text:
|Publication number
|Publication type
|Publication date
|Jun 10, 1975
|Filing date
|Mar 9, 1973
|Priority date
|Mar 9, 1973
|Also published as
|Publication number
|Young Wayne J De
|Original Assignee
|Uniroyal Inc
|Export Citation
|BiBTeX, EndNote, RefMan
|Patent Citations (5), Referenced by (87), Classifications (14), Legal Events (1)
|External Links: USPTO, USPTO Assignment, Espacenet
United States Patent [191 De Young June 10, 1975 OIL SORPTION MATERIAL [75] Inventor: Wayne ,1. De Young, Argos, Ind.
[73] Assignee: Uniroyal, lnc., New York, NY.
[22] Filed: Mar. 9, 1973 [21] Appl. No.: 340,613
[52] US. Cl. 210/36; 106/2; l17/65.2; 117/98; 117/138.8 D; 134/6; 210/40;
[51] Int. Cl E02b 15/04 [58] Field of Search 106/2; 117/98, 138.8 R,
Primary ExaminerCharles N. Hart Assistant Examiner-Ivars Cintins Attorney, Agent, or Firm-Norbert P. Holler, Esq.
57 ABSTRACT- Cellular materials impregnated with a hydrophobic and oleophilic sealant in an amount sufficient to coat the surfaces of the cells or capillary domains, for use in absorbing oil and like pollutants from the surfaces of either solids or liquids, are disclosed. 1n the preferred form of the invention, such a material is made by impregnating a sheet of open-celled polyurethane foam with a solution or latex of a sealant inert to water but capable of being swelled or dissolved by oil, drying the sheet by driving off all or part of the liquid medium, and compressing the sheet while the impregnated sealant is tacky, so that the sealant acts to retain the sheet in its compressed state. The resultant article is characterized by the unique quality of being relatively inactive when in contact with water, but becoming activated by oil, so that a rapid absorption of large amounts of the oil is effected. The cellular material may also be a foam in chopped or powder form, or a fibrous non-woven batt, and is particularly advantageous in selectively removing residual films of oil from the surface of a body of water. This abstract is not to be taken either as a complete exposition or as a limitation of the present invention, however, the full nature and extent of the invention being discernible only by reference to and from the entire disclosure.
11 Claims, No Drawings OIL SORPTION MATERIAL BACKGROUND OF THE INVENTION 1. Field of the Invention T his invention relates to the art of removing oils and like pollutants from the surfaces of solids and liquids, and is of particular advantage in the removal from the surface of a body of water of a residual film of oil which cannot be removed by skimming and/or pumping.
2. Description of the Prior Art The removal of oil from water can be accomplished by pumping if there is a sufficient thickness of oil in a given limited area, as when it is confined by a boom relatively shortly after the occurrence of a spill. Even so, however, a residue of oil always remains on the surface in the form of a thin film which continued pumping cannot remove. Frequently, there are also small spills on water where pumping is not feasible.
The general approach to the removal of small oil spills or thin layers of oil on water is to place an oil absorbing substance on the surface of the water. Preferred substances posses high surface areas and are preferably oleophilic/hydrophobic in their interaction with fluids. The substances may optionally be modified by suitable treatments in order to induce or enhance their oleophilic/hydrophobic characteristics. Examples of such treatments are described in US. Pat. Nos. 1,972,390, 2,824,022, 3,010,840 and others. Typically, the cellular material the oleophilic character of which is to be enhanced, is exposed to a modifying agent which may be in an emulsion, solution, vapor or particulate form. Suitable modifying agents have been all kinds of bituminous materials such as asphalt, coal tar pitch, and tall oil pitch, as well as waxes, metallic soaps, silicones, and other similar coatable, water-insoluble, oil-absorbing substances.
Previously employed sorbents may be categorized as inorganic, natural organic, polymeric foam, polymeric hydrocarbon, and miscellaneous products, according to the classification scheme applied by P. Schatzberg of the Naval Ship Research and Development Center in his Report No. 724110.1/2/1, titled Investigation of Sorbents for Removing Oil Spills from Water (November 1971). Examples of inorganic sorbents he refers to are asbestos, perlite powder, talc, volcanic ash, vermiculite, and the like. Representative natural organic sorbents are ground corn cob, wood fiber, fiberboard, hay, sawdust, straw, and the like. Polymeric foam sorbents are exemplified by polyurethane and urea formaldehyde foams. Examples of polymeric hydrocarbon sorbents are polyethylene, polypropylene and polystyrene normally formulated into powder, sheet, fiber or mat form, but Schatzberg also recognized that such polymeric hydrocarbon sorbents could be formulated into foam form as well. Miscellaneous sorbents are materials that do not belong to any of the afore-mentioned groups and are exemplified by cellulose fiber-perlite mixtures, plastic shavings, refuse compost, mixtures of synthetic fibers, and the like.
While most of the sorbent materials included in the above-mentioned groups have some utility in removing oil spilled on water, the inorganic, natural organic, and miscellaneous sorbents possess inadequate buoyancy retention and lower oil sorption capacity in comparison with the polymeric foam and polymeric hydrocarbon sorbents. Loss of buoyancy is attributed to displacement of air by water in the sorbent, resulting in a significant increase in average density. Even the polymeric foam and polymeric hydrocarbon sorbents, however, cannot resist a certain amount of absorption of water when exposed to water alone or to oil slicks on water. Thus, when these materials are deployed ahead of an advancing oil spill on water, they will experience some absorption of water before the oil reaches them. Also, these polymeric foam and polymeric hydrocarbon sorbents, when placed into an oil spill on water, penetrate the oil/water interface and begin, at those portions of their surfaces located below the oil level, to absorb water. In both of the aforementioned situations, the space taken up in the sorbent by the water is unavailable to the oil, and the efficiency of the sorbent is reduced correspondingly.
SUMMARY OF THE INVENTION It is an important object of the present invention, therefore, to provide novel methods and means for removing oils and like pollutants from the surface of a body of waterin a manner free of the drawbacks and disadvantages of the heretofore known processes of this type.
It is also an object of the present invention to provide such methods and means which are particularly advantageous for the removal of relatively thin films of oil not only from the surface of a body of water where their removal by pumping and/or skimming is not feasible, but from a solid surface as well.
Generally speaking, the objectives of the present invention are attained by the provision of an oil sorption material comprising a cellular material impregnated with a hydrophobic sealant which is oil-swellable or oilsoluble, the degree of impregnation being predetermined and optimized, in terms of the ratio of the weight of the sealant to the weight of the starting cellular material, to ensure that the latter will absorb only minimal quantities of water when exposed thereto, and that the mass of the impregnated sealant, once the same has dried and solidified, will not be so high as to retard the absorption of oil when the cellular material is exposed thereto.
By way of definition, the term cellular material as employed herein is intended to denote a variety of materials, including open-cell foams or sponges, and also fibrous mats, pads or battings fabricated from such substances as asbestos fibers, wood fibers, hay, straw, cotton, synthetic fibers, and the like, which mats, pads or battings are characterized by a skeleton structure formed with interconnected cells or capillary domains that allow fluids to penetrate inside and be retained. Of these, synthetic open-cell foams or sponges, as is well known, are generally made of various polymeric substances such as polyurethane, natural rubber, synthetic rubber, polypropylene, polyethylene, and the like, by incorporating a gas in the substance while the same is undergoing a transition from a liquid to a solid state. Natural sponges are remains of plant-like sea animals, having a porous structure and a tough, fibrous skeleton. Mats, pads, or battings are generally produced by random deposition of short fibers into web form on a moving belt followed by a suitable processing, such as heating, stitching, chemical treatment, adhesive bonding, and the like, to bond the web of individual fibers into a coherent, porous mass.
The term sealant" as employed herein is intended to denote a variety of substances which are hydrophobic or inert to water and at the same time oleophilic or oilsensitive, i.e., capable of being dissolved or swelled by oil, and which are either inherently tacky or are capable of being rendered tacky. Such substances include natural and synthetic rubbers, e.g. natural rubber, neoprene, polyisoprene, styrene-butadiene copolymer, polybutadiene, ethylene-propylene rubbers, and the like; synthetic resins such as phenol-formaldehyde resin, resorcinol-formaldehyde resin, certain saturated polyester resins (for example, such as is commercially available under the designation Vitel), and the like;
and synthetic plastics such as polystyrene, styreneacrylonitrile copolymer, poly-methylstyrene, certain polymeric derivatives of acrylic and methacrylic acid (for example, such as is commercially available under the designation B-72), ethylene-vinyl acetate copolymers (for example, such as is commercially available underthe designation VYHI-I), and the like. The micro-structure of the rubbers and plastics may be atactic, syndiotactic or isotactic, although the atactic ones are preferred because they are more rapidly dissolved or swollen. The copolymers may have random or block structure, but the random structures are preferred because of their more rapid rate of solubility or swelling in oil. The sealant in its starting state may be inherently a liquid, or it may be a solid either dissolved in a suitable solvent or dispersed in an aqueous emulsion or latex.
