Kim v. The Korean News of Chicago Inc. et al

Filing 117

MEMORANDUM Opinion and Order: For the reasons stated, Mrs. Kim's motion, R. 82 , is granted, and each of Huh's, Mr. Kim's and KNCI's motions are granted in part and denied in part, R. 85 ; R. 88 ; R. 91 . Plaintiff's cr oss-motion is also granted in part and denied in part. R. 99 . Only Plaintiff's breach of contract claim against KNCI and Mr. Kim, and Plaintiff's FLSA and IMWL claims for his final week of employment against KNCI, Mr. Kim and Huh remain. Status hearing set for 2/7/2020 at 09:00 AM. Signed by the Honorable Thomas M. Durkin on 1/29/2020:Mailed notice(srn, )

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IN-KYU KIM,
Plaintiff,
v.
THE KOREAN NEWS OF CHICAGO, INC.,
ANDREW HUH, SOOK Y. KIM, and
ROBERT B. KIM,
Defendants.

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17 C 1300
Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER
In-Kyu Kim (“Plaintiff”) brings this action against The Korean News of
Chicago, Inc. (“KNCI”), Andrew Huh, and husband and wife Sook K. Kim (“Mrs.
Kim”) and Robert B. Kim (“Mr. Kim”) under the Fair Labor Standards Act (“FLSA”)
and Illinois Minimum Wage Law (“IMWL”) for minimum wage and overtime pay
during his employment as KNCI’s president. Plaintiff also sued for breach of an
alleged oral agreement to make him a 30% shareholder in KNCI. Each defendant
moved for summary judgment, and Plaintiff cross-moved for partial summary
judgment on his FLSA and IMWL claims. R. 82; R. 85; R. 88; R. 91; R. 99. For the
following reasons, Mrs. Kim’s motion is granted in its entirety, each remaining
Defendants’ motion is granted in part and denied in part, and Plaintiff’s motion is
granted in part and denied in part.

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Standard
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). The Court considers the entire evidentiary record and must view all of
the evidence and draw all reasonable inferences from that evidence in the light most
favorable to the nonmovant. Horton v. Pobjecky, 883 F.3d 941, 948 (7th Cir. 2018). To
defeat summary judgment, a nonmovant must produce more than a “mere scintilla of
evidence” and come forward with “specific facts showing that there is a genuine issue
for trial.” Johnson v. Advocate Health and Hosps. Corp., 892 F.3d 887, 894, 896 (7th
Cir. 2018). Ultimately, summary judgment is warranted only if a reasonable jury
could not return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
Local Rule 56.1
Local Rule 56.1 requires parties moving for summary judgment to submit in
support of their motion a statement of material facts comprised of short numbered
paragraphs with citations to admissible evidence. L.R. 56.1(a). It requires the
nonmovant to then respond particularly to each such numbered paragraph, and, in
the case of disagreement, provide citations to supporting evidentiary material. L.R.
56.1(b). When a nonmovant fails to controvert those facts in the manner proscribed,
they are deemed admitted. Id.; Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003).
Here, Plaintiff failed to respond to Defendants’ Local Rule 56.1 statements. The

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assertions in each are supported by evidentiary material, so the Court credits
Defendants’ uncontroverted version of the facts to the extent not disputed by
Plaintiff’s own Local Rule 56.1 statement and evidentiary material. Keeton v.
Morningstar, Inc., 667 F.3d 877, 880 (7th Cir. 2012) (citing FTC v. Bay Area Bus.
Council, Inc., 423 F.3d 627, 634 (7th Cir. 2005)).
Further, although Plaintiff submitted an “appendix” in response to
Defendants’ motions that purports to include additional evidence, because Plaintiff
failed to respond to Defendants’ Rule 56.1 statements (and failed to submit a
statement of additional facts of his own), Plaintiff’s “appendix” is not properly before
the Court. See L.R. 56.1(b)(3)(C) (a party opposing summary judgment shall submit
“a statement, consisting of short numbered paragraphs, of any additional facts that
require the denial of summary judgment”). Accordingly, the Court will not consider
its contents. Even so, Defendants still must demonstrate that they are entitled to
judgment as a matter of law, and the Court still draws all reasonable inferences in
Plaintiff’s favor in considering Defendants’ motions. Keeton, 667 F.3d at 884; Yancick
v. Hanna Steel Corp., 653 F.3d 532, 543 (7th Cir. 2011). With this in mind, the Court
turns to those facts set forth in and supported by the parties’ submissions in
accordance with Local Rule 56.1.
Background
This case concerns compensation allegedly owed to Plaintiff in connection with
the acquisition and operation of the Korea Times Chicago newspaper (the
“Newspaper”) by KNCI. Plaintiff met Robert Kim in or about 2008, when Plaintiff

