Zillges v. Kenney Bank & Trust et al

Filing 34

DECISION AND ORDER signed by Judge Lynn Adelman on 6/4/14 granting 13 Zillgess motion for leave to file a first amended complaint. Further ordering that the defendants motion to dismiss 8 is GRANTED IN PART and DENIED IN PART. Zillgess negligen ce claim is dismissed. Further ordering that Zillgess 31 motion for leave to file a reply brief is GRANTED. Finally ordering that Zillgess 26 motion for leave to file a second amended complaint is DENIED on the ground that the proposed amendments would be futile. (cc: all counsel) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
NICHOLAS ZILLGES,
Plaintiff,
v.

Case No. 13-C-1287

KENNEY BANK & TRUST, et al.,
Defendants.

DECISION AND ORDER
Nicholas Zillges has filed this action against Kenney Bank & Trust and several
affiliated companies and individuals. He alleges that the defendants terminated his
employment as the president and CEO of the bank because he complained internally and
to regulators about the defendants’ regulatory violations. He also alleges that he was not
paid compensation that he was owed at the time of his termination and that two of the
individual defendants defamed him. Before me now are the defendants’ partial motion to
dismiss the complaint for failure to state a claim upon which relief can be granted and
Zillges’s two motions to amend the complaint.
The motion to dismiss was initially directed to Zillges’s original complaint. In
response to that motion, Zillges filed his first motion for leave to file an amended complaint.
The proposed amended complaint corrects some of the defects identified in the
defendants’ motion and adds other allegations. The defendants do not oppose the first
motion for leave to amend and agree that the amendments have corrected some of the
defects identified in the motion to dismiss. However, they argue that even as amended
certain of Zillges’s claims must be dismissed. These are his claims for conspiracy to injure

business against certain defendants and for negligence. I address whether these two
claims should be dismissed below.
Zillges’s second amended complaint seeks to add a claim for violation of the
whistleblower-protection provision of the Dodd-Frank Wall Street Reform and Consumer
Protection Act. The defendants argue that this claim is futile and therefore oppose the
motion to amend. I address whether the claim is futile below.
I. BACKGROUND
The following facts are drawn from the allegations of the first amended complaint,
which I accept as true for purposes of resolving the present motions.
Kenney Bank and Trust is a single-location bank chartered in Illinois. Defendants
Thomas Tice, Jerry Gagerman, and Kris Axberg are directors of the bank. Axberg is the
bank’s treasurer.

Another defendant, iTeam Companies, Inc., is the bank’s sole

shareholder. Tice is a director of iTeam, as are defendants Kenneth Biel, Thomas
Anderson, and Robert Atwell. Axberg is the CFO and treasurer of iTeam. iTeam owns
85% of the stock of another defendant, iStream Financial Services, Inc. Biel is iStream’s
CEO, and Axberg is its treasurer.
At the time Zillges became Kenney Bank’s president and CEO, the bank was
classified as “troubled” and was being closely monitored by the FDIC. During his tenure
as president and CEO, Zillges observed conduct that violated federal banking laws,
including conduct of certain of the individual defendants. Zillges reported this conduct to
the bank’s board of directors, the FDIC, and the Federal Trade Commission. He also took
steps to prevent or correct the regulatory violations. The defendants did not like any of
this, and so they worked together to cause Kenney Bank to terminate Zillges’s
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employment. Zillges alleges that another reason the defendants decided to terminate his
employment was to prevent him from earning stock options.
II. DISCUSSION
A.

Conspiracy to Injure Business
Zillges alleges that all of the defendants conspired to injure him in his business or

profession.

See Wis. Stat. § 134.01.

The Wisconsin Worker’s Compensation Act

precludes Zillges from bringing a claim for conspiracy to injure business against his
employer or any other employee of his employer when the claim arises out of his
employment. See Mudrovich v. Soto, 238 Wis. 2d 162, 167–69 (Ct. App. 2000). Zillges
does not dispute that his claim arises out of his employment at Kenney Bank, and he
therefore concedes that he cannot bring a claim for conspiracy to injure business against
Kenney Bank or any of the individual defendants in their capacities as officers or directors
of Kenney Bank. Defendants, in turn, concede that the Worker’s Compensation Act does
not preclude Zillges from pursuing his conspiracy claim against iTeam, iStream, Biel,
Anderson, and Atwell, as Zillges was not employed by those entities and those individuals
were not officers or directors of Kenney Bank. The issue is whether the Worker’s
Compensation Act precludes Zillges from pursuing his conspiracy claim against Tice, a
director of both Kenney Bank and iTeam, and Axberg, a director and officer of Kenney
Bank and an officer of iTeam.
Zillges contends that, under the “dual persona” doctrine, both Tice and Axberg are
liable for conspiracy despite their status as his employer. Under this doctrine, “[a]n
employer may become a third person, vulnerable to tort suit by an employee, if—and only

