Consultant’s Quantum Meruit and Time-And-Materials Contract Claims Fail Against Contractor (IL 2d Dist)

Mostardi Platt Environmental, Inc. v. Power Holdings, LLC, 2014 IL App (2d) 130737-U shows the importance of clarity in contract drafting – particularly compensation terms.  The case also illustrates the crucial distinction between a time-and-expense (or time and materials) contract and a lump-sum payment contract.

Plaintiff was hired to perform environmental assessment services and to secure government permits for the defendant contractor who was building a gas facility in southern Illinois.  The parties’ original agreement was a time-and-expense contract and was later amended to a lump sum contract totaling about $100,000.

A dispute arose when the plaintiff realized that it underestimated the project’s scope and time commitment and sought additional monies from the defendant.  The defendant refused after the plaintiff failed to specify the needed extra work.  The plaintiff sued for damages and the defendant counterclaimed.  The trial court ruled against the plaintiff on all counts and for defendant on its counterclaim.

Held: Affirmed

Reasons:

The Court first rejected the consultant’s quantum meruit claim.  Quantum meruit is an equitable theory of recovery used by a party to obtain restitution for the unjust enrichment of the other party. 

Illinois law allows alternative pleading and quantum meruit is often pled as a fallback theory to a breach of contract claim.  It allows a plaintiff to recover the reasonable value of his work where there is no contract a contractual defect.  A quantum meruit claim can’t co-exist with an express contract. 

Here, the court found that the parties had an express contract – the environmental consulting agreement.  Because of this, the trial court properly denied plaintiff’s quantum meruit claim.  (¶¶ 75-78).

The Court also agreed that the plaintiff breached the consulting contract.  Under basic contract law, where parties reduce an agreement to writing, that writing is presumed to reflect the parties’ intent. 

The contract is interpreted as a whole and the court applies the plain and ordinary meaning of unambiguous contract terms.  A party who seeks to enforce a contract must establish “substantial performance” – that he substantially complied with the material terms of the agreement.  (¶¶ 81-82, 95).

The Court found that the plaintiff breached the contract in multiple respects.  Reading the original and amended consulting contracts together, the court found that the plaintiff was required but failed to provide itemized invoices for extra or “out-of-scope” work and also failed to complete its permitting tasks.  By walking off the job before it secured the required environmental permit, the plaintiff breached a material contract term. (¶¶  89-91).

The Court also rejected plaintiff’s impossibility defense, based on the claim that a substitute contractor (hired after the plaintiff walked off the job) changed the scope of the project and made it impossible for the plaintiff to perform.

Impossibility refers to situations where a contract’s purpose or subject matter has been destroyed; making performance impossible.  But the defense is applied sparingly since the purpose of contract law is to allow parties to freely allocate risks among themselves and a party’s performance should only be excused in extreme circumstances.  (¶ 97).

Finding no impossibility, the Court noted that the plaintiff only showed that the stated contract price was underbid and didn’t adequately compensate it for the needed extra work.  The Court held that impossibility of performance requires a litigant to show more than mere difficulty in performing or that he struck a bad bargain.  Performance must truly be rendered impossible due to factors beyond the party’s control.  ¶¶ 97-98.

 Take-aways: In the construction realm, some typical contractual compensation schemes include time-and-materials or time and expense, cost-plus arrangements or lump sum payment agreements.  Labeling a contract with the proper payment designation is critical; especially when a project’s scope and duration is uncertain.  This case makes it clear that in situations involving commercially sophisticated parties, a court will hold them to the clear language of their contract – even if has harsh results for one of the parties after the fact.  

Staffing Firm’s Trade Secrets and Tortious Interference Claims Against Ex-Employees Rejected After Bench Trial (Part II of II)

Top Secret

The plaintiff staffing firm lost big in Instant Technology, LLC v. DeFazio, 2014 WL 1759184 (N.D. IL 2014).  The Northern District Court found for the defendants on the plaintiff’s non-compete counts (see prior post) as well as on its trade secrets, tortious interference and breach of fiduciary duty claims. 

Trade Secrets Analysis

The ex-employee defendants signed broad non-disclosure agreements that prevented them from divulging plaintiff’s business information to third parties.  In finding that the plaintiff failed to establish either valid trade secrets or that the defendants used the alleged secrets, the Court applied the key Illinois trade secrets rules:

–  a trade secrets plaintiff must establish (1) that it possessed trade secrets and (2) that the defendant misappropriated them;

– a trade secret is information not generally known to others.  The plaintiff must concretely identify the secret: it isn’t enough for the plaintiff to point to “broad areas of technology” and claim that something there “must be” secret;

– misappropriation means improper acquisition, unauthorized disclosure or unauthorized use.  See 765 ILCS 1065/2(b);

 – misappropriation by “improper acquisition” means theft, bribery, breach of or inducement of a breach of a confidential relationship or espionage through electronic means;

  – misappropriation by “unauthorized disclosure” or “unauthorized use” means the defendant used the alleged trade secrets or disclosed them to others for purposes other than serving the interests of the trade secrets owner;

where information is generally known to others who could benefit from using it, the information is not a trade secret

 (*18-19).

