Assoc Benefit Serv v. Caremark Rx Inc

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4388
ASSOCIATION BENEFIT SERVICES,
INCORPORATED,
Plaintiff-Appellant,
v.
CAREMARK RX, INCORPORATED,
and CAREMARKPCS, a Delaware
Corporation,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 3271—Matthew F. Kennelly, Judge.
____________
ARGUED NOVEMBER 2, 2006—DECIDED JULY 13, 2007
____________
Before BAUER, RIPPLE and MANION, Circuit Judges.
RIPPLE, Circuit Judge. Association Benefit Services, Inc.,
(“ABS”) brought this action against Caremark Rx, Inc., and
CaremarkPCS (collectively, “Caremark”). It raised claims
of fraud, unjust enrichment and breach of contract.
Caremark filed a motion for summary judgment on all
counts, which the district court granted. ABS appealed to
this court. For the reasons stated in this opinion, we affirm
the judgment of the district court.
2 No. 05-4388
I
BACKGROUND
A. Facts
ABS is a company formed to facilitate contracts between
pharmacy benefit managers (“PBMs”) and organizations
seeking administrators for their prescription benefit plans.
AdvancePCS (now CaremarkPCS) is a PBM.1
In January 2003, Jerome Coppage, the then-President of
ABS, contacted Christopher Lee, Vice President of Sales
for AdvancePCS. Coppage described an opportunity for
AdvancePCS to be the PBM for a plan to be offered to
American Automobile Association (“AAA”) members.
He represented that ABS “could deliver” AAA to
AdvancePCS. R.105-1, Ex.8 at 81. Over the next several
months, Lee and ABS communicated regarding a pro-
posal to meet AAA’s requirements. At some point during
this process, ABS contacted AdvancePCS and represented
that AAA wished to meet and undertake further negotia-
tions for PBM services. ABS arranged a meeting between
Lee and AAA to occur on May 19, 2003.
On May 13, 2003, at the request of Coppage, and in
apparent anticipation of the upcoming meeting with AAA,
Lee sent a letter to ABS confirming AdvancePCS’ intent
to work with ABS to secure a contract with AAA. On May
19, 2003, immediately before the scheduled meeting
with AAA, Lee met with Coppage and Jack Bestrom, a
1
After the litigation commenced, AdvancePCS merged into a
wholly owned subsidiary of Caremark Rx, and its name was
changed to CaremarkPCS. We shall continue to use the name
AdvancePCS, unless we are referring collectively to both en-
tities or to Caremark as the corporate parent.
No. 05-4388 3
consultant to ABS, in a hotel near AAA’s headquarters.
Bestrom had drafted, by hand, a forty-page contract
between ABS and AdvancePCS, but had been unable to
complete a typed version of it prior to meeting with Lee
and therefore abandoned the project. See R.105-1, Ex.9 at
95-96. Instead, Bestrom told Lee that ABS would need a
document acknowledging that, if AdvancePCS became
AAA’s PBM, AdvancePCS was willing to pay to ABS
commissions of $0.25 per prescription filled at a retail
store and $1.50 per prescription filled by mail. Bestrom
further told Lee that AdvancePCS would not be allowed
to meet with ABS’ “client,” AAA, until Lee gave ABS
such a document. R.105-1, Ex.8 at 92. Because the men
had an appointment with AAA that very afternoon and,
therefore, time was short, Lee edited the May 13, 2003 letter
to Coppage to include a reference to the commission as
requested by Bestrom. The men then drove to a nearby
Kinko’s to print the letter. As modified, this May 19, 2003
letter reads, in full:
Re: AdvancePCS Agreement—AAA
Dear Mr. Coppage:
I want to once again thank you for partnering with
AdvancePCS for your prescription benefits manage-
ment services. We are very excited about growing
our relationship with Association Benefits [sic] Ser-
vices, Inc. and look forward to working closely with
you as we move forward. We will be working exclu-
sively with you as we work toward delivering con-
sumer card services with AAA.
For the length of time AdvancePCS delivers benefits
to AAA, I want to confirm that we will be paying
commissions to Association Benefits [sic] Services of
$0.25 per retail claim and $1.50 per mail order claim.
4 No. 05-4388
Additionally, we commit to deliver unparalleled
service and prescription benefits that will enhance
the quality of membership in the organizations that
you serve and to implement all groups expeditiously
and efficiently. As the nation’s largest and most clini-
cally advanced prescription benefit management and
health improvement company, we are confident that
we will fully address your financial and customer
service objectives.
We are dedicated to delivering the most innovative
programs and plan efficiencies to each of our clients.
With AdvancePCS as its partner, Association Benefits
[sic] Services will realize the following benefits:
• We offer aggressive retail network pricing with a
national, broad-based retail network.
• We offer aggressive mail order pricing with pro-
grams aimed at increasing generic utilization
saving members even more money.
If you have any questions or comments, please feel free
to contact me at [phone number and email].