In accordance with a refinement of the invention, the cellular material, after being impregnated with the sealant, may then be compressed to a greatly reduced thickness as a concomitant of the drying and solidification of the sealant. By virtue of its tackiness, the sealant then also serves to maintain the cellular material in its compressed condition until the sealant is swelled or dissolved by contact with oil. In such an arrangement it is found that the oil absorptive properties of the impregnated compressed cellular material are even better than the oil absorptive properties thereof when only impregnated but not compressed. At the same time, the retained compression provides yet another advantage in that the material takes up less space during both storage and shipment thereof prior to use.
The present invention also provides a method of producing the foregoing oil sorption material, this method comprising impregnating cellular material with a sealant in a liquid medium, thereby to coat the cells or capillary domains of the cellular material with the sealant, drying the impregnatetf material by driving off all or part of the liquid medium, if desired applying pressure to compress the impregnated material so that the sealant, being tacky, maintains the impregnated material in the compressed state after removal of the pressure, and, if needed, completing the drying. If the sealant is inherently tacky, the compression can be effected at ambient temperatures; otherwise, an application of a certain amount of heat may be required as a concomitant or adjunct of the compression operation.
The invention further provides a method of removing oil from a surface which it is contaminating and in particular for selectively removing oil from the surface of a body of water, which comprises contacting the oilcontaminated surface with an oil sorption material of the present invention.
DESCRIPTION OF THE PREFERRED EMBODIMENTS The present invention is based on the discovery that a cellular material as herein defined, modified by impregnation, to a predetermined degree, with a hydrophobic and oleophilic sealant, i.e., one which is capable of being dissolved or swelled by oils, is a superior selective oil absorbent which does not lose its oil absorption efficiency when exposed to water before coming into contact with oil. Without limiting the scope of the invention to any particular theory, it is believed that the efficacy of the invention derives from the fact that the surfaces of the cells or capillary domains of the cellular material are coated with the oleophilic and hydrophobic substance. Thus, since the latter is capable of swelling and/or dissolving in oil but is not attacked by water, it enhances the oil absorptive character of the impregnated cellular material, so that only a minimal absorption of water occurs when the cellular material comes in contact with water, and that even when contact is made with water and oil, the impregnated cellular material becomes highly activated for absorption of oil without increasing its water absorption to any significant extent.
It is also contemplated by the present invention that the impregnated cellular material may be compressed while the sealant is in a tacky state. The sealant will thus act as a binder and will hold the cellular material in its compressed state until activated by contact with oil. It is found that the oil sorption capability of the compressed impregnated cellular material, like that of the impregnated only but uncompressed material, is not impaired by exposure to water and is actually even better than the oil sorption capability of the uncompressed cellular material. Moreover, by virtue of its retained smaller thickness, the compressed cellular material will occupy less space than the uncompressed material, thereby reducing the space requirements therefor in both storage and transit. The compression of the cellular material may, of course, be effected by any suitable means, for example, a hydraulic press or a set of pressure rollers. One or more of the press platens or one or more of the pressure rollers may be heated, if needed to induce or enhance the tackiness of the sealant. The pressure used may range from as little as about 1 psi to as much as about 300 psi, and the associated temperature may range from as low as room temperature (e.g. 20-25C.) to about C.
As previously indicated, the sealant may be inherently a liquid, but it is preferred to use the same either in the form of a solution of the sealant in any appropriate organic solvent, e.g. such as hexane, xylene, toluene, naphtha and the like for a natural rubber sealant, or in the form of a latex. In either form, the solids content of such solutions and latices should normally range from about 0.5 percent to about 30 percent, and preferably from about 1 percent to about 6 percent, by weight based on the total weight of the solution or latex. Depending on the nature of the liquid medium, or course, it may be desirable to subject the impregnated cellular material to a mechanical and/or thermal drying operation to drive off some or all of the liquid medium, especially if the cellular material is then to be compressed. A mechanical treatment of this type may be simply a squeezing operation. A thermal treatment, on the other hand, would involve heating the impregnated cellular material to a temperature between about 65C. to about 125C. for a period of between about minutes and 6 hours.
For the purposes of the present invention, the degree of impregnation of the cellular material should be sufficient to yield a sealant pick-up of between about 0.5 percent and about 30 percent by weight based on the dry weight of the starting, unimpregnated cellular material, with a pick-up in the range of about 3 percent to about percent being preferred. The degree of compression, on the other hand, should be sufficient to reduce the thickness of the cellular material to between about 4 percent and about 15 percent of its original thickness, with a compression to about 7 percent of the starting thickness being preferred.
In the presently contemplated best mode of the invention, the cellular material is a body of a resilient open-cell polyurethane foam, and the sealant is natural rubber applied to the foam by impregnation in the form of a dilute solution of the rubber in a hydrocarbon solvent, e.g. hexane. An aqueous rubber latex would be equally acceptable. The concentration of the rubber in the liquid medium is about 4 percent by weight in either case. The impregnated polyurethane foam is squeezed to eliminate excess solution and then is dried for a desired time interval at an elevated temperature, the values of these parameters falling into the ranges thereof hereinbefore set forth. Thereafter, the dried impregnated foam is compressed, e.g. in a heated hydraulic press, under a pressure and temperature and for a time interval within the ranges of these parameters hereinbefore set forth, to a thickness of about 7 percent of the starting thickness of the foam. The tackiness of the rubber sealant ensures that the foam body will remain in its compressed state until it is used in an oil recovery operation.
The cellular material normally will be in sheet form, but it may also be in a chopped or highly fragmented form when first exposed to the sealant. The highly fragmented form is, however, preferably obtained by first treating a cellular material, in either the sheet or the chopped form, with the sealant, then drying and compressing the cellular material, and finally pulverizing the same. Such pulverized absorbent is found especially suited for use on solid surfaces, e.g. in the case of oil spills or leaks on a factory floor, oil drums, machinery, etc., whereas the sheet or chopped block form of absorbent is normally more suited for use on a body of water, especially if deployed in advance of an oil spill. Either type of absorbent form, it will be appreciated, is suitable for combating oil spills whether they occur on land or on water. It is to be understood that the term oil as used herein refers to all materials commonly known by that term, including hydrocarbon and aromatic liquids which are used in the trade as oils, lubricants and fuels, such as Bunker C, heavy crude, light crude, kerosene, gasoline, and the like.
In use, the impregnated cellular material of this invention, either in the compressed or uncompressed form, may be placed directly on the oil spill, but if the spill is on water, the sorbent can also be deployed either on the water or on a beach in advance of the oil spill. If the spill is on water and is contained by a boom, moreover, the sorbent may be used in absorbing all of the oil, or only that residual portion thereof which remains afterpumping has removed the bulk of it. The sheet material sorbent when deployed on a beach in advance of an oil spill on water, or when deployed on water in advance of an oil spill, may be used as is, but the chopped sorbent should be contained in a foraminous envelope, such as netting made out of nylon, polyethylene, and the like. Examples of such techniques are described in South Africa Pat. Nos. /7433 and 71/2803. Where large amounts of oil are contained by a boom, the chopped sorbent is preferred because of its large surface to volume ratio. The sheet and powder forms are preferred where only thin oil films need to be removed from water.
Naturally, the oil can be extracted and recovered from the sorbent by passing the same through a set of pressure rollers, and after being used the cellular material can be retracted with sealant as necessary, compressed again if desired, and reused.
The following examples are merely illustrative of the present invention and are not limitative thereof.
EXAMPLE 1 This example illustrates the effect of a sealant on the ability of a foam to resist penetration by water. Opencell polyurethane foam pieces, each 3 in. X 3 in. X 1.5 in. and weighing 6 grams, were impregnated by immersion in a 4 percent hexane solution of natural rubber, squeezed to remove excess impregnant, and then allowed to air dry at ambient temperature for three hours, followed by heating at 200F. for hour. Some of the impregnated and dried samples were further processed by compressing them to a thickness of about 7 percent of their starting thickness in a hydraulic press at ambient temperature (about 72 F.) and under a pressure of about 300 psi for a period of about 15 seconds. The sealant pick-up was about 4.3 percent by weight based on the weight of the starting foam. Samples of the unimpregnated foam, the impregnated and dried foam, and the impregnated, dried and compressed foam were submerged completely under water at 72F for 2 hours. They were then removed, their surfaces blotted with absorbent paper, and weighed. Table I shows the amount of water (in grams) absorbed by the samples of each type of sorbent foam.
TABLE I Final Initial Absorbed Sample Weight (g) Weight (g) Water (g) Untreated foam 138 6 132 Impregnated-only foam 28 6 22 lmpregnated and compressed foam l6 6 10 Table I shows that the impregnated and compressed foam absorbs about l/2 the amount of water absorbed by the impregnated-only foam, and about l/l3 the amount of water absorbed by the original, untreated foam.
EXAMPLE 2 time required for the oil to permeate each sample and cause it to sink. In the case of the impregnated and compressed foam, the sample sank almost immediately, and the end point was, therefore, determined by the time required for the sample to expand to its original size. The time to saturation (in minutes) and the amount of oil absorbed (in grams) are shown in Table II.
