In the

United States Court of Appeals

For the Seventh Circuit

Nos. 08-1496, 08-1956 and 08-1971

GERHARD VON DER RUHR,

MARC VON DER RUHR, individuals,

and SEPTECH, INC., a Nevada Corporation,

Plaintiffs-Appellants,

Cross-Appellees,

v.

IMMTECH INTERNATIONAL, INC.,

Defendant-Appellee,

and

T. STEPHEN THOMPSON, GARY C. PARKS, et al.,

Defendants-Appellees,

Cross-Appellants.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 5335—Robert W. Gettleman, Judge.

ARGUED JANUARY 16, 2009—DECIDED JUNE 30, 2009
2 Nos. 08-1496, 08-1956 and 08-1971

Before BAUER, FLAUM and WOOD, Circuit Judges.

BAUER, Circuit Judge. Septech, Inc. sued Immtech, Inc.

for breach of a licensing contract between the two companies. Septech’s president, Gerhard Von der Ruhr, sued

Immtech for breaching an option contract that he held to

purchase Immtech stock. Von der Ruhr also sued three

Immtech officers, T. Stephen Thompson, Gary C. Parks,

and Rick L. Sorkin, for tortiously interfering with the

option contract. In ruling on two motions in limine, after

briefing and an evidentiary hearing, the district court

prohibited Von der Ruhr from presenting lay opinion

testimony about his expectation of Septech’s profits from

the licensing agreement and disallowed Septech’s lost

profits theory altogether because it lacked sufficient

evidentiary support.

As to the stock options, the district court reserved

judgment on defendants’ motion for judgment as a

matter of law; the jury found that Immtech breached

the option contract with Von der Ruhr and that the individual officers tortiously interfered with the contract. The

district court denied the defendants’ renewed motion for

judgment as a matter of law. Septech now appeals the

district court’s ruling on the motions in limine and the

Immtech officers appeal the denial of their motion or

renewed motion for judgment as a matter of law. Finding

no error, we affirm.
Nos. 08-1496, 08-1956 and 08-1971 3

I. BACKGROUND

A. The Sepsis Licensing Agreement

Gerhard Von der Ruhr founded several medical technology companies, including Immtech and Septech. Immtech

developed and patented a pharmaceutical product called

mCRP, a modified human protein, which Immtech

hoped could treat the disease sepsis. Septech claims that

through an assignment of rights from another of Von der

Ruhr’s companies, it received from Immtech an exclusive worldwide license for the mCRP patent, as well as

the right to purchase mCRP from Immtech, and the

right to the services of Dr. Potempa, Immtech’s Chief

Scientific Officer and the person who discovered the

mCRP technology. Septech claims that after Von der Ruhr

resigned from Immtech, Septech attempted to utilize

the licensing agreement to purchase mCRP from

Immtech in order to run clinical trials and that Immtech

did not honor the agreement. Septech believes that if the

agreement had not been breached, Septech would have

further developed and realized great profits from this

new drug. Whether Septech held rights to the original

licensing agreement and whether Immtech breached

that agreement are both disputed by the parties, but are

not at issue here. Rather, this appeal focuses on whether

Septech can prove lost profits damages if there was a

breach.

Through Von der Ruhr’s lay opinion testimony, Septech

intended to establish that if Immtech had fulfilled its

obligations, Septech would have entered into an agreement with a corporate partner, an undetermined major
4 Nos. 08-1496, 08-1956 and 08-1971

pharmaceutical company, that would have been responsible for the details and costs of conducting the necessary

clinical trials and walking the product through the FDA

clearance process. Von der Ruhr was to testify that under

the terms of the agreement that would have been negotiated, the corporate partner would be responsible for all

elements and costs of manufacturing and marketing the

drug and Septech would receive five percent of the

drug’s total sales. Von der Ruhr was to testify that, upon

being introduced to the market, this new drug would

have immediately captured, and for the next ten years

would have maintained, at least half of the gross revenue

of the only other drug to treat sepsis on the market at

the time, an Eli Lilly product called Xigris. Finally,

Septech intended for Von der Ruhr to testify that

Septech’s lost profits damages, discounted to their present

value, totaled $42 million.

The district court did not allow this testimony and

also precluded Septech’s lost profits theory.

