Michael P. Klein v. George G. Kerasotes Corporation, et al.

This case involves a dispute that
arose when Michael P. Kerasotes was forced to sell his
shares in a closely held family corporation, the George P.
Kerasotes Corporation ("the Corporation"), back to the
Corporation. Kerasotes, now replaced on appeal by his
Chapter Seven bankruptcy trustee, Michael P. Klein, is
trying to raise a number of claims in connection with
that transaction, including that the sale was compelled,
the valuation of the stock was misrepresented, and the
price the Corporation paid for his stock was improperly
discounted. The only question before this court is whether
the Illinois Securities Law of 1953, 815 ILCS 5/1 et seq., applies to claims made by a seller of stock such as
Kerasotes. Although we appreciate the policy arguments
Klein has advanced in support of a negative answer, we
conclude that the plain language of the statute encompasses
both purchasers and sellers of stock. That means
that Klein's claims against both the Corporation and
its directors are barred by the statute of repose found in
the Illinois law. Accordingly, we affirm the district court's
grant of summary judgment.

I

According to Klein, until the Corporation offered to
buy out Kerasotes's 1900 shares in April of 1995, he was
unaware that he owned any stock in it. Thus, it was to his
surprise that he received a letter from the Corporation
informing him that he had stock, that the Corporation
wanted to buy it back, and that it had valued the stock
at $140 per share, for a total payout of $266,000. The
Corporation as a whole valued itself at $7,850,000. Although
that number meant that the per share value of its
approximately 25,350 outstanding shares was $309.65, it
discounted Kerasotes's shares 10% because they were nonvoting
shares. It then discounted the resulting figure by
another 50% for non-marketability to arrive at the final
price. Kerasotes swore that he had no choice but to take
the Corporation's offer: "I was not allowed to negotiate
any of these terms and was told that if I did not agree to
them, I would receive nothing." (Presumably he would
have retained the shares, but the record does not reveal
what would have happened if he had refused.) He ultimately
signed a Stock Redemption Agreement on May 23,
1995.

Some time after the sale, Kerasotes began to suspect
that he had not received the full value of his shares. On
February 9, 1999, as he was in the process of negotiating a Transfer Agreement with the Corporation to transfer
the assets that the Corporation owed him into a trust
fund, Attorney Thomas Lamont sent a letter on Kerasotes's
behalf asking about the propriety of the earlier
Stock Redemption and demanding that the prior Agreement
be renegotiated. The Corporation refused the renegotiation
demand, but it agreed to make a lump sum payment
into a trust of the remaining amounts.

In 1999, the defendants again told Kerasotes that the
Corporation was worth $7,850,000. That representation
was materially false. In fact, its value was in excess of
$49 million as of 1998 (more than 600% higher than the
value used for Kerasotes), and there is no evidence that it
had slipped in the interim. Kerasotes did not learn about
the true value of the company until September 24, 2003,
when he received this information through discovery in a
probate action.

On August 3, 2005, Kerasotes filed this diversity suit
in federal court against Flora B. Kerasotes, Marjorie M.
Kerasotes, Harvey B. Stephens, and Marshall N. Selkirk,
each a director and trustee of the Corporation, and against
the Corporation itself. (Two of these defendants share
the same surname as the plaintiff's; when we refer simply
to "Kerasotes," we mean Michael Kerasotes.) He asserted
that all had breached their fiduciary duties to him and
were liable for punitive damages; he also asserted common
law fraud against the individual defendants. Finding
that all theories of recovery fell within the Illinois Securities
Law and that the five-year statute of repose contained
in 815 ILCS 5/13(D) had run, the district court granted
partial summary judgment against Kerasotes for all
claims he had brought against the individual defendants
and the Corporation. Kerasotes's complaint also raised
claims against Attorney Lamont, which remain in the
district court and, we were told, are stayed pending the
resolution of this appeal. Because the district court expressly found, pursuant to FED. R. CIV. P. 54(b), that
there was no just reason for delay in entering a final
judgment with respect to the individual defendants and
the Corporation, Klein (by this time acting as Trustee) was
entitled to appeal that decision immediately.

