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E-FILED

Transaction ID: 1-18-1126


File Date: 10/5/2018 10:10 AM
Thomas D. Palella
No. 1-18-1126 Clerk of the Appellate Court
APPELLATE COURT 1ST DISTRICT

IN THE APPELLATE COURT OF ILLINOIS


FIRST JUDICIAL DISTRICT

)
ADVANTAGE MARKETING GROUP, LTD., ) Appeal from the Circuit Court of Cook
) County
Plaintiff-Appellant, )
) Case No. 2017 CH 05559
v. )
) Circuit Judge: Neil H. Cohen
)
JAMES P. KEANE, SR., ) Appeal from Orders dated May 1 and 9,
) 2018
Defendant-Appellee. )
)

BRIEF OF PLAINTIFF-APPELLANT

Kenneth J. Vanko
Clingen Callow & McLean, LLC
2300 Cabot Drive, Suite 500
Lisle, Illinois 60532
(630) 871-2600
vanko@ccmlawyer.com

Counsel for Plaintiff-Appellant

ORAL ARGUMENT REQUESTED


POINTS AND AUTHORITIES

Nature of the Action ......................................................................................................... 1


Statement of The Issues Presented for Review ........................................................... 1
Statement of Jurisdiction ................................................................................................. 2
Statement of Facts ............................................................................................................. 2
Argument ............................................................................................................................ 5
I. Standard of Review .................................................................................................... 5
Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d 472 (1999)........... 5-6
II. AMG’s claim for breach of fiduciary duty establishes that the evaluation of
acquisitions, and so The Mail House opportunity itself, were part of
Keane’s agency relationship. .................................................................................... 6
Lawlor v. North American Corp. of Ill., 2012 IL 112530 .................................................... 6
A. In holding that Keane owed AMG no duty, the circuit court failed to
apply corporate opportunity principles and Supreme Court precedent .... 6
Mullaney, Wells & Co. v. Savage, 78 Ill. 2d 534 (1980) .................................................. 6-8
Kerrigan v. Unity Sav. Ass’n, 58 Ill. 2d 20 (1974) ............................................................. 7
Lawlor v. North American Corp. of Ill. 2012 IL 112530 ..................................................... 7
Ray v. Winter, 67 Ill. 2d 296 (1977) .................................................................................... 7
B. The corporate opportunity doctrine’s parameters depend on the scope of
a fiduciary’s agency relationship, not a title. ................................................... 8
Armstrong v. Guigler, 174 Ill. 2d 281 (1996) ..................................................................... 8
Dremco, Inc. v. S. Chapel Hill Gardens, Inc., 274 Ill. App. 3d 534 (1st Dist. 1995) ........ 9
Mullaney, Wells & Co. v. Savage, 78 Ill. 2d 534 (1980) ................................................... 10
Kerrigan v. Unity Sav. Ass’n, 58 Ill. 2d 20 (1974) ........................................................... 10
C. The “preliminary stages” doctrine does not override corporate-
opportunity principles. ...................................................................................... 10
Mullaney, Wells & Co. v. Savage, 78 Ill. 2d 534 (1980) .............................................. 11,13
Dowell v. Bitner, 273 Ill. App. 3d 681 (4th Dist. 1995) .................................................. 11
Veco Corp. v. Babcock, 243 Ill. App. 3d 153 (1st Dist. 1993) .......................................... 11

i
William Lynch Schaller, Disloyalty and Distrust: The Eroding Fiduciary Duties of
Illinois Employees, 3 DePaul Bus. L.J. 1 (Fall/Winter 1990-91)………...….......11
Foodcomm Int’l v. Barry, 328 F.3d 300 (7th Cir. 2003) .............................................. 11,12
LCOR, Inc. v. Murray, No. 97 C 1302, 1997 WL 136278 (N.D. Ill. Mar. 20, 1997) ..... 12
Regal-Beloit Corp. v. Drecoll, 955 F. Supp. 849 (N.D. Ill. 1996)..................................... 13
D. AMG properly alleged that Keane failed to disclose and tender The Mail
House acquisition opportunity. ....................................................................... 14
Mullaney, Wells & Co. v. Savage, 78 Ill. 2d 534 (1980) ................................................... 14
Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d 472 (1999)............ 14
III. The factual allegations arising from Keane’s appropriation of The Mail
House opportunity place it within a cognizable tortious interference claim.14
Fellhauer v. City of Geneva, 142 Ill. 2d 495 (1991)........................................................... 15
Conclusion ........................................................................................................................ 17
Certificate of Compliance .............................................................................................. 19

ii
NATURE OF THE ACTION

This is an appeal from the circuit court’s dismissal of two claims that

Advantage Marketing Group, Ltd. (“AMG”) brought against James P. Keane, Sr.

(“Keane”). In its Amended Complaint at Chancery, AMG alleged Keane was

liable for breach of fiduciary duty and tortious interference with prospective

economic advantage arising from his conduct in acquiring a competing business

while still a key AMG employee. (C. 138-51; A8-21).

On May 1, 2018, the circuit court, in a Memorandum and Order, dismissed

both claims under Section 2-615 of the Code of Civil Procedure. (C. 206-09; A1-4).

The next week, the circuit court entered an Order of Dismissal with prejudice

after AMG represented that it would not seek to amend its pleading any further.

(C. 210; A5). AMG filed its Notice of Appeal on May 31, 2018 and seeks a reversal

of the circuit court’s with-prejudice dismissal of both causes of action in the

Amended Complaint. (C. 211-19; A39-47).

The issues AMG raises in this appeal are on the pleadings alone and seek to

determine whether AMG stated legally and factually sufficient tort claims

against Keane.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

The issues presented for review are

(1) Has AMG stated a proper claim for breach of fiduciary duty against
Keane for his pre-resignation purchase of a direct competitor?

(2) For purposes of its tortious interference claim, did AMG sufficiently plead
that it had a reasonable expectation of acquiring a competing business

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with which Keane interfered, given Keane’s knowledge of, and
involvement in, evaluating strategic acquisitions for AMG?

STATEMENT OF JURISDICTION

The circuit court entered an Order on May 1, 2018, which dismissed Counts I

and II of the Amended Complaint. (C. 206-09; A1-4). That Order disposed of the

only claims in AMG’s pleading. Then on May 9, 2018, the circuit court entered an

Order of Dismissal after AMG represented that it would not seek to amend its

complaint any further. (C. 210; A5). AMG filed its Notice of Appeal on May 31,

2018. (C. 211-19; A39-47). This Court thus has appellate jurisdiction under Illinois

Supreme Court Rules 301 and 303.

STATEMENT OF FACTS

For purposes of this appeal, AMG assumes the truth of the factual allegations

in the Amended Complaint.

The Parties

AMG is a marketing services company, providing letter-shop and fulfillment

services for its clients. (C. 140; A10). Its Elk Grove Village facility warehouses a

full data processing center, as well as laser, print, and inserting equipment. (Id.)

When he resigned, Keane was an AMG shareholder and key employee. (Id.) He

also was an original founding AMG director and officer, but Keane did not hold

those titles when he resigned. (Id.)

Keane’s Pre-Resignation Purchase of a Competitor

On the afternoon of September 4, 2015, Keane resigned from AMG “effective

immediately.” (Id.) Keane delivered his resignation notice by email to Patty

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Hermann (“Hermann”), AMG’s director and majority shareholder. (Id.) About a

month before, Keane formed a corporation to acquire The Mail House, which

also is in Elk Grove Village. (Id.; C. 144; A14). Around the same time, Keane had

registered a new domain name with the extension “mailhousedm.com,” along

with seven other domain names that all contained some iteration of the

“mailhouse” name. (C. 145; A15). At all times, The Mail House has conducted

letter-shop and fulfillment services much like, and competitive with, those

offered by AMG. (C. 144; A14). Keane negotiated and closed on the purchase of

The Mail House (or its assets) before severing his ties with AMG. (Id.)

Keane’s Failure to Disclose the Acquisition Opportunity

At no point in 2015 did Keane disclose to Hermann or AMG that he sought to

acquire The Mail House. (C. 147; A17). Nor did Keane ever advise Hermann or

AMG that the prior owners of The Mail House were interested in selling their

business. (Id.) AMG never consented to or approved Keane’s appropriation of

The Mail House acquisition for himself. (Id.) And Keane never disclosed any

facts to AMG about The Mail House acquisition opportunity before he purchased

the business. (Id.)

