accordingly GRANTED and Peck’s Motion for Summary Judgment on
Count VIII is DENIED.
CONCLUSION

For the reasons set forth above, PMG and Hare’s Motion to
Strike is GRANTED in part and DENIED in part. Peck’s Motion for
Summary Judgment on PMG’s Complaint is DENIED. Peck’s Motion for
Summary Judgment on Counts V-IX of his Counterclaim is DENIED.
PMG’s Motion for Summary Judgment on its Complaint is GRANTED and
declaratory judgment is entered in its favor. The Motions for
Summary Judgment of PMG, Hare and Custable on Counts V-IxX of
Peck’s Counterclaim are GRANTED and Counts V-IX of Peck’s

Counterclaim are DISMISSED pursuant ederal Rule of Civil

Procedure 56,

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court

Date: Lite mbshe AE, SCOR



Finally, Peck argues that in light of his continued inability
to raise the funds to repurchase the NHLT stock, on April 28, 2000,
PMG extended the option expiration date to May 7 and then, on
May 5, breached this new agreement by prematurely informing Peck
that his option had expired. PMG acknowledges that Custable told
Peck on April 28, 2000 that PMG would hold the option open until
May 7, 2000. The record supports PMG’s contention that there was
no consideration exchanged for this promise to extend the deadline
to May 7, 2000. As a promise unsupported by consideration, the
offer could be enforced only under the theory of promissory
estoppel - requiring Peck to establish detrimental reliance. See
Jeffrey M. Goldberg & Assoc., Ltd. v. Collins Tuttle & Co., Inc.,
637 N.&.2d 1103, 1108 (111. App. Ist Dist, 1994). However, Peck’s
written response to PMG’s offer to extend the deadline begins with
the statement “I have repeatedly told you that I cannot rely upon
your promises as they have proven to mean nothing.” (emphasis
added. } Peck’s own words prevent him from establishing that he
relied on this promise to his detriment. Although Peck strives
mightily to portray PMG as frustrating his diligent efforts to
repurchase the stock, the record indicates that the only thing
hindering Peck’s ability to exercise the option was his own
inability to raise the necessary money.

Having reviewed the agreement and the record of the parties’

performance, the Court finds that there is no genuine issue of



agreement signed by the parties on February 4, 2000, That
agreement states in relevant part that:

Power Media has purchased a total of 7,876,050
shares of [NHLT] tor a total of $79,000.
Power Media paid a net amount of $43,100 to
the Rose Peck Trust, after a $7,900 fee was
paid to Ameriserve Financial Services. Power
Media will allow you until May 1, 2000 to
repurchase the shares, at a 15% premium over
the original purchase price.

Moreover, on March 30, 2000, Peck sent a memo to Hare and Custable
stating in relevant part:

t have been informed by counsel that after my
mother’s tax return has been filed as well as
her estate tax return, they will be audited.
- «. . We must show . . . the date our
agreement was consumated [sic] and terms
including the fact that the transaction
involved a sale of stock and not a
collateralized loan with a right to repurchase
by May 1, 2000.

The parties’ relationship began to sour when, in response to
this letter, Custable replied as follows to Peck’s March 30, 2000
request:
According to our records it appears that you
are already in default. The fax that you just
sent was only one letter out of a long history
of correspondence, most of it contradictory to
your fax. . . . Power Media needs your
assistance to make sure that we are all on the
same page.
Attached to this letter was a questionnaire which posed several

questions seeking to clarify Peck’s understanding of the terms of

the sale and the repurchase option, Over the following days,

several letters were exchanged in which PMG asserted its beliet



damaged by this holdup and that he was still able to have the

money invested in NMDG to his satisfaction despite the delay.