I

The principal question on appeal is whether § 13(D) of
the Securities Law applies to Kerasotes's claims. According
to its terms, the Securities Law applies to all "action[s] . . .
for relief under [the Securities Law] or upon or because
of any of the matters for which relief is granted by [the
Securities Law] . . . ." 815 ILCS 5/13(D). Kerasotes did not
expressly invoke the Securities Law in his complaint;
instead, he chose to allege common law claims of fraud,
breach of fiduciary duty, and punitive damages. This is
of little importance, however. As a procedural matter it
is well established that plaintiffs in federal court have
no duty to allege legal theories. See, e.g., McDonald v.
Household Int'l, Inc., 425 F.3d 424, 427-28 (7th Cir. 2005). If the complaint states a claim cognizable under
the Securities Law, then recovery under that statute
would be possible. In a diversity case like this one, the
federal court must apply the applicable state statute of
limitations. Walker v. Armco Steel Corp., 446 U.S. 740,
751-52 (1980). Under Illinois law, which all agree governs
here, claims that do not directly invoke the Securities
Law may still fall within its statute of limitations. See
Tregenza v. Lehman Brothers, Inc., 678 N.E.2d 14, 15 (Ill.
App. 1997). For example, in Tregenza, the Appellate
Court of Illinois held that common law causes of action
for breach of fiduciary duty, fraud, and negligent misrepresentation,
when brought by a stock purchaser, fall
within the statute of limitations provided by the Securities
Law because "[they] are reliant ‘upon . . . matters for
which relief is granted' by the securities law." Id. Whether
Kerasotes's claim amounts to an "action for relief under
[the Securities Law] or upon or because of any of the
matters for which relief is granted by [the Securities Law]"
depends on what acts are encompassed within the Securities
Law.

The Illinois Securities Law of 1953 is Illinois's version of
the "blue sky" laws that exist in most states. "Blue sky"
laws got their name from the case of Hall v. Geiger-Jones
Co., 242 U.S. 539 (1916), in which the Supreme Court
lauded the passage of state securities laws to curb " ‘speculative
schemes which have no more basis than so many
feet of blue sky;' or, as stated by counsel in another case,
‘to stop the sale of stock in fly-by-night concerns, visionary
oil wells, distant gold mines, and other like fraudulent
exploitations.' " Id. at 550. The Illinois Securities Law
was motivated by the same concern. In the words of the
Appellate Court of Illinois, "[t]he objective of the [Securities]
Act is to protect innocent persons who may be induced
to invest their money in speculative enterprises over which they have little control . . . ." People v. Bartlett,
690 N.E.2d 154, 156 (Ill. App. 1998).

Section 12 of the Securities Law includes two anti-fraud
provisions that made it a violation of the law for "any
person" to "engage in any transaction, practice or course of
business in connection with the sale or purchase of securities
which works or tends to work a fraud or deceit upon
the purchaser or seller thereof," 815 ILCS 5/12(F), or to
"employ any device, scheme or artifice to defraud in
connection with the sale or purchase of any security,
directly or indirectly," 815 ILCS 5/12(I). According to the
definitions section of the statute, " ‘[s]ale' or ‘sell' shall
have the full meaning of that term as applied by or
accepted in the courts of this State, and shall include
every contract of sale or disposition of a security or
interest in a security for value." 815 ILCS 5/2.5.

The law also contains multiple remedial provisions.
Section 13(A) provides a rescissionary remedy making
"every sale of a security made in violation of the provisions
of this Act . . . voidable at the election of the purchaser."
815 ILCS 5/13(A). Section 13(G) provides an injunctive
remedy as follows:

Whenever any person has engaged or is about to
engage in any act or practice constituting a violation of
this Act, any party in interest may bring an action . . .
to enjoin that person from continuing or doing any
act in violation of or to enforce compliance with this
Act. Upon a proper showing, the court shall grant a
permanent or preliminary injunction or temporary
restraining order or rescission of any sales or purchases
of securities determined to be unlawful under
this Act . . . .

