Lawrence Niren and Theodore Roxford are ac-tually the same person—Niren changed his name in 1995
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In theUnited States Court of AppealsFor the Seventh Circuit____________No. 02-3198THEODOREROXFORD, D/B/AVAKIL,Plaintiff-Appellant,v.AMERITECHCORPORATION,Defendant-Appellee.____________Appeal from the United States District Courtfor the Northern District of Illinois, Eastern Division.No. 00 C 282—James B. Zagel, Judge.____________ARGUEDMAY13, 2003—DECIDED JULY 11,2003____________Before ROVNER, DIANEP. WOOD, and EVANS, CircuitJudges.EVANS, Circuit Judge. In the mid-1990’s, Lawrence Nirenexplained to anyone who would listen how he used a varietyof schemes to con businesses out of more than $2 million. Inmost cases, companies paid Niren a small fee in exchangefor information about potential investors or other businessopportunities that didn’t really exist. Niren eventuallycame clean, sending a full confession to various media out-lets and turning himself into authorities. He hoped the pub-licity he generated would help him promote the book he hadalmost finished—he had even sold an option for the rightsto the movie, tentatively titled “Barbarians at the GateMeet Robin Hood, as Written by Woody Allen.”
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2No. 02-31981Forbes, June 19, 1995.The only problem with Niren’s confession was thatnobody seemed to care enough to hear it. Several of thecompanies Niren says he swindled thought he had actuallycompleted the work he was paid to do, while others deter-mined it wasn’t worth their time to try to collect the smallamounts Niren claimed to have stolen. The Justice Depart-ment decided not to pursue a prosecution, leaving Nirenstrangely willing but unable to get arrested. Forbes maga-zine, in a featured article entitled “Stop Me Before I StealAgain,” called Niren a fellow “so pathetic his story demandsto be told.”1This case arises out of a deal Theodore Roxford struckwith Ameritech that looks similar to one of Niren’s oldtricks. The resemblance isn’t all that surprising because, asit turns out, Lawrence Niren and Theodore Roxford are ac-tually the same person—Niren changed his name in 1995.Roxford claims that this time he actually completed thework he had promised to do and deserves to be paid ac-cordingly.Roxford’s dealings with Ameritech began in 1996 when hetold the company that he had confidential information fromtelecommunications companies Bell Canada Enterprises,Inc. (“BCE”) and Northern Telecom of Canada about theirinterest in a possible joint venture or other business com-bination. Roxford sent Ameritech the information he had(Ameritech claims—and the district court agreed—thatRoxford could not prove that the information was, in fact,confidential), and, several conversations later, Roxford andAmeritech signed the agreement at the heart of this case.Under the terms of that September 12 agreement, Vakil(the fictitious name Roxford used for his mergers and ac-quisition business) promised to disclose confidential infor-mation from BCE and Northern Telecom about a possible
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No. 02-31983merger with Ameritech. In return, Ameritech promised topay Roxford a finder’s fee equal to .1 percent of the transac-tion price of any deal it struck with the Canadian compa-nies, with a maximum payout of $2.5 million.Two years later, Ameritech paid approximately $3.4 bil-lion to acquire 20 percent of Bell Canada, a BCE subsid-iary. Roxford claims that he is entitled to the $2.5 millionfinder’s fee for facilitating the deal. Ameritech argues thatRoxford never fulfilled his obligations under the agreementand, as such, it doesn’t think it owes him anything. Specifi-cally, Ameritech claims that Roxford never lived up to hisSeptember 12 obligations because he sent all of the relevantinformation before the contract was signed and he had noevidence that the information was confidential. The districtcourt agreed on both counts and granted Ameritech’s mo-tion for summary judgment. Roxford appeals.Summary judgment is appropriate when there is nogenuine issue of material fact and the moving party is enti-tled to judgment as a matter of law. Fed. R. Civ. P. 56(c).We review a grant of summary judgment