Bill A. Busbice Jr. v. Adrian Vuckovich et al

Filing 240

MEMORANDUM Opinion signed by the Honorable Andrea R. Wood on 11/30/2018. Mailed notice(ef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BILL A. BUSBICE, JR., et al.,
Plaintiffs,
v.
ADRIAN VUCKOVICH, et al.,
Defendants.

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No. 17-cv-01640
Judge Andrea R. Wood

MEMORANDUM OPINION
Plaintiffs Bill A. Busbice, Jr., Ollawood Productions, LLC (“Ollawood”), and Ecibsub,
LLC (“Ecibsub”) have sued Defendants Adrian Vuckovich and the law firm of Collins, Bargione
& Vuckovich (“CBV”) alleging that those Defendants conspired with others to defraud Plaintiffs,
aided and abetted a fraud perpetrated against Plaintiffs, and were negligent and breached their
fiduciary duties in connection with their legal representation of another entity, Luxe One, Inc.
(“Luxe One”). Now before the Court are the parties’ cross-motions for summary judgment (Dkt.
Nos. 126, 143, 145), as well as Plaintiffs’ motions asking the Court to take judicial notice of
certain documents and facts related to the criminal proceedings against Defendants’ purported coconspirators (Dkt. No. 131) and to strike portions of Defendants’ submissions in support of their
motion for summary judgment (Dkt. No. 161, 170). This opinion addresses the portions of those
motions directed toward Plaintiffs’ civil conspiracy and aiding and abetting claims. For the
reasons explained below, neither side is entitled to summary judgment on those claims.
BACKGROUND
In April 2013, Gerald Seppala approached Busbice regarding an opportunity to invest in
the film “Made in America” and introduced him to James David Williams. (Defs.’ Resp. to Pls.’

Local R. 56.1(a)(3) Stmt. of Material Facts for Summ. J. No. 1 (“DRPSOMF 1”) ¶ 7, Dkt. No.
164.) The investment was accomplished through the purchase of membership units in Visions,
LLC, the film’s project management, development, and financing entity. (Id. ¶ 8.) Williams
promised to invest $500,000 of his own money if Busbice committed to investing the same
amount; Seppala and Williams then provided various documents purporting to confirm the
transfer of funds by Williams for the deal. (Id. ¶¶ 9, 11, 12.)1 In reality, however, Williams did not
transfer any funds. (Id. ¶ 14.)2 None the wiser, on April 26, 2013, Busbice wired $500,000 in
investment funds through Ecibsub3 in reliance on the representation that Williams had already
wired his funds. (Id. ¶ 13.)
That same day, $450,000 of the funds wired by Busbice were transferred to an account
held in the name of Legacy Film Crest, LLC (“Legacy Account”). (Id. ¶ 15.) Williams then
withdrew $112,525 in the form of cashier’s checks from the Legacy Account, including checks
for $37,500 payable to Steven J. Brown and $50,000 payable to the Noble Group. (Id. ¶ 16.) The

1

In their response to Plaintiffs’ statement of material facts, Defendants object to the evidence cited in
support of these facts as inadmissible hearsay and lacking foundation. But evidence relied upon for
summary judgment need not be admissible in its present form so long as the underlying facts can later be
presented in admissible form. See Olson v. Morgan, 750 F.3d 708, 714 (7th Cir. 2014); see also Hardrick
v. City of Bolingbrook, 522 F.3d 758, 761 (7th Cir. 2008). Plaintiffs here rely on Busbice’s declaration and
emails received by Plaintiffs, for which Plaintiffs likely would be able to lay foundation at trial. (See, e.g.,
Decl. of Bill A. Busbice ¶¶ 7, 9, 10, Dkt. No. 123.) Moreover, the referenced emails are not offered for the
truth of the matter asserted—rather, they are offered to show the effect the emails had on Busbice and to
show why he proceeded with his investments. The contents of the e-mails are also potentially admissible as
statements by Defendants’ co-conspirators. See Fed. R. Evid. 801(d)(2)(E). Therefore, Defendants’
objections are unavailing.
2