B. Von der Ruhr’s Stock Options

Von der Ruhr held several options to purchase Immtech

stock, one of which was an option for 56,000 shares at

$.15 per share issued May 1, 1991 and to be exercised by

May 1, 2001. After a series of stock splits and reverse

stock splits, Immtech informed Von der Ruhr, and

Immtech documents indicate, that the option was for

24,390 shares at $.34 per share. The option could be exercised in whole or in part.
Nos. 08-1496, 08-1956 and 08-1971 5

On appeal, the officers claim that the correct exercise price

1

was $8,400, the original amount needed to exercise the 56,000

(continued...)

Von der Ruhr attempted to exercise the option in

April 2001. Together with a check, he sent a letter stating,

“Enclosed please find a check for $8292.60 to exercise

24390 options.” This comes out to $.34 per share. Upon

receiving the request, Parks, Immtech’s CFO, prepared a

letter to Immtech’s transfer agent instructing that the

stock be issued. However, that letter was never sent.

Instead it was marked, “Hold per TST [Thompson] &

Sorkin.” The officers claim that when they received Von

der Ruhr’s letter they consulted with Immtech’s attorneys because Von der Ruhr had filed a separate

lawsuit against Immtech a few days before they received

the redemption request, regarding a different set of

shares that Von der Ruhr claimed he had not received.

Parks informed Thompson and Sorkin that the correct

price was not $.34 per share, but $.3409594 per share for

a total of $8,316 and reported that Von der Ruhr’s check

was “technically . . . $23.40 short.” Toward the end of

June, Parks sent Von der Ruhr a letter, which Parks

claims was drafted by legal counsel, stating that Von der

Ruhr’s request “fails to identify exactly which options

you are intending to exercise” and asking him to clarify.

Parks admitted at trial that he knew which options Von

der Ruhr was trying to exercise. Parks’ letter continued

that if Von der Ruhr was intending to exercise the May 1,

1991 option, that the purchase price was $8,399.72. Parks 1
6 Nos. 08-1496, 08-1956 and 08-1971

(...continued) 1

shares, because the stock splits were all proportional adjustments that did not affect the substantive terms of the option.

returned Von der Ruhr’s check and the shares were

never delivered. Von der Ruhr never responded to the

request for clarification or sent another check, but that

fact is, at this point, not important. The jury found that

Immtech breached the option contract by not issuing

the stock and no one appeals that issue. For the purposes

of this appeal then, Von der Ruhr did everything necessary to exercise the option and was entitled to receive

the shares.

The district court did not disturb the jury’s verdict that

this constituted a breach of the option contract and that

the Immtech officers tortiously interfered with that contract.

II. DISCUSSION

On appeal, Septech argues that the district court erred

by prohibiting Von der Ruhr’s lay opinion testimony and

Septech’s lost profits theory. Immtech responds that it

was proper to prohibit the testimony and theory because

they lacked foundation. The Immtech officers cross-appeal,

claiming that the district court erred by denying

their motions for judgment as a matter of law, allowing

them to be personally liable for the tortious interference

claim. Von der Ruhr argues that he presented sufficient

evidence to support the jury’s verdict.
Nos. 08-1496, 08-1956 and 08-1971 7

Septech argues that the district court improperly evaluated 2

Von der Ruhr’s proposed opinion by the standards for expert

testimony and that we must evaluate this issue de novo. We

see no evidence that the district court confused the two standards. The court’s reasoning demonstrates that it was

keenly aware of the distinction between the requirements for

lay versus expert opinion testimony.

“We review [the] district court’s rulings on [the] motions

in limine for an abuse of discretion” because “decisions

regarding the admission and exclusion of evidence are

peculiarly within the competence of the district court.” Heft

v. Moore, 351 F.3d 278, 283-84 (7th Cir. 2003) (internal

quotations and citations omitted). We review the 2

district court’s denial of the officers’ motions for judgment as a matter of law de novo. Castellano v. Wal-Mart

Stores, Inc., 373 F.3d 817, 819 (7th Cir. 2004). Illinois

law governs the substantive legal issues in this diversity

action.