TABLE II Time to Oil Sample Saturation (min) Absorbed (g) Untreated foam 27 209 Impregnated-only foam 1 l 206 Impregnated and compressed foam 3 219 "'All samples were 6 g. in weight before exposure to oil.
Table II clearly shows that the impregnated and compressed foam absorbs the oil faster than both the impregnated-only foam and the original untreated foam.
EXAMPLE 3 This example illustrates the efficiency of absorption of oil by foam after the foam has been impregnated with a sealant and then exposed to water. Open-cell polyurethane foam samples, prepared and exposed to water as described in Example 1, were placed on No. 3 oil, and the rate and amount of absorption were determined in the manner described in Example 2. The rate and absorption data are shown in Table III.
TABLE III Time to Initial Oil Saturation Weight Absorbed Sample" (min) plus Water (g) (g) Untreated foam 62 147 129 impregnated-only foam 25 47 20l Impregnated and compressed foam 2] 14 228 All samples soaked in water first for 2 hours at 72F *All samples were 6 g. in weight before exposure to water.
Table III clearly shows that after soaking in water, the impregnated and compressed foam absorbs much less water and more oil, and absorbs the oil more quickly, than do the impregnated-only foam and the original untreated foam.
EXAMPLE 4 This example illustrates the efficiency of absorption of oil from water by foam which has been impregnated with a sealant. The foam samples were prepared in the same manner as those used in Example 2, but they were placed on a /1 inch thick layer of No. 3 oil which was spread on water. By visual observation it was determined that the rate of oil absorption of the impregnated and compressed foam exceeded that of the impregnat- TABLE IV Sample Oil Absorbed (g) Untreated foam l02 lmpregnated-onl foam 133 lmpregnated an compressed foam 23l Table IV clearly shows that the impregnated and compressed foam absorbs substantially more oil than the impregnated-only foam and the untreated original foam.
EXAMPLE 5 This example illustrates the efficiency of absorption of oil from water by foam which has been impregnated with a sealant and then was soaked in water before being exposed to oil. The foam samples were prepared in the same manner as those used in Example 3 but were placed on a A inch layer of No. 3 oil which was spread on water. By visual observation it was determined that the rate of oil absorption of the impregnated and compressed foam exceeded that of the impregnated-only foam which in turn had a greater rate of absorption than the untreated original foam. The samples were allowed to equilibrate with the oil/water interface for /2 hour. The samples were then removed and weighed, and the amount of oil absorbed by each was determined by squeezing the sample and allowing the oil and water expelled therefrom to separate. Table V shows the amount of oil (in grams) absorbed by each sample.
TABLE V Sample Oil Absorbed (g) Untreated foam impregnated-only foam Impregnated and compressed foam EXAMPLE 6 This example illustrates the effectiveness of natural rubber as a sealant when applied in the form of a latex to the cellular material. Open-cell polyurethane foam samples each 3 in. X 3 in. X 1.5 in. in size were impregnated with a natural rubber latex having a solids content of 3 percent by weight based on the total weight of the latex. The impregnated samples were dried for 30 minutes at a temperature of 220F. and were then compressed under a pressure of 300 psi for 15 seconds at ambient temperature to a thickness of 7 percent of their starting thickness. Respective samples of the impregnated and compressed foam were exposed to water as in Example 1, to oil as in Example 2, and to water and oil as in Example 3. Pertinent data describing the absorption characteristics of the samples are set forth in Table VI.
TABLE VI-Continued and being impregnated with between about 4 and 20 percent by weight, based on the weight of the starting Time to Oil Water Oil foam, of a sealant of natural rubber, said sealant coat- Sample sfllurflllvn (mm) Ahwhed (g) Ahmhed 8 ing the surface of said cells or capillary domains of said Exposed to S 240 5 on on] compressed foam and thereby minimizing the capabilggs; 0 l0 8 ity of said foam to absorb water when exposed thereto while maximizing the capability of said foam to absorb All samples were 6 gms. in weight before exposure to water. when exposed thereto, and said sealant also SBI'VlI'Ig as a binder to retain said compressed foam in its com- A comparison of the data in Table VI with those in 10 pressed state until said sealant is dissolved or swelled by Tables I, II and III clearly shows that natural rubber apoil upon being contacted thereby. plied to the foam out of a latex is as effective as a seal- 2, A composition f tt r s cl imed in claim 1, am Q when 1t PP out of a sehltlohwherein said sealant is a natural rubber from a latex.
It 18 to be expected, of course, that the use of syn- 3 A h d f removing i] f an il. thetic rubbers and rubbery substances in lieu of natural 15 i t d rfa comprising contactin said conrubber In experiments corresponding to those taminated surface with the composition of matter of scribed in the preceding examples, as well as the use of l i 2 eomparahle h f Plashes 0f the yp herein 4. A composition of matter as claimed in claim 1, Closed, Wlh Provlde slmllar YesuhS- 20 wherein said sealant is a natural rubber from a solution. EXAMPLE 7 5. composltion of matter as claimed in claim 4, wherein said solution IS about a 4 percent hexane solu- This example illustrates the ability of various subtion, stances other than natural rubber to serve as sealants A method f removing il f an i]- for P P y foems accordance Wlth the contaminated surface, comprising contacting said conteaehlhgs of the Preseht P hp of eP h' taminated surface with the composition of matter of cell polyurethane foam, each 3 in. X 3 in. X 1.5 in. in Claim 4 size, were impregnated with solutions of respective 7 A h d of removing il f an il. Sealants Selected from among those herembefere contaminated surface, comprising contacting said conferred The pl f compressed to a thlekhess taminated surface with the composition of matter of of 7 percent of their starting thickness and then were claim 1 exposed 0 Walr and/OT absehphoh eharae- 8. A method of producing the composition of matter teristics were then determined. The pertinent data are f Claim 1, id h d Comprising h Steps f i shown in Table VII.
TABLE VII Solvent and Time Concentration Sealant" to Oil Water Oil Sealant (wt./wt.) Pickup (7:) Saturation (min.) Absorbed (g) Absorbed (g) B-72 Methylethyl Ketone (10%) 17.2 1 I5 214 VYHH Methylethyl Ketone (10% 16.5 5 22 20s VITEL Toluene (107:) 19.5 5 36 188 Based on weight oforiginal foam; final compressed foam weight was 6 gms. Compressed foam exposed to oil only.
Compressed foam exposed to water only.
Compressed foam exposed to water first and then to oil.
A comparison of the data of Table VII with those of Tables I, II and III clearly shows the capacity of these substances to serve as hydrophobic/oleophilic sealants in an open-cell cellular material in lieu of rubber.
It will be understood that the foregoing description of preferred embodiments of the present invention is for the purposes of illustration only, and that the various process steps and relationships as well as the materials and proportions thereof herein disclosed are susceptible to a number of modifications and changes none of which entails any departure from the spirit and scope of the present invention as defined in the hereto appended claims.
What is claimed is:
l. A composition of matter for selectively absorbing oil from a surface supporting the same, comprising a polyurethane foam compressed to a thickness of about 7 percent of the starting thickness, said foam having a multiplicity of open cells or capillary domains therein nating a polyurethane foam having a multiplicity of open cells or capillary domains therein with a liquid comprising a sealant of natural rubber, removing excess liquid from said foam so that the foam contains between about 4 to 20 percent of said sealant, based on the weight of the starting foam, treating said foam to render the impregnated sealant tacky, and compressing said impregnated foam to a thickness of about 7 percent of its starting thickness, whereby the tackiness of said sealant is utilized to retain said foam in its compressed state until said sealant is dissolved or swelled by oil upon being contacted thereby.
9. The method of claim 8, wherein the sealant is a natural rubber from a latex.
10. The method of claim 8, wherein the sealant is a natural rubber from a solution.
11. The method of claim 10, wherein said solution is about a 4 percent hexane solution. I=
|Cited Patent
|Filing date
|Publication date
|Jan 30, 1969
|Jul 6, 1971
|Phillips Petroleum Co
|Method of removing hydrocarbons from the surface of an aqueous body
|Nov 13, 1969
|Aug 10, 1971
|Heinz Baumann
|Method of removing oil slicks from water surfaces
|Aug 5, 1970
|Jul 18, 1972
|Phillips Petroleum Co
|Cellulose sponge for removing oil slicks
|Mar 26, 1971
|Aug 1, 1972
|Membrionics Corp
|Oil spillage control process
|Jul 16, 1970
|Jun 19, 1973
|Johns Manville
|Device for fencing and absorbing contaminating oil spills on water
|Citing Patent
|Filing date
|Publication date
|May 19, 1976
|Jun 28, 1977
|Pedone Vito S
|Reusable oil absorbent bilge and fuel tank opening pads
|May 23, 1977
|Oct 17, 1978
|Ellis Robert D
|Oil slick removal and recovery system
|Dec 22, 1976
|May 8, 1979
|Acker Jan R
|Cryogenic beach cleaner
|Oct 26, 1976
|Jul 17, 1979
|R. B. Cybernetris (1970) Ltd.