For various instances when Plaintiffs rely on records of the subject transactions to support their assertions
regarding the money trail, Defendants do not dispute the facts but nonetheless object to the underlying
evidence as hearsay and lacking foundation. The Court rejects these objections, as Plaintiffs rely on,
among other things, bank records for which Plaintiffs likely would be able to establish foundation at trial
(see, e.g., Decl. of Paul Gale ¶ 30, Dkt. No. 122) and which likely fall under the business-records exception
to the hearsay rule. See Fed. R. Evid. 803(6).
3

Busbice is the sole member of Ollawood and one of the members of Ecibsub. (DRPSOMF 1 ¶¶ 2, 3.)

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checks to Brown and the Nobel Group were deposited into CBV’s retainer account (“CBV
Dowling Account”). (Id. ¶¶ 16, 18.) Vuckovich is a partner in CBV. (DRPSOMF 1 ¶ 5.)
Vuckovich and CBV had a long-standing relationship with Brown and represented him in various
matters. (Defs.’ Resp. to Pls.’ Local R. 56.1(a)(3) Stmt. of Material Facts for Summ. J. No. 2
(“DRPSOMF 2”) ¶ 26, Dkt. No. 165.) According to Vuckovich, CBV considered the Noble
Group and Brown to be the same. (DRPSOMF 1 ¶ 17.) Moreover, Vuckovich has testified that, in
his opinion, some people prefer to conduct their financial affairs through a lawyer, rather than
using their personal accounts, regardless of whether the funds concern legal matters. (Id. ¶ 35.)
On May 7, 2013, Williams withdrew another $50,000 from the Legacy Account in the
form of a cashier’s check payable to the Noble Group, which was then deposited in the CBV
Dowling Account on May 29, 2013. (Id. ¶ 19.) On May 28, 2013, Vuckovich wrote a $75,000
check drawn on the CBV Dowling Account and payable to Stuart Manashil. (Id. ¶ 20.) And on
June 24, 2013, Vuckovich wrote a $50,000 check from CBV Dowling Account that was then
deposited into CBV’s client trust account (“CBV Trust Account”). (Id. ¶ 21.) The same day,
Vuckovich signed a $50,000 check from CBV Trust Account to Manashil. (Id.)
In June 2013, Williams approached Busbice regarding another investment opportunity—
one that involved making a prints and advertising (or “P&A”) loan for publicizing the film “The
Letters” arranged through Luxe One. (Id. ¶ 22.) Busbice organized Ollawood, with himself as the
sole member and manager, for the purpose of investing in Luxe One. (Id. ¶ 23.) Williams
provided Busbice and his lawyer with the term sheet for the deal, which Williams signed on Luxe
One’s behalf. (Id. ¶ 24.) The term sheet reflected that Williams had already advanced $2,000,000
to Luxe One and had obtained a $6,000,000 payment from another investor. (Id.) Later, Williams
provided further evidence of his and the other investor’s deposits even though, in reality, no such

