IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

SEMIR D. SIRAZI, GREENSTONE )

CAPITAL, L.L.C., and MARDINI, INC., )

)

Plaintiffs, )

)

v. ) No. 12 C 653

)

GENERAL MEDITERRANEAN )

HOLDING, SA, ORIFARM, SA, )

and NADHMI AUCHI, )

)

Defendants. )

OPINION AND ORDER

Defendants' motion to reconsider in part the ruling dated March 5, 2015

(ECF 381) granting plaintiffs' motion to exclude any reference to advice of

counsel (ECF 329) is before the Court. Plaintiffs moved to exclude any testimony

that any lawyer told defendants that the Settlement Agreement was invalid or that

the transactions consisting of the acquisition of Anton Rezko's ownership interests

was permissible. The thrust of the motion centered on whether the requirements

for an "advice of counsel" defense were met. Reliance on a lawyer's opinion to

negate a mental state must be reasonable and in good faith. U.S. v. Philpot,

733 F.3d 734, 747 (7th Cir. 2013); Boehm, v. Zimprich, ___ F. Supp. 3d ___,
2014 WL 7217380 *8 (W.D. Wis. Dec. 17, 2014). Based on certain admitted facts

it appeared that the full disclosure requirements for such a defense could not be

shown. See U.S. v. Van Allen, 524 F.3d 814, 823 (7th Cir. 2008).

However, in the reconsideration motion, defendants assert that in this

case the opinions of attorneys that were expressed to them are still admissible. It

is argued that the legal opinions the defendants received are relevant to issues of

punitive damages and the intentional tort causes of action requiring that plaintiffs

prove that defendants acted with the requisite intent. Tortious interference with

contract, civil conspiracy, and aiding and abetting fraud involve a showing of

intentionality. Defendants are correct that it has been held that legal advice and

opinions do bear on the issue of intentionality in such claims. In Independence

Tube Corp. v. Copperweld Corp., 691 F.2d 310, 324-25 (7th Cir. 1982), rev'd on

other grounds, 469 U.S. 827 (1984), the Seventh Circuit held that reliance on the

advice of counsel was a factor but not a complete defense in an action for tortious

inducement of breach of contract. Similarly, in Howard v. S.E.C., 376 F.3d 1136,

1147 (D.C. Cir. 2004), the Court stated that "reliance on the advice of counsel

need not be a formal defense; it is simply evidence of good faith, a relevant

consideration in evaluating a defendant's scienter." See also Freightquote.com,

- 2 -
Inc. v. Hartford Cas. Ins. Co., 397 F.3d 888, 894 (10th Cir. 2005) (advice of

counsel is relevant to intent but, in that case, did not overcome inferences from the

totality of circumstances).

After consideration of the parties' arguments it is concluded that the

defendants should be allowed to introduce evidence of any legal opinions they

received before acquiring Rezko's interests. Plaintiffs will be given the

opportunity to introduce any evidence that bears on the credibility of any such

opinions or reliance. Accordingly, defendants' request to exclude such evidence

will be denied.

IT IS THEREFORE ORDERED that defendants' motion to reconsider

(ECF 401) is granted part and denied in part. On reconsideration, plaintiffs'

motion in limine (ECF 329) is denied.

ENTER:

 

UNITED STATES DISTRICT JUDGE

DATED: MAY 12, 2015

- 3 -