815 ILCS 5/13(G)(1).

Kerasotes's argument rests on the premise that a stock
seller has no remedies under the Illinois Securities Law. This is true under many state blue sky laws, including
the Uniform Securities Act of 1956, which has been
adopted by thirty-four states. The Uniform Securities Act
makes only sellers - and not purchasers of securities -
liable for fraud, as its language demonstrates: "Any person
who . . . (2) offers or sells a security by means of any
untrue statement of a material fact . . . [is] liable to the
person buying the security from him . . . ." Unif. Securities
Act § 410(a). Section 13(A) of the Illinois Securities Law is
similar to the Uniform Securities Act to the extent that
it makes the rescissionary remedy in § 13(A) available
only "at the election of the purchaser." (Emphasis added.)
As the Appellate Court of Illinois noted in Space v. E.F.
Hutton, "It is evident by the very wording of section 13(A)
that the remedies under the Illinois Blue Sky law are
available only to purchasers of securities." 544 N.E.2d
67, 70 (Ill. App. 1989).

The district court was aware of the limitations of § 13(A),
but it concluded that there was more than that to the
statute. In finding that Kerasotes's claim was time-barred,
it looked instead to § 13(G), which says that "any party
in interest" may seek "rescission of any sales or purchases
of securities determined to be unlawful under this Act."
Relying at this point on the district court's decision in Guy
v. Duff & Phelps, Inc., 628 F.Supp. 252 (N.D. Ill. 1985),
Kerasotes argues that notwithstanding this language,
this section does not provide a remedy for purchasers.

There were a number of reasons why the plaintiff's suit
was unsuccessful in Guy, and there is no reason why a
district judge in the Central District of Illinois should
have been bound by the reading of the statute suggested by
one of her colleagues in the Northern District. That said,
the Guy opinion raised several points that we think should
be addressed. It thought that recognizing a remedy for
sellers under the Securities Law would be tantamount to
"granting a new private retrospective remedy to sellers" that was not part of the statute. Id. at 263. Such a remedy,
it believed, would create an anomaly: If sellers have a
remedy under § 13(G), they would have the same rights as
purchasers without having to comply with the procedural
notice and tender requirements contained in §§ 13(A)
and (B) (with which a seller could not possibly comply,
since by definition after the sale it would no longer possess
the securities). This was a change, the court concluded,
that the Illinois legislature was unlikely to have made in
such a cryptic way to this "meticulously worded statute."
Id. at 264.

These observations have some force, but we think
that they are trumped by two contrary factors that support
the application of the Securities Law to the claims
at issue here. First and foremost, the language of the
statute makes it difficult to see how sellers of stock have
no remedy under § 13(G). General policies cannot override
the explicit language of a statute. Here, the express
language of the relevant provisions of §§ 12 and 13 supply
no justification for excluding stock sellers. Section 12 not
only applies to "any person" but it also specifically prohibits
activities in connection with "the sale or purchase" of
securities. 815 ILCS 5/12(F) & 12(I). Similarly, § 13 targets
the actions of "any person" and allows "any party in
interest" to bring an action. To decide that sellers are
not included under the Securities Law would require the
court to disregard this plain language. Cf. Grimhaus v.
Comerica Securities, Inc., 2003 WL 21504185, *2 (N.D. Ill.
2003) ("The [Securities Law] allows any ‘party in interest,'
not just purchasers of securities, to bring a civil action to
enjoin a violation of the Act. While section 5/13(G)(1)
provides solely for prospective relief, it would allow some
relief to the plaintiffs.") (emphasis in original; citation
omitted).

Second, finding that stock sellers have a remedy under
§ 13(G) does not give them an undeserved break. The greater problem would lie in a finding that they had no
remedy. With respect to stock purchasers who seek a
remedy under § 13(G), stock sellers have identical obligations.
Moreover, a finding that the Securities Law affords
no remedy would not bar sellers from bringing common
law claims. If the Law indeed excluded them altogether,
they presumably would be able to raise common law
claims without having to meet any of the Securities
Law's limits, like the statutes of limitation and repose.
We see no indication that this is what the Illinois legislature
was trying to do.

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