Third, Peck offers absolutely no evidence supporting
contention that he was damaged by PMG’s statement that it needed
the ability to sell or collateralize the NHLT stock, nor has he
established that this particular statement caused any detrimental
reliance on Peck’s part. Finally, PMG’s promise to hold the
option open to May 7, 2000 cannot form the basis for a fraud
claim. Fraud may not be based on representations regarding future
conduct, or on broken promises, Continental Bank, N.A. v. Meyer,
10 F.3d 1293, 1298 (7th Cir. 1993); Advent Electronics, Inc. v.
Buckman, 918 T.Supp. 260, 264 (N.D, Ill. 1996). Moreover, Peck’s
May 3, 2000 response to the promise to extend the deadline - “I
cannot rely upon your promises as they have proven to mean
nothing” - clearly establishes that he was net relying on this
promise in any way. Peck has failed to establish the necessary
elements of fraud for any of the statements he imputes to the
Counterclaim Defendants. The Motions for Summary Judgment of PMG,
Hare and Custable on Count VI are therefore GRANTED and Peck’s
Motion for Summary Judgment on Count VI is DENIED.
Peck’s Counterclaim for “Strict Responsibility”

Count VII alleges an action for “strict responsibility.” The
Court could not find any argument supporting or defending this
claim in any of Peck’s submissions. The Court assumes that this

silence stems from the fact that there is no such cause of action.

-4i7-



Nationwide Insurance v. Zavalis, 52 F.3d 689, 692 (7th Cir. 1995).
Peck argues in opposition to PMG’s Motion for Summary Judgment that

the Court cannot grant PMG’s request for declaratory Judgment

because (1) Institutional Management is not a proper party to this
case and (2) PMG did not fulfill its contractual obligations. ‘he
Court will first address the issue of Institutional Management's
standing to sue,

Peck believes that, as a matter of Illinois law,
Institutional Management has no standing to seek a declaratory
judgment in its favor because Peck “never heard of [Institutional
Management] until long after the relationship between the parties
had broken down” and because Power Media Group is not a registered
assumed name of Institutional Management, Inc, Peck’s repeated
assertion that Institutional Management was never involved in the
transaction is puzzling: even a cursory review of the record
reveals that, although most of Hare and Custable’s dealings were
done under the name of Power Media Group, all of the wire transfers
exchanged tor the NHLY stock were drawn from the account of
Institutional Management, Inc. Contrary to Pecks assertion,
Illineis does allow a party operating under an assumed name to sue
and be sued even though it has failed to register that name under

the Illinois Assumed Business Name Act, 805 ILCS 405/0.01 et seq.

See Thompson v. Cadillac, 543 N.E.2d 308, 310 (Ill. App. 2d Dist.



tate civil RICO claims (Counts I-IV), violation of the Illinois

a

Consumer Fraud Act (Count V), fraud (Count VI), “strict

responsibility” (Count VII), negligent misrepresentation (Count
VIII), and breach of contract (Count IX). Counts I-IV were
voluntarily dismissed, Now before the Court are the parties’

Cross-Motions for Summary Judgment and PMG and Hare’s Motion to
Strike.
MOTION TO STRIKE

PMG and Hare move to strike portions of Peck’s Affidavit
(1 19) and Peck’s Jocal Rule 56.1(a) (3) Statement (TI 38-39).
These paragraphs reference statements allegedly made by Peck’s
third-party witness, Daniel Imperato (“Imperato”), regarding
confirmation of a loan from Imperato to Peck. On August 6, 2002,
this Court granted in part a motion by Hare, ruling that any
testimony by Imperato would be barred unless Peck produced Imperato
for a deposition. Peck was never able to secure Imperalo’s
appearance for a deposition. Indeed, there is evidence in the
record suggesting that Imperato took extraordinary steps to avoid
appearing for a deposition in this case, at one point informing
Hare’s attorney that he need not appear for a deposition because he
had no knowledge of these matters.

