Jacqueline Goldberg v. 401 N. Wabash Venture, L.L.C.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3057
JACQUELINE GOLDBERG,
Plaintiff-Appellant,
v.
401 NORTH WABASH VENTURE LLC and TRUMP CHICAGO
MANAGING MEMBER, LLC,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 09 C 6455 — Amy J. St. Eve, Judge.
____________________
ARGUED APRIL 14, 2014 — DECIDED JUNE 10, 2014
____________________
Before WOOD, Chief Judge, and POSNER and FLAUM, Circuit
Judges.
POSNER, Circuit Judge. Trump International Hotel and
Tower Chicago (we’ll call it “Trump Tower Chicago” for
short) is a 92-story building in downtown Chicago, complet-
ed in 2009. It contains 486 residential condominium units,
339 hotel condominium units (occupying floors 14 and 17
through 27 of the building)—the focus of the appeal—plus
2 No. 13-3057
retail space, a health club, ballrooms, meeting rooms, restau-
rants, bars, a hair salon, and other facilities commonly found
in conventional hotels. Some of these facilities, along with
structural features such as the roof and the elevators, are
what are called “common elements.” All common elements
are shared facilities. The condominium units are not com-
mon elements; they are owned individually, rather than by
the building’s owners or by the condominium association,
which is to say the units’ owners collectively. When the
owner of a hotel condominium unit is not occupying the
unit, the building management can rent it to a visitor, and
the rental income is divided with the owner, with the own-
er’s share of the income being credited against his annual
maintenance fee.
The developers and owners of Trump Tower Chicago—
the defendants in this lawsuit—are entities ultimately con-
trolled by Donald Trump. For simplicity we’ll ignore the
labyrinth of corporate forms and pretend there is a single
defendant called TrumpOrg. The plaintiff is a wealthy and
financially sophisticated Chicago businesswoman—a certi-
fied public accountant and certified financial planner—who
in 2006 signed an agreement to buy two hotel condominium
units in Trump Tower Chicago from TrumpOrg for some
$2.2 million. (To simplify exposition, we’ll pretend there was
one agreement, covering both units.) Goldberg wasn’t inter-
ested in staying in either of the units herself. She had bought
them as an investment, hoping their value would increase
and also that her income from the rental of the units by the
management of the condo hotel (the condo hotel is a compo-
nent of Trump Tower Chicago, which also as we noted con-
tains a residential complex) would reduce her annual
maintenance costs. She already owned other condominium
No. 13-3057 3
units—including a residential condominium unit in Trump
Tower Chicago—also as investments rather than as places in
which she might live or stay. Although she was 80 years old
when she signed the purchase agreement, there is no sugges-
tion that she was mentally impaired. She was 87 when she
testified at the trial of this case, and there was no indication
of any impairment then either.
The purchase agreement, in what the parties call the
“change clause,” gave TrumpOrg “the right, in its sole and
absolute discretion, to modify the Condominium Docu-
ments.” These are documents that among other things speci-
fy the rights in the common elements that the purchaser ac-
quires under the agreement along with the hotel condomini-
um unit itself—“provided that Seller shall notify Purchaser
or obtain the Purchaser’s approval of any changes in the
Condominium Documents … when and if such notice or ap-
proval is required by law.” After reviewing the purchase
agreement with her attorney, the plaintiff asked TrumpOrg
to give her the right to terminate the agreement and get her
deposit back if she disapproved of any changes that
TrumpOrg made in the agreement. TrumpOrg refused. The
plaintiff signed the agreement anyway, even though
TrumpOrg had already made three changes, one of which
modified common elements by adding meeting rooms and
ballrooms to, but removing the health club from, the com-
mon elements.
The year after she signed the agreement, TrumpOrg
made another set of changes (the “Fourth Amendment,” as
the parties term it), which greatly curtailed the owners’
rights in the hotel facilities. The plaintiff was furious. She
testified that she thought she’d been conned. She refused to
4 No. 13-3057
close; that is, she refused to pay the balance of what she
owed for the two units that she had agreed to buy, and take
title to them. TrumpOrg did not seek to compel her to close,
as by suing her for breach of contract and seeking specific
performance as a remedy. But neither did it return her down
payment, some $516,000. After protracted fruitless negotia-
tions, in January 2010 TrumpOrg canceled the purchase
agreement and claimed the earnest money as liquidated
damages, but left it in an escrow account in Deutsche Bank.