Keane’s Strategic and Acquisition Responsibilities at AMG

For several years before his resignation, Keane was a principal employee of

AMG with wide-ranging responsibilities. (C. 140-41; A10-11). Keane’s duties

were equivalent to those of an officer, in that he:

• consistently held himself out to third parties as an AMG owner


when developing customer relationships;

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• had substantial responsibility for AMG employment decisions,
including hiring and termination of staff;

• had access to all AMG books and records, including client lists,
employee records, tax documents, vendor information, and billing
data;

• received a bonus equivalent to any that Hermann took;

• was responsible for developing and maintaining AMG’s financial


records and had full access to the same in the QuickBooks
accounting system;

• listed himself by name on Cook County’s published vendor


listing; and

• was the face of AMG to many repeat customers over which he


had substantial influence.

(Id.)

Throughout his tenure with AMG, Keane also was expected to explore—and

often did explore—strategic acquisitions, including the purchase of competing

letter-shop businesses, their equipment, and customer lists. (C. 141-43; A11-13).

These acquisitions and potential opportunities were all ones that Keane first

received, then disclosed to Hermann, and later evaluated with Hermann as

potential strategic targets. (C. 142-43; A12-13). Though AMG did not ultimate

close on two of the deals identified in the Amended Complaint, they were both

within AMG’s line of business and were the type of business opportunities that

Hermann reasonably expected Keane to present to AMG for full consideration.

(C. 143; A13). Before Keane’s departure, Keane and Hermann had even discussed

The Mail House as a potential acquisition target. (Id.) The Mail House provided

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comparable products and services to the same type of clientele that AMG had

cultivated. (C. 144; A14).

Keane’s Related Pre-Resignation Conduct

Around the time Keane acquired The Mail House, he also engaged in other

pre-resignation activity that supports AMG’s tort claims. (C. 144-47; A14-17).

Those facts include Keane’s conduct in: (a) appropriating a client referral for The

Mail House that Keane hid from AMG until after he resigned; (b) disparaging

AMG to clients and vendors; (c) disabling AMG’s website; (d) soliciting a key

employee to join Keane at The Mail House; and (e) retaining samples of

confidential client material that belonged to AMG. (Id.)

The Circuit Court’s Dismissal Order

Keane moved to dismiss the Amended Complaint. (C. 169-77). After full

briefing, the circuit court entered a Memorandum and Order granting Keane’s

motion and dismissing both claims in the Amended Complaint. (C. 206-09; A1-4).

In this Order, the court outlined the reasons why it determined that neither tort

claim met the Section 2-615 pleading standards. (Id.) The circuit court made the

dismissal final the next week, on May 9. (C. 210; A5).

ARGUMENT

I. Standard of Review

The Court uses a de novo standard of review to determine whether the circuit

court’s grant of a Section 2-615 motion to dismiss was proper. Weatherman v.

Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d 472, 491 (1999). Under this

5
standard, the Court should determine whether the allegations of the Amended

Complaint, when construed in the light most favorable to AMG, are enough to

establish a cause of action on which relief may be granted. Id. The Court

considers all well-pleaded facts, along with reasonable inferences drawn from

those facts, and accepts them as true. Id.

II. AMG’s claim for breach of fiduciary duty establishes that the evaluation of
acquisitions, and so The Mail House opportunity itself, were part of
Keane’s agency relationship.

In Count I of the Amended Complaint, AMG sued Keane for breach of

fiduciary duty stemming from the misappropriation of a corporate opportunity.

(C. 147-49; A17-19). Under Illinois law, AMG can state a cause of action for

breach of fiduciary duty if it pleads: (1) the existence of a duty; (2) breach of that

duty; and (3) that the breach proximately caused the injury of which AMG

complains. Lawlor v. North American Corp. of Ill., 2012 IL 112530, ¶ 69. This appeal

hinges on the test’s first element. That is, has AMG stated a plausible claim that

Keane owed a fiduciary duty to disclose and tender The Mail House acquisition

opportunity to AMG before he resigned?

A. In holding that Keane owed AMG no duty, the circuit court failed to
apply corporate opportunity principles and Supreme Court precedent.

More than once, the Supreme Court has addressed an agent’s obligation to

his principal when the agent learns of a corporate opportunity. That is, an agent

may not “seize for his own advantage a business opportunity which rightfully

belongs to the corporation by which he is employed.” Mullaney, Wells & Co. v.

6
Savage, 78 Ill. 2d 534, 545-46 (1980). The basic contours of the doctrine are clear

and uncompromising. The fiduciary must disclose and tender, upon all pertinent

facts, any opportunity “reasonably incident” to the principal’s present or

prospective operations. Kerrigan v. Unity Sav. Ass’n, 58 Ill. 2d 20, 28 (1974). The

rule’s “prophylactic purpose” forecloses a fiduciary “from exploiting the

opportunity” on its own behalf if the fiduciary falls short of the disclose-and-

tender obligation. Id.

But in dismissing Count I, the circuit court did not mention the corporate

opportunity doctrine, apply it to the factual allegations, or cite either Kerrigan or

Savage. Nor, for that matter, did the circuit court acknowledge Keane’s fiduciary

status when he learned of the The Mail House opportunity and seized it for

himself. (C. 206-09; A1-4). Yet this status is an essential component of fiduciary

duty law. Lawlor, 2012 IL 112530, at ¶ 69 (stating “[e]mployees as well as officers

and directors owe a duty of loyalty to their employer.”); Ray v. Winter, 67 Ill. 2d

296, 304 (1977) (stating “[w]here, however, one voluntarily acts as an agent for

another, a fiduciary relationship exists as a matter of law.”).

Instead, the circuit court deconstructed Keane’s job title and status within

AMG during the period leading to his resignation. It reasoned:

The Amended Complaint fails to allege any facts that


Keane was an officer of AMG at the time of any of the
events set forth in the Amended Complaint. Being a
“key employee” is not the equivalent of being a
corporate officer. Therefore, the fiduciary rules
applicable to corporate officers do not apply to Keane.

(C. 208; A3).

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To be sure, the corporate opportunity doctrine is not limited to directors and

officers. Under Savage, the corporate opportunity doctrine reflects agency law and

extends beyond just a discrete subset of corporate fiduciaries. Savage, 78 Ill. 2d at

549-50. That rule makes perfect sense, since businesses act through their agents.

Third parties deal with agents; principals expect agents to act. As Savage even

describes, “standard agency doctrine” obligates one in Keane’s position “to act

solely for the benefit of” his principal “in all matters connected with his agency.”

Savage, 78 Ill. 2d at 547. Keane thus had to disclose and tender all corporate

opportunities to AMG for its consideration upon all material facts.

By failing to apply the relevant corporate opportunity standards, the circuit

court was in no position to reach the correct result on Keane’s Section 2-615

motion. It conflated Keane’s title (really, the lack of officer status) with the scope

of his agency relationship at AMG. That is, the court never addressed the latter

and placed undue weight on the former. But Illinois courts have done nothing to

suggest that the corporate opportunity doctrine splits down the middle based on

job title alone.

B. The corporate opportunity doctrine’s parameters depend on the scope of


a fiduciary’s agency relationship, not a title.

The Supreme Court has explained that a fiduciary duty claim “is founded on

the substantive principles of agency, contract, and equity.” Armstrong v. Guigler,

174 Ill. 2d 281, 294 (1996). It should come as no surprise, then, that the scope of a

fiduciary’s agency relationship with his principal delimits the duty the fiduciary

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owes. As an illustration, this Court in one corporate opportunity case stated that

the “precise nature and intensity of the duty of loyalty depends, however, upon

the degree of independent authority” the fiduciary exercises and the “reasonable

expectations” of his relationship with the principal. Dremco, Inc. v. S. Chapel Hill

Gardens, Inc., 274 Ill. App. 3d 534, 538 (1st Dist. 1995) (emphasis added). That

statement is a plain-English reformulation of what Savage says: fiduciary rules

depend on agency law.

Rather than focus on the investiture of a title, the circuit court should have

assessed the scope of Keane’s agency relationship with AMG. Only then could

the circuit court evaluate the duty question that girds Count I. In a prior order

dismissing AMG’s initial Complaint at Chancery, the circuit court seemed to

recognize the importance of Keane’s actual responsibilities and the scope of his

agency relationship at AMG. (C. 86-89). The circuit court noted that AMG, in its

initial pleading, “did not allege that Keane’s position with AMG involved

acquiring businesses for AMG. Nor does the Complaint allege that Keane

learned of the opportunity to buy The Mail House as part of his duties for

AMG.” (C. 88).