Sincerely,
/s/ Christopher C. Lee
Vice President, Sales
R.105-1, Ex.5D.2 The letter was printed on AdvancePCS
letterhead and included Lee’s electronic signature. Accord-
ing to Coppage’s deposition testimony, Coppage himself
2
With the exception of the sentence discussing the commis-
sions and the word “[a]dditionally” at the beginning of the
following paragraph, the May 19, 2003 letter is identical to the
May 13, 2003 letter from Lee to Coppage. Compare R.105-1, Ex.5B,
with R.105-1, Ex.5D.
No. 05-4388 5
signed the letter several days later, at home, and included
a notation reading: “accepted and agreed this 19th day of
May, 2003, by Association Benefit Services, Inc.” R.105-1,
Ex.8 at 99, Ex.5D. Coppage then forwarded the letter to
Robert Blixt, the CEO of ABS. Lee later stated, in his
affidavit submitted in support of summary judgment
for AdvancePCS, that he modified the letter to include
the commission structure based on his understanding
that ABS was a consultant to AAA and that the revenue
sharing fees requested by AAA, as ABS’ client, would
cover the commissions to ABS. R.105-1, Ex.5 at 6-7. After
the men left Kinko’s, Lee, Bestrom and Coppage met
with representatives of AAA.
ABS claims that, in reliance on the letter, it not only
facilitated the introduction to AAA and participated in the
May 19, 2003 meeting but, over the course of the ensuing
months, also assisted AdvancePCS in formulating a
successful proposal to become AAA’s PBM. ABS also
claims that, in reliance on the letter, it did not work with
rival PBMs to develop proposals for AAA’s business.
AdvancePCS claims that, in the course of the develop-
ment of the final proposal for AAA, ABS agreed to adjust
its own fees to ensure the deal went through. All parties
also acknowledge that AdvancePCS would have been
under no obligation to pay ABS were it not for the suc-
cessful completion of the agreement. Documents in the
record, generated by both AdvancePCS and ABS, indicate
that fee and compensation adjustments were topics of
discussion in late May. These discussions took place after
the meeting with AAA, and thus after Lee’s letter was
drafted. In particular, Blixt sent a conference call agenda
to Lee listing compensation adjustments to ABS as one of
several topics of discussion. R.105-1, Ex.5E. Lee sent an
6 No. 05-4388
email in June detailing a revised offer to AAA, including
$0.15 in commissions to ABS. R.105-1, Ex.5J.
Also in June, Lee sent a letter to representatives of AAA
that detailed a proposed division of responsibilities
between AAA, ABS and AdvancePCS in the pharmacy
card program. Notably, the letter laid out a full page of
responsibilities for ABS, which included marketing the
program to AAA members and traveling to assist local
clubs in implementing and utilizing the program. All these
services were to be provided at the expense of ABS. R.105-
1, Ex.5K at 4. Several days later, Lee sent an email to
Bestrom and Blixt, apparently reiterating information
recently garnered from AAA: ABS was neither AAA’s
consultant nor its agent and that AAA would not sign a
third-party agreement or “pay anything” to ABS. R.105-1,
Ex.5L. On June 26, 2003, yet another email followed from
Lee to Bestrom, Blixt and Coppage, this one stating, in
pertinent part:
. . . I was reading through my old files this week and
need to re-tract [sic] the letter dated May 19th to Jerry
re: AAA. In that letter I offered that we would pay
ABS $0.25 per claim while we managed the AAA
account. This doesn’t make any sense any more in light
of our on-going negotiations. I just want to point out
that this is not in effect as we don’t have any negotiated
agreement with AAA or ABS. It isn’t too big a deal, but
I just wanted to clarify things. The contract that we
sign with y’all and with AAA will reflect all the accu-
rate financials and obligations.
R.105-1, Ex.5M.
AdvancePCS contends that, in the course of these “on-
going negotiations,” Lee offered commissions of $0.025
from AdvancePCS to ABS, and ABS verbally accepted. The
No. 05-4388 7
parties rely upon no record evidence in which ABS directly
responded to these gradually decreasing commission
levels; in particular, in response to AdvancePCS’ submis-
sion of documents suggesting that ABS was willing to
adjust commissions, ABS relies on no record evidence to
demonstrate any continuing insistence upon the com-
mission levels stated in the May 19, 2003 letter.
AdvancePCS eventually offered ABS a written contract
including the $0.025 commissions, which ABS rejected.
R.31, Ex.B; R.105-1, Ex.7 at 204. AdvancePCS and AAA
entered into a contract for prescription benefit services in
October 2003.
B. District Court Proceedings
In March 2004, ABS instituted this action against
AdvancePCS (now CaremarkPCS) and Caremark Rx in
the Circuit Court of Cook County, Illinois. The complaint
alleged various tort theories of recovery against the
defendants arising out of their conduct in arriving at
the AAA agreement. The defendants removed the action
to the Northern District of Illinois on the ground of diver-
sity of citizenship. In the district court, the claims eventu-
ally were amended to include fraud, breach of contract and
unjust enrichment. Caremark filed motions for summary
judgment on all counts; the district court granted the
motions in their entirety on September 23, 2005.
1. Fraud
ABS first alleged that AdvancePCS was liable for fraud.
