Yoon Ja Kim v. Song

• Decision Date: 08 August 2016
• Docket Number: No. 1–15–0614.,1–15–0614.
• Citation: 406 Ill.Dec. 580,61 N.E.3d 184
• Parties: YOON JA KIM, Kwang Lim Rah, John Kim, Kevin Cho, Young Park, and Hyon Ai Kim, Plaintiffs–Appellants, v. JAMES JH SONG and Wan Hwi Lee, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

61 N.E.3d 184
406 Ill.Dec. 580

YOON JA KIM, Kwang Lim Rah, John Kim, Kevin Cho, Young Park, and Hyon Ai Kim, Plaintiffs–Appellants,
v.
JAMES JH SONG and Wan Hwi Lee, Defendants–Appellees.

No. 1–15–0614.

Appellate Court of Illinois, First District, First Division.

Aug. 8, 2016.

61 N.E.3d 186

Soon Mo Ahn, of Glenview, for appellants.

Collins Bargione & Vuckovich, of Chicago (George B. Collins and Kathryne R. Hayes, of counsel), for appellees.

OPINION

Justice HARRIS delivered the judgment of the court, with opinion.

406 Ill.Dec. 582

¶ 1 Plaintiffs brought suit against defendants seeking to recover damages and to rescind certain stock purchase transactions, alleging that defendants made false oral representations about the stock and the corporation. The circuit court granted defendants' motion to dismiss the complaint pursuant to section 2–615 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2–615 (West 2012) ) and allowed plaintiffs to amend their complaint. Plaintiffs subsequently filed a first amended verified complaint alleging, inter alia, that defendants committed common-law fraud (count I), violations of the Illinois Securities Law of 1953 (815 ILCS 5/1 et seq. (West 2012)) (count III), and violations of Regulation D (see 17 C.F.R § 230.500 et seq. (2012) ) (count IV). Defendants filed a section 2–615 motion to dismiss all of the counts in the amended complaint, which the court granted. Plaintiffs were given leave again to amend the complaint, but declined to do so. Only the claims set forth under counts I, III and IV of the first amended verified complaint are at issue in this appeal.

¶ 2 On April 25, 2016, this court filed an opinion affirming the trial court's judgment in part but reversing the dismissal of count I of plaintiffs' complaint alleging common law fraud. Defendants filed a petition for rehearing, arguing that plaintiff's claim for common law fraud cannot stand in light of the nonreliance clause in the agreement. This court granted the petition and requested supplemental briefing by the parties. In their supplemental answer, plaintiffs for the first time alleged that defendants were not in an employment or agency relationship with American

406 Ill.Dec. 583

61 N.E.3d 187

Metro Bancorp, Inc. (AMB)¹ A party cannot raise new issues in a petition for rehearing. People v. McNeal, 405 Ill.App.3d 647, 682, 352 Ill.Dec. 856, 955 N.E.2d 32 (2010), citing Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016). Therefore, we do not consider plaintiffs' new argument, or any material not contained in the record below, upon rehearing. For the following reasons, we now affirm the trial court's dismissal of counts I, III and IV.

¶ 3 BACKGROUND

¶ 4 A. The Original Complaint

¶ 5 On August 22, 2013, the two original plaintiffs in this action, Yoon Ja Kim (Yoon) and Kwang Lim Rah (Rah), filed a verified seven-count complaint against defendants, James Jh Song (Song) and Wan Hwi Lee (Lee). The various common law and statutory claims asserted in the complaint purported to stem from a stock offering and plaintiffs' purchases of shares in the stock. Plaintiffs alleged that defendants solicited them to purchase shares of stock in AMB, an Illinois corporation doing business as American Metro Bank in Chicago, for the purpose of acquiring a controlling interest in AMB to set up a new Korean bank. Plaintiffs further averred that they tendered separate payments to defendants for shares of the AMB stock and their proportionate share of attorney fees that defendants claimed would be necessary to the Korean bank project. According to the allegations in the complaint, defendants made oral representations to plaintiffs that defendants knew to be false, and omitted or concealed information that should have been disclosed to plaintiffs. In response, defendants filed a section 2–615 motion to dismiss the complaint. The circuit court granted this motion, but allowed Yoon and Rah to replead the complaint and to include additional plaintiffs.