A. Lay Opinion Testimony

Septech attempts a difficult task in this case: (1) to prove

lost profits damages (2) in a complex market (3) from a

product that has never been sold (4) without any expert

testimony. And on appeal it is burdened with the additional weight of (5) proving that the district court’s decision on this issue was an abuse of discretion. Septech

argues that the district court improperly precluded Von

der Ruhr’s lay opinion testimony, which would have

provided proof on several elements of its lost profits
8 Nos. 08-1496, 08-1956 and 08-1971

theory. Immtech responds that the district court was

correct to prohibit the lay opinion testimony because it

was not grounded in personal knowledge or experience.

Federal Rule of Evidence 701 dictates that lay

testimony in the form of opinions or inferences [be]

limited to those opinions or inferences which are

(a) rationally based on the perception of the witness,

(b) helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue,

and (c) not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.

The last requirement is intended “to eliminate the risk

that the reliability requirements set forth in Rule 702 will

be evaded through the simple expedient of proffering an

expert in lay witness clothing.” Fed. R. Evid. 701 advisory

comm. nn.

In the realm of lost profits, lay opinion testimony is

allowed in limited circumstances where the witness

bases his opinion on particularized knowledge he possesses due to his position within the company. Id. For

example, the owner of an established business with a

documented history of profits may testify to his expectation of continued or expanded profits when that opinion is based on his “knowledge and participation in the

day-to-day affairs of [his] business.” Id. (quoting Lightning

Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d Cir. 1993)). This is

allowed “only because that testimony is tied to [the witness’] personal knowledge . . . .” Compania Administradora

de Recuperacion de Activos Administradora de Fondos
Nos. 08-1496, 08-1956 and 08-1971 9

de Inversion Sociedad Anonima v. Titan Int’l, Inc., 533 F.3d

555, 560 (7th Cir. 2008).

Von der Ruhr’s proposed testimony does not fit these

parameters. Rather, he intended to testify to his expectation of millions of dollars in profits from a brand new drug,

which had not been approved by the FDA, which still

needed a corporate partner, and for which no competitive

market analysis had been conducted. It is difficult to

imagine how anyone in this situation could possess the

necessary personal knowledge to give a useful lay

opinion based on his perception and it is clear that Von

der Ruhr did not have such knowledge.

Von der Ruhr had no personal experience with obtaining a corporate licensing agreement for a pharmaceutical or treatment of any kind, had never brought a

pharmaceutical to market, and had never made a profit

from a pharmaceutical. Septech has utilized licensing

agreements to commercialize two diagnostic tests, one to

measure blood sugar and the other to test for residual

alcohol. Because Von der Ruhr’s position with Septech

gives him a particularized knowledge about how Septech

utilizes licensing agreements, he might have been permitted to explain how a licensing model is designed to work

once a corporate partner is found. But Septech needed

evidence that a corporate partner would have been

found; the success of Septech’s diagnostic tools did not

give Von der Ruhr any insight into whether a major

pharmaceutical company would have entered into a

licensing agreement with Septech for this new sepsis drug.

When asked about his basis for believing that a major

pharmaceutical company would have wanted to take
10 Nos. 08-1496, 08-1956 and 08-1971

this new drug through the FDA clearance process, Von der

Ruhr replied that the drug was safe, effective, and had

a proven market. It is disputed as to whether the drug

was known to be safe and effective, but even if it was, that

did not give Von der Ruhr any personal experience with

finding a corporate partner for a new pharmaceutical that

had not been approved by the FDA. It may have been

possible to find such a partner, but Von der Ruhr cannot

testify to that out of his personal knowledge. Von der Ruhr

was confident that: “You can talk to anybody in the

pharmaceutical industry. They love to take technology

that has advanced to that point, absolutely.” Talking

with someone from the pharmaceutical industry who

was knowledgeable about this topic would have been

useful, but was not offered. Instead, the district court

was required to decide whether it should allow

Von der Ruhr to tell the jury how he believed the pharmaceutical industry would have responded to the opportunity to spearhead Septech’s new product.

Von der Ruhr also claimed to have “talked to a number

of investment bankers who have very good contacts to

the pharmaceutical industry who have always emphasized ‘bring me a product that we can take to clinical

trials, and we’ll establish a relationship.’ ” He claimed to

have talked with one prominent financial figure who is

well known in the pharmaceutical industry who told him

“that if you have a product that has shown safety and

efficacy, there will be enough corporate, potential corporate partners who would love to partner with you . . . .”

