Bohaboy v. Baxter International, Inc.

2024 IL App (1st) 230868, 254 N.E.3d 947

• Court: Appellate Court of Illinois
• Decided: September 20, 2024
• Docket: 1-23-0868
• Status: Published

Opinion

2024 IL App (1st) 230868

No. 1-23-0868

Order filed September 20, 2024

FIFTH DIVISION

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

SCOTT BOHABOY, ) Appeal from the Circuit Court of ) Cook County, Law Division. Plaintiff-Appellant, ) ) No. 2022 L 002528 v. ) ) Honorable BAXTER INTERNATIONAL, INC., a Delaware ) Thomas M. Donnelly, Corporation, and JAMES ATHAS, ) Judge, presiding. ) Defendants-Appellees. )

JUSTICE MITCHELL delivered the judgment of the court, with opinion. Presiding Justice Mikva and Justice Lyle concurred in the judgment and opinion.

OPINION

¶1 Plaintiff Scott Bohaboy appeals the circuit court’s dismissal of his third amended complaint

against defendants Baxter International, Inc., and its in-house counsel, James Athas, for negligence

pursuant to a voluntary undertaking, legal malpractice, and breach of a duty to warn. The issue on

appeal is whether the circuit court erred in dismissing plaintiff’s complaint with prejudice because

plaintiff alleged at least one viable cause of action in connection with his ultimate termination as

a corporate officer at Baxter. For the following reasons, we affirm. No. 1-23-0868

¶2 I. BACKGROUND

¶3 Plaintiff served as treasurer for defendant Baxter between 2015 and 2020. As treasurer,

plaintiff oversaw and approved Baxter’s international financial and accounting practices. In 2019,

Baxter began an internal investigation into its foreign currency exchange and accounting practices.

The investigation was centered around currency exchange transactions between select foreign

subsidiaries of Baxter that were intended to maximize gains or minimize losses on the exchange

rates.

¶4 The subject currency exchange transactions had been a common operating practice for

Baxter’s financial division for several years prior to plaintiff’s promotion to the role of treasurer.

The practice had received routine approval from plaintiff’s predecessors, including several current

and former chief financial officers, as well as Baxter’s external auditor, PricewaterhouseCoopers.

¶5 As part of the investigation, plaintiff voluntarily participated in three interviews that lasted

for a total of 20 hours. Defendant Athas was present, as well as another of Baxter’s in-house

counsel, Holland Tahvonen, and a stenographer. Baxter’s outside counsel, David Rosenbloom, led

the questioning, and when a question was unclear or plaintiff did not understand, Athas or

Tahvonen would offer clarification.

¶6 After the third interview, plaintiff was called in to speak with Baxter’s vice president of

human resources, Heather Wechet. Wechet asked plaintiff to “take a few days off,” so he would

not be subject to internal or external questions regarding Baxter’s upcoming earnings call, where

the company intended to announce the internal investigation. The following Sunday, Wechet asked

plaintiff to meet with her and Athas at Baxter’s offices that afternoon. There, plaintiff was placed

on administrative leave for the remainder of the investigation, though he was assured his

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compensation would not be impacted. At this same meeting, plaintiff learned that the currency

exchange transactions were the subject of an investigation by the Securities and Exchange

Commission. Plaintiff asked Athas if he should retain independent counsel. Athas told plaintiff he

should and that Baxter would pay the attorney fees so long as he cooperated with the investigation.

¶7 Athas recommended that plaintiff hire law firm Mayer Brown to represent him. Athas did

not disclose to plaintiff that Mayer Brown represented Baxter on other legal matters. Mayer Brown

executed a draft engagement agreement which disclosed that Mayer Brown was engaged to

represent Baxter in other matters at the time it began its representation of plaintiff. The engagement

letter was never signed by Mayer Brown or plaintiff. Nevertheless, plaintiff attended a fourth

interview with Rosenbloom, this time represented by three Mayer Brown attorneys. Shortly after

this interview, on March 16, 2020, Baxter terminated plaintiff’s employment via e-mail.