¶ 6 B. First Amended Verified Complaint

¶ 7 On March 27, 2014, Yoon and Rah filed a first amended verified complaint and added the following as plaintiffs in the suit: John Kim (Kim), Kevin Cho (Cho), Young Park (Park), and Hyon Ai Kim (Hyon). According to the first amended verified complaint,² defendants “Song and Lee are widely known in the Korean community as successful businessmen and owners of the City Sport stores” throughout the Chicago area. Around January in 2010, defendants began soliciting Korean investors, including plaintiffs, to purchase shares of AMB stock.³ Most of the plaintiffs were initially contacted by defendants, who explained that if the investors purchased enough shares to acquire a controlling majority interest in AMB, they could create a Korean bank. Many of the plaintiffs were already acquainted with one or both of the defendants prior to this initial contact, either as members of the same runners club or through other acquaintances in their local Korean communities.

¶ 8 1. Defendants' Representations to Plaintiffs

¶ 9 According to the general allegations and “Statement[s] of Fact” specific to each

406 Ill.Dec. 584

61 N.E.3d 188

of the plaintiffs, Lee and/or Song made the following representations to them during either an initial phone conversation or in-person meeting: the subscribers would be “investing in a Chinese bank, AMB” by acquiring a majority interest in AMB stock, so as to “overtake the operation of [the bank] and thereby open a Korean bank”; this new bank would be “like Foster Bank” (which, purportedly, was “the only other Korean-operated bank in Illinois with branches throughout the Chicago and Chicago suburban areas”); and the project involved “purchasing a building which used to be a bank building.” Song also represented that he had “successful business and investment experience” and that this project would allow investors to “all comfortably retire and enjoy retirement life.” Lee told some of the plaintiffs “there was no chance of a failure because they had carefully evaluated the plan.”

¶ 10 In March 2010, shortly after the initial solicitation contact with defendants, all of the plaintiffs (with the exception of Yoon and Rah) were invited to attend an “investors meeting” at a City Sports store located in Chicago.⁴ Approximately 30 to 40 Korean individuals attended this meeting, at which both defendants were present, along with some of their business associates. Song started the meeting by giving a “speech” to the attendees about the project, and explained “ ‘they’ were investing in a Chinese bank, AMB, which ‘they’ could take over at a ‘cheap price.’ ” Song stated that “by acquiring 51 shares of AMB stock, they could do anything they wanted with AMB” and open “a Korean bank * * * ‘like Foster Bank.’ ” At the end of the meeting, the attendees were given an “information sheet” to complete, which included providing their names, addresses and the number of shares of AMB stock that they each intended to purchase.

¶ 11 2. Plaintiffs' Purchase of AMB Stock

¶ 12 Plaintiffs alleged that each of them ultimately purchased shares of AMB stock at the subscription price of $10 per share. In addition, each also contributed an additional sum of money for legal fees that defendants represented would be incurred for legal services in connection with opening a Korean bank. In the first amended verified complaint, each plaintiff also alleged certain facts that were personal and specific to his or her own purchase of the AMB stock (along with the payment for attorney fees) and the circumstances of defendants' solicitation and representations in connection with that purchase.

¶ 13 Kim alleged that after the March 2010 investors meeting, Song called his wife to urge her and Kim to purchase shares of AMB stock. Kim stated that, “[r]elying on representations of Lee and Song, and trust they had * * * [he and his wife] decided to make the investment” and gave Song a check in the amount of $100,000 on March 18, 2010. After Song called them about the attorney fees, Kim gave him a second check for $15,000 for said fees. Kim had no contact with defendants or AMB, nor did he receive any documentation from them, after he delivered the checks to Song. In August 2011, after many of the investors had complained about the lack of contact and information from defendants and AMB, Lee and Song arranged for an investors meeting at Kim's restaurant in Mount Prospect. A few weeks later, Kim received a copy of his stock certificate for his AMB shares in the mail.

61 N.E.3d 189

406 Ill.Dec. 585

¶ 14 Cho alleged that he received a call from Song soon after the investors meeting, and agreed to purchase 5000 shares. On March 17, 2010, while they were at a runners club meeting, Cho gave Song a check for $50,000 and a second check for $10,000. He had no contact with AMB and received no documentation from anyone following his March 2010 payments to Song, until sometime in August 2011, when he received his stock...