Peck has now submitted an Affidavit in support of his Motion

for Summary Judgment in which he seeks to introduce statements

allegediy made by Imperato to Peck. The alleged statements by



that the option had expired (the original loan agreement called for
repayment in January 2000), and Peck asserted that May i, 2000 was
the option expiration date under the new agreement. On April 19,
2000, Custable sent a letter to Peck informing him that:

Power Media will agree to honor your existing

May 1, 2000 expiration date. Power Media

stands ready, willing and able to deliver all

7,876,050 shares of NHLT . . . once you notify

Power Media that the funds are available for

transfer... If you still wish to extend the

repurchase date beyond May 1, you should

contact our office as soon as possible and

perhaps arrangements can be made for an

additional premium,

Numerous letters went back and forth in the days leading up to
the May 1, 2000 repurchase deadline. On April 28, 2000, Custable
informed Peck that PMG would extend the deadline to May 7, 2000.
On May 3, 2000, Peck responded with a memo which begins “I have
repeatedly told you that I cannot rely upon your promises as they
have been proven to mean nothing.” (emphasis added). Peck’s May 3
letter makes no reference to Peck having the money necessary to
exercise the option. On May 5, 2000, Hare and Custable sent a
letter to Peck informing him that his option had expired.

On October 23, 2000, PMG filed an action for declaratory
judgment in the Chancery Division of the Circuit Court of Cook
County. That action, which seeks a declaration that Institutional
Management, Inc, (d/b/a PMG) is the rightful owner of the NHLT

stock, was subsequently removed to this Court. Peck then filed a

Counterclaim against PMG, Hare and Custable alleging federal and

- 53 -



Assuming, arguendo, that Peck intended to state a cause of action

for strict liability, that theory has no place in an action

alleging fraud in the sale of stock. See generally Heller v.
Cabral Corp., 406 N.E.2d 88 (Ill. App. Ist Dist. 1980). The

Motions for Summary Judgment of PMG, Hare and Custable on
Count VII are therefore GRANTED and Peck’s Motion for Summary
Judgment on Count VII is DENIED.

Peck’s Counterclaim for Negligent Misrepresentation

Count VITI stakes a claim for negligent misrepresentation
against PMG, Custable and Hare. In Moorman Mfg. Co. v. National
Tank Co., 435 N.E.2d 443 (111. 1982), the Illinois Supreme Court
set out its economic loss doctrine, barring tort recovery for
purely economic losses. An exception docs exist, however, for
instances in which the allegedly negligent party is in the
“business of supplying information for the guidance of others.”
Fireman’s Fund Ins, Co. v. SEC Ponohue, Inc., 679 N.E,2d 1197,
1200 (111. 1997). In this case, any information supplied by
Custable and Hare was merely ancillary to the sale. There is
nothing in the record to support a finding that Hare and Custable
weré in the business of supplying information so as to subject
them to liability under that exception to the Moorman doctrine.
See Id. at 1201. Peck’s claim for negligent representation is
therefore barred by the Moorman doctrine and the Motions for

Summary Judgment of PMG, Hare and Custable on Count VIII are

~ 18 -



issue may not rest on the pleadings, but must affirmatively
demonstrate that there is a genuine issue of material fact that
requires trial. Warsco v. Preferred Technical Group, 258 F.3d 557,
563 (7th Cir. 2001).
DISCUSSION
PMG’s Motion for Summary Judgment

PMG asserts that there are no genuine issues of material fact
precluding entry of summary judgment on its action for declaratory
judgment, and requests that this Court enter a judgment declaring
Institutional Management, Inc. to be the rightful owner of the NIILT
stock previously owned by Barton Peck.