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deposits had been made. (Id. ¶¶ 25–26.) On July 3, 2013, in reliance on those representations,
Busbice wired $2,000,000 to an account associated with Luxe One (“Luxe One 2939 Account”).
(Id. ¶ 26.)
On July 12, 2013, Williams withdrew $100,000 from the Luxe One 2939 Account in the
form of a cashier’s check payable to the Noble Group. (Id. ¶ 27.) Vuckovich then attempted to
deposit that check into the CBV Trust Account, purportedly out of convenience. (Id. ¶ 29.) And
on July 23, 2013, he succeeded in depositing the check into a personal checking account that he
held jointly with his wife, writing “Attorney” on the deposit slip next to his name. (Id. ¶ 28.) Two
days later, Vuckovich issued from his personal account a $12,000 cashier’s check payable to
Associated Bank, which according to Vuckovich was urgently needed by Brown and his brother
to complete the refinancing of a house. (Id. ¶¶ 30, 31.) On July 29, 2013, Vuckovich caused three
checks to be issued totaling $100,000: a cashier’s check for $88,000 from his personal account
payable to Manashil, a check for $2,500 from CBV’s operating business account payable to
Manashil, and a check for $9,500 from the CBV Trust Account also payable to Manashil. (Id.
¶ 33.) Vuckovich has testified that he did what he was asked to do—not necessarily what he
wanted to do—regarding the handling of those checks. (Id. ¶ 34.)
In October 2013, Williams approached Busbice regarding yet another investment
opportunity—this time, a P&A loan for the film “Angels Sing.” (Id. ¶ 36.) Busbice’s attorney
requested confirmation that Williams had deposited his own funds for the deal and received an email from Williams’s attorney with a bank statement reflecting the deposit. (Id. ¶ 40.) But again,
the deposit had never actually taken place. (Id. ¶ 41.) On October 30, 2013, in reliance on the
representation that Williams had already invested his own funds, Busbice wired $2,000,000 from
Ollawood to an account associated with the deal (“Moment Factory Account”). (Id.) On

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November 1, 2013, $50,000 was transferred from the Moment Factory Account to an account for
Luxe One (“Luxe One 1572 Account”). (Id. ¶ 42.) Three days later, Brown wrote a cashier’s
check from the Luxe One 1572 Account in the amount of $50,000 and payable to CBV; that
check was then deposited into the CBV Trust Account on November 13, 2013. (Id. ¶ 43.) On
November 25, 2013, another $50,000 was transferred from the Moment Factory Account to the
Luxe One 1572 Account. That same day, a cashier’s check in the amount of $50,000 payable to
CBV was drawn on the Luxe One 1572 Account; the check was deposited into the CBV Trust
Account on December 4, 2013. (Id. ¶ 44.)
In November 2013, Williams presented Busbice with an opportunity to make further
investments relating to “The Letters.” (Id. ¶ 45.)4 Busbice’s attorney then requested confirmation
that other investors had contributed to the deal and proof of the aggregate funding sum; Williams
and his attorney provided supporting documents in response. (Id. ¶¶ 48, 49.)5 On January 2, 2014,
Busbice wired $4,000,000 through Ollawood to the Luxe One 2939 Account. (Id. ¶ 50.) The next
day, $50,000 was transferred from the Luxe One 2939 Account to the Luxe One 1572 Account.
(Id. ¶ 51.) On January 6, 2014, a $38,000 cashier’s check payable to CBV was drawn on the Luxe
One 1572 Account; the check was then deposited into the CBV Trust Account on January 9,
2014. (Id. ¶ 52.) On February 3, 2014, a $138,000 check payable to Manashil was issued from the
CBV Trust Account. (Id. ¶ 53.)
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Defendants again do not dispute the facts but object to the underlying evidence as hearsay and lacking
foundation. The objections are not well-founded—the statements are supported by Busbice’s declaration
and, in any case, the out-of-court statements are not offered for the truth of the matter asserted but rather to
show the effect on Busbice and why he proceeded with his investments.

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Yet again, Defendants object to the cited evidence as hearsay and lacking foundation. But Plaintiffs rely
on the declaration of an attorney who represented Busbice in the deal and emails and banking records sent
to that attorney. (See, e.g., Decl. of Michael D. Friedman ¶¶ 5–7, Dkt. No. 124.) Moreover, the underlying
emails are not offered for the truth of the matter asserted—rather, they are used to show the effect on
Busbice and his attorney and why they proceeded with the investments.