ABS claimed that the May 19th letter and other state-
ments made by Lee were misrepresentations intended to
8 No. 05-4388
induce ABS to forego negotiations with other PBMs and
assist AdvancePCS exclusively in obtaining a contract
with AAA. In analyzing this claim, the district court set
out the standard for fraud under Illinois law: The defen-
dant made a false statement of material fact, known or
believed by the defendant to be false when made, with
the intent to induce action by the plaintiff, and which
did in fact induce such action, resulting in damages.
R.140 at 8. The court further stated that promissory fraud,
that is, fraud in which the defendant misrepresents his own
intent regarding his future conduct in order to induce
reliance on the part of the plaintiff, is actionable in Illinois
only if part of a scheme to defraud. Illinois courts, the
district court stated, have placed a “deliberately high”
burden on plaintiffs in claims for promissory fraud. Id. at
9 (citing Bower v. Jones, 978 F.2d 1004, 1012 (7th Cir. 1992)).
Evaluating the parties’ summary judgment submis-
sions, the district court concluded that ABS had failed
to carry its burden with respect to the first element of a
promissory fraud claim: a false representation of intent to
fulfill the promise at the time the promise was made. In
support of this element, ABS had submitted facts demon-
strating AdvancePCS’ actual non-performance of the obliga-
tions set out in the May 19th letter. Essentially, ABS
sought to prove lack of intent ab initio as a reasonable
inference drawn from AdvancePCS’ ultimate failure to
perform. The district court concluded that this theory
constituted a wholly circular argument, insufficient to
create a material fact as to the intent of AdvancePCS on
May 19th. The only additional evidence in the record on
the element of fraudulent intent, the court found, was
testimony of Blixt that merely opined that, upon reflection,
he did not believe AdvancePCS had any intention of
No. 05-4388 9
fulfilling the agreement. Id. at 9-10 (citing R.105-1, Ex.7 at
94-95). The court held that the “subjective speculation” of
an ABS officer was insufficient to raise an issue of fact,
and granted summary judgment on the fraud claim. Id.
at 10.
2. Breach of Contract
ABS also claimed that the May 19th letter was a con-
tract between the parties that AdvancePCS had breached.
The court examined numerous alternative arguments of
ABS on its contract claim: that the letter itself was an
enforceable contract; that the letter was an offer, and that
ABS accepted the offer; or, that the letter was an acceptance
of a prior verbal offer by ABS to AdvancePCS.
The district court began its analysis of ABS’ contract
claim by stating that a party cannot prove a breach of
contract without first demonstrating that a valid and
enforceable contractual obligation exists. Id. at 10. On the
facts before it, the court held that no reasonable jury
could conclude that the May 19th letter was an enforce-
able contract because it lacked essential, definite and
certain terms. Specifically, the court noted that Illinois law
required a contract to “evidence a sufficiently concrete
expression of the essential terms of the agreement and the
parties’ intent to be bound.” Id. The district court deter-
mined that one of the essential terms required under
Illinois law was “mutuality of obligation.” Id. (citing Kraftco
Corp. v. Kolbus, 274 N.E.2d 153, 155 (Ill. App. Ct. 1971)).
Evaluating ABS’ alternative argument that the letter
was an offer, the district court found no evidence that
Coppage’s delayed signature “accepted” the offer because
no evidence in the record supported the conclusion that
10 No. 05-4388
this purported “acceptance” was ever communicated to
AdvancePCS. Id. at 11. The court further rejected ABS’
assertion that it had accepted the letter in the offer by
performance when it introduced Lee to the AAA represen-
tatives. Specifically, the court concluded that, because the
claimed obligation of AdvancePCS would occur only if
AdvancePCS secured a contract with AAA, the intro-
duction was insufficient “performance” to constitute an
acceptance. Moreover, the court thought it significant
that Coppage had believed it necessary to sign the letter
in order to create an enforceable agreement, and that
this fact undermined ABS’ contention that it had agreed
to a contract by its act of escorting AdvancePCS into
AAA. The court also noted that after the May 19th letter
was written and the initial introduction to AAA made,
AdvancePCS sent at least two revised offers to ABS, both
of which would operate to terminate any previous unac-
cepted offer. Therefore, the court concluded, there could
be no accepted offer as a matter of law.
ABS’ final argument on its contract claim was that the
letter was AdvancePCS’ acceptance of a prior verbal offer
by ABS. The court characterized this argument as “a last-
ditch attempt to show that a genuine issue of material fact
exists as to whether a contract was formed.” Id. at 12. The
court found that this theory was undermined by Coppage’s
signature and subscription “[a]ccepted and agreed,” id.;
such acceptance would have been unnecessary if the
parties believed that an agreement had arisen by virtue of
Lee’s letter.
Finding no merit in any of ABS’ contentions regard-
ing contractual obligations arising out of the May 19th
letter, the court entered summary judgment on the breach
of contract claim.