There it remains, pending the outcome of this litigation,
which the plaintiff had instituted in an Illinois state court in
2009. The suit sought damages not limited to the $516,000,
but in the millions of dollars, under a variety of Illinois laws
and also the Federal Interstate Land Sales Full Disclosure
Act, 15 U.S.C. §§ 1701 et seq.; but the claim under that Act
has been abandoned on appeal, so we’ll ignore it. Her Illi-
nois claims are based on the Illinois common law of con-
tracts; the Illinois Consumer Fraud and Deceptive Business
Practices Act, 815 ILCS 505; the Illinois Condominium Prop-
erty Act, 765 ILCS 605; and the Illinois Securities Law of
1953, 815 ILCS 5.
The parties being of diverse citizenship, the defendant
was able to remove the case to the federal district court in
Chicago and did so. Lengthy pretrial proceedings ensued, in
the course of which the district judge granted summary
judgment for the defendant on the securities-law claim, and
(after the summary judgment ruling, but shortly before trial)
dismissed the claim of “unfair” conduct because the plaintiff
had “not sufficiently alleged or pursued during discovery an
‘unfair practice’ claim.” (The consumer-fraud act, which
tracks the Federal Trade Commission Act, 15 U.S.C.
§ 45(a)(1), punishes “unfair” as well as “deceptive” acts or
No. 13-3057 5
practices. 815 ILCS 505/2.) Her other claims were tried—the
deceptive practice consumer-fraud act and federal Land Act
claims to a jury, the breach of contract and Condo Act claims
to the judge. The jury returned a verdict for the defendant on
the fraud and Land Act claims, and the judge rendered
judgment for the defendant on the breach of contract and
Condo Act claims. Thus the plaintiff obtained no relief, pre-
cipitating this appeal.
When as in this case some issues are to be tried by a jury
and some by the judge, the jury trial is conducted first and
the jury’s findings (unless invalidated) are binding in the
bench trial. E.g., Byrd v. Blue Ridge Rural Electric Cooperative,
Inc., 356 U.S. 525, 537–38 (1958); In re Rhone-Poulenc Rorer,
Inc., 51 F.3d 1293, 1303 (7th Cir. 1995). So we begin with the
trial of the claim of deception, as that was the only claim
(apart from the now-abandoned federal Land Act claim)
tried by the jury. The plaintiff’s theory was bait and switch:
that TrumpOrg had promised to prospective purchasers of
the hotel condominium units—in marketing materials, in
“Property Reports” (formal documents given to buyers
along with the purchase agreements and other condomini-
um documents), and in the original draft of the purchase
agreements—common-element rights in the hotel facilities,
and had specified the terms on which units would be rented
when the owners weren’t occupying them, but had planned
to eliminate most of the promised benefits by invoking the
“change clause.”
The plaintiff argues that just as in a conventional bait and
switch—in which for example a retail store advertises a
washing machine at a low price intending to attract consum-
ers who will be told that all the machines have been sold and
6 No. 13-3057
will be urged to buy a more expensive substitute—the list of
rights in the original draft of the purchase agreement was
intended to lure prospective investors like her into signing
the agreement, after which the rights would be watered
down. In effect a less valuable product would be substituted
for the product she was led to think she was getting. Bait
and switch is a deceptive practice because it involves the
seller’s making a representation to prospective customers
that he knows to be false.
There is considerable doubt, unnecessary to resolve how-
ever, whether this theory could support a finding of fraud in
the circumstances of this case, in which the seller declared
up front, in the change clause, that it might “switch.” It
would be a pretty innocuous bait and switch if the seller in
our example advertised the low-priced washing machines
but added “and by the way we may raise the price before
you arrive at the store.” With such warning, what decep-
tion?