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was president of the Newspaper. R. 89 ¶ 4. At that time, the Newspaper was owned
by The Korea Times Chicago, Inc. Id. Plaintiff left the Newspaper in 2010, but when
he learned that it was for sale in Spring 2014, he notified Mr. Kim to see if he would
buy it. Id. ¶ 6. Initially, Mr. Kim declined because he did not have experience in the
newspaper business. Id. ¶ 7. But Plaintiff approached Mr. Kim again a short time
later, telling him that if he invested in the Newspaper and Plaintiff became president,
he could generate profits as he had for its previous owners. Id. On July 14, 2014, Huh
and Mr. Kim’s wife, Mrs. Kim, formed KNCI as 50% shareholders and directors in
order to purchase the Newspaper. R. 89, Ex. B ¶ 7; R. 83 ¶ 9; R. 100 ¶ 3; R. 110 ¶ 3.
Although KNCI did not yet own the Newspaper, Mrs. Kim and Huh appointed
Plaintiff president and Huh publisher that same day, and took certain additional
steps concerning the Newspaper’s operation prior to the consummation of the sale. R.
100 ¶¶ 3, 7; R. 110 ¶ 7. Plaintiff, who was working for another company in New York
at the time, claims that he too began working between 8 and 10 hours per week
“performing phone calls and other tasks . . . for the benefit of [KNCI] as it worked to
purchase [the Newspaper].” R. 100 ¶ 8 (citing R. 102, Ex. A ¶ 5). Plaintiff was not
paid for this work, R. 100 ¶ 9; R. 110 ¶ 9, but sometime between July 14, 2014 and
the Newspaper’s purchase, Plaintiff and Mr. Kim discussed Plaintiff’s compensation
(among other things), R. 89, Ex. B ¶ 9. There is no dispute that beginning after KNCI
purchased the Newspaper, Plaintiff was paid a salary. But while the parties
acknowledge a pre-acquisition agreement for additional compensation once KNCI
purchased the Newspaper, they dispute what was promised. That is, Mr. Kim

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contends that the agreement was that Plaintiff would receive 30% of KNCI’s net
profits, R. 89, Ex. B ¶ 9, whereas Plaintiff contends he was to become a 30%
shareholder in KNCI, R. 107, Ex. A ¶ 23. KNCI purchased the Newspaper on August
15, 2014. Id. ¶ 8. Plaintiff moved from New York to Chicago that same day, and began
operating the Newspaper thereafter. R. 92 ¶¶ 5, 7. Approximately one month later,
Mrs. Kim, who had served as corporate secretary, transferred her shares in KNCI to
Mr. Kim. R. 83 ¶ 9. Thereafter, she had no ownership interest in KNCI and was no
longer an officer or director. Id. ¶¶ 9-10.
As KNCI’s president, Plaintiff was responsible for KNCI’s revenue growth,
managing and supervising its employees and directing its overall business
operations. R. 92 ¶¶ 7, 11. Plaintiff also was head of KNCI’s editing and publication
department. Id. ¶ 7. From August 16, 2014 through January 31, 2015, Plaintiff was
paid $2000 per month in semi-monthly installments of $1000 regardless of the
number of hours he worked. R. 100 ¶ 12; R. 110 ¶ 12. According to Plaintiff, beginning
August 16, 2014, he spent 75 to 100 hours per week performing his duties. 1
Effective February 4, 2015, KNCI terminated Plaintiff’s employment through
its directors, Huh and Mr. Kim. R. 110 ¶ 5. Plaintiff was not paid his salary for his
last week of employment (February 1 through February 4, 2015). But he obtained
$500 in gas cards for personal use with a KNCI credit card. R. 110, Ex. B2 ¶ 4.