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On January 27, 2014, Brown caused a $75,000 cashier’s check to be issued from the Luxe
One 1572 Account payable to CBV; the check was deposited into the CBV Trust Account on
February 3, 2014. (Id. ¶ 54.) On April 11, 2014, $25,000 was transferred from the Moment
Factory Account to the Luxe One 1572 Account. (Id. ¶ 55.) Three days later, Brown caused a
$25,000 cashier’s check payable to CBV to be drawn on the Luxe One 1572 Account; the check
was deposited into the CBV Trust Account on April 24, 2014. (Id. ¶ 56.)
For all the above-described deals, Busbice was represented by counsel. (Id. ¶¶ 10, 23, 38,
47.) That counsel conducted some due diligence on the deals. (Pls.’ Local R. 56.1(b)(3)(B) Resp.
to Defs.’ Local R. 56.1(a)(3) Stmt. of Material Facts (“PRDSOMF”) ¶¶ 7–12, Dkt. No. 151.) In
May 2014, Busbice learned that the investment opportunities were shams and demanded that his
funds be returned to no avail. On April 23, 2014, the Luxe One 1572 Account, the Luxe One 2939
Account, and the Moment Factory Account were frozen by the bank holding those accounts.
(DRPSOMF 1 ¶¶ 58, 59.)6
In June 2014, CBV began representing Brown, Seppala, Williams, Legacy, and Luxe One
in a lawsuit filed against them by Busbice, Busbice, et al. v. Williams, et al., No. 2:14-cv-4077PA-AJW (C.D. Cal.) (“Busbice I”). (Id. ¶ 60.) By June 3, 2014, Vuckovich received the Busbice I
complaint, which alleged that Brown, Williams, and Seppala defrauded Busbice through the
intentional falsification of financial documents, lies, and material misrepresentations. (Id.) Around
June 2014, CBV also had some involvement on behalf of Luxe One in an arbitration against Big
Screen Partners V, Ltd., which alleged that Williams had comingled and misappropriated funds of
Luxe One and other entities. (Id. ¶ 61.) Around July 3, 2014, Vuckovich received a letter
6

Defendants object to the evidence cited by Plaintiffs as hearsay and lacking foundation. But Plaintiffs
rely on Busbice’s declaration, an opinion from Plaintiffs’ expert, and underlying bank records, for which
Plaintiffs should be able to lay a foundation at trial and which potentially fall under the business records
exception to the hearsay rule. (See, e.g., Decl. of Paul L. Gale ¶¶ 30, 31, 33, 35, 37, 42, 43, 48; Decl. of
Michael D. Friedman ¶ 8.) The Court finds this support sufficient for present purposes.

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addressed to Williams from an attorney representing Left Behind Investments—the producer of
the film “Left Behind” in which Busbice had invested—alleging that Williams committed fraud.
(Id. ¶ 62.)
In August 2014, Vuckovich executed documents to transfer ownership of a condominium
located in California to a newly-formed entity for which Vuckovich was the sole manager and
Astrid Montgomery, Brown’s fiancée, was the sole member. (Id. ¶¶ 63, 64.) On August 26, 2014,
a $100,000 check signed by Vuckovich and payable to Manashil was issued from the CBV Trust
Account. That check purportedly related to the transfer of title for the condominium. (Id. ¶ 57.)
Vuckovich later testified that some of the checks deposited through the CBV Trust Account and
the CBV Dowling Account were for Brown’s personal purchase of the condominium from
Manashil and that the property was put in Montgomery’s name as a symbolic gesture to show
Montgomery’s family that Brown was not interested in her money. (Id. ¶ 64.)
In 2017 and 2018, Williams, Seppala, Manashil, and Brown pleaded guilty to various
criminal charges relating to the film investments described above. (Id. ¶¶ 65–69.)7 In the present
civil case, Plaintiffs now seek to hold Vuckovich and CBV accountable for their alleged
involvement in the fraud. In their Second Amended Complaint, Plaintiffs assert claims against
Defendants for an alleged civil conspiracy to defraud Plaintiffs and to convert and fraudulently
transfer Plaintiffs’ investment funds (Count I), the purported aiding and abetting of those actions
(Count II), imposition of a constructive trust for certain funds held by Defendants (Count III),
negligence (Count IV), and breach of fiduciary duty (Count V).