|Method of enhancing oleophilic and hydrophobic properties of absorbent material
|Jun 28, 1978
|Oct 28, 1980
|Petrozorbent Corporation
|Foamaceous hydrocarbon adsorption medium and method and system for making same
|Apr 30, 1979
|Dec 2, 1980
|Basf Aktiengesellschaft
|Hydrophobic polyurethane foams, their manufacture and use
|Sep 4, 1979
|Feb 24, 1981
|Director General Of Agency Of Industrial Science And Technology
|Process for preparing a porous composite material
|Jan 10, 1977
|Nov 24, 1981
|The Dow Chemical Company
|Separation of oil from water
|Jun 30, 1981
|Apr 12, 1983
|Akzo Nv
|Porous, powdery polypropylene
|Jul 15, 1981
|Jul 5, 1983
|Akzo Nv
|Porose, pulverformige polymerteilchen
|Feb 7, 1983
|Jun 12, 1984
|Akzo Nv
|Porous, powdery polypropylene
|Jan 4, 1985
|Aug 27, 1985
|Creative Products Resource Associates, Ltd.
|Floor cleaning and waxing composition
|Dec 20, 1984
|Oct 22, 1985
|Creative Products Resource Associates, Ltd.
|Floor cleaning composition
|Mar 28, 1985
|Nov 5, 1985
|Creative Products Resource Associates, Ltd.
|Floor cleaning composition
|Jul 6, 1983
|Jan 7, 1986
|Creative Products Resource Ltd.
|Concrete cleaning composition
|Jun 18, 1984
|Feb 11, 1986
|Creative Products Resource Associates, Ltd.
|Composite foam-textile cleaning pad
|Aug 9, 1985
|Apr 8, 1986
|Creative Products Resource Associates, Ltd.
|Composite reticulated foam-textile cleaning pad
|Jul 14, 1986
|Jun 7, 1988
|Bayer Aktiengesellschaft
|Process for removing impurities from mixtures of water with water-miscible solvents
|Jul 29, 1985
|Dec 12, 1989
|Nhk Spring Co., Ltd.
|Vehicle suspension device with a coil spring embedded in an open cell foam
|Jul 24, 1989
|May 15, 1990
|Raible Robert L
|Oil spill cleanup compositions
|Apr 24, 1990
|Jan 7, 1992
|Isover Saint Gobain
|Technique for the removal of petroleum-based pollutants and a material for that purpose
|Sep 27, 1990
|May 12, 1992
|John Bartha
|Method of cleaning up petroleum oil spills
|Mar 7, 1991
|Aug 25, 1992
|Sietz-Filter-Werke Geo & Theo Seitz/GmbH & Co.
|Filter material formed by fibride particles
|Feb 4, 1991
|Aug 24, 1993
|Maxichem, Inc.
|Absorbent agents for clean-up of liquid hydrocarbons
|Aug 28, 1992
|Sep 7, 1993
|Envirogen, Inc.
|Solid phase extraction
|Sep 17, 1992
|Nov 16, 1993
|Zimmerman Edwin H
|Apparatus to recover petroleum from slicks and spills
|Jun 30, 1992
|Apr 19, 1994
|Enichem Elastomeri S.R.L.
|Method for removing hydrocarbon products from the surface of an aqueous medium
|Jul 8, 1993
|Jun 13, 1995
|Centro Sviluppo Settori Impiego S.R.L.
|Modular element for absorbing oily substances from surfaces of water bodies and purification system using such elements
|Oct 4, 1993
|Jun 13, 1995
|Zimmerman; Edwin H.
|Method to recover petroleum from slicks and spills
|Dec 13, 1993
|Nov 14, 1995
|Schiwek; Helmut
|Method of removing oil and oil like environmental contaminants from water of ground surfaces
|May 24, 1996
|Jan 26, 1999
|Abtech Industries, Inc.
|Methods for ameliorating oil spills in marine and inland waters
|Mar 11, 1996
|Apr 6, 1999
|Regents Of The University Of Minnesota
|Agriculture residue based absorbent material and method for manufacture
|Apr 15, 1997
|Oct 12, 1999
|Rohm And Haas Company
|Reusable mat for removing liquid contaminants
|Jan 8, 1998
|Oct 26, 1999
|Creative Products Resource, Inc.
|Fabric-cleaning kits using sprays, dipping solutions or sponges containing fabric-cleaning compositions
|Dec 10, 1997
|Nov 16, 1999
|Elf Antar France
|Device for purifying lightly laden water
|Jan 13, 1998
|Dec 7, 1999
|Smith; James A.
|Dry-cleaning bag with an interior surface containing a dry-cleaning composition
|Sep 29, 1997
|Mar 14, 2000
|Creative Products Resource, Inc.
|Anhydrous dry-cleaning compositions containing polysulfonic acid, and dry-cleaning kits for delicate fabrics
|Sep 29, 1998
|Jun 27, 2000
|Abtech Industries, Inc.
|Storm drain systems for filtering trash and hydrocarbons
|Aug 4, 1997
|Jul 11, 2000
|Custom Cleaner, Inc.
|Dry-cleaning compositions containing polysulfonic acid
|Jun 5, 1998
|Aug 8, 2000
|Abtech Industries, Inc.
|Catchbasin systems for filtering hydrocarbon spills
|Feb 17, 1999
|Aug 22, 2000
|Abtech Industries, Inc.
|Curb-inlet storm drain systems for filtering trash and hydrocarbons
|Feb 13, 1998
|Aug 29, 2000
|Isolyser Company, Inc.
|Oil absorption and reclamation methods
|Jan 25, 1999
|Nov 7, 2000
|Abtech Industries, Inc.
|Methods for ameliorating hydrocarbon spills in marine and inland waters
|Jun 29, 1999
|Jan 30, 2001
|Custom Cleaner, Inc.
|Fabric treatment compositions containing polysulfonic acid and organic solvent
|Aug 22, 2000
|May 15, 2001
|Abtech Industries, Inc.
|Curb-inlet storm drain systems for filtering trash and hydrocarbons
|Jul 24, 1998
|May 29, 2001
|Custom Cleaner, Inc.
|Process for softening or treating a fabric article
|Mar 14, 2000
|Jul 3, 2001
|Custom Cleaner, Inc.
|Fabric softener device for in-dryer use
|Jan 9, 1998
|Feb 5, 2002
|Abtech Industries, Inc.
|Systems for ameliorating aqueous hydrocarbon spills
|Nov 1, 2000
|Feb 25, 2003
|Isolyser Company, Inc.
|Oil absorption and reclamation methods therefrom
|Nov 13, 2000
|Mar 11, 2003
|Abtech Industries, Inc.
|Suspended runoff water filter
|Apr 7, 1998
|Apr 1, 2003
|Abtech Industries, Inc.
|Polymer alloys, morphology and materials for environmental remediation
|Dec 31, 2001
|Apr 20, 2004
|Abtech Industries, Inc.
|Systems for ameliorating aqueous hydrocarbon spills
|Oct 18, 2002
|Jun 7, 2005
|Mississippi State University
|Method to control off-flavor in water and aquaculture products
|Mar 24, 2003
|May 23, 2006
|Abtech Industries, Inc.
|Process of forming oil-absorbent bodies
|Feb 21, 2003
|Aug 22, 2006
|Abtech Industries, Inc.
|Method of making and using a filter in the form of a block of agglomerated copolymer fragments
|Jan 15, 2003
|Nov 21, 2006
|Paul Clukies
|Water pollution prevention and remediation apparatus
|Dec 6, 2004
|Jun 12, 2007
|Abtech Industries, Inc.
|Sack-based processes for recovering oil floating on water
|Dec 16, 2005
|Dec 23, 2008
|Paul Arthur Clukies
|Bilge water barrier and pollution prevention system
|Dec 16, 2005
|Apr 21, 2009
|Paul Arthur Clukies
|Water pollution prevention and remediation apparatus
|Dec 16, 2005
|Apr 28, 2009
|Paul Arthur Clukies
|Apparatus for removing fluid from bilge of a marine vessel
|Dec 16, 2005
|Jun 15, 2010
|Paul Arthur Clukies
|Water pollution prevention and remediation apparatus
|Oct 20, 2006
|Aug 24, 2010
|Paul Arthur Clukies
|Water pollution prevention and remediation apparatus
|Apr 21, 2011
|Dec 10, 2013
|Kabushiki Kaisha Toshiba
|Oil adsorbent, and method for recovering oil
|Oct 24, 2011
|Jun 21, 2016
|Aktiebolaget Skf
|Lubricant system and method of forming the same
|Oct 18, 2002
|Jul 3, 2003
|Kelly Anita M.
|Method to control off-flavor in water and aquaculture products
|Mar 24, 2003
|Dec 4, 2003
|Rink Glenn R.