Illinois law is clear that bait and switch is a form of fraud,
of deception, not any other type of improper act—that it oc-
curs, violating the state’s consumer-fraud act, when a seller
makes “an alluring but insincere offer to sell a product or
service which the advertiser in truth does not intend or want
to sell. Its purpose is to switch customers from buying the
advertised merchandise, in order to sell something else, usu-
ally at a higher price or on a basis more advantageous to the
advertiser.” Williams v. Bruno Appliance & Furniture Mart,
Inc., 379 N.E.2d 52, 54 (Ill. App. 1978), quoting 16 C.F.R.
§ 238.0 and quoted in Chandler v. American General Finance,
Inc., 768 N.E.2d 60, 69 (Ill. App 2002). The Chandler opinion
goes on to observe that a “common thread … [in the bait and
No. 13-3057 7
switch cases is that] the targets are unsophisticated custom-
ers.” Id. The plaintiff in our case was highly sophisticated.
Still, the plaintiff’s bait and switch theory was presented
to the jury—which rejected it. The defendant presented
plausible evidence that an employee of TrumpOrg who had
no experience with condominium hotels had at the outset of
the Trump Tower Chicago project decided to make the hotel
facilities common elements of the hotel condominium units,
but that later this employee had been replaced. His replace-
ment had the relevant experience and persuaded Donald
Trump that the predecessor employee’s idea had been terri-
ble because the hotel condominium association elected by
the owners of the hotel condominium units might well mis-
manage the hotel facilities.
The plaintiff argues that the district judge committed se-
rious procedural errors at the jury trial, notably by allowing
the defendant’s expert, Brent Howie, to testify about Donald
Trump’s state of mind. That is a distortion of Howie’s testi-
mony. He is the president of a company that manages con-
dominium hotels, and is therefore qualified to testify about
the problems that developers of this relatively recent type of
condominium project are likely to encounter. Donald Trump
is of course a highly experienced real estate developer, but
he is not infallible—he has had many successes in the real
estate business but also failures. See, e.g., Janice Castro,
“Trump Trips Up,” Time, May 6, 1991, pp. 46–47. Howie
admitted that he had never worked with Trump and had no
idea what Trump’s knowledge or state of mind was concern-
ing the Trump Tower Chicago project. He testified merely
that in his experience even sophisticated real estate develop-
8 No. 13-3057
ers often are unaware of the importance of excluding hotel
facilities from the common elements.
An expert witness is not permitted to parrot what some
lay person has told him and testify that he believes the per-
son was being truthful. In re James Wilson Associates, 965 F.2d
160, 172–73 (7th Cir. 1992); United States v. Pablo, 696 F.3d
1280, 1288 (10th Cir. 2012); Redman v. John D. Brush & Co., 111
F.3d 1174, 1179 (4th Cir. 1997); Jennifer L. Mnookin, “Expert
Evidence and the Confrontation Clause After Crawford v.
Washington,” 15 J. Law & Policy 791, 802–03 (2007). A busi-
ness expert can however testify about the state of knowledge
prevalent in a business that he has studied, and in Howie’s
case is also a member of. E.g., Stolt-Nielsen S.A. v. Animal-
Feeds Int’l Corp., 559 U.S. 662, 674–75 and n. 6 (2010); Bercke-
ley Investment Group, Ltd. v. Colkitt, 455 F.3d 195, 218 (3d Cir.
2006); cf. Frigaliment Importing Co. v. B.N.S. International Sales
Corp., 190 F. Supp. 116, 119–20 (S.D.N.Y. 1960) (Friendly, J.);
David L. Faigman, “Expert Evidence in Flatland: The Geom-
etry of a World Without Scientific Culture,” 34 Seton Hall L.
Rev. 255, 259–60 (2003).