No. 05-4388 11
3. Unjust Enrichment
As an alternative to its breach of contract theory, ABS
requested a constructive trust on AdvancePCS’ profits from
its AAA contract on a theory of unjust enrichment. The
court outlined the circumstances under Illinois law in
which a plaintiff may seek a constructive trust on a bene-
fit transferred to the defendant by a third party. It found
that, of the permissible theories of recovery in these types
of unjust enrichment claims, ABS had alleged only that
AdvancePCS had procured a benefit from AAA through
alleged fraudulent dealings with ABS. Id. at 12-13 (citing
HPI Health Care Servs., Inc. v. Mt. Vernon Hosp., Inc., 545
N.E.2d 672, 679 (Ill. 1989)). The court then concluded
that its ruling on the fraud claim was dispositive on this
issue and granted summary judgment for AdvancePCS.
4. Liability of Caremark Rx
Finally, the district court concluded that ABS had
asserted no independent misconduct by Caremark Rx, but
sought only to hold it liable for the acts of its subsidiary,
CaremarkPCS (as the predecessor entity, AdvancePCS).
Accordingly, the district court held that, because summary
judgment was appropriate on all the substantive claims
against CaremarkPCS, Caremark Rx, as the parent corpor-
ation, also was entitled to summary judgment.
II
DISCUSSION
In our de novo review of the order of the district court
granting summary judgment, we must take the facts and
all reasonable inferences from those facts in the light
12 No. 05-4388
most favorable to the non-moving party, here ABS. Ander-
son v. Liberty Lobby, 477 U.S. 242, 255 (1986). Summary
judgment is appropriate for Caremark, as the moving
party, if it demonstrates that the record shows no genu-
ine issue as to any material fact and that it is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). ABS may not
avoid summary judgment by resting on the allegations of
its pleadings; it must come forward with specific facts
showing that there is a genuine issue for trial. Fed. R. Civ.
P. 56(e). If the record taken as a whole could not permit a
rational trier of fact to find for ABS, ABS has not demon-
strated that a dispute of material fact exists and summary
judgment must be granted to Caremark. See Scaife v. Cook
County, 446 F.3d 735, 739 (7th Cir. 2006). Finally, we may
affirm a grant of summary judgment on any ground
that was preserved adequately in the district court.
Mindgames, Inc. v. W. Publ’g Co., 218 F.3d 652, 659 (7th Cir.
2000).
This is a diversity action, and therefore our duty is to
apply the substantive law of Illinois, as we believe the
highest court of the state would apply it. State Farm Mut.
Auto. Ins. Co. v. Pate, 275 F.3d 666, 669 (7th Cir. 2001).
A. Breach of Contract
The district court awarded summary judgment in favor
of Caremark on ABS’ breach of contract claim. It con-
cluded that ABS had failed to demonstrate the existence
of a valid contractual obligation sufficient to support a
cause of action for breach. Under Illinois law, the ele-
ments of a breach of contract cause of action are “(1) offer
and acceptance, (2) consideration, (3) definite and certain
No. 05-4388 13
terms, (4) performance by the plaintiff of all required
conditions, (5) breach, and (6) damages.” MC Baldwin Fin.
Co. v. DiMaggio, Rosario & Veraja, LLC, 845 N.E.2d 22, 30
(Ill. App. Ct. 2006), leave to appeal denied, 850 N.E.2d 808 (Ill.
2006). Acknowledging that a breach of contract action
must be predicated on a valid and enforceable con-
tractual obligation, ABS disputes the district court’s
conclusion that no such obligation existed between the
parties as a result of the May 19th letter. Specifically,
ABS contends that the letter itself constituted the binding
agreement of the parties, or, in the alternative, that the
letter was an offer for a contract, accepted by ABS’ perfor-
mance in making the introduction of AdvancePCS to
AAA.3
“The question of the existence of a contract is a matter of
law for determination by the court.” Arneson v. Bd. of Trs.,
McKendree Coll., 569 N.E.2d 252, 256 (Ill. App. Ct. 1991); see
also Robinson v. Christopher Greater Area Rural Health
Planning Corp., 566 N.E.2d 768, 772 (Ill. App. Ct. 1991). No
contract exists under Illinois law, and, indeed, under
principles of general law, if the agreement lacks definite
and certain terms; nor is a contract formed by an offer that
itself lacks definite and certain material terms and does
not require such terms to be supplied by an acceptance. In
re Marriage of Murphy, 834 N.E.2d 56, 66 (Ill. App. Ct. 2005),
leave to appeal denied, 844 N.E.2d 39 (Ill. 2005); Quinlan v.
Stouffe, 823 N.E.2d 597, 603 (Ill. App. Ct. 2005); Rose v.
Mavrakis, 799 N.E.2d 469, 473 (Ill. App. Ct. 2003); see also
Restatement (Second) of Contracts § 33(1) (“Even though a
3
On appeal, ABS does not press its argument that Coppage’s
signature constituted an acceptance of an offer in the May 19th
letter.
14 No. 05-4388
manifestation of intention is intended to be understood as
an offer, it cannot be accepted so as to form a contract
unless the terms of the contract are reasonably certain.”).
Accordingly, if the May 19th letter lacks the requisite
definiteness or certainty, it can constitute neither a con-
tract nor an offer sufficient to support ABS’ breach of
contract action.