The staffing company failed to establish a protectable trade secret.  None of the client or candidate information the plaintiff was suing on was secret.  The Court found that client names, hiring needs as well as candidate identities and qualifications were publicly available (through phone or internet searches) and information that was freely given out by plaintiff’s clients.  This is because many of the plaintiff’s clients use multiple rival staffing firms simultaneously.

The Court also held that the plaintiff failed to show misappropriation by the defendants.  The trial testimony (18 witnesses testified at the bench trial) established that the defendants were authorized to store and transport plaintiff’s documents via thumb drives and that each defendant physically returned all of plaintiff’s documents and data.

Tortious Interference Analysis

The plaintiff also lost on its tortious interference with contract and prospective economic advantage claims.  Plaintiff alleged that certain defendants tortiously interfered with plaintiff’s client and candidate relationships.

In Illinois, to show tortious interference with contract, the plaintiff must establish: (1) the existence of valid and enforceable contract between plaintiff and third party; (2) defendant’s awareness of that contract; (3) defendant’s intentional and unjustified inducement of a breach of that contract; (4) breach of the contract by the third party; and (5) damages.  Tortious interference with prospective economic advantage has identical elements except the plaintiff must specify customers who actually contemplated entering into a business relationship with the plaintiff.

Since the non-compete lacked consideration and was unreasonable, the contract was unenforceable and so plaintiff’s  tortious interference with contract claim failed.   The plaintiff’s tortious interference with prospective economic advantage count also fell short since the plaintiff couldn’t identify a specific client that didn’t materialize due to defendants’ conduct.  The Court held that proof of a past customer relationship was insufficient to prove a reasonable expectation of a future business relationship.  (¶22).

Breach of Fiduciary Duty Claim

The Court also sided with the defendants on the plaintiff’s breach of fiduciary duty claim.  An Illinois employee can form a rival corporation and outfit it for business while employed by his former employer.  And where there is no valid post-employment restrictive covenant, an employee is free to compete with his ex-employer. 

Further, only a corporate “officer” can be liable for soliciting employees for a new, competing venture.  Job title is not enough to establish corporate officer status.  Instead, the court looks to whether the defendant performs “significant managerial and supervisory responsibilities for operation of the office”.  Here, one of the individual defendants – despite being Executive Vice President of plaintiff – had no managerial authority.  As a result, this defendant wasn’t a true corporate officer and couldn’t be liable for breach of fiduciary duty in soliciting the other defendants to join her in the new staffing firm.  (¶¶ 19-20).

Take-away: The case again illustrates the high evidence burden for a plaintiff to show the existence of a trade secret and its misappropriation.  It also underscores how difficult it is for a plaintiff to prove tortious interference without specifically pinpointing lost contracts or hoped-for business relationships.  The case also construes Illinois law to subject only a corporate officer – with management authority – to breach of fiduciary duty claims where that officer solicits employees of a corporation to join the officer in a competing venture.

Student Loan Discharge In Bankruptcy: How Hard Is It?

In Steven Harper’s The Lawyer Bubble: A Profession In Crisis, the author (quoting a newspaper article) describes Federally guaranteed student loans as the closest thing to a debtor prison in existence.  Lawyer Bubble, p. 11.  This statement, while jarring, has some empirical support.  In the book, Harper cites bankruptcy code changes that have made it virtually impossible to get student loan debt relief in all but the most extreme (and trying) circumstances.  He also provides anecdotes, documented examples and profuse research to back up his arguments.

Hard data aside, the “knowledge” that student loans can’t be discharged in bankruptcy has permeated the collective consciousness.  Indeed, the difficulties a bankrupt debtor must surmount to get a discharge from student loan debt have assumed near-mythic proportions.  The popular narrative is that student loan relief is given in only the most severe (think physical and mental infirmities coupled with fiscal calamity) circumstances and that it’s basically not even worth trying to get a discharge.  And in many cases, the belief is accurate: it is nearly impossible to convince a bankruptcy judge to grant a student loan discharge.  