AMG then addressed this very concern. Indeed, AMG pleaded that

acquisition opportunities were part of Keane’s agency relationship through his

resignation. That is, AMG identified specific facts demonstrating Keane’s

executive level of responsibility within AMG. (C. 140-41; A10-11). Those

responsibilities demonstrate that Keane exhibited profound influence at AMG

9
and could make discretionary, strategic decisions along with Hermann about

AMG’s business. (Id.) What’s more, AMG outlined in detail—replete with

citations to evidentiary facts and exhibits not customarily found in a pleading—

just how Keane had evaluated acquisitions for AMG in the years leading up to

his resignation. (C. 141-44; A11-14).

Those allegations were enough to demonstrate, at a minimum, a factual

question of whether Keane’s agency relationship required him to disclose The

Mail House opportunity before he appropriated it for himself. If he had such a

duty, Kerrigan and Savage required Keane to disclose and tender that opportunity

to AMG for its full consideration and evaluation upon all material facts. Kerrigan,

58 Ill. 2d at 28; Savage, 78 Ill. 2d at 547. Only if AMG rejected the deal could

Keane then capitalize on it.

The circuit court’s analysis, though, inverted Kerrigan and Savage altogether,

eliminating the disclose-and-tender obligation simply because Keane lacked

formal officer status. The inquiry should have focused on Keane’s agency

relationship with AMG. Viewed through that prism, AMG sufficiently alleged

that Keane owed a duty not to misappropriate a corporate opportunity.

C. The “preliminary stages” doctrine does not override corporate-


opportunity principles.

The circuit court went on to absolve Keane further, stating he was “entitled to

form a competing business and purchase The Mail House while still employed

by AMG so long as he did not begin to compete against AMG while still

10
employed.” (C. 208; A3). The court’s discussion of this line of authority,

sometimes called the “preliminary stages” doctrine,1 paralleled the very

argument Keane made in claiming that he could acquire The Mail House without

first presenting it to AMG for evaluation. (C. 171-72). Indeed, Keane argued that

the circuit court should look past the corporate opportunity doctrine altogether,

reasoning that it applies “only to officers.” (C. 171). As Savage holds, that

proposition is wrong. Savage, 78 Ill. 2d at 549-50.

Keane’s argument rested on an unsteady foundation, at least to the extent

that argument called upon the circuit court to look past Kerrigan and Savage. A

discrete number of appellate court cases have stated that employees “may plan,

form and outfit a competing corporation while still working for the employer,

but they may not commence competition.” Dowell v. Bitner, 273 Ill. App. 3d 681,

691 (4th Dist. 1995); Veco Corp. v. Babcock, 243 Ill. App. 3d 153, 160 (1st Dist. 1993).

No court appears to have reconciled or even grappled with the tension between

the appellate court’s preliminary stages doctrine and the Supreme Court’s rules

governing corporate opportunities. Nor is it clear that the Supreme Court of

Illinois, with its focus on agency law principles, would endorse the preliminary

stages doctrine at all.

What is clear, however, is that courts still shun formal labels or titular status

in favor of a more pragmatic assessment of just what it is the fiduciary did for his

principal. The Seventh Circuit’s decision in Foodcomm Int’l v. Barry, 328 F.3d 300

1 See William Lynch Schaller, Disloyalty and Distrust: The Eroding Fiduciary Duties of
Illinois Employees, 3 DEPAUL BUS. L.J. 1 (Fall/Winter 1990-91).

11
(7th Cir. 2003), provides an example. There, the court found that two highly paid

employees had a heightened fiduciary duty attributable to corporate officers,

even though they were not executives within the company. Id. at 304. The key

facts in that case involved the employees’ decision to approach a key customer

before leaving Foodcomm and to create a rival entity that usurped Foodcomm’s

plans for a strategic deal with its customer. Id. at 302-03. Relying on Savage, the

court placed great weight on the employees’ control over purchasing and sales,

their compensation, job descriptions, and degree of autonomy and discretion. Id.

at 304. The lack of an officer title was simply irrelevant. What was relevant was

the employees’ “significant autonomy and discretion” at Foodcomm. Id. So too

here, AMG vested Keane with significant responsibility across all corporate

functions and relied on Keane to evaluate acquisitions. (C. 140-41; A10-11).

Also instructive is LCOR, Inc. v. Murray, No. 97 C 1302, 1997 WL 136278 (N.D.

Ill. Mar. 20, 1997). Relying on Savage, the court in LCOR found that an employee

had breached his fiduciary duty by secretly negotiating to purchase property his

employer had sought to acquire. Id. at *8. Because the acquisition was within the

employee’s agency, the court found that his self-dealing over the acquisition was

a breach of his fiduciary duty under Savage. Id. Again, the core inquiry was not

the employee’s title; the nexus between his agency relationship and the

complained-of conduct drove the court’s analysis. Analytically, LCOR is no

different than this case because the responsibilities for evaluating acquisitions

were within both employees’ agency relationships.

12
Another case on point is Regal-Beloit Corp. v. Drecoll, 955 F. Supp. 849 (N.D. Ill.

1996). That case, too, rejected Keane’s preliminary stages defense and discounted

the lack of a formal officer title when assessing whether some individuals owed a

fiduciary duty. The court entered a preliminary injunction in a corporate

opportunity claim, which arose out of senior employees’ efforts to acquire a

competing organization. In discussing the fiduciary duties the defendants owed,

the court found that even if the defendants were not “officers” they still owed

their employer a duty of loyalty over all matters under their agency. Id. at 858. To

be sure, that is precisely what Savage says. Savage, 78 Ill. 2d at 546-47. Given the

employees’ high-ranking positions and authority within Regal-Beloit, the court

even described their effort to declassify themselves as officers “specious at best.”

Regal-Beloit, 955 F. Supp. at 858. Once again, cases like Regal-Beloit reveal the

logical fallacy of trying to disaggregate fiduciary duties based on the mere

formality of a title.

In the Amended Complaint, AMG alleged specific facts outlining why the

“preliminary stages” doctrine would not absolve Keane from disclosing and

tendering The Mail House acquisition opportunity. Not only did AMG highlight

the executive-level responsibilities Keane discharged during his AMG

relationship, but it also outlined his involvement with negotiating and evaluating

specific acquisitions. (C. 140-44; A10-14). This was more than enough to sustain

Count I.

13
D. AMG properly alleged that Keane failed to disclose and tender The
Mail House acquisition opportunity.

The essence of the disclose-and-tender rule is that Keane had to present AMG

with The Mail House acquisition opportunity for evaluation purposes before

appropriating it for himself. Savage, 78 Ill. 2d at 549. In the Amended Complaint,

AMG lodged detailed allegations in Paragraphs 46 through 49 which, if proven

true, would underscore that Keane breached this duty. (C. 147; A17). Those

allegations show that Keane presented no aspect of The Mail House opportunity

to AMG while he was its fiduciary, let alone provide it with a full disclosure of

material facts. (Id.) The Court should credit those allegations for purposes of

determining whether AMG properly stated a corporate opportunity claim in

Count I. Weatherman, 186 Ill. 2d at 491.

AMG thus alleged a factually robust breach of fiduciary duty claim against

Keane for misappropriating The Mail House opportunity. The circuit court

applied the wrong legal standard to evaluate this claim. This Court should find

that AMG stated a proper cause of action in Count I of the Amended Complaint,

and that the circuit court erred in dismissing it.

III. The factual allegations arising from Keane’s appropriation of The Mail
House opportunity place it within a cognizable tortious interference claim.

The circuit court also erred in dismissing Count II of the Amended

Complaint, which asserted a claim for tortious interference with prospective

economic advantage. To sustain such a claim, AMG must allege: (1) its

reasonable expectation of entering into a valid business relationship; (2) Keane’s

14
knowledge of the expectancy; (3) purposeful interference by Keane that prevents

the legitimate expectancy from ripening into a valid business relationship; and

(4) damages to resulting from the interference. Fellhauer v. City of Geneva, 142 Ill.

2d 495, 511 (1991).

AMG based its interference claim on two particular expectancies: The Mail

House acquisition itself and a client referral that Keane first received at AMG,

hid for himself, and then exploited when he left. (C. 149-50; A19-20). In its May 1

Memorandum and Order, the circuit court never addressed the first basis for

AMG’s interference claim. (C. 208-09; A3-4). Even so, AMG alleged enough facts

to sustain this cause of action under Fellhauer based on Keane’s pre-termination

acquisition of The Mail House:

• First, AMG alleged that Keane was aware of AMG’s


interest in acquiring competing letter-shop and
fulfillment services businesses. What’s more, AMG
outlined specific transactions with which Keane was
involved, even alleging that AMG discussed The Mail
House with Keane as a potential acquisition target.
(C. 141-44; A11-14).