7

Defendants do not dispute that the guilty pleas were entered. As the Court does not need to rely on the
facts underlying the pleas to decide the dispositive motions presently before it, Plaintiffs’ motion to take
judicial notice (Dkt. No. 131) is denied as moot.

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DISCUSSION
Summary judgment is appropriate if the record, viewed in the light most favorable to the
non-moving party, shows that there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Hardrick v. City of
Bolingbrook, 522 F.3d 758, 761 (7th Cir. 2008). A genuine issue of material fact exists if a
reasonable jury could find in favor of the nonmoving party. Insolia v. Philip Morris, Inc., 216
F.3d 596, 599 (7th Cir. 2000). “When, as here, cross-motions for summary judgment are filed,
[the court] must look to the burden of proof that each party would bear on an issue of trial; [the
court] then require[s] that party to go beyond the pleadings and affirmatively to establish a
genuine issue of material fact.” Diaz v. Prudential Ins. Co. of Am., 499 F.3d 640, 643 (7th Cir.
2007) (citing Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997)). Cross-motions
also must be viewed separately in the sense that for each motion, factual inferences are viewed in
the nonmovant’s favor. See Hotel 71 Mezz Lender LLC v. Nat'l Ret. Fund, 778 F.3d 593, 603 (7th
Cir. 2015).
I.

Underlying Fraud

The Court begins by considering the purported fraud, which serves as the basis for both
Plaintiffs’ conspiracy and aiding and abetting claims. Under Illinois law, the elements of common
law fraud are: (1) a false statement of material fact; (2) the defendant’s knowledge that the
statement was false; (3) the defendant’s intent that the statement induce the plaintiff to act; (4) the
plaintiff’s reliance upon the truth of the statement; and (5) damages to the plaintiff resulting from
the plaintiff’s reliance on the statement. Connick v. Suzuki Motor Co., 675 N.E.2d 584, 591 (Ill.
1996).

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Defendants argue that Plaintiffs cannot prove the reliance element of the underlying fraud
because Plaintiffs relied not on the purportedly false statements by Defendants’ co-conspirators
but instead on the counsel who represented them in their investment transactions. But the fact that
Plaintiffs were represented by counsel who conducted some due diligence for the deals does not
foreclose the possibility that Plaintiffs reasonably relied on the purported false statements.
Moreover, the record evidence that Defendants cite in support of their arguments does not support
their assertion that Plaintiffs did not rely on the fraudulent statements—it simply indicates that
Plaintiffs were represented by counsel and the counsel did some due diligence on the deals. (See
PRDSOMF ¶¶ 6–12.) Despite Defendants’ suggestion to the contrary, the record contains
sufficient support for a reasonable jury to find that Plaintiffs relied on the purportedly false
statements even though they were represented by counsel, as Busbice describes various
representations made by Defendants’ purported co-conspirators and how he relied on those
statements. (See, e.g., Decl. of Bill A. Busbice ¶¶ 7–11, 13–15, 17–20, 22–24, Dkt. No. 155.)
II.

Conspiracy

Having established that Plaintiffs have adduced sufficient evidence of an underlying fraud,
the Court next turns to the remaining requirements for Plaintiffs’ conspiracy claim. To succeed on
a civil conspiracy claim under Illinois law, a plaintiff must establish the existence of an agreement
between persons for the purpose of accomplishing an unlawful purpose (or a lawful purpose by
unlawful means) and at least one tortious act by one of the co-conspirators in furtherance of the
agreement that caused an injury to the plaintiff. See McClure v. Owens Corning Fiberglas Corp.,
720 N.E.2d 242, 258 (Ill. 1999). The agreement is an important and necessary element of a civil
conspiracy claim. Id. Civil conspiracy is an intentional tort. As such, the defendants must have
knowingly and voluntarily participated in a scheme. Accidental, inadvertent, or negligent