The plaintiff complains about the judge’s refusal to in-
struct the jury that the “change clause” was not a complete
defense. For Donald Trump had, in the course of his pro-
tracted cross-examination by the plaintiff’s lawyer, said that
it was. We suggested earlier that it might indeed be a com-
plete defense in the circumstances of this case, considering
the plaintiff’s business savvy and professional advice. But
Trump was not competent to offer a legal opinion. No mat-
ter. TrumpOrg’s lawyer acknowledged in his closing argu-
ment that the plaintiff’s bait and switch theory was a valid
theory of consumer fraud that could override the change
No. 13-3057 9
clause (though, the lawyer added, it was factually unsup-
ported). He told the jury: “You have to find change plus, and
the plus is that at the time they [meaning the defendants]
put those common elements in, they never intended to keep
them in. They [now meaning the plaintiff’s lawyers] have to
prove that, not just that there was a change.” Given Trump’s
testimony about the change clause, the instruction requested
by the plaintiff’s lawyer would have been appropriate. But it
was not essential, given the acknowledgment to the jury by
the defendant’s lawyer; its omission was not a reversible er-
ror.
So the jury’s rejection of the bait and switch theory
stands, and we must consider the effect of that rejection on
other claims made by the plaintiff. Obviously one that it
wipes out is the deception facet of the charge that the de-
fendant violated the consumer-fraud act. Another is breach
of contract. There is no basis in the explicit terms of the pur-
chase agreement for inferring a breach of contract; and while
Illinois law reads into every contract a duty of good faith,
e.g., Northern Trust Co. v. VIII South Michigan Associates, 657
N.E.2d 1095, 1104 (Ill. App. 1995), the duty relates to the per-
formance of the contract, not to fraud in its inception. As ex-
plained in the case just cited, “problems involving the obli-
gation of good faith and fair dealing generally arise where
one party to a contract is given broad discretion in perfor-
mance. The covenant of good faith requires that a party
vested with contractual discretion exercise that discretion
reasonably, not arbitrarily, capriciously, or in a manner in-
consistent with the reasonable expectation of the parties.
Parties to a contract, however, are entitled to enforce the
terms of the contract to the letter and an implied covenant of
10 No. 13-3057
good faith cannot overrule or modify the express terms of a
contract.” Id. (citations omitted).
Although the plaintiff’s appeal challenges the judge’s re-
jection of the claim of breach of contract, the challenge is lim-
ited to a contention that the plaintiff was entitled to a jury
trial. The outcome would have been the same, since the find-
ing of no deception was the finding of a jury and would bar
relief on the contract claim just as on the consumer-fraud
claim. But we think it worth pointing out the error in the
plaintiff’s procedural contention. The relief sought for the
alleged breach of contract was rescission—that is, the nullifi-
cation of the contract and the restoration of the parties to the
position they would occupy had there been no contract. Re-
scission is an equitable, not a legal, remedy. This is true un-
der both Illinois law, e.g., 23–25 Building Partnership v. Testa
Produce, Inc., 886 N.E.2d 1156, 1163 (Ill. App. 2008); Barbers,
Hairstyling For Men & Women, Inc. v. Bishop, 132 F.3d 1203,
1204–05 (7th Cir. 1997) (Illinois law), and federal law. E.g.,
Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc.,
527 U.S. 308, 324–25 (1999); Arber v. Essex Wire Corp., 490
F.2d 414, 422 (6th Cir. 1974). And there is no right to trial by
jury in an equity case. Tull v. United States, 481 U.S. 412, 417–
18 (1987); Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 446–47
(1830) (Story, J.).
There is, it is true, “legal” as well as equitable rescission.
Suppose a court orders rescission and one provision of the
order requires the defendant to return the plaintiff’s down
payment or earnest money (as sought by the plaintiff in this
case), and the defendant refuses. The plaintiff can ask the
court to hold the defendant in contempt, but alternatively he
can sue the defendant for the money; and that would be con-
No. 13-3057 11
sidered a suit for damages. Sherzer v. Homestar Mortgage Ser-
vices, 707 F.3d 255, 261 n. 4 (3d Cir. 2013); Williams v.
Homestake Mortgage Co., 968 F.2d 1137, 1140 (11th Cir. 1992).