• Second, those same allegations involve Keane


directly and are thus enough to satisfy the
requirement that he have knowledge of the identified
expectancy.

•Third, AMG alleged that Keane acted improperly in


terminating the expectancy. On that score, AMG even
outlined corroborating facts that illustrate how Keane
acted in an unfair, deceptive, and improper manner
around the time of his departure. (C. 144-47; A14-17).

•And fourth, AMG has alleged that it incurred


damage from Keane’s interference because it was not

15
able to evaluate, much less acquire, a strategic
competitor. (C. 150; A20).

Under the four elements outlined in Fellhauer, the circuit court should not

have dismissed Count II had it even examined the allegations about Keane’s

purchase of The Mail House.

The circuit court also improperly dismissed Count II for failing to state a

claim arising out of Keane’s appropriation of a client referral from JD Graphics.

In its analysis, the circuit court only stated that AMG failed to allege facts

showing that it “had a valid business relationship with JD Graphics or a valid

expectancy for such a relationship.” (C. 209; A4). The circuit court, though,

looked right past what AMG alleged.

The Amended Complaint set forth facts showing that Keane received a

referral from JD Graphics related to print work for a division of the Daily Herald.

(C. 145; A15). Keane learned of this referral before his resignation from AMG. (Id.)

AMG, however, was unaware of the referral until JD Graphics followed up to see

what had occurred with it. (Id.) Ultimately, The Mail House—with Keane at the

helm—performed the work JD Graphics had referred to AMG. (Id.)

These facts support each element of AMG’s interference claim. For starters,

the circuit court simply got it wrong when it evaluated whether AMG had an

expectancy in work with JP Graphics. (C. 209; A4). The expectancy was the work

referred by JD Graphics. And this Court should make the reasonable inference

that work JD Graphics sent to Keane as an AMG employee, which JD Graphics

later followed up on with AMG, was in fact intended for AMG. (C. 145; A15).

16
AMG has also alleged facts demonstrating knowledge of the expectancy.

Keane received the referral from his son, James, Jr., who at the time was also an

AMG employee. (C. 145; A15). That referral came into AMG. (Id.) James, Jr. then

sent the referral to Keane’s personal email address, meaning Keane had full

access to it after he severed his ties with AMG just a few days later. (Id.) Again,

AMG has identified facts supporting the knowledge component of the tort claim.

So too, these same facts show purposeful interference, particularly since The Mail

House exploited the referral sent to AMG shortly after Keane resigned. (Id.)

Lastly, AMG has alleged damage since it lost to The Mail House the client work

JD Graphics had sent. The circuit court truncated its analysis of Count II, failed to

evaluate the elements of the interference claim, and overlooked key factual

allegations that supported the claim.

CONCLUSION

For these reasons, AMG requests that the Court reverse the circuit court’s

May 1 and 9, 2018 Orders, which dismissed the Amended Complaint at

Chancery with prejudice, and remand this cause to the circuit court for further

proceedings on Counts I and II.

17
Respectfully submitted,

ADVANTAGE MARKETING GROUP,


LTD.

By: /s/ Kenneth J. Vanko


Kenneth J. Vanko
Kenneth J. Vanko
Clingen Callow & McLean, LLC
2300 Cabot Drive, Suite 500
Lisle, Illinois 60532
(630) 871-2600
vanko@ccmlawyer.com
Counsel for Plaintiff-Appellant

18
CERTIFICATE OF COMPLIANCE

I certify that this brief conforms to the requirements of Supreme Court Rules

341(a) and (b). The length of this brief, excluding the pages containing the Rule

341(d) cover, the Rule 341(h)(1) statement of points and authorities, the Rule

341(c) certificate of compliance, the certificate of service, and those matters to be

appended to the brief under Rule 342(a), is 17 pages.

Respectfully submitted,

ADVANTAGE MARKETING GROUP,


LTD.

By: /s/ Kenneth J. Vanko


Kenneth J. Vanko

Kenneth J. Vanko
Clingen Callow & McLean, LLC
2300 Cabot Drive, Suite 500
Lisle, Illinois 60532
(630) 871-2600
vanko@ccmlawyer.com
Counsel for Plaintiff-Appellant

19
No. 1-18-1126

IN THE APPELLATE COURT OF ILLINOIS


FIRST JUDICIAL DISTRICT

)
ADVANTAGE MARKETING GROUP, LTD., ) Appeal from the Circuit Court of
) Cook County
Plaintiff-Appellant, )
) Case No. 2017 CH 05559
v. )
) Circuit Judge: Neil H. Cohen
)
JAMES P. KEANE, SR., ) Appeal from Orders dated May 1
) and 9, 2018
Defendant-Appellee. )
)

TABLE OF CONTENTS TO APPENDIX

Description Appendix Page


1. May 1, 2018 Order A1 - 4
2. May 9, 2018 Order A5
3. Amended Complaint at Chancery A6 - 38
4. Notice of Appeal A39 - 47
5. Table of Contents for Record on Appeal A48 - 49
A1
A2
A3
A4
IN THE CIRCUIT COURT OF COOK COUNTY
COUNTY DEPARTMENT, CHANCERY DIVISION

ADVANTAGE MARKETING GROUP, INC.

Plaintiff,

v. Case No. 2017 CH 05559

JAMES P. KEANE, SR., Calendar 05

Defendant.

ORDER OF DISMISSAL

THIS CAUSE, coming on to be heard for a status hearing, and Plaintiff having
advised the Court that it will not seek further amendment of its Complaint;

IT IS HEREBY ORDERED:

1. The Court having previously dismissed Plaintiffs Amended Complaint at


Chancery on May 1,2018, this matter is now dismissed with prejudice.
2. This is a final and appealable order under Illinois Supreme Court Rule 303.

ENTERED
ENTERED:

MAY "9 2018


>.-.w««N
CLERK OF THE CIRCUIT COURT

Judge Neil H. Cohen


Order Prepared By:
Kenneth J. Vanko
Emily L. Langhenry
Clingen, Callow & McLean, LLC
Attorney No. 39631
2300 Cabot Drive, Suite 500
Lisle, IL 60532
630.871.2600
vanko®ccmlawyer.corn
langhenrv@ccmlawyer.com

!<mw<«.wk.do<:x /v. I

A5
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CALENDAR: 05
PAGE 1 of 33
CIRCUIT COURT OF
IN THE CIRCUIT COURT OF COOK COUNTY COOK COUNTY, ILLINOIS
CHANCERY DIVISION
COUNTY DEPARTMENT, CHANCERY DIVISIONCLERK DOROTHY BROWN

ADVANTAGE MARKETING GROUP, INC. )


)
Plaintiff, )
)
v. ) Case No. 2017 CH 05559
)
JAMES P. KEANE, SR., ) Calendar 05
)
Defendant. )
)

NOTICE OF FILING
TO: Paul W. Carroll
Eric P. Sparks
222 North LaSalle Street, Ste. 800
Chicago, Illinois 60601
esparks@gouldratner.com

PLEASE TAKE NOTICE that on January 23, 2018 we electronically filed with the
Clerk of the Circuit Court of Cook County, Illinois the following documents: Plaintiff’s
Amended Complaint at Chancery, true and correct copies thereof are served upon you
herewith.

Respectfully submitted,

CLINGEN CALLOW & McLEAN, LLC

By: /s/Kenneth J. Vanko


One of Its Attorneys

Kenneth J. Vanko
Clingen, Callow & McLean, LLC
Attorney No. 39631
2300 Cabot Drive, Suite 500
Lisle, IL 60532
630.871.2600
vanko@ccmlawyer.com

{00391545.DOCX /v. 1 }

A6
PROOF OF SERVICE

The undersigned non-attorney, certifies that on January 23, 2018, she caused to be
served via email the foregoing Notice of Filing and Response to Defendant’s Motion to
Dismiss upon the following counsel of record:

Paul W. Carroll
Eric P. Sparks
222 North LaSalle Street, Ste. 800
Chicago, Illinois 60601
esparks@gouldratner.com

By: /s/Nikki Matthiscyk


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{00391545.DOCX /v. 1 }

A7
IN THE CIRCUIT COURT OF COOK COUNTY
COUNTY DEPARTMENT, CHANCERY DIVISION

ADVANTAGE MARKETING GROUP, LTD. )


)
Plaintiff, )
)
v. ) Case No. 2017 CH 5559
)
JAMES P. KEANE, SR., )
)
Defendant. )

AMENDED COMPLAINT AT CHANCERY

The Plaintiff, Advantage Marketing Group, Ltd., states as follows for its Amended
ELECTRONICALLY FILED

Complaint at Chancery against James P. Keane, Sr.:


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Nature of the Case

1. This is an action for breach of fiduciary duty and tortious interference with

prospective economic advantage, which arises out of James P. Keane, Sr.’s relationship

with Advantage Marketing Group, Ltd. (“AMG”). In the months leading up to his

abrupt resignation, Keane― a significant shareholder and a key employee with duties

akin to that of an AMG officer―failed to disclose that he was secretly negotiating to

purchase a directly competing business called “The Mail House.”