The Declaratory Judgment Act, 28 U.S.C. § 2201, provides that
“any court of the United States, upon the filing of appropriate
pleadings, may declare the rights and other legal relations of any
interested party seeking such declaration, whether or not further
relief is or could be sought.” 28 U.S.C. § 2201(a). The Act does
not, standing alone, supply a district court with subject matter
jurisdiction, nor does it dispense with the Article III “case or
controversy” requirement. In re VMS Securities Litigation,
103 F.3d 1317, 1327 (7th Cir. 1996). As to the case at bar, the
Court is satisfied that diversity jurisdiction exists, that there
is an actual controversy ripe for decision, and that issuance of a

declaratory judgment would serve a useful purpose in clarifying the

legal obligations and relationships among the parties. See



Mannie Outer be

ze

United States District Court, Northern District of Mlingis

Name of Assi Hanty D. Leinenweber Sitting Judge if Other
or Magis than Assigned Judge
CASE NUMBER 00 C7349 DATE 12/23/2(M)2
CASE Institutional Management, Inc. vs. Barton Peck
TITLE
[Tn the following boy (a) indicate the party filing (he motion. ¢.g.. plaintif®. defendant. 31d party plaintitl. and (b) state briefly the mature
MOTION: ofthe motion being presented. |
DOCKET ENTRY:
(1) im Filed motion of | use listing in “Motion” box above]
(2) tl Brief in suppart of motion due
(3) im Answer brief to motion duc Reply to answer brief due.
(ay Cc Ruling/Hearing on set for al
(5) o Status hearing[held/continued to] [set for/re-set for] on __ set for at
(Q) A Pretrial conterence[held/continued to] [set for/re-set for] on set for al
(7) m Triallset tor/re-set for] on at
(8) £) [ench/ury trial] [tearing] held/continued to at
(95 I ‘This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to |
CIPREPdon) Cl Local Rule 4. EEPROPS (a1) O FROPAI(a) 2).
(10) a [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: PMG and Hure’s Motion to Strike is
GRANTLD in part and DENILD in part. Peck’s Motion for Summary Judgment on PMG’s Complaint is DENIED. Peck’s
Motion lor Summary Judgment on Count V-IX of his counterclaim is DENIED. PMG’s Motion for Summary Judgment on
Complaint is GRANTED and declaratory judgment is entered in its favor. The Motions for Summary Judgment of PMG,
Hare and Custable on Counts V-LX of Peck's Counterclaim are GRANTED and Counts V-1X of Peck’s Counterclaim are
DISMISSED pursuant to Mederal Rule of Civil Procedure 56.
| |For further detail see order attached 10 the original minute order.]
Nov noviges required, advised in open court Dosument
No notices required Number
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Notices mailed by judge's stil. A.
DEC 2 4 7007
Notified couse by telephone, sn “date docket
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a sale of stock with an option to repurchase which expired on
May 1, 2000, bid PMG fulfill its obligations under that agreement?
Peck puts forward four instances in which he claims PMG failed to
uphold its end of the deal.

First, Peck argues that PMG failed to provide $4,000 of the

$79,000 promised. The only evidentiary support for this a
is the Affidavit of Sandra Beck, the former Treasurer of NMDG, who
stated that she reviewed materials provided to her by PMG’s counsel
and could find no such record. The record submitted by PMG does,
however, include a statement issued by NMDG’s own bank showing
receipt of the $4,000 in question via wire transfer from
Institutional Management’s account on December 21, 1999. As Peck
acknowledges that the rest of the sum was transferred to NMDG for
his benefit, there is no genuine issuc as to whether PMG supplied
the full $79,000 promised.

Second, Peck claims that PMG did not provide the funds

“immediately,” as required by the agreement. Consistent with the
general approach taken in this case, Peck chooses to ignore a key
fact: the transfer of funds was staggered over approximately
45 days only because the shares of NIILT were themselves transferred
to PMG in “bunches” of shares spread intermittently over that same

period. It is clear from the record that PMG wired payments

proportional to the number of shares transferred shortly after cach

new bunch of shares was received. Moreover, there is no evidence



1989). Institutional Management, Inc. d/b/a Power Media Group has
standing to sue under Illinois law.