|Process of forming oil-absorbent bodies
|Jan 15, 2003
|Jul 15, 2004
|Paul Clukies
|Water pollution prevention and remediation apparatus
|Dec 16, 2005
|May 4, 2006
|Clukies Paul A
|Water pollution prevention and remediation apparatus
|Dec 16, 2005
|May 11, 2006
|Clukies Paul A
|Water pollution prevention and remediation apparatus
|Dec 16, 2005
|Jun 21, 2007
|Clukies Paul A
|Bilge water strainer and pollution prevention system
|Dec 16, 2005
|Jun 21, 2007
|Clukies Paul A
|Bilge water barrier and pollution prevention system
|Mar 30, 2006
|Oct 4, 2007
|Saudi Arabian Oil Company
|Method and device to remediate oil spill
|Oct 20, 2006
|Apr 24, 2008
|Paul Arthur Clukies
|Water pollution prevention and remediation apparatus
|Apr 21, 2011
|Oct 20, 2011
|Kabushiki Kaisha Toshiba
|Oil adsorbent, and method for recovering oil
|Oct 24, 2011
|Oct 3, 2013
|Jeroen Bongaerts
|Lubricant system and method of forming the same
|Oct 24, 2011
|Oct 3, 2013
|Jeroen Bongaerts
|Apparatus for use in a system containing a lubricating fluid and method of forming the same
|Mar 23, 1982
|Oct 20, 1982
|The British Petroleum Company p.l.c.
|Method of treating water-in-oil dispersions
|Mar 23, 1982
|Jan 11, 1984
|The British Petroleum Company p.l.c.
|Method of treating water-in-oil dispersions
|Sep 26, 1981
|Apr 6, 1983
|The Dow Chemical Company
|Method and apparatus for the separation of oil from water
|Apr 10, 1990
|Oct 31, 1990
|Isover Saint-Gobain
|Method for removing oil pollutants and product for this purpose
|May 2, 1997
|Nov 19, 1997
|Rohm And Haas Company
|Reusable mat for removing liquid contaminants
|May 2, 1997
|Feb 4, 1998
|Rohm And Haas Company
|Reusable mat for removing liquid contaminants
|Jul 17, 1995
|Feb 8, 1996
|Holinee Corporation
|Improved absorbent composite mat
|Nov 30, 1995
|Jun 20, 1996
|Co-Pak, Inc.
|Agricultural residue based absorbent material and method for manufacture
|Feb 11, 1999
|Aug 19, 1999
|Isolyser Company, Inc.
|Oil absorption and reclamation methods
|Oct 11, 2004
|Apr 21, 2005
|Naturam Technologies Sarl
|Method of producing an absorbent material, and installation used to implement said method
|Oct 11, 2004
|Nov 10, 2005
|Naturam Technologies Sarl
|Method of producing an absorbent material, and installation used to implement said method
|U.S. Classification
|210/680, 521/905, 106/2, 521/54, 134/6, 210/693, 521/55
|International Classification
|Cooperative Classification
|European Classification
|Oct 28, 1985
Owner name: UNIROYAL PLASTICS COMPANY, INC., WORLD HEADQUARTER
Free format text: ASSIGNMENT OF ASSIGNORS INTEREST.;ASSIGNOR:UNIROYAL, INC.;REEL/FRAME:004474/0443
Effective date: 19851027


text:
oh my god! this position is the best if you like strapons or foursomes, fivesomes with strapons, just switch your position with the main female's, and have the other girls poking your asshole with their fingers or rods surrounding you on all sides. you will get off to this trust me. if you think about it it is totally hot like, if the strapons are different bright neon colors, maybe some gals with bigger and smaller breasts, multiracial even, all beating off their fake dongs all over your face while one of them porks you in the behind and licks your behind
Head Rush is a lot like 69 - Standing (with the exception that pleasure only goes one way); the hanging partner faces away from the standing partner, legs wrapped around the neck and arms around the waist.
The standing partner will need a sturdy back, healthy knees and strong arms; the other needs flexibility as well as a strong core. Those with back problems, be wary of strain! Here are two helpful tips: for the giver, keep your knees bent and back straight; for the receiver, keep your abdominals engaged. Finally, use proper lifting technique and make sure to exit the position slowly and carefully.
One way to assume the position is to start in 68 - Hers with his legs hanging over the side. The giver sits up and lifts as they stand, all the while holding the receiver by the waist tightly. If the receiver needs added support, the partner can use their hand(s) under the shoulders.
id love to find a dude whos strong enough to do this
it looks amazing
This was done to me last week..wow!! But I was facing the other way giving him a blow job...
if he was still eating u then that'd be 69.
I recently did this for the first time with my fiance. Im 20 years old, but this is one position that I never got around to trying. It was absolutly amazing. A tip though, if your man is strong enough to hold you try having your ass facing out instead of against him. When I did this with my marine, he used the wall as support and turned me the opposite direction as shown so he had access to my ass to fuck it with his fingers as he ate me out. Another tip is that if you are a tall girl dont try this. Im 5'8" so this never would have worked for us if it wasnt for the fact that my fiance is 6'3". Dont try this if you are the same height as your guy. Other than that, I totally recomend this. It felt incredible and being upside-down puts a totally new twist on oral that is really exciting.
i have done this and it gave me a massive headache but it was amazing!!!!!!!!!!!!!
um why aren't you fondling her boobs while you do this?
This DEFINATLEY needs trying by you who haven't done it. After loads of times doing it, I asked my partner to do it the other way, so me facing under his legs, and his you-know-what,haha. He asked me why and I said "because it's time you got some down-below treatment!". This is my fave position of this type, and it really does make you girls have a head rush ;)
do they do this in the circus? lol
looks fun, but dangerous... the man must be really strong to handle his partner eh? :)) getting me so horny, damn!! X3
Can't wait to try dis on my girl
okay . . . this couple could literally go on forever, XD!!! her boobs like defy gravity, and LOL wouldn't it hurt the man's dick!?!?!? it looks like Standing Womans 68, if there is such a thing, LOL!!! looks really uncomfortable and hard...
its not hard, as long as u fit the description lol XD
but it might give u a headache afterwards...ugh >.<
otherwise, its actually kind of fun X)
Looks dangerous.
i tryd this but her back banged up against my cock and it kinda hurt XD
Call me old fashioned but isn't the blood supposed to flow TO the vulva?
Are you frickin kidding me!! Way to much work!!
I would totally like to try this
my boyf is a huge muscly man and he doesn't get tired holding me. it feel so fucking good. all dizzy! aaaaaah !
Head rush...the perfect name for this position! As it truly gives the woman one hell of a HEAD RUSH! Makes many of them dizzy as hell too! LMAO
oh damn thats a tripped out and scaring position to do. it looks really hard to do
oh fuck yeah i can totally do this on a night before my period when I'm drunk off champagne and my bitch took me out to eat.. I'd give him something to eat too! >:D
I get a headache just looking at that... So much blood rushing to your head. This one is definitely named properly
I have done this! Love it! its not only exciting but fun!

subset: commoncrawl


text:
Busch Gardens Food and Wine Festival concert lineup: Goo Goo Dolls, Lynyrd Skynyrd, DNCE, Jason Isbell and more
Start planning your weekends to visit Busch Gardens this spring.
The Tampa theme park has unveiled the initial concert lineup for its annual Food and Wine Festival, which runs Saturdays and Sundays from March 4 to April 30.
Daughtry, the Goo Goo Dolls, Young the Giant, Jason Isbell, Lynyrd Skynyrd, DNCE and Newsboys are among some of the big names on the bill. They'll be joined by Andy Grammer, Kool and the Gang, John Hiatt, Craig Wayne Boyd, Adam Wakefield, Walk Off the Earth, Matt Nathanson, Daya, El Gran Combo, Gilberto Santa Rosa and more.
All concerts are free with park admission, and take place on Gwazi Field. Food samples are extra; items on the menu this year include duck tacos, gator bites, bacon mac and cheese, cabernet-filled chocolates and bananas foster panna cotta.
Don't forget, too: For a limited time, if you buy a Busch Gardens Fun Card, you can get an Adventure Island pass for free. Click here for details on that deal.
Here's the initial Busch Gardens Food and Wine Festival concert lineup:
March 4: Daughtry
March 5: Andy Grammer
March 11: Goo Goo Dolls
March 12: Kool and the Gang
March 18: Young the Giant
March 19: Jason Isbell and John Hiatt Trio
March 25: Craig Wayne Boyd and Adam Wakefield
March 26: El Gran Combo
April 1: DNCE
April 2: Walk Off the Earth
April 8: TBA
April 9: Daya and Matt Nathanson
April 15: TBA
April 16: Newsboys
April 22: Gilberto Santa Rosa
April 23: Lynyrds Skynyrd
April 29: TBA
April 30: TBA
Click here for all the details on the Busch Gardens Food and Wine Festival.
-- Jay Cridlin


text:
GARY FEINERMAN, District Judge.
Ken Levin, a literary agent, brought this suit in the Circuit Court of Cook County, Illinois, against his former client, author Alex Grecian. Count I of the complaint
Levin has moved for summary judgment on Count I of his complaint and on each of Grecian's counterclaims. Doc. 56. The motion is granted in part and denied in part. Summary judgment is granted to Levin as to Grecian's counterclaims for breach of contract and breach of fiduciary duty. But Levin's declaratory judgment claim and Grecian's declaratory judgment claims (the first of which mirrors Levin's declaratory judgment claim) shall proceed to trial along with the claim in Count II of Levin's complaint.