The definite and certain terms requirement serves sev-
eral important purposes, chief among them to ensure that
the parties in fact have reached an agreement and to
provide courts with a basis for enforcing the obligations
that the parties sought to impose upon one another. See
Restatement (Second) of Contracts § 33 & cmt. (a)-(b).
Under Illinois law, “a contract is sufficiently definite and
certain to be enforceable if the court is enabled from the
terms and provisions thereof, under proper rules of
construction and applicable principles of equity, to ascer-
tain what the parties have agreed to do.” Quinlan, 823 N.E.2d
at 603 (citing Midland Hotel Corp. v. Reuben H. Donnelley
Corp., 515 N.E.2d 61, 65 (Ill. 1987)) (internal quotation
marks omitted) (emphasis added); see also DiLorenzo v.
Valve & Primer Corp., 807 N.E.2d 673, 678 (Ill. App. Ct. 2004)
(“A contract may be enforced even though some con-
tract terms may be missing or left to be agreed upon, but
if essential terms are so uncertain that there is no basis
for deciding whether the agreement has been kept or
broken, there is no contract.”). Conversely, “an agreement
is not enforceable as a contract, because of its uncertainty,
when any of its essential terms are left unsettled.” 12
Illinois Law and Practice § 8, at 254 (1983); see also Wagner
Excello Foods, Inc. v. Fearn Int’l, Inc., 601 N.E.2d 956, 960 (Ill.
App. Ct. 1992) (“To be enforceable, a contract must show
a manifestation of agreement between the parties and
No. 05-4388 15
be definite and certain in its terms. When material terms
and conditions are not ascertainable, there is no enforce-
able contract, even if the intent to contract is present.”)
(internal citations omitted). Parties do not have an enforce-
able contract unless, by the terms of the agreement, a
court “can require the specific thing contracted for [] be
done.” Hintz v. Lazarus, 373 N.E.2d 1018, 1020 (Ill. App. Ct.
1978). Even where the parties have “manifested the intent
to make a contract,” failure of the definiteness and cer-
tainty requirements may make an agreement unenforce-
able. Acad. Chicago Publishers v. Cheever, 578 N.E.2d 981,
983 (Ill. 1991).
We conclude that, as a matter of Illinois law, the letter
of May 19th does not contain sufficiently definite and
certain terms to constitute an enforceable agreement.
Specifically, we conclude that, because the letter is silent on
the issue of ABS’ precise performance obligations and
because those obligations are not set forth with the requi-
site specificity, any agreement is so lacking in its descrip-
tion of the exchange as to render it wholly unenforceable
as a contract.
The case of Academy Chicago Publishers v. Cheever, 578
N.E.2d 981 (Ill. 1991), is particularly instructive. In Academy
Chicago, the Supreme Court of Illinois provided guidance
on what it considered to be essential terms, the absence of
which precluded a finding of an enforceable contract. The
Academy Chicago case arose out of a publication agree-
ment between the widow of author John Cheever and a
publishing company with whom she had entered into an
agreement to publish a compilation of Cheever’s stories.
The publishing agreement at issue was executed with
formalities not present here, and appeared to define with
some specificity the nature of the parties’ obligations; the
16 No. 05-4388
parties clearly intended to be bound to its terms. It had
failed to define, however, certain terms about which the
parties subsequently disagreed, including the length and
content of the proposed book, relevant dates for delivery
and style or manner of publication. The court held that
those failures were sufficient to render the agreement
unenforceable for lack of definiteness and certainty regard-
ing essential terms to the agreement. The court further
concluded that the trial court erred in supplying missing
terms under the circumstances, where the agreement
reached had “major unresolved uncertainties” such that
it “did not constitute a valid and enforceable contract to
begin with.” Id. at 984.
The import of Academy Chicago is that it identifies how
an agreement might fail as a contract for lack of definite-
ness and certainty under Illinois law. In this case, the
requisite terms are quite obviously different than those
in Academy Chicago, but the opinion of the Supreme Court
of Illinois in that case instructs that even apparently
detailed and formal agreements may fail for lack of cer-
tainty where they do not manifest mutual assent to essential
obligations of the parties. Those essential obligations in
Academy Chicago were important components of the parties’
basic exchange of performances (fees in exchange for a
book publication). In the present case, by contrast, there
simply is no statement whatsoever of the consideration
ABS will provide for the receipt of commissions.
Our conclusion that the letter is so lacking in definiteness
and certainty is strengthened by ABS’ arguments before
this court. In three separate places in its opening brief, ABS
characterized its obligations as involving more than a
No. 05-4388 17
business introduction.4 At oral argument, however, coun-
sel for ABS repeatedly stated that ABS’ sole obligation
was a business introduction; it refused to acknowledge
that any further performance was required by the con-
tract or within the contemplation of the parties.5 The
difficulty ABS faced in identifying its own contractual
obligations is rooted in the fundamental deficiency in its
case. Because “the essential terms are so uncertain that
there is no basis for deciding whether the agreement has
been kept or broken, there is no contract.” Acad. Chicago
Publishers, 578 N.E.2d at 984. Moreover, as Academy Chicago
4
See Appellant’s Br. at 1-2 (“[ABS’] end of the bargain [was]
introducing AdvancePCS to American Automobile Association
(“AAA”) and fostering the negotiations . . . .”) (emphasis added);
id. at 13 (“There was mutuality of obligation, in that ABS’[] part
of the bargain was implied. Both parties of the agreement
were bound. ABS agreed to effectuate the introduction between
AdvancePCS and AAA and foster negotiations. In return,
AdvancePCS agreed to pay ABS a specified amount for each
prescription filled on behalf of AAA if it obtained the contract.”)