But the court in this case did not order rescission, and so
there is no issue of the defendant’s owing the plaintiff mon-
ey and refusing to pay it. The plaintiff argues that because
her $516,000 in deposit money was held in escrow rather
than being in the defendant’s possession, her claim for its
return is a damages claim. The argument makes no sense. A
judgment of rescission would direct (if necessary order, after
joinder of the escrow agent as a defendant) the escrow agent
to return the money to the plaintiff. She isn’t entitled to the
money because she isn’t entitled to rescission.
We note for future reference (an issue discussed by the
parties though academic in light of our ruling on the deposit
money) that if the plaintiff were entitled to her $516,000 back
she would be entitled to interest on it. Under Illinois law in-
terest is recoverable if specified in a contract, Kouzoukas v.
Retirement Board of Policemen’s Annuity & Benefit Fund of City
of Chicago, 917 N.E.2d 999, 1015 (Ill. 2009); Tri-G, Inc. v. Burke,
Bosselman & Weaver, 856 N.E.2d 389, 410–11 (Ill. 2006), and
the purchase agreement provided for a return of Goldberg’s
earnest money, plus interest, as liquidated damages in the
event of a breach by TrumpOrg. The interest could be con-
siderable, depending on how it was calculated, a question
not discussed by the parties. One possibility would be the
yield on what would have been the plaintiff’s likeliest alter-
native investment. Another would be the default prejudg-
ment interest rate in Illinois, which is 5 percent. 815 ILCS
205/1, 205/2. A pretrial “itemization of damages” that the
plaintiff filed in the district court requested an interest rate
of between 3 and 6 percent, which is broadly consistent with
12 No. 13-3057
the default rate. Other possibilities are the Illinois Condo
Act’s disclosure provision, which specifies prejudgment in-
terest of 9 percent, the rate specified elsewhere in Illinois law
for interest on judgments, 765 ILCS 605/22; 735 ILCS 5/2-
1303, and the Illinois Securities Law’s prejudgment interest
rate, which is 10 percent unless the security provides other-
wise. 815 ILCS 5/13(A)(1). And in an equity case the court
can award whatever interest rate it chooses that would not
be an abuse of discretion. Finley v. Finley, 410 N.E.2d 12, 19
(Ill. 1980).
We add that if interest were awarded in a case like this, it
would not be a form of damages; it would be a means of
placing the parties in the positions they would have occu-
pied had there never been a contract, which is the objective
of rescission. The reason for adding interest would be that
the parties can’t actually be returned to the positions they
occupied back when the contract was signed. The past can-
not be recreated. Time runs in only one direction—and it’s
forward, not backward. Rescission aims to place the parties
where they would be today had there not been a contract be-
tween them.
We turn to the claims that the district judge dismissed
without a trial. One is that the alleged bait and switch was
an unfair act, whether or not it was deceptive. Section 2 of
the Illinois consumer-fraud act, 815 ILCS 505/2, like section
5(a)(1) of the Federal Trade Commission Act, 15 U.S.C.
§ 45(a)(1), on which section 2 is, as we noted, modeled, for-
bids unfair acts separately from deceptive ones. An example
is oppressive methods of debt collection, Robinson v. Toyota
Motor Credit Corp., 775 N.E.2d 951, 960–61 (Ill. 2002) (citing
FTC v. Sperry & Hutchinson Co., 405 U.S. 233 (1972)), which
No. 13-3057 13
need not (though they often do) involve deception. But until
the instructions conference the plaintiff’s only theory of con-
sumer fraud was bait and switch in its conventional sense.
The jury rejected it; advised by counsel and clearly informed
by the purchase agreement that by signing it she was in ef-
fect buying a pig in a poke, she made a risky investment by
agreeing to purchase a product that the seller had reserved
the right to change in a manner that might reduce its value
to her (though probably not by a great deal, as will become
clear). She had signed with her eyes open.