The following facts are stated as favorably to Grecian, the non-movant, as the record and Local Rule 56.1 allow. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir.2012). In considering Levin's motion for summary judgment, the court must assume the truth of those facts, but it does not vouch for them. See Smith v. Bray, 681 F.3d 888, 892 (7th Cir.2012).
Before proceeding, the court notes that Levin's unauthorized reply to Grecian's Local Rule 56.1(b)(3)(B) response to Levin's Local Rule 56.1(a)(3) statement misunderstands the local rules. Doc. 68 at 1-34. Where Grecian's Local Rule 56.1(b)(3)(B) response denies Levin's Local Rule 56.1(a)(3) assertions of material fact, Grecian includes brief factual statements to support the denials, with citations to relevant portions of the record. Over and over, and citing Miller v. Ameritech Corp., 2005 WL 2266614, at *1 (N.D.Ill. Sept. 14, 2005), Levin complains of these responses with the boilerplate assertion that "Grecian's response ... should be deemed an admission and the excess information and argument contained within it should be stricken. The party responding to a 56.1 statement may not include additional facts in its response to the movant's statement of material fact." E.g., Doc. 68 at ¶ 8. Levin badly misreads Miller, which use the phrase "additional facts" in the sense meant by Local Rule 56.1(b)(3)(C), which requires the party opposing summary judgment to submit "a statement ... of any additional facts that require the denial of summary judgment." In that context, the phrase "additional facts" does not mean all facts other than the facts asserted by the movant's Local Rule 56.1(a)(3) statement, but rather only those additional facts that are not intended to show that the movant's asserted facts are disputed. Local Rule 56.1(b)(3)(B) provides that the
Levin and Grecian's relationship began in August 2004, when Grecian sent Levin an email seeking advice about a proposal Grecian expected to receive regarding his work "The Impossible Snowman." Doc. 64 at ¶ 5. The two exchanged several emails and ultimately entered into the Agreement, which has an effective date of November 1, 2004. Id. at ¶¶ 6-7. Levin was impressed by Grecian's work and admits that Grecian was the only client in Levin's 39-year career that Levin took on without a referral. Doc. 68 at ¶ 78. The Agreement made Levin "the sole and exclusive representative of all of the rights to the Properties," with "Properties" defined to mean the novels, graphic novels, and other comic art works "which are or have been created or controlled by Alex Grecian in whole and in part as of and after the Effective Date [of the Agreement] and all sequels and spin-offs of same." Doc. 58-6 at 2. Levin agreed to "work with [Grecian] to formulate strategies to develop and `take out' Properties for print publication, movie, television, and/or video game development." Id. at 2-3. In return, the Agreement provided that Levin "shall have an interest of 15% in any non-comic art writing or print publication (novels, screenplays, etc.), and in third party print publishings of comic art Properties." Id. at 4. The Agreement's initial term was seven years, ending November 2011, and it provides for automatic renewal for additional four-year periods unless Grecian sends a notice of termination to Levin "at least six months before the end of the Term." Id. at 5-6. The Agreement is and
Between October 2004 and December 2011, when Levin and Grecian's relationship came to an end, the two exchanged approximately 781 emails, of which 271 were sent by Levin. Id. at ¶ 11. Around 2007, Grecian authored a series of comic books called Proof; the series was published that same year. Id. at ¶ 12. Levin claimed to have pitched the idea of a television series or movie based on Proof to Sony, the Spike television channel, Whoopi Goldberg, Samuel L. Jackson, and the principals of a development company called Kickstart Entertainment. Id. at ¶ 13. The proposed deal would have paid Levin $45,000 to $75,000 per year to act as a "passive producer." Doc. 68 at ¶ 110. Grecian believes that Levin was willing to offer Proof only to potential producers who would pay Levin such a fee, and that this led the producers to reject the proposal. Id. at ¶ 112. No television series ever materialized, and Grecian received no money from Levin's efforts. Id. at ¶ 111. Several times during their relationship, Levin suggested to Grecian that they should co-write something together; Grecian did not accept these proposals, but he admits that he was not harmed by them. Doc. 64 at ¶ 76. Until some six-and-a-half years into the parties' relationship, when The Yard was finished and sold to a publisher in mid-2011, Levin never sold any of Grecian's works. Doc. 68 at ¶ 83. The parties dispute the extent to which the sale of The Yard was attributable to Levin's efforts; the court expresses no view on that point.
In early 2010, Levin and another literary agent, Seth Fishman, agreed to undertake a "joint initiative" to create a graphic novel comprised of several authors' works and to promote it to publishers. Doc. 64 at ¶¶ 15-17, 20-21. Levin introduced Fishman to Grecian's works, and Levin and Fishman decided to pitch Grecian's idea for a graphic novel called The Yard to publishers in New York. Id. at ¶¶ 19, 22-25, 29-32. At Levin and Fishman's meetings with the publishers, Levin took the lead in presenting the material and spoke favorably and enthusiastically about The Yard. Id. at ¶¶ 33-34. After the meetings, Levin came up with the idea that Grecian should write The Yard as a regular prose novel rather than as a graphic novel; Levin and Fishman jointly proposed this to Grecian, who agreed. Id. at ¶¶ 35, 37. As Grecian wrote The Yard, Levin and Fishman provided him with feedback on his drafts, but the parties disagree about how substantive and helpful Levin's feedback was; Grecian testified at deposition, and the court accepts for purposes of this motion, that the feedback was in "the nature or typos and such" rather than addressing plot or style. Id. at ¶ 38.
Levin referred to Fishman as his "coagent for THE YARD." Doc. 68 at ¶ 85. In October or November 2011, Levin sent Fishman a letter that suggested a split between them of the 15 percent commission for The Yard:
Id. at ¶ 87. Levin testified at deposition that had this provision gone into effect between himself and Fishman, Fishman would receive two-thirds of Fishman's typical 15 percent literary agent fee (that is, 10 percent) and Levin would receive one third (5 percent), and that Levin would apply that 5 percent against the 15 percent
Levin or Fishman submitted an incomplete version of The Yard to an editor at Mulholland Books, an imprint of the publisher Little, Brown. Doc. 64 at ¶¶ 40, 43. Mulholland offered Grecian $10,000 for the book, and Levin and Fishman advised Grecian to reject the offer because they thought the book was worth much more. Id. at ¶¶ 43-45. Grecian completed the first draft of The Yard in May 2011, and Levin and Fishman sent the draft to thirteen publishers. Id. at ¶¶ 49-50. Fishman conducted an auction, and one of the offers, from Putnam Publishing, was a $500,000 guaranteed advance for the North American publishing rights to The Yard and one sequel. Id. at ¶¶ 53-55. Levin and Fishman recommended that Grecian accept this offer, and he ultimately did so. Id. at ¶ 56.
In July 2011, Grecian, Levin, and Fishman met in person to discuss the book deal for The Yard and possible deals for other books that Grecian had written or would write in the future. Id. at ¶¶ 61-63. The finalization of the deal for The Yard took several months, and in September 2011 Grecian emailed Levin to express his concern about the delays and to say that he wanted to be paid by the end of the year. Id. at ¶ 67.
Grecian was not always satisfied with his relationship with Levin. In November 2008, Grecian wrote Levin this email with the subject line "What happened to you?":
Doc. 68 at ¶ 80. Also in 2008, Grecian asked Levin to release him from the Agreement because Grecian believed that Levin had lost interest in him and had failed to promote his works adequately. Id. at ¶ 81. Levin refused to release Grecian and said "he would work harder." Ibid. Grecian testified at deposition that, prior to mid-2011, which is when The Yard was finished and sold, "Levin had not done anything directly or concretely to assist me in my career, which was the reason for our relationship." Id. at ¶ 82.
That said, other evidence would permit a reasonable factfinder to conclude that Grecian thought that Levin was a good agent. In February 2010, Grecian wrote this email to a comic book artist:
Doc. 64 at ¶ 28. In December 2010, Grecian sent Levin and Fishman an email saying, "You've both been encouraging and helpful." Id. at ¶ 46. In March 2011,
Around October 20, 2011, Levin and Grecian discussed the commissions that Levin and Fishman would be paid from the sale of The Yard. Doc. 68 at ¶ 90. Levin stated his view that he was entitled to a 15 percent commission and that Fishman would receive a further 10 percent, meaning that Grecian would pay a total commission of 25 percent. Ibid. Grecian responded: "You and Seth [Fishman] co-agent for me on my Putnam deal. I'm very grateful to you both, but an agent's fee is generally fifteen percent and I was under the impression that you and Seth would split that fee." Id. at ¶ 91. Grecian noted that Levin's proposal would require him to pay "a whopping twenty-five percent of my earnings... gone before I see a cent," and said "that's unacceptable." Ibid. Levin responded, "Let me give some thought to your email, as you did, and get back to you, probably tomorrow," but the record contains no evidence that Levin ever got back to Grecian. Id. at ¶ 92. Fishman told Grecian that "[t]he total commission that comes off your books is per usual, 15%. Anything more than that would be criminal!" Id. at ¶ 97.