Plaintiff testified at his deposition that he worked 75 hours per week, R. 110, Ex. A
at 55, but in his declaration estimated that he worked 100 hours per week, R. 102,
Ex. A ¶ 8.
1

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Plaintiff has not received any share in KNCI’s profits and was not made a
shareholder.
Plaintiff filed a five-count complaint against Defendants alleging: Defendants
failed to pay him overtime wages in violation of the FLSA (Count I) and IMWL (Count
IV); Defendants failed to pay him minimum wage in violation of the FLSA (Count II)
and IMWL (Count III); and Defendants breached an oral contract to make him a
shareholder in KNCI (Count V). R. 1. Each Defendant moved for summary judgment
on Plaintiff’s FLSA and IMWL claims, and the individual defendants also moved for
summary judgment on Plaintiff’s breach of contract claim. Plaintiff cross-moved for
summary judgment on his FLSA and IMWL claims.
Analysis
I.

FLSA and IMWL Claims as to All Defendants
The parties’ cross motions each seek summary judgment on Plaintiff’s overtime

and minimum wage claims under the FLSA and IMWL. The parties’ arguments turn
in part on whether Plaintiff is subject to any exemption, and in part on whether
Defendants can be considered “employers” within the meaning of the FLSA and
IMWL. Defendants also argue that Plaintiff was not protected by either the FLSA or
the IMWL before KNCI purchased the Newspaper and he assumed his duties as
president. The Court addresses each issue below, beginning with the last.
A.

Whether Plaintiff was covered by the FLSA or IMWL during the
pre-acquisition period

FLSA. Defendants argue that Plaintiff was not covered by the FLSA before
KNCI purchased the Newspaper (the “pre-acquisition period”) and therefore was not
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subject to its protections during that time. A plaintiff is protected by the FLSA if
either the employer is a covered enterprise or the plaintiff is a covered individual.
Villareal v. El Chile, Inc., 776 F. Supp. 2d 778, 790 (N.D. Ill. 2010) (citing Tony &
Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 295 n.8 (1985)). It is plaintiff’s
burden to prove that at least one is true. Kim v. Ctr. for Seniors, 2019 WL 5183848,
at *2 (N.D. Ill. Oct. 15, 2019). A covered enterprise has (1) “employees engaged in
commerce or the production of goods for commerce or . . . employees handling, selling,
or otherwise working on goods or materials that have been moved in or produced for
commerce by any person;” and (2) an annual gross volume of sales made or business
done of at least $500,000. 29 U.S.C. § 203(s)(1)(A)(i), (ii). If enterprise coverage exists,
all of the enterprise’s employees are protected by the FLSA, regardless of their
personal involvement (or not) in interstate commerce. Rivera v. Heights Landscaping,
Inc., 2004 WL 434214, at *1 (N.D. Ill. Mar. 5, 2004). The FLSA also protects
individual employees to the extent they are “engaged in commerce or in the
production of goods for commerce,” 29 U.S.C. § 207(a)(1), even if their employers are
not covered enterprises, Rivera, 2004 WL 434214 at *1.
Here, although Plaintiff contends that he performed 8-10 hours of work per
week on behalf of KNCI during the pre-acquisition period, there is no evidence that
KNCI grossed sales or business of at least $500,000 in 2014 (the year in which KNCI
was formed and purchased and began to operate the Newspaper). Nor is there
evidence of any sales or business during the pre-acquisition period at all. Accordingly,

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Plaintiff has failed to present any evidence from which a jury could conclude that
KNCI (or any other defendant) was a covered enterprise under the FLSA.
Nor is there any evidence to suggest that Plaintiff (or anyone else) was
“engaged in commerce or in the production of goods for commerce” during the preacquisition period. Instead, Plaintiff asserts only that he worked in furtherance of
KNCI’s purchase of the Newspaper. Accordingly, Plaintiff has also failed to create a
genuine issue of fact that he was a covered individual during the pre-acquisition
period, and Defendants’ motion for summary judgment on Plaintiff’s FLSA minimum
wage claim for that period is granted.
IMWL. Defendants also argue that Plaintiff was not covered by the IMWL
during the pre-acquisition period, because he was not an “employee” under the
IMWL. The IMWL explicitly excludes employers with fewer than four employees. See
820 ILCS 105/3(d)(1)). Plaintiff fails to respond to Defendants’ argument and so it is
waived. But even if it weren’t, and the Court considered Mrs. Kim (as one-time KNCI
shareholder and corporate secretary), Huh (as KNCI shareholder and publisher) and
Plaintiff (KNCI’s president) to be KNCI employees during the pre-acquisition period,
Plaintiff is one short of the IMWL threshold. Accordingly, Plaintiff’s IMWL claim for
minimum wage pay during the pre-acquisition period also fails. See Jensen v.
Longwood Towers, LLC, 2000 WL 690180 at *2 n.2 (N.D. Ill. May 26, 2000) (noting
that it is plaintiff’s burden to demonstrate that his employer has the requisite number
of employees for the IMWL to apply). Defendants’ motion for summary judgment on
Plaintiff’s IMWL minimum wage claim during the pre-acquisition period is granted.