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if—he possesses a second persona so completely independent from and unrelated to his
status as employer that by established standards the law recognizes it as a separate legal
person.” Henning v. General Motors Assembly Div., 143 Wis.2d 1, 15 (1988) (internal
quotation marks omitted). The circumstances in which a dual persona will be found are
those in which the duality is “firmly entrenched in common law or equity” or where the
duality is one created by modern statute. Id. at 19.
The Wisconsin Court of Appeals has found the dual persona test satisfied in two
cases, both of which involved a plaintiff who was injured by a machine at work. In
Schweiner v. Hartford Accident and Indemnity Co., 120 Wis. 2d 344 (Ct. App. 1984), the
plaintiff was injured by a machine manufactured by a company named Universal. The
injury occurred during the course of the plaintiff’s employment with a company named
Thiem. After Universal manufactured the machine, it merged with Thiem. Thiem was the
surviving corporation and, by operation of statute, became the successor to all of
Universal’s liabilities. The Worker’s Compensation Act prevented the plaintiff from bringing
a tort suit against Thiem because Thiem was his employer and the injury occurred during
the course of employment. However, had Universal not merged with Thiem, the plaintiff
could have brought a tort suit against Universal for negligence in manufacturing the
machine.

The court determined that, under these circumstances, Thiem had two

personas.

The first was the plaintiff’s employer; the second was the successor to

Universal. The second persona arose because Universal’s “existence for the purposes of
assuming liability was engrafted by statute onto Thiem.” Id. at 354. The court held that
because Universal would not have been entitled to immunity under the Worker’s

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Compensation Act had the merger not occurred, Thiem, as the successor to Universal, was
not entitled to immunity.
In Rauch v. Officine Curioni, S.P.A., 179 Wis. 2d 539 (Ct. App. 1993), the plaintiff
was injured by a machine owned by Thomas Anderson. Anderson had leased the machine
to Badger Packaging, the plaintiff’s employer, and the plaintiff was injured while using the
machine in the course of his employment. Anderson was the president and CEO of
Badger Packaging and also owned 85% of the company’s stock. Anderson, as president,
CEO, and 85% owner of Badger, was the plaintiff’s employer and therefore immune from
suit by virtue of the Worker’s Compensation Act. However, the court determined that
Anderson had a separate legal persona as the owner and lessor of the machine that
injured the plaintiff, and that therefore he could be liable to the plaintiff “for furnishing
equipment that injures a user of that equipment.” Id. at 546.
In the present case, Zillges argues that Tice and Axberg have dual personas
because they were officers and/or directors of both Kenney Bank and iTeam. I agree.
Tice, director of Kenney Bank, is a distinct legal persona from Tice, director of iTeam.
Likewise, Axberg, director and treasurer of Kenney Bank, is a distinct legal persona from
Axberg, CFO and treasurer of iTeam. Both of these personas could have performed acts
in furtherance of the alleged conspiracy to injure Zillges’s business. To the extent their
iTeam personas performed such acts, Tice and Axberg would be liable for any resulting
injuries. However, Tice and Axberg could not be liable for any acts their Kenney Bank
personas performed in furtherance of the conspiracy, because those personas were
employers of Zillges and thus entitled to immunity under the Worker’s Compensation Act.