¶8 Mayer Brown continued to represent plaintiff during the subsequent SEC investigation.

Plaintiff never received a bill for, nor a description of, the legal services rendered. Mayer Brown

sent all invoices directly to Baxter. In 2022, the SEC investigation found that plaintiff had violated

securities laws, and plaintiff agreed to a settlement that neither admitted nor denied the allegations

against him personally. Baxter was found to have violated securities law relating to the currency

exchange transactions and was fined $18 million. As a consequence of the settlement agreement,

plaintiff was fined $125,000, and a salary bonus of $191,981 was recouped by Baxter. Since the

settlement, plaintiff has been unable to find employment, has suffered financial losses, and has

been diagnosed with clinical depression.

¶9 Plaintiff filed suit in the circuit court of Cook County against Baxter and Athas. After

extensive motion practice and two prior opportunities to replead, plaintiff filed his third amended

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complaint making claims for negligence based on voluntary undertaking, legal malpractice, and

duty to warn. On defendants’ motion, the circuit court dismissed the third amended complaint with

prejudice. Plaintiff filed a timely notice of appeal. Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017).

¶ 10 II. ANALYSIS

¶ 11 Plaintiff challenges the dismissal of his complaint and argues that he alleged sufficient facts

to state a viable claim. A motion to dismiss under section 2-615 of the Code of Civil Procedure

challenges the legal sufficiency of a complaint based upon defects apparent on its face. Beacham

v. Walker, 231 Ill. 2d 51, 57 (2008); see 735 ILCS 5/2-615 (West 2022). Though a plaintiff need

not set forth all evidentiary facts that will eventually prove his claim, he must present sufficient

facts to support each element of the cause of action alleged. City of Chicago v. Beretta U.S.A.

Corp., 213 Ill. 2d 351, 369 (2004). All well-pleaded facts, and all reasonable inferences that may

be drawn from those facts, must be taken as true and construed in the light most favorable to the

plaintiff. HBLC, Inc. v. Egan, 2016 IL App (1st) 143922, ¶ 25. “Where unsupported by allegations

of fact, legal and factual conclusions may be disregarded.” Kagan v. Waldheim Cemetery Co.,

2016 IL App (1st) 131274, ¶ 29. A cause of action should not be dismissed pursuant to section 2-

615 unless it is clear that no set of facts could ever be proven that would entitle the plaintiff to

recovery. Tedrick v. Community Resource Center, Inc., 235 Ill. 2d 155, 161 (2009). We review an

order granting a motion to dismiss de novo. Id.

¶ 12 A

¶ 13 Plaintiff contends that the circuit court erred in dismissing his negligence claim against

Baxter because he pleaded sufficient facts to state a claim. Defendants argue that the complaint

was properly dismissed because plaintiff failed to plead that Baxter voluntarily undertook a duty,

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that it breached that duty, or that plaintiff suffered a compensable injury as a result of the alleged

breach.

¶ 14 Plaintiff’s complaint alleged that Baxter was negligent:

“74. In negligent breach of its duty to provide Plaintiff with the best possible advice

for Plaintiff’s protection, both legal and professional, Baxter failed to exercise reasonable

care in the performance of its voluntary undertaking and committed one or more of the

following acts or omissions:

a. Baxter failed to disclose to Plaintiff that his interests were adverse to its

own;

b. Baxter failed to disclose to Plaintiff at the outset of the internal

investigation that his career with Baxter was in extreme jeopardy; Baxter failed

to disclose to Plaintiff that it would protect PwC, Almeida, and Saccaro at all

costs from SEC sanctions, even if it meant sacrificing Plaintiff—which of

course is what happened;

d. [sic] Baxter failed to disclose to Plaintiff, upon his appointment as

Treasurer or during the internal investigation, that Baxter’s longstanding

convention for the initial measurement of foreign currency denominated

monetary assets and liabilities was possibly inconsistent with U.S. Generally

Accepted Accounting Principles or that Baxter had been engaging in certain

intra-company transactions solely to generate non-operating foreign exchange

gains or avoiding losses, for many years before Plaintiff became Treasurer, and

that Plaintiff would be the fall guy for Baxter’s longstanding violation of federal