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B.

Whether and when the executive exemption applied to Plaintiff

The Court’s analysis in section I(A) does not apply to the post-acquisition
period, because there is no dispute that KNCI was running the Newspaper at that
time and therefore that Plaintiff was “engaged in commerce.” Additionally, there is
no dispute that Plaintiff supervised approximately 10 employees as President of the
Newspaper post-acquisition. But Defendants argue that Plaintiff’s minimum wage
and overtime claims for the post-acquisition period fail in any case because Plaintiff
was exempt from the FLSA and IMWL. The FLSA generally requires employers to
pay employees at least minimum wage, as well as overtime pay (i.e., one and one-half
times the regular rate) for any hours worked in excess of 40 per week unless an
exemption applies. 2 29 U.S.C. § 213(a)(1); Schaefer-LaRose v. Eli Lilly & Co., 679 F.3d
560, 571-72 (7th Cir 2012). It is the employer’s burden to establish that an individual
qualifies for one of these exemptions, which are “narrowly drawn” against the
employer. Schaefer-LaRose, 679 F.3d at 571 (citing Johnson v. Hix Wrecker Serv.,
Inc., 417 U.S. 188, 196-97 (7th Cir. 2011)).
Defendants argue that Plaintiff is exempt as an “employee in a bona fide
executive . . . capacity.” 29 U.S.C. § 213(a)(1). The FLSA regulations in effect at the

The relevant provisions of the IMWL are substantially similar, so the Court’s
analysis of Plaintiff’s FLSA claims applies equally to his IMWL claims. See Callahan
v. City of Chi., 78 F. Supp. 3d 791, 821 (N.D. Ill. 2015) (“Because the IMWL parallels
the FLSA so closely, courts have generally interpreted their provisions to be
coextensive, and so have generally applied the same analysis to both.”); see also 820
ILCS 105/4a(2)(E) (incorporating the FLSA’s exemption for bona fide executive
employees).
2

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time define such an employee as one who: (1) performs certain job duties; 3 and (2) is
“[c]ompensated on a salary basis at a rate not less than $455 per week.” 29 C.F.R. §
541.100(a). Determining the applicability of an overtime exemption is often a factintensive, individualized inquiry into the employee’s duties and responsibilities.
Schaefer-LaRose, 679 F.3d at 572. But here, there is no dispute that as president,
Plaintiff met the job duty requirements set forth in 29 C.F.R. § 541.100(a)(2)-(4). See
R. 107 at 11 (Plaintiff’s brief stating that “Plaintiff does not contest . . . that he
performed the duties described [by Defendants]” with no further discussion). Nor do
the parties dispute that Plaintiff was paid in accordance with 29 C.F.R. 541.100(a)(1)
from August 16, 2014 until January 31, 2015 (that is, Plaintiff was paid $1000 semimonthly, or approximately $500 per week). As such, Plaintiff met the requirements
for the executive exemption during that period.
But the parties debate the effect of Defendants’ failure to pay Plaintiff’s salary
during the pre-acquisition period and his final week of employment. Plaintiff argues
that Defendants “lost” the benefit of the executive exemption for the entirety of his
employment because of this failure, and therefore that he is entitled to minimum
wage for all hours worked, as well as overtime for hours in excess of 40 in a workweek.
But because Plaintiff was not subject to the protections of the FLSA and IMWL

Specifically, the employee’s “primary duty” must be “management of the enterprise
. . . or of a customarily recognized department or subdivision thereof,” and the
employee also must “customarily and regularly direct the work of two or more other
employees” and generally have the “authority to hire or fire other employees.” 29
C.F.R. § 541.100(a)(2)-(4).