de novo, viewingall facts and taking all inferences from those facts in a lightmost favorable to Roxford. Chapman v. Keltner, 241 F.3d842, 845 (7th Cir. 2001). Because Roxford originally filedthis suit in the Northern District of California, we applyCalifornia’s choice-of-law rules to determine the applicablelaw. See International Marketing, Ltd. v. Archer-Daniels-Midland Co., 192 F.3d 724, 729 (7th Cir. 1999). California’s“government interest” analysis suggests that we applyCalifornia law. See, e.g., Application Group, Inc. v. HunterGroup, 61 Cal.App.4th 881, 896-97, 72 Cal.Rptr.2d 73, 82(1998).The district court found the language of the September 12agreement to be clear: Roxford would provide confidentialinformation at some future time. Roxford has two re-sponses. First, he claims that, after September 12, he sent
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4No. 02-3198Ameritech the originals of the documents he had previouslyfaxed to the company. He says that means he actually pro-vided confidential information after the agreement wassigned. That argument, however, contains a fatal flaw.Since Roxford had already shared the information, it wasn’treally confidential anymore. Moreover, Ameritech neverwould have agreed to pay up to $2.5 million for informationit already had, so it makes little sense to suggest that the“confidential information” Roxford promised to provide wasthe same information he had already shared.Roxford’s more plausible argument is that both partiesintended the “confidential information” in the agreement torefer to the documents Roxford had already sent, eventhough the language of the agreement suggested that newinformation would be forthcoming. Therefore, Roxford con-cludes, he had already performed under the contract by thetime the agreement was signed—the agreement was meantsimply to formalize the deal and to ensure confidentiality.Whether Roxford believed that the agreement referred tothe information he had already provided is largely irrele-vant, however, because of the plain language of the Sep-tember 12 contract. Under California law, “[t]he languageof a contract is to govern its interpretation, if the languageis clear and explicit, and does not involve an absurdity.” CalCiv Code § 1638 (2003). “Courts will not adopt a strained orabsurd interpretation in order to create an ambiguity wherenone exists.” Bay Cities Paving & Grading, Inc. v. Lawyers’Mut. Ins. Co., 5 Cal. 4th 854, 867 (1993) (quoting ReserveIns. Co. v. Pisciotta 30 Cal. 3d 800, 807 (1982)). See alsoSterling Builders Inc. v. United Nat. Ins. Co., 79Cal.App.4th 105, 111, 93 Cal.Rptr.2d 697, 701 (2000) (“fora contract to be ambiguous it must be susceptible to at leasttwo different reasonable interpretations”).The language of the September 12 agreement could nothave been much clearer. The first sentence of the letter
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No. 02-31985says, “[t]his Agreement replaces all and any other Agree-ments between Vakil and Ameritech,” making any discus-sions or agreements Roxford had with Ameritech beforeSeptember 12 irrelevant. The agreement continues: “Vakilhas confidential information from BCE Inc. and NorthernTelecom. . . . Vakil will immediately disclose this informa-tion to Ameritech . . . .” That language leaves no doubt thatRoxford (as Vakil) promised to send confidential informa-tion to Ameritech sometime after September 12. Becausethere is no ambiguity in the language of the contract,Roxford must live by its terms.If Roxford actually intended the agreement to apply to theinformation he had already given Ameritech, as he claims,he has only himself to blame—he’s the one who drafted theagreement (which was printed on Vakil letterhead), so hehad full control over the language. During his deposition,Roxford testified that he had disclosed all of the informa-tion to Ameritech by August 27, so by his own admission hefailed to perform. Since no confidential information wasdelivered after the agreement, Roxford is not entitled tocollect the finder’s fee whether or not the information heinitially provided was confidential.AFFIRMED.A true Copy:Teste: ________________________________Clerk of the United States Court ofAppeals for the Seventh CircuitUSCA-02-C-0072—7-11-03 |