2. During his AMG affiliation, Keane had the responsibility to explore the

acquisition of competing letter-shop businesses, their equipment, and customer lists.

Had AMG known The Mail House was for sale, it would have sought to acquire it.

Keane owed a strict fiduciary obligation to disclose and tender this corporate

opportunity to AMG and not to actively exploit his position at AMG for his own

A8
personal benefit. Instead of complying with this duty to disclose and tender, Keane

bought The Mail House for himself and then abruptly quit.

3. In this action, AMG seeks the imposition of a constructive trust over The Mail

House business Keane purchased, a judgment ordering Keane to convey his interest in

The Mail House to AMG, and damages caused by his breach of fiduciary duty.

Parties and Venue

4. AMG is an Illinois corporation with its principal of business located at 1550

Howard Street, Elk Grove Village, Illinois.

5. Keane is an Illinois resident who, upon information and belief, currently lives at
ELECTRONICALLY FILED

110 Elm Street, Prospect Heights, Illinois.


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6. Keane, Inc. is an Illinois corporation with its registered office at 222 N. LaSalle

St., Suite 800, Chicago, Illinois. Keane is the President of Keane, Inc., which has a

registered assumed name of “The Mail House.” Upon information and belief, Keane is

the sole owner of The Mail House. AMG does not join The Mail House as a necessary or

indispensable party based on the doctrine of representation. However, AMG reserves

the right to further amend this Amended Complaint at Chancery should discovery reveal,

or should the Court determine, that The Mail House should be a necessary or

indispensable party given AMG’s principal requested relief of a constructive trust.

White Gates Skeet Club, Inc. v. Lightfine, 276 Ill. App. 3d 537 (2d Dist. 1995).

7. Venue is proper in this Court because all parties reside in Cook County, Illinois.

2
A9
Background Facts

8. For over twenty years, AMG has been a marketing services company, providing

letter-shop and fulfillment services for its clients. Its Elk Grove Village facility

warehouses a full data processing center, as well as laser, print, and inserting

equipment. AMG handles print and mailing programs, small and complex, for its

clients.

9. Keane is a former AMG director, officer, and employee. He also remains a 35

percent shareholder in AMG. Keane was an original AMG founder, owner, and

director.
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10. At 4:16 p.m. on September 4, 2015 (the Friday before Labor Day), Keane resigned
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from AMG “effective immediately.” Keane delivered his resignation notice by e-mail to

Patty Hermann, AMG’s director and majority shareholder.

11. Upon information and belief, Keane had already acquired The Mail House, or

substantially all of its assets, from the company’s previous owner by the time he

dissociated from AMG.

12. For several years before his abrupt resignation, Keane was a principal employee

of AMG with wide-ranging responsibilities equivalent to those of an officer, which

included the following:

a. Keane consistently held himself out to third parties as an AMG owner

when developing customer relationships;

b. Keane had substantial responsibility for AMG employment decisions,

including hiring and termination of staff;

3
A10
c. Keane had access to all AMG books and records, including client lists,

employee records, tax documents, vendor information, and billing data;

d. Keane and Hermann received equivalent bonuses;

e. Keane was responsible for developing and maintaining AMG’s financial

records and had full access to the same in the QuickBooks accounting

system;

f. Keane listed himself by name (and with reference to his personal

residence) on Cook County’s published vendor listing; and

g. Keane was the face of AMG to many repeat customers over which he had
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substantial influence, including the Hope Institute for Children and


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Families, Tony Sicilliani, and Consolidated Printing.

13. Throughout his tenure with AMG, Keane also was expected to explore, and

frequently did explore, strategic acquisitions, including the purchase of competing

letter-shop businesses, their equipment, and customer lists.

14. For instance, AMG’s first acquisition involved the purchase of equipment and

customer list, as well as retention of employees, from a competing letter-shop called

“We’ve Got Time.”

15. Keane was involved with the negotiation and acquisition of We’ve Got Time.

AMG even retained Keane’s personal accountant to explore acquisitions before the

We’ve Got Time opportunity materialized.

16. Keane’s responsibility for, and involvement with, acquisitions continued beyond

AMG’s closing of We’ve Got Time’s assets. In this regard, Keane was the key point of

4
A11
contact with auction houses and business brokers who facilitated asset sales in the

letter-shop business.

17. For instance, in July of 2012, Keane received an e-mail to his personal address

(jpk2459@comcast.net) from an industrial auctioneer, Glenn A. Winternitz, that

advertised the auction of mailing equipment for a business called The Mailing

Department, LLC in Palatine, Illinois. A true and correct copy of the July 18, 2012 e-mail

to Keane is attached as Exhibit A. AMG later acquired The Mailing Department’s useful

equipment and its entire customer list.

18. Thereafter, Keane was aware of, and involved with, other strategic acquisitions
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for AMG. In May of 2013, Keane discussed a potential acquisition of Rockford


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Printer/Mailer with a business broker named Chuck Lutzlow of CAL Financial Group.

Keane received an e-mail from Lutzlow’s office dated May 7, 2013, in which Lutzlow’s

assistant had requested the review and execution of a Confidentiality Agreement to

further business sale negotiations. A true and correct copy of the May 7, 2013 e-mail to

Keane is attached as Exhibit B.

19. Later that year, in October of 2013, Keane again received a communication from

Glenn A. Winternitz, advertising for sale a business in Kentucky called Gannett Direct

Marketing Services. Keane immediately forwarded that communication to Hermann. A

true and correct copy of the October 8, 2013 e-mail to Keane is attached as Exhibit C.

20. These potential opportunities―The Mailing Department, Rockford

Printer/Mailer, and Gannett Direct―were all ones that Keane initially received,

disclosed to Hermann, and later evaluated with Hermann as potential strategic targets.

5
A12
21. Though AMG did not ultimate close on two of those deals (Rockford

Printer/Mailer and Gannett Direct), they were both within AMG’s line of business and

were the type of business opportunities that Hermann reasonably expected Keane to

present to AMG for full consideration.

22. Illustrating the breadth of his strategic and acquisition responsibility at AMG,

Keane was the key point of contact throughout 2013 regarding AMG’s opportunity to

move or acquire property to conduct its business operations. True and correct copies of

e-mails demonstrating Keane’s involvement in these real estate discussions are attached

as Group Exhibit D.
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23. Before Keane’s 2015 departure from AMG, he also was aware of The Mail House,
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the business he ultimately acquired just before resigning. This competing business sat

within just a few blocks of AMG’s offices.

24. On July 10, 2013, Keane’s son, James, Jr., sent an e-mail to Keane and Hermann.

In this e-mail, James, Jr. (then an AMG employee) wrote the subject line “re:

Mailhouse―Rebranded Website―Is that the same ownership group as before?” In the body of

the e-mail, James, Jr. then attached a link for The Mail House’s website. A true and

correct copy of the July 10, 2013 is attached as Exhibit E.

25. Keane and Hermann discussed The Mail House in the Summer and Fall of 2013

and whether it was a viable acquisition target. Though Hermann is unaware of when

Keane ultimately began his own discussions about buying The Mail House, the business

was one that AMG had explored acquiring.

6
A13
26. As illustrated by the foregoing, Keane had significant strategic and tactical

responsibilities equivalent to that of an AMG officer.

27. At some point before his departure from AMG, Keane started to withhold

information for himself and communicated outside of AMG channels, using his

personal e-mail account while failing to forward information that he wished to hold for

his own benefit.

28. On March 10, 2014, and without disclosing this to AMG, Keane ported his

assigned corporate cell phone number to his own personal account and outside the

view of AMG. This enabled Keane to retain and use the number following his
ELECTRONICALLY FILED

resignation from AMG and further prevented AMG from controlling communications
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that Keane had during his AMG affiliation.

29. On August 12, 2015, before his resignation, Keane formed Keane, Inc. d/b/a The

Mail House. Upon information and belief, Keane formed this corporation to acquire The

Mail House, which (like AMG) is located in Elk Grove Village. At all times, The Mail

House has conducted letter-shop and fulfillment services similar to, and competitive

with, those offered by AMG.