What is deceptive is also unfair. But to have instructed
the jury, as the plaintiff would have liked the judge to do,
that it could find the defendant’s conduct to have been either
deceptive or unfair, or both, would have been confusing. If
the conduct was deceptive, it violated the consumer-fraud
act. If it wasn’t, it didn’t, because the charge of unfairness
was a charge of deception by another name. As the district
judge explained in refusing the plaintiff’s eleventh-hour re-
quest for a jury instruction on unfairness distinct from de-
ception, “Plaintiff has never previously asserted a theory
based on the fairness of the elimination or the changes made
in and of themselves, but instead has consistently grounded
her recovery in Defendants’ misrepresentations, omissions
and concealment … which induced her to sign her Purchase
Agreements. Because Defendants were not on notice of this
theory and have not defended the case based on this theory,
Defendants will suffer unfair prejudice if Plaintiff can now—
on the eve of trial—pursue this new theory.”
We come next to the Illinois Securities Law of 1953,
which parallels the federal securities statutes and, so far as
bears on this case, requires registration with state authorities
14 No. 13-3057
of any “investment contract.” 815 ILCS 5/2.1, 5/5. The plain-
tiff argues that the purchase agreement she signed was an
investment contract, just as if it had been a contract to pur-
chase shares of stock in TrumpOrg, because she was invest-
ing in a pool of commingled assets—the health club, the
ballrooms, etc.
In all probability the claim is time barred. The applicable
statute of limitations is three years from the “date of sale.”
815 ILCS 5/13(D). The plaintiff signed the purchase agree-
ment in August 2006 but didn’t bring suit until September
2009—three years plus one month later. She argues that each
of the additional installment payments that she made, in Oc-
tober 2006 and February 2008 respectively, was a new “sale”
and therefore restarted the three-year limitations period.
This dubious theory, whereby “every step toward the com-
pletion of a sale [is] a sale,” was endorsed a half century ago
by Illinois’s intermediate appellate court, see Silverman v.
Chicago Ramada Inn, Inc., 211 N.E.2d 596, 599 (Ill. App. 1965),
but was abandoned in later decisions, which make the stat-
ute of limitations begin to run on the date of sale, provided
the parties’ rights were fixed at that time. Doll v. Bernard, 578
N.E.2d 1053, 1056 (Ill. App. 1991); Frantzve v. Joseph, 502
N.E.2d 396, 397–98 (Ill. App. 1986). The installment pay-
ments in this case didn’t alter any legal rights. Those rights
were fixed in the purchase agreement, and the date of that
agreement was therefore the date of sale and thus the date
on which the statute of limitations began to run.
The plaintiff’s security claim would fail even if timely for
the reason given by the district judge: the purchase agree-
ment wasn’t an “investment contract” and was therefore not
a security under Illinois law (which adopts federal law on
No. 13-3057 15
this point, Ronnett v. American Breeding Herds, Inc., 464
N.E.2d 1201, 1203 (Ill. App. 1984)), because it didn’t involve
a “common enterprise.” SEC v. W.J. Howey Co., 328 U.S. 293,
299 (1946). That means an enterprise in which “multiple in-
vestors … pool their investments and receive pro rata prof-
its.” Stenger v. R.H. Love Galleries, Inc., 741 F.2d 144, 146 (7th
Cir. 1984). “The owner of a condominium does not own an
undivided share of the building complex in which his con-
dominium is located. He owns his condominium, and if it is
rented out for him by the developer he receives the particu-
lar rental on that unit rather than an undivided share of the
total rentals of all the units that are rented out. The nature of
his interest thus is different from that of a shareholder in a
corporation that owns rental property.” Wals v. Fox Hill De-
velopment Corp., 24 F.3d 1016, 1018 (7th Cir. 1994); see also 2
Louis Loss et al., Securities Regulation § 3(A)(1)(d)(iv), pp.
987–90 (4th ed. 2007). The only thing that’s different about
this case is revenue-generating hotel facilities—but remem-
ber that TrumpOrg removed these facilities from the com-
mon elements.