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securities laws;

e. Baxter failed and/or refused to disclose the nature and substance of the

allegations against him as gathered by the internal and SEC investigations;

f. Baxter failed to disclose to Plaintiff that he had a choice of outside

counsel, not just one firm with both a prior and apparently ongoing professional

connection to Baxter, nor did Baxter disclose to Plaintiff the nature of those

connections; and Baxter failed to disclose to Plaintiff that Baxter’s

“cooperation” with the SEC included its false claim that Plaintiff was wholly or

partially responsible for the subject foreign currency transactions; and

g. Baxter failed to disclose to Plaintiff his right to obtain an independent

expert accounting opinion to respond to the allegations against him as gathered

by the internal and SEC investigations.”

¶ 15 To plead a negligence claim, a plaintiff must plead that the defendant owed a duty, that the

defendant breached that duty, and that the plaintiff was harmed as a result of that breach. Bell v.

Hutsell, 2011 IL 110724, ¶ 11. “Unless a duty is owed, there can be no recovery in tort for

negligence.” Id. (citing American National Bank & Trust Co. of Chicago v. National Advertising

Co., 149 Ill. 2d 14, 26 (1992)).

¶ 16 Generally, an employer owes no duty to an employee. Here, however, plaintiff contends

that Baxter voluntarily undertook a duty “to provide Plaintiff with the best possible advice for

Plaintiff’s protection.” This allegation is based on Athas clarifying questions in one of the

interviews with plaintiff and Athas answering it “would be advisable” when plaintiff asked about

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securing his own counsel. But the Illinois Supreme Court has construed the voluntary undertaking

theory narrowly and has held that it is necessarily “limited to the extent of the undertaking.” Id.

¶ 12.

¶ 17 Athas was Baxter’s general counsel. A general counsel interacts with corporate officers

and employees on a routine basis. When corporate counsel assists an employee in answering or

understanding a question, the employee-employer relationship is not transformed and an expansive

new duty created. Indeed, such a rule would have a chilling effect on corporate counsel’s ability

to perform even basic tasks. Jakubowski v. Alden-Bennett Construction Co., 327 Ill. App. 3d 627,

641 (2002) (“[A] court may take public policy considerations into account when determining if a

duty has been voluntarily undertaken.”). Further, any voluntarily assumed duty is necessarily

limited to the undertaking: Athas clarifying questions and recommending outside counsel. There

is no allegation in the complaint that those actions violated a duty of care. Engelland v. Clean

Harbors Environmental Services, Inc., 319 Ill. App. 3d 1059, 1064 (2001) (holding that

employer’s undertaking to warn drivers of hazards was limited to potential hazards and not

unforeseen hazards); Frye v. Medicare-Glaser Corp., 153 Ill. 2d 26, 33 (1992) (holding that extent

of pharmacy’s duty created by placing drowsiness warning on prescription container was to warn

of drowsiness, not to warn of all potential dangers involved in taking the medication); Pippin, 78

Ill. 2d at 209-10 (holding that housing authority’s undertaking was limited to engaging security

firm’s services, not to ensuring resident safety itself).

¶ 18 Plaintiff relies on the Restatement (Second) of Torts in arguing a voluntary undertaking,

and while that provision has been cited favorably by Illinois courts, it creates another hurdle for

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plaintiff: the necessity of physical harm. According to the Restatement, a defendant will be liable

only for physical harm caused by the negligent performance of a voluntarily assumed duty:

“One who undertakes, gratuitously or for consideration, to render services to

another which he should recognize as necessary for the protection of the other’s person or

things, is subject to liability to the other for physical harm resulting from his failure to

exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other’s reliance upon the

undertaking.” Restatement (Second) of Torts § 323 (1965).