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participation is not enough. Id. Nor is mere knowledge of the fraudulent or illegal actions. Id.
Moreover, innocent performance of acts that fortuitously further the tortious purpose of another is
not enough to show participation in a civil conspiracy. Id. But defendants who understand the
general objectives of a scheme, accept the objectives, and agree implicitly or explicitly to do their
part to further those objectives may be held liable. Id.
Here, Defendants argue that the purported false statements upon which Plaintiffs claim to
have relied had nothing to do with Defendants or their bank accounts. In making this argument,
however, Defendants misconstrue the nature of Plaintiffs’ conspiracy claim. “The civil conspiracy
theory [of liability] has the effect of extending liability for a tortious act beyond the active
tortfeasor to individuals who have not acted but have only planned, assisted, or encouraged the
act.” McClure, 720 N.E.2d at 258. Thus, to hold Defendants responsible under a theory of civil
conspiracy, it is not necessary for Plaintiffs to show that they relied on Defendants’ own
statements or that the underlying fraudulent statements concerned Defendants themselves or their
banking accounts. Rather, Plaintiffs need only show that Defendants “planned, assisted, or
encouraged” a fraud committed by others.
Defendants further contend there is no evidence they agreed to work for the purpose of
defrauding Plaintiffs, as they did not even know Plaintiffs until Busbice I was filed8 and thus

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In support of their summary judgment motion, Defendants filed a statement of material facts in which
they assert, without citation to record evidence, that Vuckovich had no knowledge of Busbice until Busbice
I was filed. (See PRDSOMF ¶ 19.) When Plaintiffs moved to strike that portion of the statement,
Defendants responded by citing Vuckovich’s testimony as well as Busbice’s testimony that he had no
knowledge of Vuckovich. (Defs.’ Resp. to Pls.’ Mot. to Strike at 5, Dkt. No. 173.) But Vuckovich’s
testimony does not support the assertion that Vuckovich did not know Busbice; it simply discusses the
timing of Vuckovich’s receipt of the Busbice I complaint and that Vuckovich did not do much
investigating of the underlying facts. (See Ex. 4 at 83–86, 105–106, Dkt. No. 141-4.) Even if Vuckovich
were to testify that he did not know Busbice until Busbice I was filed, a reasonable jury could find
Vuckovich’s testimony to lack credibility in light of the multitude of transactions in which he was involved
and other record evidence. This Court further notes that it has not relied on statements that are the subject
of Plaintiffs’ motion to strike in reaching its decision here.

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could not have agreed to defraud them. But conspiracies are secretive by nature and thus almost
never susceptible to direct proof. See id. Instead, conspiracies are most often established by
circumstantial evidence, inferences drawn from such evidence, and common-sense knowledge of
behavior of individuals in similar situations. See id. In the present case, while Plaintiffs have not
adduced direct proof that Defendants agreed to defraud Plaintiffs, they have put forward enough
circumstantial evidence for a reasonable jury to find that such an agreement existed. As described
above, Defendants received and issued multiple checks that helped to convert Busbice’s
investments into checks to Manashil. Not only were various CBV accounts involved, but
Vuckovich also tapped into his personal account when an attempted deposit to CBV’s account did
not work. Furthermore, a reasonable jury could conclude that the financial transactions did not
stop even after Vuckovich had notice that something fishy was going on with his clients. The
record also suggests that Vuckovich had a close relationship with at least some of the participants
of the underlying scheme. Cf. Terrell v. Childers, 920 F. Supp. 854, 866 (N.D. Ill. 1996) (denying
defendants’ motion for summary judgment because a reasonable factfinder could infer
conspiratorial agreement from, inter alia, the defendant’s intimate relationship with other
defendants regarding the plaintiffs’ financial affairs). Therefore, Defendants’ argument that they
are entitled to summary judgment on the conspiracy claim because Plaintiffs cannot show a
genuine dispute of material fact fails.
Plaintiffs, however, seek not just to prevent the imposition of summary judgment against
them on their conspiracy claim but also to obtain summary judgment in their favor. They contend
that a reasonable jury would be compelled to conclude that a conspiratorial agreement existed due
to the undisputed evidence of Defendants’ banking deposits and withdrawals, the lack of sensible
explanations for such transactions, and the fact that such deposits and withdrawals created