(citation omitted) (emphasis added); id. at 18 (“AdvancePCS
gave ABS its written assurance detailing the commissions it
would pay ABS if it obtained the AAA contract so that ABS
would introduce its Vice President of Sales, Christopher Lee,
to AAA and continue helping AdvancePCS obtain the contract. ABS
had the contacts at AAA; AdvancePCS had none. AdvancePCS
then refused to pay ABS the amount it agreed to pay it for its
efforts.”) (emphasis added).
5
In any event, this latter contention is not borne out by the
record. The parties apparently did anticipate some additional
performance on the part of ABS, as expressed in the proposal
sent to AAA detailing the division of responsibilities on the
PBM program. See R.105-1, Ex.5K.
18 No. 05-4388
suggests, we ought not, under such circumstances, sup-
ply missing terms when their pronounced absence in the
original agreement demonstrates a lack of mutual assent
and the absence of an enforceable contract at the outset.6 Id.
(“It is not uncommon for a court to supply a missing
material term, as the reasonable conclusion often is that
the parties intended that the term be supplied by implica-
tion. However, where the subject matter of the contract has
not been decided upon and there is no standard available
for reasonable implication, courts ordinarily refuse to
supply the missing term.”).
In sum, without specification of ABS’ basic obligations,
the letter as a whole is insufficiently definite; it fails to
reflect an agreement of the parties on the essential nature
of their mutual obligations. For the same reason, we
find unpersuasive ABS’ contention that the essential term
of its contractual obligations may be implied. See Kraftco,
274 N.E.2d at 155 (acknowledging that terms of a con-
tract may be implied under certain circumstances, but
limiting the application of that doctrine when, because of
an agreement’s uncertainty, the court would be required
to “writ[e] the total contract for the parties”). Whatever
6
We conclude that the absence of any reference to any obliga-
tions of ABS whatsoever in the May 19th letter renders its
terms too uncertain to give rise to enforceable obligations.
However, we decline to hold, as Caremark urged on appeal, that
the absence in the May 19th letter of multiple terms included
in a final proposed agreement to ABS necessarily demonstrates
that the May 19th letter is too uncertain to constitute a con-
tract. Illinois recognizes that preliminary agreements can be
binding, where the parties intend to be bound by the terms
contained therein. Quake Constr. v. American Airlines, Inc., 565
N.E.2d 990, 994 (Ill. 1990).
No. 05-4388 19
the outer limits of a doctrine of implied essential terms
would be under Illinois law, they plainly are exceeded
when the parties’ conduct does not provide a reasonable
basis for implying, with the requisite specificity, the re-
turn performance for which Caremark bargained. The
Illinois authority cited by ABS does not permit this court
to write an agreement for the parties, selecting from among
the possible obligations to which ABS variously suggests
it was bound. See Acad. Chicago Publishers, 578 N.E.2d at
984. As a matter of law, the letter fails to express a valid,
contractual obligation.
Because the lack of certainty and definiteness in terms,
express or implied, prevents the letter from serving as a
contract itself, and because it likewise prevents a con-
clusion that it was an offer accepted with sufficient speci-
ficity to give rise to a contract, we affirm summary judg-
ment for Caremark on the breach of contract claim.
B. Fraud
Summary judgment also was entered for Caremark on
the fraud claim. Under Illinois law, to establish actionable
fraud, a plaintiff must prove
that defendants, with the intent to induce plaintiffs to
act, made a false statement of material fact which
defendants knew or believed to be false. Plaintiffs must
also show they justifiably relied on the statement and
suffered damages resulting from that reliance. Most
importantly, fraud must be proved by clear and con-
vincing evidence.
Williams v. Chicago Osteopathic Health Sys., 654 N.E.2d 613,
619 (Ill. App. Ct. 1995) (internal citations omitted); see
20 No. 05-4388
also Soules v. Gen. Motors Corp., 402 N.E.2d 599, 601 (Ill.
1980). The general standard for fraud refers to a false
statement of material fact; promissory fraud, involving
a false statement of intent regarding future conduct, is
generally not actionable under Illinois law unless the
plaintiff also proves that the act was a part of a scheme to
defraud. Bradley Real Estate Trust v. Dolan Assocs. Ltd., 640
N.E.2d 9, 12-13 (Ill. App. Ct. 1994); Gen. Elec. Credit Auto
Lease v. Jankuski, 532 N.E.2d 361, 363-64 (Ill. App. Ct. 1988).