3

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during the pre-acquisition period, that “failure” has no bearing on the applicability
(or not) of the executive exemption to the period in which he was.
On the other hand, that Plaintiff did not receive his salary during his final
week of employment means that his employer(s) (discussed below) lose the benefit of
the executive exemption for that week. And this is true even though it is undisputed
that Plaintiff received the equivalent of his salary in gas cards for personal use.
Indeed, the regulations provide that an exempt employee’s salary must be paid
exclusive of such benefits. See 29 C.F.R. § 541.606(a) (stating that an employee must
earn the minimum salary requirement “exclusive of board, lodging or other facilities,”
and explaining that this phrase means “‘free and clear’ . . . of any claimed credit for
non-cash items of value that an employer may provide to an employee.”); see also id.
§ 541.606(b) (explaining that “other facilities” is defined as in 29 C.F.R. § 531.32,
which includes gas and transportation)). That said, the regulations do allow an
employer to use those same benefits toward its minimum wage obligations. See 29
U.S.C. § 203(m)(1) (defining “wage” as including “board, lodging, or other facilities”);
see also 29 C.F.R. 531.32(a) (defining “other facilities” as including “gas furnished for
the noncommercial personal use of the employee”). Because it is unclear how many
hours Plaintiff worked during his final week, it is also unclear whether Plaintiff is
owed additional compensation over and above the $500 received in gas cards, and if
so, in what amount. So summary judgment is improper as to Plaintiff’s FLSA and
IMWL claims for his last week of employment.

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Finally, the Court does not agree with Plaintiff that Defendants’ failure to pay
his salary during his final week destroys the exemption for the period before it.
Plaintiff points to the FLSA regulations and the Department of Labor (“DOL”) Field
Operations Handbook (“Handbook”) to support his argument. They state that: (1) an
exempt employee must receive his “full salary for any week in which the employee
performs any work without regard to the number of days or hours worked,” 29 C.F.R.
§ 541.602(a)(1) (emphasis added); and (2) although “an employee may be paid the
salary required during certain workweeks . . . an analysis of the compensation paid
over a longer period may reveal that the employee is not actually paid on a salary
basis,” U.S. Dep’t of Labor Field Operations Handbook § 22a03 (Nov. 29, 2010).4
Plaintiff contends that taken together, this language indicates that an exemption is
lost if an employee’s full salary is not paid for any week of employment. R. 101 at 1718. But the same Handbook provision also states that the exemptions are applied “on
the basis that each workweek constitutes a separate period of exemption.” Handbook
§ 22a03 (emphasis added). And there is no dispute that the value of the gas cards
Plaintiff obtained met the threshold set forth in 29 C.F.R. § 541.100(a). But perhaps
most compelling is the fact that Plaintiff received his salary for each of the 24 weeks
before his final one in accordance with 29 C.F.R. § 541.100(a). There is little about
this arrangement that “reveal[s] that [Plaintiff] was not actually paid on a salary
basis” during his employment. Handbook § 22a03.

Plaintiff erroneously attributed this language to a DOL Opinion Letter, rather than
the DOL Handbook.

4

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In sum, although payment in gas cards destroys the exemption for Plaintiff’s
final week of employment, it has no effect on the period prior to that, so summary
judgment for Defendants is proper on Plaintiff’s FLSA and IMWL claims for the
period beginning August 16, 2014 and ending January 31, 2015. But because an issue
of fact remains regarding whether Plaintiff was adequately compensated for his final
week of employment, the parties’ cross motions are denied on that issue for that
period to the extent any Defendant is an “employer” (discussed below).
C.

Whether the individual defendants are liable as “employers” 5

Even if Plaintiff is owed minimum wage and/or overtime pay for his final week
of employment, only those entities or individuals that constitute “employers” within
the meaning of the FLSA and IMWL can be liable.
“[C]ourts employ the same test under both [the FLSA and IMWL] to determine
a defendant’s status as an employer.” Natal v. Medistar, Inc., 221 F. Supp. 3d 999,
1003 (N.D. Ill. 2016) (citing Condo v. Sysco Corp., 1 F.3d 559, 601 n.3 (7th Cir. 1993)).
Whether a person or entity is an “employer” for these purposes is a question of law.
Villareal v. El Chile, Inc., 776 F. Supp. 2d 778, 784-85 (N.D. Ill. 2011). “The FLSA
contemplates several simultaneous employers who may be responsible for compliance
with the FLSA,” as determined by the “totality of circumstances, underscoring the
economic reality of the employment relationship.” Id. at 784 (internal citation
omitted). Whether an individual is liable as an employer “depends not upon whether