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needless transactional complications. Under Plaintiffs’ view, Defendants were, at best,
deliberately avoiding knowledge of the illegal nature of the scheme. See Terrell, 920 F. Supp. at
866 (noting that “[the defendant] cannot escape liability for mail and wire fraud schemes by
deliberately avoiding knowledge of the illegal nature of the schemes”) (citing United States v.
Diaz, 864 F.2d 544, 549–50 (7th Cir. 1988)). However, when viewed in the light most favorable
to Defendants, the record raises genuine issues of material fact regarding whether Defendants
agreed to defraud Plaintiffs or fraudulently to transfer their funds, as well as whether and to what
extent Defendants understood the general objectives of the purported scheme (at least prior to the
filing of Busbice I) and accepted those objectives. As a result, Plaintiffs are not entitled to
summary judgment in their favor on the conspiracy claim.
III.

Aiding and Abetting

The Court next examines Plaintiffs’ aiding and abetting claim. In Illinois, a claim for
aiding and abetting another tortfeasor’s conduct must satisfy the following elements: (1) the aided
party must perform a wrongful act that causes an injury, (2) the defendant must be regularly aware
of his role as part of the overall or tortious activity at the time he provides the assistance, and (3)
the defendant must knowingly and substantially assist the principal violation. Thornwood, Inc. v.
Jenner & Block, 799 N.E.2d 756, 767 (Ill. App. Ct. 2003); see also Hefferman v. Bass, 467 F.3d
596, 601 (7th Cir. 2006).
Defendants argue that Plaintiffs’ evidence is insufficient to show that they knew about the
scheme to defraud Plaintiffs and thus they could not have been regularly aware of their role or
knowingly assisted the principal violation. But, as discussed above, when viewed in the light most
favorable to Plaintiffs, there is enough evidence for a reasonable jury to conclude that Defendants
had the required knowledge and knowingly assisted in transferring fraudulently obtained funds.

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Also as discussed above, issues of material facts exist as to what and when Defendants knew
about the underlying scheme. Thus, summary judgment is not appropriate in favor of either
Defendants or Plaintiffs on the aiding and abetting claim.9
CONCLUSION
For the reasons discussed above, Plaintiffs’ motion for summary judgment on their claims
for civil conspiracy and aiding and abetting (Dkt. No. 143) is denied. In addition, Defendants’
motion for summary judgment (Dkt. No. 126) is denied with respect to Plaintiffs’ conspiracy and
aiding and abetting claims, with the remainder of Defendants’ motion taken under advisement for
ruling by separate order along with Plaintiffs’ motion for summary judgment on their claims for
negligence and breach of fiduciary duty (Dkt. No. 145).

ENTERED:

Dated: November 30, 2018

__________________________
Andrea R. Wood
United States District Judge

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Defendants’ motion to dismiss Plaintiffs’ conspiracy and aiding and abetting claims pursuant to Federal
Rule of Civil Procedure 12(b)(6) (Dkt. No. 51) is also denied. When this case was transferred to this
District, the portion of Defendants’ motion to dismiss directed toward the adequacy of the pleading of
Plaintiffs’ conspiracy and aiding and abetting claims remained pending. In the interest of clarity and
completeness, the Court expressly finds that Plaintiffs’ Second Amended Complaint contains sufficient
allegations, when viewed in the light most favorable to Plaintiffs, to meet even the heightened pleading
standard of Federal Rule of Civil Procedure 9(b). See Borsellino v. Goldman Sachs Grp., Inc., 477 F.3d
502, 507 (7th Cir. 2007). Specifically, the Second Amended Complaint alleges who participated in the
underlying fraud and larger conspiracy, how the scheme was carried out, where it took place, and what
Defendants did to aid and abet the scheme. (See, e.g., Second Am. Compl. ¶¶ 1–5, 8, 26–33, 37–41, Dkt.
No. 21.)

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