Peck also arques that declaratory judgment in PMG’s favor is
inappropriate because PMG failed to meet several of its contractual
obligations. Before evaluating Peck’s arguments, the Court must
first address Peck’s insistence on characterizing this agreement
as a collateralized loan rather than a sale of stock with an option
to repurchase. True, this transaction began as loan of

approximately $79,000 collateralized by the shares of NHLT held by

Peck and the Rose Peck ‘Trust. Peck maintains his position that
this transaction remained a loan agreement only by ignoring the
existence of the February 4, 2000 letter. The clear and
unambiguous language of that letter plainly indicates that the
terms of the agreement had been renegotiated for new consideration:
Peck now had more time to secure the money needed to redeem the
stock from PMG and Peck agreed to pay an additional premium to PMG
should he chose to exercise the option. Peck also chooses to
ignore his own letter of March 30, 2000 in which he insists that
PMG provide the IRS with a statement setting forth the terms of
their agreement, “including the fact that the transaction involved
a sale of stock and not a collateralized loan with a right to
repurchase by May 1, 2000.” (emphasis added) Whatever prior

agreements or understandings existed between the parties, the

February 4, 2000 agreement clearly transformed the arrangement into



Imperato are clearly hearsay as defined by Federal Rule of Evidence
802 and do not fall within any exception to that rule. Given
Imperato’s shenanigans in evading deposition for this case and
Peck’s inability, or unwillingness, to facilitate production of
Imperato for deposition, the Court will not allow Peck to bring in
the substance of Imperato’s alleged statements through the back
door of Peck’s own Affidavit. Morcover, Peck himself characterizes
this information as “irrelevant” - providing yet another basis for
striking it from the record. PMG and Hare’s Motion to Strike is
therefore GRANTED in part and DENIED in part. The Court hereby
strikes the third sentence from Paragraph 19 of Peck’s Affidavit
and the first sentence of Paragraph 39 of Peck’s Local Rule
56.1]1(a) (3) Statement.

CROSS-MOTIONS FOR SUMMARY JUDGMENT

Standard
Summary judgment is appropriate where “the pleadings
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” f[erp.R.CIv.P. 56(¢c). A court must
“review the record in the light most favorable to the nonmoving
party and draw all reasonable inferences in that party’s favor.”

Vanasco v. National-Louis University, 137 €.3d 962, 964 (7Lh Cir.

1998). Nevertheless, the party who bears the burden of proof on an



After this agreement was signed, Peck initiated the transfer
of the NHLT shares. The shares were not transferred all at once,

but were transferred in “bunches, with PMG transferring the
appropriate amount of money directly to NMDG’s account (for Peck’s
benefit) after receiving each new group of stock. Of the $79,000
exchanged for the stock, Peck acknowledges that he received the
entire amount, with the exception of one $4,000 transfer which Peck
claims was never made. Peck bases this assertion on the Affidavit
statement of Sandra Beck, former Treasurer of NMDG, that she
reviewed the relevant documents and could not find any record of
the $4,000 wire transfer. PMG’s Rule 56,1 submission does,
however, contain record of the $4,000 in question being transferred
from Institutional Management, Inc.’s account to NMDG's account on
December 21, 1999,

Shortly after the November 23 agreement was executed, the
parties began exchanging correspondence evincing an intent to
transform their agreement from a collateralized loan into a sale of
stock with an option to repurchase. Peck claims that he was always
under the impression that the agreement was never anything other
than a loan. This is an extraordinary claim. Granted, some of the
correspondence between the parties does indeed mix language of sale

and option with that of loan and repayment. Any ambiguity as to

the nature of the transaction was, however, resolved by a new



material fact as to whether PMG performed its obligations under the
parties’ agreement. Accordingly, Peck’s Motion for Summary
Judgment on PMG’s Complaint is DENIED and PMG’s Motion for Summary
Judgment on its Complaint for Declaratory Judgment is GRANTED. The
Court enters judgment for PMG and declares that:
{1} PMG met its contractual obligations to Peck; and
(2) Institutional Management, Inc. (d/b/a PMG) is
the lawful owner of the 7,876,050 NHLT shares
sold to Institutional Management, Inc. by
Barton Peck and the Rose Peck Trust.