30. Upon further information and belief, Keane was interested in acquiring The Mail

House well before his abrupt resignation on September 4, 2015 and in fact negotiated

and closed the transaction before severing his ties as a key AMG employee with duties

equivalent to those of an officer.

7
A14
31. For instance, on August 3, 2015, Keane registered a new domain name called

mailhousedm.com, along with seven other domain names that all contained the name

“mailhouse.”

32. Keane’s competitive activities in the week leading up to his resignation extended

beyond the acquisition of The Mail House. In September of 2015 before he resigned

from AMG, Keane failed to disclose and tender to AMG a referral he received from JD

Graphics related to print work for a division of the Daily Herald.

33. In particular, James, Jr. forwarded to Keane (at his personal e-mail account) the

referral from JD Graphics. A true and correct copy of James, Jr.’s e-mail to Keane dated
ELECTRONICALLY FILED

September 3, 2015 is attached as Exhibit F.


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34. Keane then exploited this same referral after he began operating The Mail House.

In fact, AMG did not learn of the referral until JD Graphics followed up with a phone

call to AMG to ascertain the referral’s status. JD Graphics had learned that The Mail

House ultimately had conducted the work reflected in Exhibit F.

35. During this same period shortly before resigning, Keane approached and told

clients and vendors of AMG that AMG was in danger of closing its doors because of

financial issues.

36. The day after Keane’s departure (September 5), AMG discovered the security

cameras were turned off and its security tapes were missing.

37. And then a few days later on September 9, Keane disabled AMG’s website. He

did not transfer AMG’s website materials back to AMG for more than a week. By that

time, AMG had established, out of business necessity, an entirely new website.

8
A15
38. One day before transferring the website content files back to AMG, James, Jr.

registered a new website domain – amgltd.co – which differs by one letter from AMG’s

domain name (amgltd.com).

39. James, Jr. is actively involved in The Mail House. Upon information and belief,

Keane either was aware of, or actively encouraged, James, Jr. to disable AMG’s website

and then register a substantially similar domain name.

40. While he was a key AMG employee, James, Jr. directly reported to Keane. James,

Jr. tendered his resignation to AMG on September 7, 2015, the day before the start of the

work week and three days after Keane himself resigned.


ELECTRONICALLY FILED

41. Before he resigned from AMG, Keane solicited James, Jr. to leave AMG and join
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him at The Mail House. At the time James, Jr. left AMG, he was the second-highest paid

employee outside of Keane himself and Hermann.

42. Keane never sought AMG’s consent before soliciting James, Jr. to leave AMG and

join a direct competitor. Nor did Keane seek AMG’s consent to appropriate the JD

Graphics referral or to interfere with AMG’s website operation.

43. At the time of his departure, James, Jr. acquired samples of confidential client

material that belonged to AMG. The client sought to have AMG examine these

materials for compatibility with AMG’s equipment.

44. Keane kept the samples for himself, resigned, and then only returned these client

materials after AMG’s then-counsel demanded their return. Since his acquisition of The

Mail House, Keane has continued to perform letter-shop and print work for this

particular client.

9
A16
45. At all times before Keane’s resignation, The Mail House was known to AMG as a

competitor. The Mail House provided comparable products and services to the same

type of clientele that AMG had serviced and cultivated. Accordingly, The Mail House

was, and remains, in the same line of business as AMG.

46. At no point in 2015 did Keane disclose to Hermann or AMG that he sought to

acquire The Mail House. Nor did Keane ever advise Hermann or AMG that the prior

owners of The Mail House were interested in selling their business to a third party.

47. To this day, AMG is unaware of the terms on which Keane bought The Mail

House.
ELECTRONICALLY FILED

48. Had Keane brought The Mail House acquisition opportunity to AMG, AMG
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would have been interested in pursuing it.

49. AMG never consented to or approved Keane’s appropriation of The Mail House

acquisition for himself. Moreover, Keane never disclosed any fact―let alone all material

facts―to AMG regarding The Mail House acquisition opportunity.

50. Since Keane has acquired The Mail House, he has solicited and serviced

customers of AMG, including those such as The Hope Institute for Children and

Families, with which he developed a relationship while a key employee, officer,

director, and/or shareholder of AMG.

COUNT I
CLAIM FOR BREACH OF FIDUCIARY DUTY

51. AMG restates and realleges Paragraphs 1-50 as though fully restated and

realleged as this Paragraph 51.

10
A17
52. As a key AMG employee with responsibility equivalent to those of an officer,

Keane owed a fiduciary duty of loyalty, fidelity, rectitude, candor, and good faith.

53. Keane’s fiduciary duty in this capacity prohibited him from actively exploiting

his position within AMG for his own personal benefit and from hindering the ability of

AMG to continue the business for which it was developed.

54. Keane also owed AMG a fiduciary duty to disclose and tender all corporate

opportunities, including all material facts, to AMG.

55. Keane breached his fiduciary duty to AMG by:

a. Secretly negotiating and purchasing a directly competing business, The


ELECTRONICALLY FILED

Mail House, while still employed by AMG and serving as a key AMG
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employee with duties and responsibilities functionally equivalent to those

of an officer;

b. Failing to disclose and tender a corporate opportunity, namely the

potential acquisition of The Mail House, to AMG for its full and complete

consideration;

c. Soliciting James, Jr. to leave AMG and join The Mail House;

d. Misappropriating referrals for existing letter-shop work that were sent to

AMG, without AMG’s knowledge of consent;

e. Misappropriating client samples belonging to AMG, without AMG’s

knowledge or consent; and

f. Disabling or otherwise interfering with AMG’s website.

11
A18
56. Keane took these actions knowingly, willfully, and intentionally, and without

just cause.

57. As a direct and proximate result of Keane’s breach of fiduciary duty, AMG has

been damaged and continues to suffer damages.

REQUEST FOR RELIEF

Accordingly, AMG requests that this Court enter judgment in its favor on Count I

and award the following relief:

A. Impose a constructive trust on The Mail House business to be held for the

benefit of AMG, specifically including all client relationships and goodwill


ELECTRONICALLY FILED

that The Mail House maintains;


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B. Order Keane to transfer his interest in The Mail House to AMG;

C. Award AMG compensatory damages in an amount to be proven at trial;

D. Award AMG punitive damages for Keane’s willful and wanton conduct in

violating his fiduciary duty;

E. Award AMG damages equivalent to complete compensation forfeiture from

the time Keane first breached his fiduciary duty to AMG through September

4, 2015; and

F. Award AMG its costs and such other relief as the Court deems just and

appropriate.

COUNT II
CLAIM FOR TORTIOUS INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE

58. AMG restates and realleges Paragraphs 1-50 as though fully restated and

realleged as this Paragraph 58.

12
A19
59. By virtue of Keane’s position as a significant AMG shareholder with

employment duties akin to that of an officer, AMG had a reasonable expectancy of: (a)

acquiring competing letter-shop and fulfillment services companies, such as The Mail

House; and (b) capitalizing on referrals for client print work, as discussed more fully

above.

60. Keane had knowledge of AMG’s expectation of entering into a valid business

relationship to acquire competing letter-shop and fulfillment services companies, such

as The Mail House, and to capitalize on referrals for print work, as discussed more fully

above.
ELECTRONICALLY FILED

61. By acquiring The Mail House for himself and by appropriating the client referral
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described above, Keane intentionally and without justification caused a termination of

AMG’s expectation of entering into, or continuing, valid business relationships.

62. Keane took these actions knowingly, willfully, and intentionally, and without

just cause.

63. As a direct and proximate result of Keane’s actions, AMG has incurred damages.

REQUEST FOR RELIEF

Accordingly, AMG requests that this Court enter judgment in its favor on Count II

and award the following relief:

A. Award AMG compensatory damages in an amount to be proven at trial;

B. Award AMG punitive damages for Keane’s willful and wanton conduct in

interfering with AMG’s business expectancies; and

C. Award AMG its costs and such other relief as the Court deems just and

appropriate.
13
A20
Dated: January 16, 2018 Respectfully submitted,

ADVANTAGE MARKETING GROUP, LTD.