KNCI also argues that it was not Plaintiff’s “employer” during the pre-acquisition
period. But because the Court has already determined that Plaintiff was not covered
by the FLSA or IMWL during that time, the Court need not address the issue here.
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the individual controlled every aspect of the employees’ conduct, but upon whether
the individual had control over the alleged violation.” Id. (citation omitted). Here, as
the Court previously explained to the parties, the conduct comprising the alleged
violation is the failure to pay Plaintiff minimum and overtime wages. Kim v. The
Korean News of Chi., Inc., 2017 WL 3034671, *3 (N.D. Ill. Jul. 18, 2017). Accordingly,
the Court scrutinizes each Defendants’ role (if any) in determining Plaintiff’s
compensation.
Mrs. Kim. There is no evidence from which a reasonable jury could conclude
that Mrs. Kim was Plaintiff’s “employer.” Indeed, although Mrs. Kim served as a
KNCI director and shareholder, she did so for two months only—the month prior to
the purchase of the Newspaper, and the first month after its purchase. As discussed,
Plaintiff was not covered by the FLSA or IMWL during that first month, and was
paid appropriately during the second as a salaried, exempt employee. Moreover, there
is no evidence from which a reasonable juror could conclude that Mrs. Kim did
anything other than appoint Plaintiff president in her capacity as board member.
This is not enough. See Cardenas v. Grozdic, 67 F. Supp. 3d 917, 923 (N.D. Ill. 2014)
(noting that “the mere facts of stock ownership or officer status in an entity that
employed the complaining employee [are not] enough to deem an individual an
employer”) (quoting Alvarez v. Downtown Food Enters, Inc., 2010 WL 5158122, at *2
(N.D. Ill. Dec. 13, 2010)). Accordingly, summary judgment is proper for Mrs. Kim on
Plaintiff’s FLSA and IMWL claims.

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Huh. Whether Huh was Plaintiff’s “employer” is a closer call. In his opening
brief, Plaintiff argues that he was, citing his own declaration and stating that Huh
and Mr. Kim “exercised sole control over the activities of Defendant Korean News”
between July 14, 2014 and February 4, 2015, and that Huh (and Mr. Kim) “managed,
supervised, established and administered the terms and conditions of Plaintiff’s
employment,” including by “participat[ing] in and approv[ing] of . . . how much and
the manner in which Plaintiff was paid.” R. 101 at 10. Plaintiff also states that both
Huh and Mr. Kim “assigned tasks” to him; set his work schedule; and “had the power
to hire and fire employees, including Plaintiff.” Id. at 10-11. But Plaintiff’s declaration
directly contradicts his deposition testimony regarding whether Huh had authority
to supervise or manage Plaintiff’s work product or set his work hours. See R. 86, Ex.
A at 109-110 (Plaintiff’s deposition testimony indicating that when asked whether
Huh had authority over his work product, Plaintiff stated “I wouldn’t say that,” and
when asked whether Huh set his work hours or supervised his work, Plaintiff stated
“he did not.”). Generally, “[a] plaintiff’s statements submitted by affidavit or by
declaration which contradict the plaintiff’s prior deposition testimony can be excluded
as a sham designed to thwart the purposes of summary judgment.” Delgado v. Roadco
Transp. Servs., Inc., 159 F. Supp. 3d 865, 868 (N.D. Ill. 2016) (quoting Castro v. DeVry
Univ., Inc., 786 F.3d 559, 571 (7th Cir. 2015)). Plaintiff offers no explanation for the
shift. Accordingly, his declaration carries no weight to the extent to the extent
contradicted. Beckel v. Wal–Mart Associates, Inc., 301 F.3d 621, 623 (7th Cir. 2002)
(affidavits “offered to contradict the affiant’s deposition are so lacking in credibility