And had the hotel facilities remained in the common el-
ements, the expected revenue from them to a condominium
owner (at least one who like the plaintiff owned no more
than two condominium units) was so small that the owner
couldn’t have “expect[ed to] earn a profit solely through the
efforts of” TrumpOrg’s administration of those facilities; and
without such an expectation the condominium units could
not be securities. SEC v. W.J. Howey Co., supra, 328 U.S. at
298. Had there been no change clause and so no changes to
the common elements in the Fourth Amendment, the plain-
tiff’s annual maintenance fees of $54,000 per unit would
have fallen by only between $1400 and $1700—at most 3
16 No. 13-3057
percent. “The possibility of some rental reduction is not an
‘expectation of profit’” that converts a real-estate contract
into a security. United Housing Foundation, Inc. v. Forman, 421
U.S. 837, 857 (1975) (emphasis added); see also SEC Release
No. 33-5347, “Offers and Sales of Condominiums or Units in
a Real Estate Development,” 38 Fed. Reg. 1735–36 (Jan. 18,
1973).
It’s not as if the plaintiff had been induced to buy the
condos because of the potential income from the common
elements; none of the marketing materials mentions this
possibility. See United Housing Foundation, Inc. v. Forman, su-
pra, 421 U.S. at 852; SEC v. W.J. Howey Co., supra, 328 U.S. at
300. She bought them as speculative real estate investments,
hoping also to earn some rental income from them, which is
different from sharing returns common to all the hotel con-
dominium owners.
Goldberg asks us to certify to the Supreme Court of Illi-
nois the question what is required to establish a “common
enterprise” in Illinois, without which as we noted her in-
vestment could not have been a security. We have said that
the “most important consideration” in deciding whether to
certify is whether we find ourselves “genuinely uncertain
about a question of state law that is vital to a correct disposi-
tion of the case.” State Farm Mutual Automobile Ins. Co. v.
Pate, 275 F.3d 666, 671 (7th Cir. 2001). Goldberg’s claim un-
der the Illinois Security Law fails on multiple grounds unre-
lated to the issue on which she has requested certification,
and so resolution of that issue is not vital to a correct dispo-
sition of this case. Nor is there any other reason for certifica-
tion.
No. 13-3057 17
The last issue presented by the appeal, and the most puz-
zling, is the claim that the changes made in the rights in the
shared facilities after the plaintiff signed the purchase
agreement violated a provision of the Illinois Condo Act re-
lating to information that must be provided to the prospec-
tive buyer of a condominium unit. The required information
includes “a projected operating budget for the condominium
unit to be sold to the prospective buyer, including full de-
tails concerning the estimated monthly payments for the
condominium unit, estimated monthly charges for mainte-
nance or management of the condominium property, and
monthly charges for the use of recreational facilities.” 765
ILCS 605/22(c). The required information would seem to en-
compass financial benefits that might accrue to the buyer
from the common elements of the condo hotel. But that in-
formation was provided to the plaintiff; her complaint is that
TrumpOrg violated the separate requirement in the Condo
Act that once the contract of sale is executed, “no changes or
amendments may be made in any of the items furnished to
the prospective buyer which would materially affect the
rights of the buyer or the value of the unit without obtaining
the approval of at least 75% of the buyers then owning inter-
est in the condominium … [and] failure on the part of the
seller to make full disclosure as required by this Section shall
entitle the buyer to rescind the contract for sale at any time
before the closing of the contract.” 765 ILCS 605/22.
Notice that two separate violations are specified—
changes that though they would materially affect a buyer’s
rights or the value of the unit bought are made without the
approval of 75 percent of the owners of units; and failure to
make all the required disclosures. A remedy (rescission) is
prescribed for the latter violation but not for the former. The
18 No. 13-3057
plaintiff points out that one of the things TrumpOrg failed to
disclose was that the change to the common elements was
made without obtaining the approval of 75 percent of the
condo owners. But information about whether that approval
was obtained isn’t among the items requiring full disclosure,
see 765 ILCS 605/22(a)–(e), so its omission can’t be a basis for
rescission. And unlike similar statutes in other states, see,
e.g., Hawaii Stat. § 514B-10(c); Neb. Stat. § 76-837(b); see also
Uniform Condominium Act § 4-117, the Illinois Condo Act
doesn’t contain a general provision creating remedies for vi-
olations of it; remedies are specified only for violation of
particular provisions—and the 75 percent requirement is not
one of them.
