
§ 4.11, pp. 472-74 (3d ed. 2004); Anthony T. Kronman,
“Mistake, Disclosure, Information, and the Law of Con-
tracts,” 7 Journal of Legal Studies 1 (1978).
To summarize, the judgment is affirmed insofar as it dis-
missed the cross-claim and Williams’s RICO and antitrust
claims, but is otherwise reversed, and the case is remanded
for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
18 Nos. 03-1648, 03-1665, 03-1669
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-29-04