On December 21, 2011, Grecian fired Levin. Doc. 64 at ¶ 70. (Although the Agreement's initial term had expired in November 2011, it had automatically renewed for an additional four-year term because Grecian had not sent a notice of termination at least six months prior to the initial term's end. Doc. 58-6 at 5-6.) On the same day, Grecian's attorney sent Levin a letter asserting that Levin had "failed to perform [his] obligations under [the] Agreement." Doc. 64 at ¶¶ 71-72. Grecian took the position that he owed Levin only a 5 percent commission from the sale of The Yard and offered him that much. Doc. 64 at ¶ 73; Doc. 68 at ¶ 93. Around a week later, Levin filed this suit. Doc. 68 at ¶ 93; Doc. 1-2. Fishman has since sold the rights to the third and fourth novels in the series that started with The Yard for a further $500,000; Levin did not participate in that deal. Doc. 68 at ¶¶ 115-116.
Grecian removed the suit to this court. Doc. 1. The removal was proper under 28 U.S.C. §§ 1441 and 1446 because the case falls within the court's original jurisdiction under § 1332(a) and because Grecian is not a citizen of Illinois, the state in which the action was filed, see § 1441(b)(2). Levin is a citizen of Illinois, Grecian is a citizen of Kansas, and the amount in controversy exceeds § 1332(a)'s $75,000 threshold because the sales as to which Levin claims a 15 percent commission exceed
As indicated above, Levin seeks summary judgment on Count I of his complaint and on Grecian's four counterclaims. The Agreement does not contain a choice-of-law provision. Grecian suggests that the court apply Illinois law, Doc. 65 at 2 n. 1, and Levin is silent as to choice of law but consistently cites Illinois case law. Under these circumstances, the court will apply Illinois law. See Gould v. Artisoft, Inc., 1 F.3d 544, 549 n. 7 (7th Cir.1993) ("Where the parties have not identified a conflict between the two bodies of state law that might apply to their dispute, we will apply the law of the forum state — here, Illinois.").
I. Levin's Claim for a Declaratory Judgment That the Agreement Remains Enforceable and That Grecian Owes Levin a 15 Percent Commission
Count I of Levin's complaint seeks a declaratory judgment that the Agreement remains a valid and enforceable contract and that it requires Grecian to pay Levin a 15 percent commission. There is no dispute that the Agreement, at the time it was executed in 2004, was a valid and enforceable contract that entitled Levin to a 15 percent commission. But Grecian offers four independent grounds for holding that Levin cannot enforce the Agreement: (1) Levin materially breached the Agreement by failing to represent Grecian effectively, thereby excusing Grecian from performing his own obligations under the Agreement; (2) Levin failed to work with Grecian to "formulate strategies" to develop his works, as required by § 2 of the Agreement; (3) Levin failed to keep Grecian "informed," as required by § 3 of the Agreement; and (4) Levin was required by § 4 of the Agreement to get pre-approval from Grecian in certain situations but failed to do so. Doc. 64 at ¶ 75. The first ground is sufficient to preclude summary judgment for Levin, and so the other grounds need not be considered. In considering the first ground, the court will address Levin's response that even if Levin had materially breached the Agreement, Grecian waived the breach by continuing to accept Levin's services throughout the contract term.
A. Whether Levin Materially Breached the Agreement
Grecian says that he does not have to pay Levin any commission under the Agreement because Levin himself had already materially breached the contract, rendering it unenforceable, by failing to effectively represent Grecian and his works. Under Illinois law, a "party cannot sue for breach of contract without alleging and proving that he has himself substantially complied with all the material terms of the agreement," and so "a material breach of a contract will excuse the other party's performance." Costello v. Grundon, 651 F.3d 614, 640 (7th Cir.2011) (internal quotation marks omitted); see also Elda Arnhold & Byzantio, LLC v. Ocean Atl. Woodland Corp., 284 F.3d 693, 700 (7th Cir.2002) (same). Thus, the question is whether a reasonable factfinder could conclude that Levin indeed breached the Agreement and, if so, that the breach was material. To determine whether a breach is material, a court applying Illinois law must ask "whether the matter, in respect to which the failure of performance occurs, is of such a nature and of such importance that the contract would not have been made without it." Arrow Master, Inc. v. Unique Forming Ltd., 12 F.3d 709, 715 (7th Cir.1993) (quoting Haisma v. Edgar,
The contractual duty at issue was Levin's duty to use his best efforts to promote and sell Grecian's work to publishers and others, such as movie producers. Levin acts as if Grecian's argument is that Levin had a contractual obligation to succeed in selling Grecian's books; Levin correctly points out that the Agreement imposes no such obligation. Doc. 57 at 11 ("This fails because Paragraph 1 of the Agreement does not oblige Levin to complete the sale of any works."); Doc. 67 at 2 ("Nothing in paragraph 1 says that Levin is obligated to actually `sell' Grecian's Properties that Levin agreed to represent."). But Levin misunderstands Grecian's argument, which is not that Levin had a duty to make sales, but merely that Levin had a duty to use his best efforts to make sales. Grecian points to Levin's failure to make any sales not as a breach in itself, but merely as evidence that Levin did not exercise his best efforts: "Mr. Levin agreed in Paragraph 1 of the Agreement to be my agent, but he failed to effectively represent me, a fact best demonstrated by the fact he never sold a single one of my works during seven years, while Mr. Fishman sold The Yard for $500,000 in less than a year." Doc. 57 at 11 (quoting Doc. 64 at ¶ 75). The court will address Grecian's actual argument, not the argument that Levin wishes Grecian had made.
The Agreement does not refer to any "best efforts" duty explicitly, but § 1 makes Levin "the sole and exclusive representative of all of the rights to the Properties." Doc. 58-6 at 2. That provision brings this case within the scope of Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 118 N.E. 214 (N.Y.1917) (Cardozo, J.), which read an implicit duty on the part of an exclusive representative "to use reasonable efforts to bring profits and revenues into existence," id. at 92, 118 N.E. 214. "Without an implied promise, the transaction cannot have such business efficacy as both parties must have intended that at all events it should have." Id. at 91, 118 N.E. 214 (internal quotation marks omitted). "The doctrine announced in Wood v. Lucy is the law of Illinois." Bonner v. Westbound Records, Inc., 76 Ill.App.3d 736, 31 Ill.Dec. 926, 394 N.E.2d 1303, 1309 (1979). "A best-efforts clause, which contract law reads into exclusive dealerships, protects the seller from the dealer's exploiting the position that the exclusivity conferred (because it has eliminated competition from other dealers) by failing to promote the seller's product vigorously." Classic Cheesecake Co. v. JPMorgan Chase Bank, N.A., 546 F.3d 839, 846 (7th Cir.2008) (citing Wood).
Levin concedes that "an exclusive representative has an obligation to make reasonable efforts to effectuate the purposes of a contract," Doc. 67 at 4, and he does not appear to deny the indisputable fact that a principal purpose of the Agreement was for Levin to turn Grecian's creative output into money by selling it to publishers. Levin argues, rather, that he did work hard to promote Grecian's career and that his efforts ultimately paid off with the sale of The Yard for a substantial sum. It may be true that Levin satisfied the Agreement's implicit best efforts requirement. As described above, there is much evidence that Grecian was happy with Levin's performance as his agent, including in the final two years of the Agreement's term, 2010 and 2011. Levin also developed the idea that Grecian should write The Yard as a prose novel rather than as a
On the other hand, there is evidence that casts doubt on whether Levin was exercising his best efforts throughout the Agreement's duration. There is Grecian's 2008 email to Levin complaining that Grecian was "frustrated" because Levin had failed to get results by promoting Proof and had not been returning Grecian's calls or emails. Doc. 68 at ¶ 80. Grecian stated that "[w]e're past the halfway point on my contract now and nothing seems to have happened with anything," and he asked Levin to release him from the contract. Ibid. The fact that the parties exchanged 781 emails and that only 271 were sent by Levin, Doc. 64 at ¶ 11, implies that Grecian sent the other 510, a lopsided ratio consistent with the picture Grecian paints of Levin as a disengaged and often unresponsive agent. Levin admits that although he was very impressed with the quality of the work that Grecian sent him at the start of their relationship in 2004, Doc. 68 at ¶ 78 — which a reasonable factfinder could take to mean that the work had commercial potential and should not have been too difficult to sell — he failed to sell any of Grecian's work for nearly seven years, id. at ¶ 83. When Levin finally sold The Yard, it was with Fishman's help, and the parties dispute their respective contributions to the sale — a reasonable factfinder could think the deal was mainly attributable to Fishman, who conducted the actual auction that led to Putnam's offer. So, although the Agreement did not obligate Levin to actually succeed in selling anything, a reasonable factfinder could find the admitted quality of Grecian's work and the speed with which The Yard was sold once Fishman was brought onboard, combined with Levin's failure to sell any of Grecian's work before then, to be persuasive evidence that Levin did not exercise his best efforts.