¶ 19 Illinois courts have routinely held, based on the language of the Restatement, that “a duty

based on a voluntary undertaking is available only to claimants asserting physical harm.” Vassell

v. Presence Saint Francis Hospital, 2018 IL App (1st) 163102, ¶ 58; see Rojas Concrete, Inc. v.

Flood Testing Laboratories, Inc., 406 Ill. App. 3d 477, 483 (2010) (holding voluntary undertaking

doctrine inapplicable where plaintiff did not allege physical harm); Martin v. State Farm Mutual

Automobile Insurance Co., 348 Ill. App. 3d 846, 854 (2004) (same); Fox Associates, Inc. v. Robert

Half International, Inc., 334 Ill. App. 3d 90, 98 (2002) (same); Weisblatt v. Chicago Bar Ass’n,

292 Ill. App. 3d 48, 53-54 (1997) (same); Furtak v. Moffett, 284 Ill. App. 3d 255, 258 (1996)

(same). But see Stefan v. State Farm Mutual Automobile Insurance Co., 284 Ill. App. 3d 727, 733

(1996) (applying voluntary undertaking to purely economic loss without analysis). Physical harm

includes personal injury or property damage but does not include emotional injury. Brogan v.

Mitchell International, Inc., 181 Ill. 2d 178, 183-85 (1998).

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¶ 20 Plaintiff alleged he suffered from clinical depression as a result of Baxter’s conduct, but he

alleges no physical harm as a result of that conduct. In the absence of a physical injury to the

plaintiff, Illinois allows recovery for purely emotional injuries only under theories of intentional

or negligent infliction of emotional distress. See Rickey v. Chicago Transit Authority, 98 Ill. 2d

546, 551 (1983) (“[I]n this State recovery has been consistently barred unless there was a

contemporaneous physical injury or impact suffered by the plaintiff.”). Because plaintiff does not

allege a physical injury he cannot establish the element of duty. Vassell, 2018 IL App (1st) 163102,

¶ 58.

¶ 21 Acknowledging that Illinois courts have not found the physical injury requirement satisfied

by an allegation of emotional harm, plaintiff cites several cases from other jurisdictions. See

Owens v. Connections Community Support Programs, Inc., 840 F. Supp. 2d 791, 800 (D. Del.

2012); Gnirk v. Ford Motor Co., 572 F. Supp. 1201, 1203 (D.S.D. 1983); see also Karn v. PTS of

America, LLC, 590 F. Supp. 3d 780, 804 (D. Md. 2022). None of these cases is persuasive. Owens

and Gnirk both concern negligent infliction of emotional distress, which plaintiff here does not

claim, and neither jurisdiction follows the “impact rule,” as Illinois does, so those holdings are

inapposite. Benton v. Little League Baseball, Inc., 2020 IL App (1st) 190549, ¶ 77 (“Under the

‘impact rule,’ a direct victim can recover damages if he suffered emotional distress and a

contemporaneous physical injury or impact, requiring actual physical contact of some sort.”). Karn

is distinguishable simply because the plaintiff in that case did suffer a contemporaneous physical

injury. 590 F. Supp. 3d at 804.

¶ 22 For all these reasons, we conclude that the circuit court did not error in dismissing

plaintiff’s negligence claim against Baxter.

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¶ 23 B

¶ 24 Plaintiff argues that the circuit court erred in dismissing his legal malpractice claim because

he sufficiently alleged that he and Athas formed an attorney-client relationship that established a

duty of care, that Athas breached that duty of care, and that Athas’s breach proximately caused

him harm. Defendants contend that plaintiff failed to allege an attorney-client relationship, and

therefore there was no duty of care to breach. Defendants also argue that even if a duty existed,

plaintiff failed to plead compensable harm.