/s/ Kenneth J. Vanko


Kenneth J. Vanko

Kenneth J. Vanko
Clingen Callow & McLean, LLC
(I.D. No. 39631)
2300 Cabot Drive, Suite 500
Lisle, Illinois 60532
630-871-2600
vanko@ccmlawyer.com
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14
A21
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EXHIBIT A

A22
1/7/2018 Fwd: Online Auction - Late Model Mailing Equipment

From: jpk2459 <jpk2459@comcast.net>


To: AMGLTD <AMGLTD@AOL.COM>
Subject: Fwd: Online Auction - Late Model Mailing Equipment
Date: Wed, Jul 18, 2012 11:27 am

From: "Glenn A. Winternitz, LLC" <auctions(S)winternitzauction.com>


To: jpk2459(g)comcast.net
Sent: Wednesday, July 18, 2012 10:30:07 AM
Subject: Online Auction - Late Model Mailing Equipment

Having trouble viewing this email? Click here

Hi, just a reminder that you're receiving this email because you have expressed an interest in Glenn A.
Winternitz, LLC. Don't forget to add auctions@winternitzauction.com to your address book so we'll be sure to
land in your inbox!

You may unsubscribe if you no longer wish to receive our emails.

W G L E N N A.
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INTERNI .*_ uuc


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INDUSTRIAL AUCTIONEERS A APPRAISERS

JLuction
•* M »,

rn

LINK TO THE SALE COMING SOON!

VISIT OUR WEBSITE!

https://mail.aol.com/webmail-std/en-us/PrintMessage 1/4
A23
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EXHIBIT B

A24
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A25
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EXHIBIT C

A26
1/7/2018 amgltd Mail- Fwd: Available for Immediate Sale! Gannett Direct Marketing Services - Louisville. KY

Gm il i«i|v
Patty Hermann <phermann@goamg.com>

Fwd: Available for Immediate Sale! Gannett Direct Marketing Services - Louisville,
KY
2 messages

Patty Hermann <phermann@goamg.com> Tue, Dec 5, 2017 at 11:00 AM


To: Patricia Hermann <phermann@amgltd.com>

Forwarded message
From: <jpk2459@comcast.net>
Date: Tue, Oct 8, 2013 at 3:15 PM
Subject: Fwd: Available for Immediate Sale! Gannett Direct Marketing Services - Louisville, KY
To: Patty hermann <phermann@amgltd.com>

Patty FYI

From: "Glenn A. Winternitz, LLC" <glenn@wintemitzauction.com>


To: jpk2459@comcast.net
ELECTRONICALLY FILED

Sent: Tuesday, October 8, 2013 12:43:42 PM


1/23/2018 10:30 AM

Subject: Available for Immediate Sale! Gannett Direct Marketing Services - Louisville, KY
2017-CH-05559
PAGE 22 of 33

t $
4

feBSBW£-.~

i
AVAILABLE IMMEDIATELY!
all equipment subject to prior sale

Printing & Mailing Facility Liquidation of


Gannett Direct Marketing Services
https://mail.google.com/mail/u/2/?ui=2&ik=0d7d0943b6&jsver=veKV0pjiDTc.en.&vievv=pt&q=jpk2459%40comcast.net&qs=true&search=query&th=160... 1/2
A27
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EXHIBIT D

A28
1/7/2018 amgltd Mail - Fwd: nichols

t.v,.'0;>k-

Fwd: nichols
1 message

Patty Hermann <phermann@goamg.com> Tue, Dec 5, 2017 at 11:43 AM


To: ekrakauer@gmaii.com

Forwarded message
From: <jpk2459@comcast.net>
Date: Tue, May 14, 2013 at 11:23 AM
Subject: Fwd: nichols
To: phermann <phermann@amgltd.com> Manny <ekrakauer@gmail.com>

951 Nicholas Elk Grove ; See second to last building from Jeffs building prior email

17,380 sq feet/3000 ofc


16 high

asking $6.50 gross if we got $5.50 average year one / two /three S7966 month
ELECTRONICALLY FILED
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Taxes low at $1.45 sq foot currently; could be due to building being vacant
2017-CH-05559
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parking okay

From: "Jeff Provenza" <JProvenza@darwinrealty.com>


To: jpk2459@comcast.net
Sent: Tuesday, May 14, 2013 9:20:40 AM
Subject: nichols

Jim,

Per our convo please see attached spec sheet. There is a layout on the last page. They have
reduced the sale price. Please let me know if a purchase is a possibility.

We should go look at this building this week.

Jeff

Jeffrey J. Provenza
Darwin Realty & Development Corporation
970 N. Oak Lawn Avenue
Suite 100
Elmhurst, IL 60126
(630) 782-9520 Office
(630) 747-6350 Mobile
jprovenza@darwinrealty.com
www.darwinrealty.com

https://mail.googlexom/mail/u/2/?ui=2&ik=0d7d0943b6&jsver=veKV0pjlDTc.en.&view=pt&q=jpk2459%40comcast.net&qs=true&search=query&th=160... 1/2
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EXHIBIT E

A34
1/7/2018 amgltd Mail - Fwd: Mailhouse - Rebranded Website - Isthat sameownership group as before?

Gm il i
Patty Hermann <phermann@goamg.com>

Fwd: Mailhouse - Rebranded Website - Is that same ownership group as before?


1 message

Patty Hermann <phermann@goamg.com> Sun, Jan 7, 2018 at5:16 PM


To: e krakauer <ekrakauer@gmail.com>, ekrakauer@amgltd.com

Forwarded message
From: James Keane <jameskeanejr@gmail.com>
Date: Wed, Jul 10, 2013 at 11:56 AM
Subject: re: Mailhouse - Rebranded Website - Is that same ownership group as before?
To: phermann@amgltd.com
Cc: jpk2459@comcast.net

http://www.maildawn.com
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https://mail.googlexorrtfmail/u/2/?ui=2&ik=0d7d094^ 1/1
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EXHIBIT F

A36
Advantage Marketing Group Ltd Mail - Fwd: Wood Dale, IL Ready f... https://niail.google.coni/inail/u/0/?ui-2&ik-lb00b9031b&jsver=CS.

GmsiI
byCopgte
Patricia Hermann <phermann@amgltd.com>

Fwd: Wood Dale, IL Ready for Print


1 message

James Keane <jameskeanejr@gmail.com> Thu, Sep 3, 2015 at 2:43 PM


To: James Keane AMG EMAIL <jkeane@amgltd.com>, jpk2459@comcast.net

Sincerely,

Jimmy Keane

e: jameskeanejr@gmail.com
p: 847.212.9031

Begin forwarded message:

From: Nick DeBlasio <nick@jdgraphic.com>


Date: September 2, 2015 at 11:11:17 AM CDT
To: Advantage Marketing Group <amgltd@aol.com>
Subject: Fwd: Wood Dale, IL Ready for Print
ELECTRONICALLY FILED

Nick DeBlasio
Business Development
1/23/2018 10:30 AM
2017-CH-05559
PAGE 32 of 33

Office: 847.354 4000 | Cell:847.744 0282 | Fax: 647.354 4024


E: Nick@JDGraphic.com | www.JDGraphic.coni

JD Graphic, Co Inc | 1101 ArthurAve | Elk Grove Wage. Ilinois 60007

Forwarded message
From: Nugara, Joe <jnugara@tspubs com>
Date: Wed, Aug 12, 2015 at 10:05 AM
Subject: Wood Dale, IL Ready for Print
To: Nick DeBlasio <nick@jdgraphic.com>
Cc: "Ray, Scott" <sray@tspubs.com>

Good morning Nick, the files for Wood Dale are ready and on our FTP site. Below is the print confirmation.
Thanks!

WOOD DALE, IL
8.5" x 10.875"
28 Total Pages (24+Cover)
6,500 Copies
Saddlestitch

lof2 1/21/20I7, 1:19 PM

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CALENDAR: 05
PAGE 1 of 9
CIRCUIT COURT OF
IN THE CIRCUIT COURT OF COOK COUNTY COOK COUNTY, ILLINOIS
CHANCERY DIVISION
COUNTY DEPARTMENT, CHANCERY DIVISIONCLERK DOROTHY BROWN

ADVANTAGE MARKETING GROUP, INC. )


)
Plaintiff, )
)
v. ) Case No. 2017 CH 05559
)
JAMES P. KEANE, SR., ) Calendar 05
)
Defendant. )
)

NOTICE OF FILING
TO: Eric P. Sparks
Justin W. Hanson
222 North LaSalle Street, Ste. 800
Chicago, Illinois 60601
esparks@gouldratner.com
jwhanson@gouldratner.com

PLEASE TAKE NOTICE that on May 31, 2018 we electronically filed with the Clerk
of the Circuit Court of Cook County, Illinois the following documents: Notice of Appeal,
true and correct copies thereof are served upon you herewith.

ADVANTAGE MARKETING GROUP, INC.