Again, this does not demonstrate personal knowledge of

the pharmaceutical industry or how it would have re-
Nos. 08-1496, 08-1956 and 08-1971 11

sponded to an offer to form a licensing agreement with

Septech to bring this new drug to market. Nor was Von

der Ruhr qualified to testify to how investment bankers

would have responded to the prospect of this new pharmaceutical—especially when Von der Ruhr never claimed

to have had any conversations about this product.

Again, Von der Ruhr did not have any particularized

knowledge of the market for a sepsis treatment or the

competition in that market. Septech claims that:

Septech already commercialized to [sic] tests and have

[sic] realized profits—through a licensing agreement.

Again, this is Mr. Von der Ruhr’s special, particularized and intimate knowledge of his company

licensing products to corporate partners for a profit.

Therefore, it is undeniable that Mr. Von der Ruhr

had personal and relevant knowledge regarding

the sepsis market and his competition, understood the

viability of the sepsis technology and had wellfounded expectations about the potential profits it

could generate.

We see no connection between Septech’s successful

development of two diagnostic tests and Von der Ruhr’s

personal knowledge of a completely independent market.

Furthermore, to support this claim of Von der Ruhr’s

personal knowledge of the sepsis market, Septech cites

only to a series of materials that Von der Ruhr read. While

experts are allowed to give testimony based outside of

their personal experience or observation, lay witnesses

are not. In Lightning Lube, 4 F.3d at 1175, the business

owner was permitted to rely in part on a report he
12 Nos. 08-1496, 08-1956 and 08-1971

created with the assistance of an accountant in determining his damages calculation. But his testimony was

also based on his “knowledge and participation in the dayto-day affairs of his business,” which had actually realized

profits. Id. at 1174-75. The Third Circuit affirmed the

district court’s conclusion that “in preparing a damages

report the author may incorporate documents that were

prepared by others, while still possessing the requisite

personal knowledge or foundation to render his lay

opinion admissible under Fed. R. Evid. 701.” Id. at 1175

(quoting 802 F. Supp. 1180, 1193 (D.N.J. 1992)).

In this case, Von der Ruhr had no first hand knowledge

of the sepsis market and would have relied entirely on

information he had been told or had read. “This is the kind

of testimony traditionally provided by an expert: ‘[I]t could

have been offered by any individual with specialized

knowledge of the [sepsis] market.’ ” Compania, 533 F.3d

at 560 (quoting United States v. Conn, 297 F.3d 548, 555

(7th Cir. 2002)). Von der Ruhr did not have any personal

knowledge or experience to contribute.

Von der Ruhr also lacked sufficient personal knowledge

to testify that Septech’s new drug would have captured

fifty percent of the gross revenues of Xigris and maintained

that market share for the ten-year life of the patent. The

level of speculation this testimony requires is demonstrated by the fact that Von der Ruhr’s damages calculation projects capturing fifty percent of the gross sales of

Xigris with no regard to the percentage of prescribed

sepsis treatment doses Septech’s drug would capture. Von

der Ruhr believed that one dose of Xigris cost the patient
Nos. 08-1496, 08-1956 and 08-1971 13

more than $10,000, but did not care what a dose of

Septech’s drug would have cost. The following

exchange took place at the evidentiary hearing:

Q. Do you have any personal knowledge of what it

would cost a patient for a single dosage of mCRP?

A. That would have been a question for the corporate

partner. They set the price.

Q. So you don’t know?

A. Well, that is immaterial. The corporate partner

would set the retail price. We wouldn’t. We

would get a 5 percent royalty fee.

It is difficult to understand how Von der Ruhr was qualified to opine that Septech’s corporate partner would

have sold at least $100 million worth (half of Xigris’ sales)

of this new drug each year without knowing or even

caring how many doses would have been administered

and at what cost per dose.

When asked for the basis of his fifty percent figure, Von

der Ruhr gave a concise, but unsatisfying answer: “Two

reasons, number one, the market has incredible potential.