Although this resolves the issue of the ownership of the NHLT
stock, the Court must still address Peck’s numerous claims against
Hare, Custable and PMG,

Peck’s Counterclaim for Breach of Contract

The basis for Peck’s breach of contract claim are those
already discussed above: (1) PMG’s alleged failure to transfer the
full $79,000 promised; (2) PMG’s purported failure to provide the
funds “immediately”; (3) the “repudiation” contained in the
April 10, 2000 letter; and (4) PMG’s “breach” of the new May 7,
2000 deadline on May 5, 2000. For the reasons stated above, the
Court finds no factual basis in the record for any of these alleged

breaches of the agreement between Peck and PMG. Peck’s Motion for

Summary Judgment on Count IX is therefore DENIED and the motions of
Custable, Hare and PMG for summary judgment on Count IX are

GRANTED.



443, 452 (T1l1. 1982). To establish a claim for fraud in Illinois,
Peck must present facts sufficient to establish: (1) a talse
statement; (2) of material fact; (3) which PMG knew or believed to
be false; (4) made for the purpose of inducing Peck ta act;
(5) which Peck believed and justifiably relied on; and (6) damage
suffered by Peck as a result. See Connick v. Suzuki Motor Co., 675
N,E.2d 584, 591 ({Tll. 1996). Peck points to four separate

statements as the basis for his fraud claim: (1) PMG agreed to

turn over the $79,000 immediately; (2) PMG represented thal it
needed the ability to sell or collateralize the stock to provide
the funds immediately; (3) PMG promised to honor the May 7, 2000
extension; and (4) PMG represented that it made the $4,900 wire
transfer. ‘The record does not support a claim for fraud based on
any of these statements.

First, the statement that the $4,000 wire transfer had been
made was true: the record submitted by PMG includes a statement
issued by NMDG’s bank showing receipt of the $4,000 in question
via wire transfer from Institutional Management’s account on
December 21, 1999. Second, there is no evidence supporting an
inference that the statement that PMG would turn over the proceeds
immediately was false when made: the record indicates that the
funds were paid out sporadically only because Peck himself

delivered the shares of NHLT in batches spread out over several

weeks. Moreover, Peck stated in his deposition that he was not



Summary Judgment on Counts V-Ix of Peck’s Amended Counterclaim, and
PMG and Hare’s Motion to Strike portions of Peck’s Rule 56.1
submissions. The following summary of the case is drawn from the
parties’ Rule 56.1 Statements of Facts.
BACKGROUND
Sometime in 1999, attorney Barton Peck discovered an urgent

need to invest approximately $79,000 in a company known as New
Millennium Development Group (“NMDG”). In November 1999, an
independent consultant introduced Peck to Frank Custable and Brad
Hare, partners jin Institutional Management, Inc, d/b/a Power
Management Group (“PMG”). Peck informed Custable and Hare that he
needed to borrow $79,000 immediately since time was of the essence
to his potential investment in NMDG. As collateral for the
contemplated loan, Peck offered 3,800,000 shares of stock in a
company called National Health & Safety (“NHLT”) (2,800,000 shares
were held by Peck individually and 5,000,000 shares were held by
the Rose Peck Trust). On November 23, 1999, Hare, Custable and
Peck signed an agreement stating:

Power Media agrees to loan [Peck] a total of

$79,000 versus a total of 7,800,000 shares of

[NHLT] as collateral. Power Media will

complete two separate transactions for

2,800,000 shares and 5,000,000 shares for

$28,000 and $51,000 respectively. You will

have 40 days to repay the principal plus 10%

interest, Power Media can begin funding
immediately.



FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

IN THE UNITED STATES DISTRICT COURT F | L D

i

DEC 2002
INSTITUTIONAL MANAGEMENT, JUDGE HARRY D. LEINENWEBER
INC., an Illinois corporation U.S. DISTRICT COURT JUDGE

d/b/a POWER MEDIA GROUP,

Plaintiff and
Counterclaim Defendant, Case No. 00 C 7349

v.
Hon, Harry D. Leinenweber
BARTON PECK, individually and
as Trustee of thea ROSE PECK
TRUST,

Defendants and
Counterclaim Plaintiffs,

Vv.

FRANK J. CUSTABLE, JR. AND
BRAD HARE,

Counterclaim Defendants.

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiff Institutional Management, Inc./s
(“PMG”) Motion for Summary Judgment on its Complaint for
Declaratory Judgment, Defendants Barton Peck and the Rose Feck
Trust’s (collectively “Peck”) Motion for Summary Judgment on PMG’s
Complaint and Motion for Summary Judgment on Counts V-IX of Peck’s
Amended Counterclaim (Counts I-IV were withdrawn), Counterclaim

Defendant Frank J. Custable Jr.’s (“Custable”}) Motion for Summary

Judgment on Counts V-IX of Peck’s Amended Counterclaim,

Counterclaim Defendants PMG and Brad Hare’s (“Hare”) Motion for



that Peck was damaged by the delay. In his deposition, Pack
actually concedes that any delay in the transfer of funds by PMG
did not prevent him from purchasing the NMDG stock on the terms he
desired.

Third, Peck claims that PMG repudiated the contract by
statements contained in the April 10, 2000 letter, In Illinois,
anticipatory repudiation requires a clear manifestation of an
intent not to perform the contrack on the date of performance. In
re Marriage of Olsen, 528 N.E.2d 684, 686 (Ill, 1988). Doubt ful
and indefinite statements that performance may or may not take
place are not enough to constitute anticipatory repudiation. Td.
The April 10, 2000 letter that Peck characterizes as a repudiation
States:

According to our records it appears that you
are already in default. The fax that you just
sent was only one letter cut of a long history
of correspondence, most of it contradictory to
your fax. . . . Power Media needs your
assistance to make sure that we are all on the
same page.

At most, this is an indefinite statement regarding PMG’s

w ingness to honor the May 1 option expiration date. The

statement is certainly nok a clear manifestation of an intent to
repudiate the option should Peck come up with the money by May 1,
2000, The April 10, 2000 letter was not an anticipatory

repudiation of the parties’ agreement.

12 -



Peck’s Counterclaim for Violation of the
Illinois Consumer Fraud and Deceptive Practices Act

Count V of Peck’s Counterclaim alleges that PMG, Hare and
Custable violated the Illinois Consumer Fraud and Deceptive
Practices Act (“ICFA”’), 720 ILCS §/17-1 et seg., through numerous
alleged misrepresentations. The Counterclaim Defendants argue that
the Court need not reach the merits of the claim because ICFA may
only be applied to remedy the impact of statutorily prohibited
practices on Tilinois consumers. According to PMG, Wisconsin
residents therefore have no standing to invoke ICFA, Tllinois
courts have split on this issue and the Illinois Supreme Court has,
to date, not given any indication of its position. This Court
agrees, however, with the conclusion that the Illinois Supreme
Court would hold that ICFA’s remedies are available to citizens of
Tllinois exclusively. See Swartz v. Schaub, 818 F.Supp. 1214, 1214
(N.D, Ill. 1993). Accordingly, the Court DENIES Peck’s Motion for
Summary Judgment on Count V of his Counterclaim and GRANTS the
motions of Custable, Hare and PMG for summary judgment on Count V.

Peck’s Counterclaim for Fraud

As an initial matter, the Court notes that the Moorman
doctrine does allow recovery of economic loss against a defendant
who intentionally makes false representations and, contrary to

PMG’s position, Peck’s fraud claim is not barred by the Moorman

doctrine. See Moorman Mfg. Co. v. National Tank Co., 435 N.E.2d