¶ 25 An attorney-client relationship is created when a person “consults with an attorney ‘for the

purpose of securing that attorney’s legal advice on a particular matter.’ ” Leroy v. ERA Valdivia

Contractors, Inc., 2023 IL App (1st) 211323, ¶ 26 (quoting People v. Simms, 192 Ill. 2d 348, 383

(2000)). A formal agreement is not necessary to form an attorney-client relationship, but the client

must “manifest [an] authorization that the attorney act on [his] behalf, and the attorney must

indicate [his] acceptance of the power to act on the client’s behalf.” (Internal quotation marks

omitted.) Simms, 192 Ill. 2d at 382. “A client cannot unilaterally create the relationship, and the

putative client’s belief that the attorney is representing him is only one consideration.” Meriturn

Partners, LLC v. Banner & Witcoff, Ltd., 2015 IL App (1st) 131883, ¶ 10. “However, if an attorney

knows that a person is relying on his performance of services and he performs for that person’s

benefit without limitation, an attorney-client relationship can be found.” Id. The Restatement

(Third) of the Law Governing Lawyers summarizes the law on when an attorney-client relationship

arises:

“a person manifests to a lawyer the person’s intent that the lawyer provide legal services

for the person; and either

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(a) the lawyer manifests to the person consent to do so; or

(b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows

or reasonably should know that the person reasonably relies on the lawyer to

provide the services.” Restatement (Third) of the Law Governing Lawyers § 14

(2000).

¶ 26 When alleging legal malpractice, a plaintiff must allege that he was the client of the

defendant attorney or that the purpose of an attorney-client relationship between the defendant

attorney and a third party was primarily for the benefit of the plaintiff. Torres v. Divis, 144 Ill.

App. 3d 958, 963 (1986). The existence of an attorney-client relationship is a question of law. Blue

Water Partners, Inc. v. Mason, 2012 IL App (1st) 102165, ¶ 38.

¶ 27 Plaintiff alleges that he formed an attorney-client relationship with Athas based on

plaintiff’s reasonable reliance and Athas’s failure to disclaim such a relationship:

“Specifically, at the inception of the internal investigation conducted by Baxter,

and facilitated by Athas, Plaintiff reasonably believed he could rely upon Athas for

representation during the investigation, whereby Athas failed to notify Plaintiff that he was

only serving Baxter in the investigation; he provided legal assistance to Plaintiff during

questioning by Baxter’s outside counsel and; when asked by Plaintiff after the third internal

investigation interview is external counsel is advisable, Athas provided the singular

recommendation of MB, with Baxter to pay MB’s fees subject to certain conditions, which

included Plaintiff not acting in a manner opposed to the best interests of Baxter. Therefore,

as a result of Plaintiff’s reasonable reliance upon Athas, an attorney-client relationship was

formed.”

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What is most significant about this allegation is what is not alleged. Plaintiff does not allege that

he sought out Athas’s counsel. Rather, he was summoned to meetings with Baxter’s outside

counsel and Athas and another in-house lawyer. There are no facts to suggest that plaintiff sought

legal advice from Athas or reasonably believed he was consulting Athas in a professional capacity.

Herbes v. Graham, 180 Ill. App. 3d 692, 699 (1989) (The attorney-client relationship “appears to

hinge on the client’s *** manifested intention to seek professional legal advice.” (Internal

quotation marks omitted.)). Further, plaintiff does not allege that he met privately with Athas or

that he conveyed any confidences to Athas. King v. King, 52 Ill. App. 3d 749, 752 (1977) (attorney-

client relationship may be established where client seeks representation and divulges confidences);

cf. Nuccio v. Chicago Commodities, Inc., 257 Ill. App. 3d 437, 440 (1993) (finding that because

plaintiff disclosed confidences during initial interview, and despite not hiring attorney, attorney

should have been disqualified from representing adverse party in the same matter). Thus, there are

no facts alleged that establish plaintiff’s intent to seek legal advice from Athas. These are

sophisticated parties: plaintiff is a highly educated executive and a corporate officer of a Fortune

500 company, and Athas was the corporation’s general counsel. They had a basis to interact with

each other in their respective roles within the corporation without implicating an attorney-client

relationship.

¶ 28 An attorney-client relationship requires the consent of both the attorney and the client.