Eli Lily [sic] has just scratched the surface. And, number

two, I believe that mCRP is a better product.” Von der

Ruhr never claimed to have conducted a real market

analysis for Septech’s new drug. The basis for his belief

that Septech had developed a better product than Xigris

is unclear, especially when Von der Ruhr admitted that

he did not know the patient requirements for prescribing

Xigris, the contraindicatations for prescribing Xigris, or

the side effects of Xigris (though he did remember
14 Nos. 08-1496, 08-1956 and 08-1971

We do not suggest, nor did the district court find, that 3

experts are required to prove lost profits damages, see TAS

Distributing Co. v. Cummins Engine Co., 491 F.3d 625, 634 (7th Cir.

2007); we merely observe that Von der Ruhr was not the

appropriate agent to introduce this evidence.

reading an article in the New England Journal of

Medicine about side effects). Neither did Von der Ruhr

explain how doctors or consumers would have immediately recognized that Septech’s product was better than

Xigris. But most importantly, even if Von der Ruhr could

have further defended his beliefs, it would not have

been through his personal knowledge or perception.

Instead of qualifying experts or conducting a true

market analysis, Septech offered Von der Ruhr’s testimony

for the proposition that if there is a $200 million per year

market that is shared by two companies and one

company has a “better product,” that company will

generate at least $100 million per year.3

Finally, Von der Ruhr demonstrated at the evidentiary

hearing that he had no knowledge, personal or specialized,

as to what other potential sepsis treatments were in the

developmental pipeline, or how their introduction

might affect the sepsis treatment market. Neither did

his analysis consider how Eli Lilly might have responded

to the introduction of Septech’s drug.

None of the cases Septech cites to in its brief help its

cause. In Compania, 533 F.3d at 560-61, the lay witness

was not permitted to present a valuation estimate even

though he had extensive experience in the industry
Nos. 08-1496, 08-1956 and 08-1971 15

because the proposed testimony was not based on his

relationship with the particular goods in question. The

business owner in Lightening Lube, 4 F.3d at 1174-75, had

realized actual profits from that business in the relevant

industry, giving him a basis for his expectation of continued and expanded profits. In Tampa Bay Shipbuilding &

Repair Co. v. Cedar Shipping Co., 320 F.3d 1213, 1216-23

(11th Cir. 2003), the lay witnesses were involved in the

details of repairing the ship in dispute and based their

testimony on “particularized knowledge garnered from

years of experience within the field.” In In re LTV Steel Co.,

285 B.R. 259, 264 (Bankr. N.D. Ohio 2002), it was undisputed that the proposed testimony was “rationally based

on the perception of the witness” according to Rule 701.

Finally, the rule in R.I. Spiece Sales Co. v. Bank One, N.A.,

No. 1:03-CV-175-TS, 2005 WL 3005484 (N.D. Ind. Nov. 9,

2005), goes against permitting Von der Ruhr’s testimony.

In that case, the court stated that a lay witness with

“special knowledge of the business and its operations

may also testify as to the facts of the business that

underlie profit expectations” but “may not make inferences from the data . . . .” Id. at *1. The court allowed a

business owner to calculate his lost profits based on

“actual past performance.” Id. at *2. Furthermore, Lighting

Lube and Tampa Bay presented an opposite procedural

position from this case because the appellate courts were

reviewing the district courts’ decisions to allow the testimony for an abuse of discretion. Here we review the

district court’s decision to preclude the testimony for an

abuse of discretion.

We find no such abuse.
16 Nos. 08-1496, 08-1956 and 08-1971

B. Lost Profits Damages

After Von der Ruhr’s lay opinion testimony is rejected

as improper, Septech has no one to testify, among other

things, that it would have obtained a corporate partner,

what the terms of the corporate licensing agreement

would have been, or how much of the market this new

drug would have captured and maintained. Therefore, it

cannot prove its entitlement to lost profits damages.

Septech admits as much, explaining that “the court excluded the testimony of Mr. Von Ruhr [sic] and consequentially the lost profit calculation of Septech, Inc.” Because

Septech’s lost profits theory depended on Von der Ruhr’s

testimony, we need not discuss Illinois’ new business

rule, TAS Distributing, 491 F.3d at 633-34, or the requirement that a plaintiff establish lost profits with “reasonable certainty,” id. at 631, either of which would

have likely precluded Septech’s lost profits theory.