This extreme difficulty in securing a discharge is graphically illustrated by the depressing fact patterns that underlie many student loan discharge cases where relief is granted only under the sadness-tinged “certainty of hopelessness” standard.  In many of these cases – in which the court does grant discharge relief – the court chronicles the lives of borrowers who live in abject poverty and in desperate conditions, all the while trying to support themselves and their dependents.  Yet, for other student borrowers whose circumstances aren’t as severe, the courts often refuse their discharge requests.  

But in the Seventh Circuit, as shown by a recent decision, getting a discharge may not be as difficult as previously understood.  In Krieger v. Educational Credit Management Corp., 213 F.3d 882 (7th Cir. 2013), the Court seems to relax the austere requirements for a borrower who seeks to discharge student loan debt.  In that case, the Court discharged nearly $25,000 in student loans where the borrower was in good health, educated and had solid academic credentials.

Like other cases in the student loan discharge milieu, Krieger’s underlying facts aren’t sunny.  The debtor was in her fifties and lived with her elderly mother.  She was divorced and lived in a rural area where jobs are scarce.  She hadn’t worked in over twenty years, lacked income, assets and reliable transportation.  The debtor filed an adversary proceeding to discharge student loan debt which she acquired to attend paralegal school.  The lender objected and after a trial, the bankruptcy judge sided with the debtor and discharged the loans.  The lender appealed and the District Court (bankruptcy  orders are appealed to District court) reversed on the grounds that the debtor didn’t show undue hardship.  The Seventh Circuit reversed and found that the debtor was entitled to a discharge.

 Rules/Reasoning:

Section 523(a)(8) of the Bankruptcy Code provides that student loans are generally excepted from discharge unless “excepting such debt from discharge….would impose an undue hardship on the debtor.”  11 U.S.C. 523(a)(8).  Undue hardship isn’t defined in the Code but the standard’s content is instead established by the caselaw from various jurisdictions.

To analyze undue hardship (whether the borrower demonstrates undue hardship) 7th Circuit applies the three-part test espoused by the Second Circuit in In re Brunner (831 F.2d 395 (2nd Cir. 1987) – a seminal Second Circuit case from the late 1980s.  To establish undue hardship, the borrower must show, by a preponderance of the evidence that (1)  the debtor can’t maintain a “minimal standard of living” based on current income and expenses; (2) “additional circumstances” exist that show that the state of affairs is likely to persist for a significant portion of the repayment period of the loans (the so-called “persistence” element); and (3) that the debtor-borrower has made good faith efforts to repay the loans.

The Seventh Circuit found that all three undue hardship factors were met.  The debtor showed that she was destitute, lived in a remote area that was “out of the money economy”, and hadn’t worked in over two decades.  The Court also found that the debtor’s circumstances were likely to persist and unlikely to financially improve in the future.  On this second factor – the “persistence” factor – the court rejected other courts’ requirement of the debtor showing “certainty of hopelessness”, finding that the undue hardship standard is a more flexible test.

Noticeably absent from the analysis though, is any discussion of the debtor’s “good faith.”  Other cases look to whether the debtor took advantage of reduced-payment options as well as the debtor’s past payment efforts.  Here, though, the Court simply held that the good faith element of the undue hardship test involves a fact-specific analysis that requires “clear error” for reversal.  The Court also held that a debtor is not required to exhaust all reduced-payment options as a predicate for showing good faith.  In finding good faith, the Seventh Circuit found that the bankruptcy judge’s good faith determination based on the debtor’s 200 unsuccessful job applications over the years wasn’t clearly erroneous and should have been upheld.

Manion’s cautionary concurrence:

In his concurrence, Judge Manion notes that the debtor is physically healthy, intelligent and graduated from paralegal school with a high GPA.  Judge Manion didn’t think the debtor’s circumstances were egregious enough to merit a discharge and even wondered whether other student borrowers will use this case as an “excuse to avoid their own student loan obligations?”  He pointed out that debtor’s applying for 200 jobs over a 10-year period amounted to less than two applications per month.  Hardly a Herculean job search effort.

Take-aways: Compared to other student discharge decisions – where the debtor is either physically or mentally impaired or is responsible for  sick parents or children – Krieger arguably establishes a more lenient discharge standard.  Clearly, the debtor was insolvent, destitute and hadn’t worked in decades.  But she was also physically healthy and educated.  The debtor’s circumstances seem to be missing an element of “certainty of hopelessness” – the standard that governed Seventh Circuit  discharge cases before Krieger.  At any rate, it’s too early to tell if this case represents a sea-change in student loan discharge cases.  It’s also unclear whether this case will result in an uptick in student discharge attempts.  Still, the case is worth reading for its topical relevance as well as its statistical description of the Federal loan-student borrower bankruptcy crisis.