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as to be entitled to zero weight in summary judgment proceedings unless the affiant
gives a plausible explanation for the discrepancy”). Moreover, Plaintiff failed to
properly respond to Huh’s Local Rule 56.1 statement, which, citing Huh’s affidavit
(and Plaintiff’s deposition testimony) indicates that Huh: was neither Plaintiff’s
manager nor supervisor; did not have authority over the work product Plaintiff
oversaw; and did not set Plaintiff’s work hours. See R. 86 ¶¶ 12, 14-17 (citing R. 86,
Ex. A (transcript from Plaintiff’s deposition) and R. 86, Ex. B (Huh’s affidavit)). In
fact, according to Huh, he did not even communicate with Plaintiff prior to August
15, 2014, when KNCI purchased the Newspaper. Id. ¶¶ 5-6. But because a genuine
dispute of fact remains regarding whether Huh set or controlled Plaintiff’s
compensation in any way at any time (a claim made in Plaintiff’s declaration and not
contradicted by his deposition testimony), the Court denies the parties’ cross motions
as to Huh.
Mr. Kim. Finally, Mr. Kim argues that he cannot be an “employer” within the
meaning of the FLSA and IMWL because it was Plaintiff, not he, who controlled
KNCI’s day-to-day operations in his role as president (while he was merely a
shareholder and investor, with no experience operating a newspaper). R. 90 at 10-11;
R. 109 at 9-10; R. 112 at 6-7. Mr. Kim adds that he neither set Plaintiff’s work hours
or schedule, nor supervised his work. R. 90 at 10. But Plaintiff asserts that as was
true for Huh, Mr. Kim “managed, supervised, established and administered the terms
and conditions of Plaintiff’s employment,” including “how much and the manner in
which Plaintiff was paid,” and his work schedule. R. 101 at 10-11. Both Mr. Kim and

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Plaintiff cite largely their own declaration (Plaintiff) and affidavit (Mr. Kim) in
support. This time, Plaintiff’s deposition testimony does not contradict his affidavit.
Further, Mr. Kim admits that he set Plaintiff’s compensation. R. 89 ¶ 22. Accordingly,
Mr. Kim is an “employer” within the meaning of the FLSA and IMWL.
In sum, summary judgment is granted for Mrs. Kim on Plaintiff’s FLSA and
IMWL claims, and summary judgment is granted for Plaintiff on the issue of whether
Mr. Kim was his “employer.” Genuine issues of fact remain as to whether Huh was
Plaintiff’s “employer,” so the parties’ cross motions on Plaintiff’s minimum wage and
overtime claims are denied as to him. Finally, because KNCI does not dispute that it
was Plaintiff’s employer during his final week of employment—the only week at
issue—Plaintiff’s claim against KNCI also will proceed.
II.

Breach of Contract Claim as to the Individual Defendants 6
The individual defendants seek summary judgment on Plaintiff’s breach of

contract claim on the basis that Plaintiff cannot demonstrate the existence of an oral
contract with any of them—for 30% of the shares in the Newspaper or otherwise.
To demonstrate breach of contract in Illinois, a plaintiff must establish: (1) an
offer and acceptance; (2) consideration; (3) definite and certain terms; (4) plaintiff’s
performance of all required contractual conditions; (5) breach; and (6) damages.
Assoc. Ben. Servs., Inc. v. Caremark RX, Inc., 493 F.3d 841, 849 (7th Cir. 2007) (citing

In its reply brief, KNCI asserts that it is entitled to summary judgment on the
breach of contract claim against it because Plaintiff failed to respond to its motion on
that claim. But KNCI’s opening brief did not seek summary judgment on that claim,
so the Court declines to grant it. See generally R. 93.
6