C. Tortious Interference with Contract

Thompson, Parks, and Sorkin argue that there was

insufficient evidence for the jury to find against them

personally and that the district court should have

granted their motion or renewed motion for judgment as

a matter of law. Von der Ruhr argues that the jury heard

sufficient evidence to justify its verdict. We review a

denial of a motion for judgment as a matter of law de novo,

“examining the record as a whole to determine whether

the evidence presented, combined with all reasonable

inferences permissibly drawn therefrom, was sufficient

to support the jury’s verdict.” Walker v. Bd. of Regents of
Nos. 08-1496, 08-1956 and 08-1971 17

the Univ. of Wis. System, 410 F.3d 387, 393 (7th Cir. 2005)

(quoting Millbrook v. IBP, Inc., 280 F.3d 1169, 1173 (7th Cir.

2002)). In making this determination, we are mindful of

the fact that “[c]redibility determinations, the weighing of

the evidence, and the drawing of legitimate inferences

from the facts are jury functions, not those of a judge.”

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,

150-51 (2000) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986)). Therefore, we “must disregard all

evidence favorable to the [officers] that the jury [was] not

required to believe.” Reeves, 530 U.S. at 151. The jury’s

verdict must stand unless the officers “can show that ‘no

rational jury could have brought in a verdict against

[them].’ ” Woodward v. Correctional Medical Services of

Ill., Inc., 368 F.3d 917, 926 (7th Cir. 2004) (quoting E.E.O.C.

v. G-K-G, Inc., 39 F.3d 740, 745 (7th Cir. 1994)).

There is no dispute that the option contract was

breached. Neither are the elements of tortious interference

at issue. The only issue on appeal is whether it was

proper to allow the jury to impose personal liability on

Thompson, Parks, and Sorkin. Corporate officers normally

enjoy protection from personal liability for acts they

commit on behalf of the corporation. See George A. Fuller Co.

v. Chicago College of Osteopathic Medicine, 719 F.2d

1326, 1333 (7th Cir. 1983) (discussing Illinois law). To get

around this qualified privilege in a tortious interference

claim in Illinois, a plaintiff must “establish that the

officers induced the breach to further their personal goals

or to injure the other party to the contract, and acted

contrary to the best interest of the corporation.” George A.

Fuller Co., 719 F.2d at 1333 (citations omitted).
18 Nos. 08-1496, 08-1956 and 08-1971

Parks did send Von der Ruhr a letter in March of 2000 4

stating that the total strike price of the option was $8,316, but

it did not specify a price per share. Furthermore, this evidence

does not preclude the jury from finding against the officers;

the jury was not required to be persuaded by one document

over another.

Parks sent Von der Ruhr a letter in 1999 stating that the

price per share for his options after the stock splits was

$.34. Immtech documents from December 1998 and October 2000 also indicate that the proper price was $.34

per share. Additionally, another major Immtech share- 4

holder, Dr. Anderson, held the same stock option and was

able to exercise it at $.34 per share. Yet when Von der Ruhr

tried to exercise his options at $.34 per share—a price

Immtech told him was proper—his efforts were

hindered and he was given a new price. This sudden acute

sensitivity to detail when Von der Ruhr tried to exercise

his options could have caused the jury to believe that the

officers were interested in harassing Von der Ruhr.

Parks obviously believed that Von der Ruhr validly

exercised his options because, upon receiving Von der

Ruhr’s request, he quickly drafted a letter to Immtech’s

transfer agent authorizing the release of the shares. Yet

Thompson and Sorkin somehow instructed that the

letter should not be sent and it was marked “Hold per

TST & Sorkin.” The jury could have found these actions

suspicious.

The jury also could have found it troubling that,

although Parks admitted at trial that he knew which
Nos. 08-1496, 08-1956 and 08-1971 19

options Von der Ruhr was attempting to exercise, Parks

sent Von der Ruhr a letter stating that Von der Ruhr

failed “to identify exactly which options [he was] intending

to exercise.” The jury could have found it foolish and

contrary to Immtech’s best interest to risk breaching a

contract with Von der Ruhr because, as Parks reported to

Thompson and Sorkin, “[t]echnically, he is $23.40 short.”