The parties dispute whether ABS has satisfied the
“scheme” exception to the bar on promissory fraud and
whether this prong imposes any additional meaning-
ful burden on a plaintiff proceeding in Illinois courts.
Caremark also contends that any argument regarding
the existence of a scheme has been forfeited. We need not
decide this issue because we hold that the fraud claim
must fail for another, more basic reason. A claim for fraud,
promissory or otherwise, requires a showing that, at the
time the allegedly fraudulent statement was made, it was an
intentional misrepresentation. For promissory fraud
claims, this requirement means that, when the promise
was made, the promisor had no intent to fulfill it; if the
promisor simply later changed his mind, an action for
fraud will not lie. See Doherty v. Kahn, 682 N.E.2d 163, 176
(Ill. App. Ct. 1997), abrogated on other grounds, Byung Moo
Soh v. Target Mktg. Sys., 817 N.E.2d 1105 (Ill. App. Ct. 2004)
(“ ’Promissory fraud’ is a form of fraud based upon a
false representation of intent concerning future conduct,
e.g., a promise to perform a contract when there is actually
no intent to perform the contract.”) (emphasis added).
Before the district court on summary judgment, ABS
based its argument relating to AdvancePCS’ intent to
defraud at the time the statement was made on evidence
No. 05-4388 21
that AdvancePCS ultimately did not fulfill its promise
and that “reflecting back,” one of ABS’ witnesses, Blixt,
believed “that at the time defendant had no intention of
honoring the agreement it committed to.” R.134 at 26-27.
On this evidence, ABS has not created a genuine issue of
triable fact as to AdvancePCS’ intent. Illinois law does not
allow the plaintiffs to proceed on a fraud claim when
the evidence of intent to defraud consists of nothing
more than unfulfilled promises and allegations made in
hindsight. See Bower v. Jones, 978 F.2d 1004, 1012 (7th Cir.
1992) (holding that proof that a promise was not kept
“alone is insufficient to make out a claim of promissory
fraud, since there is no proof that the defendants made
the promise never intending to keep it”).
Before this court, ABS further contends that the language
of the May 19th letter itself, as well as the rushed circum-
stances under which it was drafted, are further evidence
that AdvancePCS had no intention of fulfilling any obliga-
tions. Moreover, ABS claims that Lee admitted in his
affidavit that he never intended to pay ABS; ABS’ sup-
port for this claim is Lee’s statement that he understood
that the commissions to ABS constituted a percentage of
the amounts due to AAA under the contract to be signed,
not a separate line-item to ABS. These contentions, not
presented in opposition to summary judgment, have been
forfeited. In any event, they are insufficient to prevent
summary judgment on an element of a claim, such as
fraud, that ultimately must be proven by clear and con-
vincing evidence. See Avery v. State Farm Mut. Auto. Ins. Co.,
835 N.E.2d 801, 856 (Ill. 2005), cert. denied, 74 U.S.L.W. 3501(U.S. Mar. 6, 2006) (No. 05-842), (noting the legal presump-
tion that transactions are fair and the resultant rule that
common law fraud claims under Illinois law must be
22 No. 05-4388
proved by clear and convincing evidence); Anderson, 477
U.S. at 254 (confirming that a court “must view the evi-
dence presented through the prism of the substantive
evidentiary burden” in determining whether a genuine
issue of fact has been raised sufficient to withstand sum-
mary judgment). Lee’s affidavit does not state that he
did not intend to fulfill a promise to pay; it affirmatively
states that he did intend to follow through with the com-
missions in the letter, but that he believed the source
funds for the payments would be included within the fee
sharing request made by AAA. See R.105-1, Ex.5 at 7; cf.
Price v. Highland Cmty. Bank, 722 F. Supp. 454, 460 (N.D. Ill.
1989), aff’d, 932 F.2d 601 (7th Cir. 1991) (holding that an
admission from the promisor that he lacked intent to
form a contract by his promise could provide clear and
convincing evidence sufficient to support a jury verdict
in favor of a plaintiff on a promissory fraud claim).
Because ABS has failed to raise a genuine issue of fact as
to fraudulent intent, we affirm summary judgment for
AdvancePCS on this claim.
C. Unjust Enrichment
Finally, summary judgment was entered against ABS on
its claim that AdvancePCS was unjustly enriched by its
dealings with AAA to the detriment of ABS.
Illinois law recognizes a claim for unjust enrichment
where a benefit was transferred to the defendant by a
third party in three situations:
where (1) the benefit should have been given to the
plaintiff, but the third party mistakenly gave it to the
defendant instead, (2) the defendant procured the
benefit from the third party through some type of
No. 05-4388 23
wrongful conduct, or (3) the plaintiff for some other
reason had a better claim to the benefit than the defen-
dant.
HPI Health Care Servs., 545 N.E.2d at 679 (internal cita-
tions omitted).
The district court rejected ABS’ unjust enrichment
claim, which was based on the alleged wrongful conduct
of AdvancePCS; the court held that because the claim of
fraud failed, ABS had not demonstrated the necessary
element of wrongdoing.7 ABS counters that Illinois law
does not require that the wrongdoing necessary to state
a claim for wrongdoing-based unjust enrichment rise to
the level of actionable fraud.