Simms, 192 Ill. 2d at 382. This consent does not have to be written or even expressly stated, but

the conduct of both the attorney and client must clearly evidence an intent to form such a

relationship. Id. Athas’s alleged conduct during the interviews did not demonstrate an intent to

create an attorney-client relationship. Plaintiff pleads that Athas clarified questions asked in the

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interview, but he does not plead the subject matter of the questions. Plaintiff does not plead the

specific questions that were clarified, nor the way Athas clarified them. Were they questions

related to corporate policy or culture? Or business strategy? What is not alleged is that Athas

rendered a professional opinion in response to plaintiff seeking legal advice.

¶ 29 The complaint does allege that Athas advised plaintiff to retain independent counsel. To

that point, the advice to secure counsel is an explicit exception to the prohibition on giving legal

advice to unrepresented persons. Ill. R. Prof’l Conduct (2010) R. 4.3 (eff. Jan. 1, 2010). That does

not establish an attorney-client relationship.

¶ 30 Plaintiff argues that Athas should have advised plaintiff at the outset that Athas did not

represent him, and he relies on a series of professional rules that provide that corporate counsel

should identify its client, should not provide legal advice when dealing with an unrepresented

person, and should avoid conflicting representations. Ill. R. Prof’l Conduct (2010) Rs. 1.13(f), 4.3,

1.7(a) (eff. Jan 1, 2010). But the Rules of Professional Conduct are “designed to provide guidance

to lawyers” and are not a basis for civil liability. Ill. R. Prof’l Conduct (2010), Scope (eff. Jan. 1,

2010). Moreover, even assuming a violation of any or all these rules, plaintiff has cited no authority

that a rule violation creates an attorney-client relationship where one does not otherwise exist. See,

e.g., Vandenberg v. Brunswick Corp., 2017 IL App (1st) 170181, ¶ 34 (“[T]he rules of professional

conduct cannot give rise to [attorney’s] duty ***, the violation of which served as the basis of

[defendant’s claim].”); In re Estate of Weber, 2021 IL App (2d) 200354, ¶ 21 (“The violation of a

rule should not itself give rise to a cause of action against a lawyer, nor should it create any

presumption in such a case that a legal duty has been breached.”).

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¶ 31 In reaching this conclusion, we do not wish to diminish counsel’s professional obligation

to explain the identity of his client when dealing with an unrepresented corporate employee. Ill. R.

Prof’l Conduct (2010) Rs. 1.13(f), 4.3 (eff. Jan. 1, 2010). It is undisputed that neither Athas nor

Rosenbloom (the outside counsel from McDermott Will & Emery who conducted the investigation

and questioning) ever advised plaintiff that they represented Baxter and not him. This type of

warning, commonly referred to as an Upjohn warning (based on Upjohn Co. v. United States, 449

U.S. 383 (1981)), is routinely given when corporate employees are interviewed as part of an

internal investigation. While the failure to give such a warning can have professional consequences

for counsel and can jeopardize a company’s right to control the claim of privilege, the failure to

give an Upjohn warning does not give rise to civil liability. See, e.g., Practical Law Sec. Litig. &

White Collar Crime, Internal Investigations: Giving Upjohn Warnings, 2017 WL 3161658 (last

visited Sept. 16, 2024) (collecting cases). Our own research has not found a single case in any

American jurisdiction that has imposed civil liability for failing to give such a warning.

¶ 32 C

¶ 33 Plaintiff argues that the circuit court erred in dismissing his duty to warn claim because he

sufficiently alleged that Baxter owed plaintiff a duty to warn of plaintiff’s need for legal

representation and of the adversity between their interests. Defendants respond that the tort upon

which plaintiff bases this claim has not been recognized in the state of Illinois, and Baxter therefore

had no duty to warn plaintiff of anything. Defendants further argue that even if a duty existed,

plaintiff has failed to allege the essential elements of the cause of action.