There are two other possible sources of private remedies
for violation of the 75 percent requirement, however. One is
the provision in the purchase agreement, quoted earlier, that
“Seller shall notify Purchaser or obtain the Purchaser’s ap-
proval of any changes in the Condominium Documents …
when and if such notice or approval is required by law.” The
75 percent approval is required by law—but not the pur-
chaser’s approval. So the contractual route is closed. The re-
maining possibility is that a private damages remedy is
available under another statute, namely the consumer-fraud
act. That act as we know forbids unfair as well as deceptive
acts, and a failure to seek a legally required approval for
withdrawing promised contractual benefits would seem to
be an unfair act. There might also be deception (of a kind not
litigated or determined in the jury trial in this case) in con-
cealing the failure from the other party to the contract.
The consumer-fraud act creates a private damages reme-
dy for violations of any provision of the Act, 815 ILCS
No. 13-3057 19
505/10a(a), and thus would reach an unfair or deceptive act
resulting from a violation of another statute, in this case the
Condo Act. That is a form of chain liability familiar in feder-
al law; for example, the prohibitions in 28 U.S.C. § 1981 are
enforced against state actors by suits under section 1983, be-
cause section 1981 does not provide remedies against state
actors for violation of its prohibitions. See, e.g., Jett v. Dallas
Independent School District, 491 U.S. 701, 731–32 (1989); Camp-
bell v. Forest Preserve District, 2014 WL 1924479 (7th Cir. May
15, 2014); McGovern v. City of Philadelphia, 554 F.3d 114, 120–
21 (3d Cir. 2009); Arendale v. City of Memphis, 519 F.3d 587,
598–99 (6th Cir. 2008). But this approach to the 75 percent
question was first mentioned at oral argument. Not having
been argued in the plaintiff’s opening brief or reply brief, it
has been forfeited.
With all avenues for relief seemingly closed, the plaintiff
argues that we should “imply” in the statute a right to bring
a private suit for damages. A more candid formulation
would replace “imply” with “create” or “interpolate.” The
defendant points out that such judicial interpolation is disfa-
vored in Illinois law. Fisher v. Lexington Health Care, Inc., 722
N.E.2d 1115, 1117–18, 1121 (Ill. 1999); Cuyler v. United States,
362 F.3d 949, 954–55 (7th Cir. 2004) (Illinois law). It is a na-
tional trend. Courts including the federal courts used to be
quick to interpolate such rights, but have backed off, partly
in response to business hostility to consumer litigation but
also because of recognition that the omission of such a rem-
edy need not be a legislative oversight but may instead re-
flect a compromise with opponents of a proposed regulatory
statute. See Rodriguez v. United States, 480 U.S. 522, 525–26
(1987) (per curiam); John F. Manning, “What Divides Textu-
alists from Purposivists?,” 106 Colum. L. Rev. 70, 103–05
20 No. 13-3057
(2006). Their acquiescence is induced by a watering down of
the remedies for a violation.
An oddity is that not only is no private remedy for viola-
tion of the 75 percent requirement specified, but there ap-
pears to be no public remedy either. The Consumer Fraud
and Deceptive Business Practices Act, in contrast, specifies a
public remedy. See 815 ILCS 505/7. The absence of any such
specification in the Condo Act is some evidence that there is
no public remedy for violation of that Act.
We need not decide, however, whether in these unusual
circumstances the Supreme Court of Illinois would interpo-
late a private damages remedy. The plaintiff forfeited the
issue by first raising the possibility of an implied statutory
remedy in her reply brief. That was too late. Fiala v. B & B
Enterprises, 738 F.3d 847, 853 (7th Cir. 2013); EIMSKIP v. At-
lantic Fish Market, Inc., 417 F.3d 72, 78 (1st Cir. 2005); 16AA
Charles A. Wright et al., Federal Practice & Procedure § 3974.3,
pp. 277–82 (4th ed. 2008).
The plaintiff makes some other arguments, but they are
too weak to warrant discussion. The judgment in favor of
the defendants on all counts in the complaint is
AFFIRMED.