In reaching its determination, the district court relied on
Athey Products Corp. v. Harris Bank Roselle, 89 F.3d 430 (7th
Cir. 1996).8 In Athey, we considered a grant of summary
7
Although we acknowledge that the wrongful conduct predi-
cate to unjust enrichment is not an absolute requirement in
Illinois, Norton v. City of Chicago, 690 N.E.2d 119, 126 (Ill. App.
Ct. 1997), it is the only theory of unjust enrichment included
in ABS’ response to the motion for summary judgment in the
district court. See R.134 at 27-28. We, therefore, limit ourselves
to consideration of this theory.
8
ABS objects that Athey Products Corp. v. Harris Bank Roselle, 89
F.3d 430 (7th Cir. 1996), should not control because, although it
is a decision of this court that interprets and applies Illinois
law, it did not cite any Illinois precedent in support of this
particular aspect of its unjust enrichment holding. The dif-
ficulty with this part of ABS’ contention is that none of the
authority from Illinois that it cites contradicts the conclu-
sions about Illinois law drawn by this court in Athey. We see
(continued...)
24 No. 05-4388
judgment for the defendant where the plaintiff also had
raised claims, as ABS does here, of fraud and unjust
enrichment under Illinois law. In disposing of the unjust
enrichment claim, we stated:
Athey was required to prove that Harris unjustly
retained a benefit to Athey’s detriment, and that
Harris’ retention of that benefit violates fundamental
principles of justice, equity, and good conscience. In
the absence of clear and convincing evidence of fraud
by Harris, we cannot say that Harris unjustly re-
tained a benefit and was thus unjustly enriched.
Athey’s unjust enrichment claim was properly dis-
missed.
Athey Prods., 89 F.3d at 436. This court’s conclusion was
that, where the plaintiff’s claim of unjust enrichment is
predicated on the same allegations of fraudulent con-
duct that support an independent claim of fraud, resolu-
tion of the fraud claim against the plaintiff is dispositive
of the unjust enrichment claim as well.
We see nothing erroneous in this conclusion. We al-
ready have acknowledged that, under Illinois law, fraud
is not an indispensable element of an unjust enrichment
claim. See supra note 7; see also HPI Health Care Servs., 545
N.E.2d at 679 (outlining the various theories that could
support an unjust enrichment claim under Illinois law). In
Athey and again in the present case, we merely conclude
that, when the plaintiff’s particular theory of unjust
enrichment is based on alleged fraudulent dealings and
8
(...continued)
no reason why this court’s interpretation of Illinois law did not
bind the district court absent Illinois authority to the contrary.
No. 05-4388 25
we reject the plaintiff’s claims that those dealings, indeed,
were fraudulent, the theory of unjust enrichment that the
plaintiff has pursued is no longer viable.
ABS points this court to no Illinois authority requiring
a contrary conclusion. Indeed, our survey of the relevant
Illinois precedent indicates that Illinois courts have held
that conduct rises to the level of wrongful, in the context
of an unjust enrichment claim, when it violates the law.9
We already have held, in the context of the fraud claim,
that ABS has not produced sufficient evidence to create a
triable issue of fact on the question of deception, resting
instead on what it believes should be inferred from an
unfulfilled promise. We therefore conclude, consistent
with our holding in Athey, that ABS has failed to create
9
See, e.g., Charles Hester Enters., Inc. v. Illinois Founders Ins. Co.,
Inc., 484 N.E.2d 349, 354 (Ill. App. Ct. 1985), aff’d, 499 N.E.2d
1319 (stating that unjust enrichment “is a condition that may
be brought about by unlawful or improper conduct as defined by
law, such as fraud, duress or undue influence, and may be
redressed by a cause of action based upon that improper
conduct”) (emphasis added); see also In re Estate of Vogel, 684
N.E.2d 1035, 1037 (Ill. App. Ct. 1997) (“Generally, a court im-
poses a constructive trust,” the relief sought in this unjust
enrichment claim, “to remedy (1) actual or constructive fraud;
(2) the breach of a fiduciary duty; or (3) duress, coercion, or
mistake.”); Alliance Acceptance Co. v. Yale Ins. Agency, 648 N.E.2d
971, 977 (Ill. App. Ct. 1995). Moreover, even if it were the
case that Illinois courts would not require a showing of action-
able fraud to establish wrongdoing, ABS has not identified
other wrongful conduct to support its claim in this case. See
Appellant’s Br. at 18 (stating that the “jury should decide wheth-
er AdvancePCS was unjustly enriched by its deception”) (empha-
sis added).
26 No. 05-4388
a genuine issue of fact as to the element of wrongdoing
necessary to support its claim of unjust enrichment.
Therefore, we conclude that the district court was cor-
rect in ruling that, under the circumstances present here,
resolution of the fraud issue was dispositive of the unjust
enrichment claim as well.
Conclusion
Accordingly, we affirm the judgment of the district
court, granting summary judgment to Caremark on ABS’
claims for breach of contract, fraud and unjust enrichment.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-13-07