¶ 34 The complaint alleges that “Baxter as principal, owed Plaintiff, as its agent, a duty of due

care to warn Plaintiff of his need for legal representation, the conflict between Plaintiff’s interests

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and those of the Defendant, and the substance of the allegations made against him.” In support of

this claim, plaintiff relies exclusively on the following section from the Restatement (Third) of

Agency:

“A principal has a duty to deal with the agent fairly and in good faith, including a

duty to provide the agent with information about risks of physical harm or pecuniary loss

that the principal knows, has reason to know, or should know are present in the agent’s

work but unknown to the agent.” Restatement (Third) of Agency § 8.15 (2006).

Illinois has never recognized a tort based on this section of the Restatement (Third) of Agency,

and we could find no state that has.

¶ 35 Indeed, none of the 10 cases that cite this provision or are included in the Restatement

(Third) of Agency’s annotation suggest that it was intended to recognize an independent cause of

action. See Hudson v. Ardent Law Group, PLLC, No. 82756-1-I, 2023 WL 2859334, at *7 (Wash.

Ct. App. Apr. 10, 2023) (“We can find no Washington court that has adopted either version of

[section 8.15] of the Restatement or recognized that any breach by a principal of a duty of good

faith gives the agent *** an independent cause of action for such a breach ***.”); Universal

Trading & Investment Co. v. Bureau for Representing Ukrainian Interests in International &

Foreign Courts, 605 F. Supp. 3d 273, 295 n.15 (D. Mass. 2022) (holding that under section 8.15,

principal owes no duty of candor to agent other than provided by contract); C&E Services, Inc. v.

Ashland, Inc., 498 F. Supp. 2d 242, 264-65 (D.D.C. 2007) (holding principal had duty under

section 8.15 pursuant to principal-agent relationship based in contract); DR Distributors, LLC v.

21 Century Smoking, Inc., 513 F. Supp. 3d 839, 944 (N.D. Ill. 2021) (citing section 8.15 to support

a client’s duty, as principal, to furnish and not misrepresent facts to attorney, as agent, in fiduciary

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attorney-client relationship); Minnesota Life Insurance Co. v. Financial Institution Consulting

Corp., 280 F. Supp. 3d 1057, 1067 (W.D. Tenn. 2017) (holding the duty under section 8.15 is not

itself fiduciary in nature and cannot form the basis for a breach of fiduciary duty claim); Amtrust

North America, Inc. v. Safebuilt Insurance Services, Inc., No. 14 Civ. 09494(CM), 2015 WL

7769688, at *6 (S.D.N.Y. Dec. 1, 2015) (same); MDM Group Associates, Inc. v. CX Reinsurance

Co. Ltd., 165 P.3d 882, 889 (Colo. App. 2007) (same); Metropolitan Enterprise Corp. v. United

Technologies International Corp., No. Civ. 303CV1685JBA, 2005 WL 2300382, at *9 (D. Conn.

Sep. 21, 2005) (same).

¶ 36 Plaintiff has given us no compelling reason to recognize a new cause of action, but in any

event, the business of creating new torts is best left to the legislature, which is uniquely suited to

weigh competing policy considerations. See Cramer v. Insurance Exchange Agency, 174 Ill. 2d

513, 527 (1996) (“We hesitate to recognize a new tort where the legislature has constantly acted

to remedy a perceived evil in a certain area.”). This is particularly so here, where to recognize this

new cause of action would trench upon Illinois public policy favoring employment at-will. Turner

v. Memorial Medical Center, 233 Ill. 2d 494, 502-03 (2009).

¶ 37 III. CONCLUSION

¶ 38 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 39 Affirmed.

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Bohaboy v. Baxter International, Inc., 2024 IL App (1st) 230868

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2022-L- 002528; the Hon. Thomas M. Donnelly, Judge, presiding.

Attorneys Steven J. Rosenberg, David J. Ben-Dov, and Toni F. Esparza, of for Golan Christie Taglia LLP, of Chicago, for appellant. Appellant:

Attorneys Sean M. Berkowitz, Nicholas J. Siciliano, Kirsten C. Lee, and for Renatta A. Gorski, of Latham & Watkins LLP, of Chicago, and Appellee: Whitney B. Weber, of Latham & Watkins LLP, of San Francisco, California, for appellees.

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