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MC Baldwin Fin. Co. v. DiMaggio, Rosario & Veraja, LLC, 845 N.E.2d 22, 30 (Ill.
App. Ct. 2006)). Here, the parties debate whether Plaintiff has presented evidence of
“definite and certain terms” sufficient to survive the individual defendants’ motions.
The “definite and certain terms requirement serves several important
purposes, chief among them to ensure that the parties in fact have reached an
agreement and to provide courts with a basis for enforcing the obligations that the
parties sought to impose upon one another.” Id. (citing Restatement (Second) of
Contracts § 33 & cmt. (a)-(b)). Illinois law precludes the Court from supplying
material terms of an alleged agreement. See Citadel Group Ltd. v. Washington
Regional Med. Ctr., 692 F.3d 580, 589 (7th Cir. 2012) (“[I]f essential terms are so
uncertain that there is no basis for deciding whether the agreement has been kept or
broken, there is no contract.”) (quoting Milex Prods., Inc. v. Alra Lab., Inc., 603 N.E.2d
1226, 1233 (Ill. App. Ct. 1992)).
Mr. Kim. Mr. Kim contends that summary judgment is proper for him because
Plaintiff offered two differing versions of the alleged oral agreement between him and
Plaintiff (30% of KNCI’s shares versus 30% of the $500,000 purchase price, R. 90 at
12), and Mr. Kim recalls a third version (30% of the net profits of the business, id. at
13). According to Mr. Kim, this disconnect reveals that the terms of the parties’
agreement were not “definite and certain,” and therefore cannot be enforced. Mr. Kim
points in particular to Plaintiff’s deposition testimony, in which he states that the
nature of his breach of contract claim is:
that the 30 percent share that I was initially promised, 30 percent share
of the company, was not given to me; and by 30 percent I mean 30
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percent of the $500,000 which was the initial purchase price of the
company.
R. 98, Ex. A at 59; see also id. at 87-88 (stating that Plaintiff had an “ownership right
of 30 percent,” and that “the way [he] understood [sic] was 30 percent of $500,000 in
cash”). In response, Plaintiff explained that he misinterpreted the deposition
questions, and that he always understood the agreement to be that he would be made
a 30% shareholder. He offers his own declaration, shareholder meeting minutes, and
certain tax documents Mr. Kim admitted to signing in support. But none of those
documents were filed with a formal response to Mr. Kim’s Local Rule 56.1 statement
of material facts as required by Local Rule 56.1(b)(3).
Nevertheless, a reasonable juror could conclude from Plaintiff’s deposition
testimony alone—properly submitted by Mr. Kim with his Local Rule 56.1 statement
of facts—that Mr. Kim promised Plaintiff 30% of KNCI’s shares, and that any
testimony suggesting otherwise was due to Plaintiff’s confusion and the language
barrier. 7 Indeed, although some excerpts from Plaintiff’s testimony suggest that
Plaintiff understood that he would receive a portion of the amount of the Newspaper’s
purchase price after the sale, other excerpts suggest that Plaintiff believed that he
was promised 30% of KNCI’s shares, but that he would settle his breach of contract
claim for 30% of the purchase price. See, e.g., R. 82, Ex. A at 89 (Plaintiff’s deposition
testimony that “at this point it doesn’t mean anything for me to ask for [sic] ownership
share of 30 percent of the company. So as a form of restitution I would like to ask at

7

Plaintiff used the services of an interpreter throughout his deposition.
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least 30 percent in cash”); see also id. at 91 (additional deposition testimony that
“[t]he promise was that I have 30 percent right to Korea Times,” and that “[b]y rights
I am [sic] the rights to the operation and the ownership of the company; and because
that right has not been honored for me and that I was fired, I’m saying my right is at
least 30 percent of the purchase price of $500,000 at this point.”).
Further, in offering his “own version” of the parties’ agreement, Mr. Kim
necessarily acknowledges that there was some promise to compensate Plaintiff
beyond his salary, creating a genuine issue of fact regarding the nature of the terms
of that agreement. Mr. Kim offers no other argument in support of his motion.
Accordingly, it is denied as to the breach of contract claim against him.
Andrew Huh and Mrs. Kim. Huh and Mrs. Kim also seek summary judgment
on Plaintiff’s breach of contract claims, arguing that the evidence demonstrates that
Plaintiff had no contact with either of them before the consummation of the sale, and
therefore could not have promised him any share or other compensation for his work
as part of that sale. R. 84 at 11 and R. 87 at 11. Huh and Mrs. Kim each point to their
own affidavits, as well as Plaintiff’s deposition testimony and responses to their
requests to admit, in support. 8 See R. 83 ¶¶ 5, 7; R. 86 ¶¶ 5-6, 8. For his part, Plaintiff
repeats verbatim the arguments he made regarding Mr. Kim in response to Mr. Kim’s
motion. But because Plaintiff offers no evidence of any agreement between him and
either Huh or Mrs. Kim regarding any alleged promise that he become a shareholder

Huh also points to Plaintiff’s answer to one of Huh’s interrogatories, in which
Plaintiff stated that “Defendant Huh was not the one who personally offered him for
[sic] shares.” R. 86 ¶ 10 (citing R. 86, Ex. D ¶ 11).

8

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(and nor does he otherwise link the promises he contends Mr. Kim made to Huh or
Mrs. Kim), the Court grants both Huh’s and Mrs. Kim’s motions.
Conclusion
For the reasons stated, Mrs. Kim’s motion, R. 82, is granted, and each of Huh’s,
Mr. Kim’s and KNCI’s motions are granted in part and denied in part, R. 85; R. 88;
R. 91. Plaintiff’s cross-motion is also granted in part and denied in part. R. 99. Only
Plaintiff’s breach of contract claim against KNCI and Mr. Kim, and Plaintiff’s FLSA
and IMWL claims for his final week of employment against KNCI, Mr. Kim and Huh
remain.
ENTERED:

_______________________
Honorable Thomas M. Durkin
United States District Judge
Dated: January 29, 2020

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