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The next question is whether Zillges has plausibly alleged that Tice and Axberg’s
iTeam personas participated in the conspiracy. Zillges alleges that, in furtherance of the
conspiracy, Tice and Axberg voted to terminate his employment. However, the act of
voting to terminate Zillges’s employment was performed by Tice and Axberg’s Kenney
Bank personas. Tice and Axberg, as officers or directors of iTeam, could not have
terminated Zillges’s employment, since officers and directors of iTeam have no authority
to terminate the president and CEO of Kenney Bank. Zillges contends that Tice and
Axberg were acting to benefit iTeam rather than Kenney Bank when they voted to
terminate him. However, even if this is true, the fact remains that an officer and/or a
director of iTeam could not have voted to terminate the president and CEO of Kenney
Bank. Therefore, Tice and Axberg’s iTeam personas could not have participated in the
vote to terminate Zillges.
Still, the complaint plausibly alleges that Tice and Axberg performed other acts in
furtherance of the conspiracy, and these acts could form the basis for liability not covered
by the Worker’s Compensation Act. With respect to Tice, the complaint alleges that he
“worked with Biel to secure Zillges’ termination.” First Am. Compl. ¶ 120. Both Tice and
Biel were members of the iTeam board of directors, and thus it is plausible that it was
Tice’s iTeam persona who worked with Biel in order to set the stage for a vote on Zillges’s
termination, even if it was Tice’s Kenney Bank persona who actually cast the vote to
terminate Zillges.

Similarly, the complaint alleges that Axberg “worked with other

Defendants to secure Zillges’s termination.” Id. ¶ 121. The “other defendants” include
iTeam and various members of the iTeam board. Thus, it is plausible that it was Axberg’s
iTeam persona who worked with these defendants to set the stage for a vote on Zillges’s
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termination. Accordingly, Zillges has stated plausible claims for conspiracy against Tice
and Axberg’s iTeam personas, and those claims will not be dismissed as barred by the
Worker’s Compensation Act.
B.

Negligence
Zillges includes a count in his complaint labeled “negligence,” which he brings

against Tice, Gagerman, and Axberg in their capacities as directors of Kenney Bank. First
Am. Comp. ¶¶ 134–40. In substance, however, the claim is one for breach of fiduciary
duty—specifically, breach of a director’s duty to treat each of the corporation’s
shareholders fairly. See, e.g., Joregensen v. Water Works, Inc., 246 Wis. 2d 614, 623–24
(Ct. App. 2001). However, no allegation in the complaint states or implies that Zillges was
a shareholder of Kenney Bank. Zillges contends that this does not matter because he was
terminated the day before the Kenney Bank board of directors was about to vote on
whether to approve his employment agreement, under which he would have been granted
300,000 stock options. First Am. Compl. ¶ 86. Zillges’s argument appears to be that a
director of a corporation owes a fiduciary duty to someone who is not a shareholder of the
corporation so long as that person might be granted an option to become a shareholder
at some point in the future. However, Zillges cites no cases that support this argument,
and he does not show that any corporate-law policy weighs in favor of holding that a
director of a corporation owes a fiduciary duty to a person who might be granted an option
to become a shareholder but who is not yet a shareholder. Therefore, I conclude that this
claim has no legal basis and must be dismissed.

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C.

Dodd-Frank Whistleblower Claim
The remaining matter is whether Zillges’s proposed second amended complaint

states a claim for relief under the whistleblower-protection provision of the Dodd-Frank
Wall Street Reform and Consumer Protection Act, 15 U.S.C. § 78u-6(h). The defendants
argue that it does not and that therefore the proposed amendment is futile. See Gen. Elec.
Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1085 (7th Cir. 1997) (stating that
amendment is futile when complaint, as amended, would fail to state a claim upon which
relief could be granted).
Dodd-Frank amended the Securities and Exchange Act of 1934 in certain respects.
It created a “bounty” program under which whistleblowers may receive financial awards
from the SEC for providing the SEC with information relating to violations of the securities
laws. See 15 U.S.C. § 78u–6(b). It also created a private cause of action to protect certain
whistleblowers from retaliation by their employers. Id. § 78u-6(h). This “whistleblower
protection” provision provides that no employer may discriminate against a whistleblower
for engaging in certain specified activities. Id.
Currently, there is a disagreement among federal courts on a matter of statutory
interpretation concerning the whistleblower-protection provision.