By: /s/Kenneth J. Vanko


One of Its Attorneys

Kenneth J. Vanko
Clingen, Callow & McLean, LLC
Attorney No. 39631
2300 Cabot Drive, Suite 500
Lisle, IL 60532
630.871.2600
vanko@ccmlawyer.com

{00411451.DOCX /v. 1 }

A39
CERTIFICATE OF SERVICE

The undersigned hereby states that she served the referenced documents to the
parties listed in the attached service list via e-mail on May 31, 2018.
Eric P. Sparks
Justin W. Hanson
222 North LaSalle Street, Ste. 800
Chicago, Illinois 60601
esparks@gouldratner.com
jwhanson@gouldratner.com
By: /s/ Nikki Matthiscyk
ELECTRONICALLY FILED
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2017-CH-05559
PAGE 2 of 9

{00411451.DOCX /v. 1 } 2

A40
APPEAL TO THE APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
FROM THE CIRCUIT COURT OF COOK COUNTY
COUNTY DEPARTMENT, CHANCERY DIVISION

ADVANTAGE MARKETING GROUP, LTD. )


)
Plaintiff, )
)
v. ) Case No. 2017 CH 05559
)
JAMES P. KEANE, SR., ) Calendar 05
)
Defendant. )

NOTICE OF APPEAL
ELECTRONICALLY FILED

PLEASE TAKE NOTICE that the Plaintiff, Advantage Marketing Group, Ltd.,
appeals to the Appellate Court of Illinois, First Judicial District, from the Order of the
5/31/2018 8:49 AM
2017-CH-05559

Circuit Court of Cook County, entered in this case on May 1, 2018, made final and
PAGE 3 of 9

appealable by the Order entered May 9, 2018, true and correct copies of which are
attached as Exhibit A.

The Plaintiff requests that the Appellate Court of Illinois reverse the Orders entered
and from which the Plaintiff appeals and remand the case for further proceedings.

Dated: May 31, 2018 Respectfully submitted,

ADVANTAGE MARKETING GROUP, LTD.

/s/Kenneth J. Vanko
Kenneth J. Vanko

Kenneth J. Vanko
Clingen Callow & McLean, LLC
(I.D. No. 39631)
2300 Cabot Drive, Suite 500
Lisle, Illinois 60532
630-871-2600
vanko@ccmlawyer.com

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2
EXHIBIT A

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A46
IN THE CIRCUIT COURT OF COOK COUNTY
COUNTY DEPARTMENT, CHANCERY DIVISION

ADVANTAGE MARKETING GROUP, INC.

Plaintiff,

v. Case No. 2017 CH 05559

JAMES P. KEANE, SR., Calendar 05

Defendant.

ORDER OF DISMISSAL

THIS CAUSE, coming on to be heard for a status hearing, and Plaintiff having
advised the Court that it will not seek further amendment of its Complaint;
ELECTRONICALLY FILED
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IT IS HEREBY ORDERED:
2017-CH-05559
PAGE 9 of 9

1. The Court having previously dismissed Plaintiffs Amended Complaint at


Chancery on May 1,2018, this matter is now dismissed with prejudice.
2. This is a final and appealable order under Illinois Supreme Court Rule 303.

ENTERED
ENTERED:

MAY "9 2018


>.-.w««N
CLERK OF THE CIRCUIT COURT

Judge Neil H. Cohen


Order Prepared By:
Kenneth J. Vanko
Emily L. Langhenry
Clingen, Callow & McLean, LLC
Attorney No. 39631
2300 Cabot Drive, Suite 500
Lisle, IL 60532
630.871.2600
vanko®ccmlawyer.corn
langhenrv@ccmlawyer.com

!<mw<«.wk.do<:x /v. I

A47
Table of Contents
APPEAL TO THE APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
FROM THE CIRCUIT COURT OF THE COOK JUDICIAL CIRCUIT
COOK COUNTY, ILLINOIS

ADVANTAGE MARKETING GROUP, LTD.


Plaintiff/Petitioner Reviewing Court No: 1-18-1126
Circuit Court No: 2017CH005559
Trial Judge: NEIL COHEN
v.

JAMES P. KEANE, SR.


Defendant/Respondent

COMMON LAW RECORD - TABLE OF CONTENTS

Page 1 of 2

Date Filed Title/Description Page No.


07/30/2018 DocketList C 4-C 7
04/18/2017 COMPLAINT C 8-C 15
04/18/2017 SUMMONS C 16
05/08/2017 SUMMONS C 17-C 19
05/15/2017 ALIAS SUMMONS C 20
06/07/2017 ALIAS SUMMONS C 21-C 23
06/19/2017 MOTION SPINDLED C 24-C 26
06/19/2017 MOTION SPECIAL PROCESS SERVER C 27-C 28
06/27/2017 MOTION SPECIAL PROCESS SERVER C 29-C 30
06/27/2017 ORDER C 31
07/07/2017 AFFIDAVITF OF SERVICE C 32
07/07/2017 NOTICE OF FILING C 33-C 34
07/10/2017 ENOTICE SENT C 35
08/02/2017 APPEARANCE C 36
08/02/2017 MOTION FOR EXTENSION C 37-C 39
08/04/2017 MOTION FOR EXTENSION C 40-C 47
08/16/2017 ORDER C 48
08/30/2017 MOTION TO DISMISS C 49-C 55
09/01/2017 MOTION TO DISMISS C 56-C 64
09/11/2017 ORDER C 65
09/25/2017 RESPONSE MOTION TO DISMISS C 66-C 74
09/25/2017 NOTICE OF FILING C 75-C 76

This document is generated by eappeal.net

DOROTHY BROWN, CLERK OF THE COOK JUDICIAL CIRCUIT COURT ©


CHICAGO, ILLINOIS 60602
A48
C 2
Table of Contents

COMMON LAW RECORD - TABLE OF CONTENTS

Page 2 of 2

Date Filed Title/Description Page No.


10/18/2017 RESPOSNE MOTION TO DISMISS C 77-C 84
10/23/2017 ORDER C 85
11/15/2017 MEMORANDUM ORDER C 86-C 89
11/20/2017 ORDER C 90
12/15/2017 ORDER C 91
01/16/2018 MOTION FOR LEAVE C 92-C 134
01/19/2018 ORDER C 135
01/23/2018 AMENDED COMPLAINT C 136-C 168
02/20/2018 MOTION TO DISMISS C 169-C 177
02/28/2018 NOTICE OF MOTION C 178-C 179
03/06/2018 ORDER C 180
03/23/2018 RESPONSE TO MOTION TO DISMISS C 181-C 195
04/06/2018 RESPONSE TO MOTION TO DISMISS C 196-C 204
04/16/2018 ORDER C 205
05/01/2018 MEMORANDUM AND ORDER C 206-C 209
05/09/2018 ORDER C 210
05/31/2018 NOTICE OF APPEAL C 211-C 219
06/07/2018 REQUEST TO PREPARE C 220-C 221

DOROTHY BROWN, CLERK OF THE COOK JUDICIAL CIRCUIT COURT ©


CHICAGO, ILLINOIS 60602
A49
C 3
No. 1-18-1126

IN THE APPELLATE COURT


FIRST JUDICIAL DISTRICT
STATE OF ILLINOIS

ADVANTAGE MARKETING GROUP, LTD. )


) Appeal from the Circuit Court of
Plaintiff-Appellant, ) the Cook County
)
v. ) Cook County, Illinois
) Case No. 2017 CH 05559
JAMES P. KEANE, SR. )
) Judge Neil H. Cohen
)
Defendant-Appellee. )

NOTICE OF FILING

To: Eric P. Sparks


Justin W. Hanson
222 North LaSalle Street, Ste. 800
Chicago, Illinois 60601
esparks@gouldratner.com
jwhanson@gouldratner.com

PLEASE TAKE NOTICE that on October 5, 2018, we electronically filed with the
Clerk of the Appellate Court, First Judicial District, Illinois: Brief of Plaintiff-
Appellant, a true and correct copy of which is attached and hereby served upon you.

ADVANTAGE MARKETING GROUP, LTD.

By: /s/ Kenneth J. Vanko


One of Its Attorneys
Kenneth J. Vanko
Clingen Callow & McLean, LLC
2300 Cabot Drive, Suite 500
Lisle, Illinois 60532
(630) 871-2600
vanko@ccmlawyer.com
Counsel for Plaintiff-Appellant
CERTIFICATE OF SERVICE

The undersigned hereby states that she served the referenced documents to the
parties listed in the attached service list via e-mail and regular mail on October 5, 2018.

By: /s/ Angela Burza