Finding that the officers needlessly breached the option

contract over $23.40, the jury could have believed that

the officers acted for vindictive reasons.

The jury’s concern that the officers were motivated by

a desire to injure Von der Ruhr might have been heightened by the fact that the options could have been

exercised in whole or in part. Thompson testified that it

would not have been appropriate to issue only some of

the shares because Von der Ruhr’s letter indicated that

he wanted a certain number of shares for a certain

amount of money and his figures did not align. Of course,

the jury could have found that the figures did align

because the options should have been honored at $.34 per

share. Or the jury could have concluded that if personal

animus was not involved, the officers would have at

least delivered the number of shares to which they

believed Von der Ruhr was entitled, since Parks knew

which set of options Von der Ruhr was attempting to

exercise.

The jury also knew about the history between Von der

Ruhr and Immtech. Von der Ruhr founded Immtech, but

resigned as a board member and Chairman a few years

before this attempt to exercise his options because he
20 Nos. 08-1496, 08-1956 and 08-1971

disapproved of certain steps the company was taking to

prepare for an initial public offering. Von der Ruhr told

Thompson that he doubted the wisdom of some of

Immtech’s financing decisions and expressed concern that

the financing was moving too slowly. Von der Ruhr

informed Thompson that he was resigning because, as he

mentioned on several occasions, he opposed requiring

certain shareholders to sign lock-up agreements, preventing them from selling their stock for a period of time

after the IPO.

Von der Ruhr’s refusal to sign the lock-up agreement

prompted Sorkin to write a letter to Thompson in March

of 1999 “demanding Immtech to rescind all of Mr. Von der

Ruhr’s options and warrants for cause.” Also related to

the contentious lock-up agreement, Parks wrote a letter

to Sorkin in October of 2000 documenting Von der Ruhr’s

shares and outstanding options, in which Parks stated

about the document: “Frankly it takes a lot of the wind

out of Gerhard’s sails.”

Von der Ruhr and Immtech were in active conflict over

a different set of stock options at the time Von der Ruhr

attempted to exercise the options at issue in this case.

Von der Ruhr filed a lawsuit against Immtech a few days

before it received his request to exercise the current set

of options. Also around the time that Von der Ruhr

attempted to exercise the shares at issue in this case, he

complained to Thompson about Immtech’s tax treatment

of some of Von der Ruhr’s prior options. The trial exhibits

thoroughly document a history of tension and disagreement between Von der Ruhr and Sorkin, Parks, and
Nos. 08-1496, 08-1956 and 08-1971 21

Thompson. The jury was entitled to consider the officers’ actions in light of the broader context of the uncomfortable relationship between Von der Ruhr and

the Immtech officers.

The officers claim that they simply acted according to

advice from Immtech’s attorneys, but following the

advice of an attorney is not an absolute shield from liability. Furthermore, no attorneys testified or were named at

trial; the jury was free to disbelieve the officers’ claim

that they relied on attorneys. For example, Parks’ letter

to the transfer agent was marked, “Hold per TST &

Sorkin.” It did not mention any advice of counsel. The

report Parks prepared for Thompson and also sent to

Sorkin notifying them of the recalculated price per

share, stated about the disputed option: “I am holding

per your instructions.” Again, this gives no indication

that the officers were acting on the advice of their attorneys. Alternatively, if the officers did solicit advice

from counsel, that advice was of questionable value

because it resulted in a breach of contract. The jury

could have found that the officers would not have

followed such advice if they were not motivated by

disdain for Von der Ruhr.

The officers point to other evidence that supports their

assertion that they acted innocently and that they were

necessarily proceeding deliberately and cautiously

because of the history between Von der Ruhr and

Immtech. Certainly there is evidence that supports this

conclusion and it may be true. But that is not our decision

to make. The law requires that we simply ask whether
22 Nos. 08-1496, 08-1956 and 08-1971

there was sufficient evidence presented to support the

jury’s verdict. Walker, 410 F.3d at 393. There was. The

jury’s verdict was not irrational and we will not disturb it.

See Woodward, 368 F.3d at 926.

III. CONCLUSION

For the reasons discussed above, we AFFIRM the rulings

of the district court.

6-30-09