The disagreement

involves the interplay between the statutory definition of “whistleblower,” which is codified
at 15 U.S.C. § 78u-6(a)(6), and the protected actions listed in § 78u-6(h)(1)(A)(iii). The
definition states that “[t]he term ‘whistleblower’ means any individual who provides . . .
information relating to a violation of the securities laws to the Commission [i.e., to the SEC],
in a manner established . . . by the Commission.” Under this definition, a person must
provide information “to the Commission” in order to qualify as a whistleblower. However,
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some of the protected activities listed in § 78u-6(h)(1)(A)(iii)—which I will refer to as the
“third category of protected activities”—do not necessarily involve disclosures to the SEC.
For example, a disclosure under 18 U.S.C. § 1514A, which was enacted as part of the
Sarbanes-Oxley Act of 2002, is listed in the third category of protected activities. To make
such a disclosure, person does not need to provide information to the SEC; rather, it is
enough if the person provides information “to a person with supervisory authority over the
employee” or to someone else in the person’s company with authority to investigate
misconduct. 18 U.S.C. § 1514A(a)(1)©. Thus, under the literal text of Dodd-Frank, a
person could make a disclosure that appears to be protected yet fail to qualify as a
“whistleblower” within the meaning of the Act because the disclosure was not made to the
SEC. Some courts have reasoned that Congress could not have intended this result and
have concluded that a person who makes a disclosure that falls within the third category
is a “whistleblower” within the meaning of Dodd-Frank even if the disclosure was not made
to the SEC. See, e.g., Bussing v. COR Clearing, LLC, __ F. Supp. 2d __, No. 8:12-CV-238,
2014 WL 2111207, at *6–12 (D. Neb. May 21, 2014). Other courts have concluded that
a person is a “whistleblower” only if the disclosure was made to the SEC. See, e.g., Asadi
v. G.E. Energy (USA), L.L.C., 720 F.3d 620, 623–30 (5th Cir. 2013).1
In the present case, Zillges alleges that he made a disclosure that falls within the
third category of protected activities—namely, a disclosure protected by 18 U.S.C.

1

The SEC has adopted a rule under which a person who makes a disclosure falling
within the third category of protected activities is a whistleblower even if the disclosure was
not made to the SEC. See 17 C.F.R. § 240.21F-2(b)(1). Under cases such as Asadi, this
rule is invalid.
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§ 1513(e).

Section 1513(e) makes it a federal crime to interfere with a person’s

employment because that person has provided information to a law-enforcement officer
about the commission or possible commission of a federal offense. Zillges alleges that he
provided information to members of the FTC and the FDIC, who are law-enforcement
officers, about the defendants’ commission or possible commission of violations of certain
banking laws, namely, 18 U.S.C. §§ 1005 and 1007, and 12 U.S.C. § 5536. Second Am.
Compl. ¶¶ 116–18. Obviously, Zillges did not make these disclosures to the SEC, and so
he asks that I follow cases such as Bussing and hold that a person may qualify for
whistleblower protection under Dodd-Frank even if the person’s disclosure was not made
to the SEC. However, I need not take sides on the question of whether a person who does
not make a protected disclosure to the SEC is a whistleblower. This is so because Zillges
fails to meet one of the other requirements for qualifying as a whistleblower under DoddFrank—namely, that the disclosure “relat[e] to a violation of the securities laws.” 15 U.S.C.
§ 78u-6(a)(6). The banking laws that the defendants are alleged to have violated are not
“securities laws,” see 15 U.S.C. § 78c(a)(47), and cases such as Bussing do not suggest
that Dodd-Frank’s whistleblower protections extend to those who disclose violations or
possible violations of non-securities laws. Moreover, the only court to have addressed this
issue has concluded that, to be protected as a whistleblower under Dodd-Frank, the
plaintiff “must demonstrate that the disclosure at issue relates to a violation of federal
securities laws.” Nollner v. Southern Baptist Convention, Inc., 852 F. Supp. 2d 986, 994
(M.D. Tenn. 2012). Here, Zillges has not alleged or shown that his disclosure relates to
a violation of federal securities laws, and so he has not stated a claim under Dodd-Frank’s
whistleblower-protection provision regardless of whether that provision protects individuals
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who make disclosures to entities other than the SEC. Accordingly, Zillges’s motion for
leave to file a second amended complaint will be denied on the ground that the proposed
amendments would be futile.
III. CONCLUSION
For the reasons stated, IT IS ORDERED that Zillges’s motion for leave to file a first
amended complaint is GRANTED.
IT IS FURTHER ORDERED that the defendants’ motion to dismiss is GRANTED
IN PART and DENIED IN PART. Zillges’s “negligence” claim is dismissed.
IT IS FURTHER ORDERED that Zillges’s motion for leave to file a reply brief is
GRANTED.
FINALLY, IT IS ORDERED that Zillges’s motion for leave to file a second amended
complaint is DENIED on the ground that the proposed amendments would be futile.
Dated at Milwaukee, Wisconsin, this 4th day of June 2014.

s/ Lynn Adelman
_____________________
LYNN ADELMAN
District Judge

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