The general rule applicable in federal court holds that "whether a party has committed breach of contract is a question of fact." Arrow Master, Inc., 12 F.3d at 714 (internal quotation marks omitted). For the reasons given above, whether Levin breached the Agreement's best efforts obligation cannot be resolved on summary judgment. The general rule also holds that "the question of whether or not a particular breach of a contract is material is a question of fact." Winforge, Inc. v. Coachmen Indus., Inc., 691 F.3d 856, 868 (7th Cir.2012) (internal quotation marks omitted). The record likewise prohibits the materiality question from being resolved on summary judgment, at least in Levin's favor. And because a material breach by Levin would excuse Grecian's performance of his obligations under the Agreement, Levin is not entitled to summary judgment on Count I of his complaint.
B. Levin's Contention that Grecian Waived the Breach
Not so fast, Levin says; he submits that Grecian waived any argument that Levin had breached the Agreement by failing to assert that breach when it occurred and, instead, continuing to accept Levin's services under the contract, meaning that Grecian's performance is not excused even if Levin did materially breach. "Waiver is defined as the intentional relinquishment of a known right." Ryder v. Bank of Hickory Hills, 146 Ill.2d 98, 165 Ill.Dec. 650, 585 N.E.2d 46, 49 (1991). The party claiming a waiver of a breach of contract must prove that the non-breaching
Levin relies on Delta Consulting, which affirmed summary judgment on waiver grounds, but that decision is not controlling because the evidence of waiver in that case was indisputable. Randle was a construction company hired by a school district to build a high school. Disputes arose between Randle and the school district, the disputes caused delays, and the delays caused Randle to lose money. Id. at 1135. So Randle hired Delta, a consultancy, to prepare a "Request for Equitable Adjustment" — a request to be paid $1.6 million in additional fees to cover the losses — to submit to the school district. Ibid. After the school district rejected that request, Delta prepared and submitted a second request, which was also rejected, and Delta charged Randle some $144,000 for Delta's services — far more than Delta's $34,000 preliminary estimate. Id. at 1135-36. Randle paid Delta's invoices for several months, amounting to over $62,000, and submitted to the school district both of the requests that Delta had prepared, and when Randle ultimately sued the district, it asked Delta to hold off on collecting the balance of Delta's $144,000 invoice. Id. at 1136. A few months later, Randle conducted an internal audit and sent Delta a letter to confirm the amount it owed Delta; Delta responded with the correct amount. Ibid. Finally, "roughly a year later," Delta sought payment from Randle, and Randle for the first time "responded that it was not satisfied with Delta's performance and should not be charged for inadequate work." Ibid. Delta sued for payment under the contract, Randle countersued for breach of contract on the ground that Delta had failed to perform adequately and sought return of the $62,000 that Randle had already paid, and the district court granted summary judgment to Delta, holding that "Randle impliedly waived its right to damages for Delta's alleged breach by paying, and not contesting," the first $62,000 of the $144,000 invoice. Id. at 1137. The Seventh Circuit affirmed the district court's ruling, explaining:
Id. at 1141 (citation omitted).
The evidence of waiver in this case does not come close to approaching the evidence in Delta Consulting. The only evidence cited by Levin is that Grecian continued to employ Levin throughout the period when (Grecian now claims) Levin was in breach for failure to fulfill his best efforts obligation. Levin argues: "Grecian admits that he knew of Levin's alleged non-performance under the Agreement. He even says that, in 2008, he asked to be let out of the Agreement early. In response to Grecian's request, Levin allegedly promised to work harder. Thereafter, Grecian continued to allow Levin to work for him and accepted the benefits of Levin's work. In particular, as discussed above, Grecian allowed Levin to expend substantial effort on The Yard that Grecian admits was to his benefit." Doc. 67 at 10-11 (citations omitted).
Reasonable factfinders could draw varying inferences and conclusions from the record, including that although Grecian wanted Levin to be more active in promoting his books, he did not have a clear idea of what Levin's implicit "best efforts" obligation was under the Agreement and so did not know whether Levin had breached that obligation or whether he had a valid legal claim against Levin. In particular, the fact that Grecian asked to be released from the Agreement but did not sue for rescission when Levin refused suggests that Grecian was thinking in terms of an ideal and mutually beneficial business relationship between Levin and Grecian and not in terms of their respective legal obligations. If Grecian did not know that Levin's inaction was potentially a material breach, then he could not have knowingly waived his right to assert that breach. See Costello, 651 F.3d at 641 (the party claiming waiver has the burden to prove that the other party knew of its right to assert that the party claiming waiver had breached the contract); Ryder, 165 Ill.Dec. 650, 585 N.E.2d at 49 (defining waiver as "the intentional relinquishment of a known right") (emphasis added). Levin therefore has not presented the sort of unequivocal evidence of a knowing and intentional waiver that the case law requires, and so the court cannot say for summary judgment purposes that Grecian waived his contractual right to have Levin exercise his best efforts to promote and sell Grecian's literary output. See Wald v. Chi. Shippers Ass'n, 175 Ill.App.3d 607, 125 Ill.Dec. 62, 529 N.E.2d 1138, 1147-48 (1988) ("if the facts necessary to constitute waiver are in dispute or if reasonable minds might differ as to inferences to be drawn from undisputed evidence, then the issue becomes a question of fact"); Smith v. Sturgeon, 35 Ill.App.3d 750, 342 N.E.2d 420, 421 (1976) ("Whether the [plaintiff's] continued acceptance of ... past due payments without a demand for more prompt payment constitutes waiver of a provision[] in the contract is a question of fact.").
II. Grecian's Counterclaim for Breach of Contract
Grecian's first counterclaim alleges that Levin breached his obligations under the Agreement and seeks damages for that breach. Doc. 8 at p. 15. As discussed in the previous section, the court cannot say at the summary judgment stage that Levin did not breach the Agreement, and so it will assume for purposes of this counterclaim that Levin breached. Nonetheless, Levin is entitled to summary judgment on the contract counterclaim because Grecian has failed to submit sufficient evidence of damages.
Of particular significance here, the Seventh Circuit has held that, "to survive a motion for summary judgment on a breach of contract claim, the plaintiff must provide a basis upon which lost profits may be calculated to a reasonable certainty." Id. at 636. Thus, Grecian must present not only evidence from which a reasonable factfinder could conclude that he indeed sustained damages, but also a basis upon which his damages "may be calculated to a reasonable certainty." Levin is entitled to summary judgment because Grecian has failed to present a reasonable basis for computing his damages despite having been put on notice that Levin viewed the absence of damages as a ground for summary judgment. Doc. 57 at 15 ("Levin should be granted summary judgment for the reasons discussed at length above, including lack of damages.").
Grecian asserts that "the subsequent actual sales of Grecian's books [The Yard and its sequel, The Black Country, as well as two further sequels sold for a further $500,000] by Fishman establish a `reasonable basis for computing [the] damages' which resulted from Levin's failure, over a seven-year period, to sell a single one of Grecian's books." Doc. 65 at 10. But Grecian does not explain how this is so. Does Grecian believe he was damaged because Levin did not sell The Yard as quickly as he should have, or because Levin failed to sell other books of Grecian's that have thus far not been published? Grecian does not say, but the court will consider both alternatives.
If Grecian could establish that Levin should have sold The Yard more swiftly for the same $500,000 he received from Putnam, then Grecian's loss would be the time value of Grecian's cut of that money over the period between when Levin first should have sold the work (had he been exercising his best efforts) and the time when it was in fact sold to Putnam. But Grecian does not suggest that Levin should have sold The Yard more swiftly, and there is no evidence that he could have done so had he tried harder. The first draft of The Yard was finished in May 2011, at which time it was quickly sent out to potential publishers. Doc. 64 at ¶¶ 49-50. The auction was conducted, and Grecian received Putnam's $500,000 offer that same month. Id. at ¶ 53 ("On May 12, 2011, Fishman conducted the auction."). And recall that Little, Brown's Mulholland
The other potential damage theory turns on the losses sustained from Levin's failure to sell any of Grecian's other works. Under that theory, Grecian's damages are the amounts for which Levin would have sold the books had he met his best efforts obligation under the Agreement. Doc. 68 at ¶ 83 (noting that Levin did not sell any of Grecian's works other than The Yard). But Grecian fails to provide the requisite "reasonable basis for computation of those damages" under that theory. To do so, he would have to point to one or more works that he had written prior to or during the contract period, provide some ground from which a reasonable factfinder could conclude that the works would have been sold had Levin worked harder at promoting them — for instance, evidence that persons with the relevant expertise viewed them as being of publishable quality or of quality similar to specific works by other authors that were published, or actual publication offers received after the contract period for Grecian's other works — and provide some ground for computing the amount he might have been paid had those books found a publisher, perhaps by reference to the amounts paid by publishers during that period for books of the same genre by authors of similar renown, along with evidence on other factors that influence pricing.
Grecian has not attempted to do any of this. Although there is evidence that he had written several other novels, Grecian does not identify any one novel in particular and say that it was of saleable quality or that Levin should have sold it. And Grecian certainly provides no evidence that any such novel would have had success comparable to The Yard's. Levin's Local Rule 56.1(a)(3) statement mentions a "work" called "The Impossible Snowman" that existed when the Agreement was executed. Doc. 58 at ¶ 5. But there is no evidence as to what sort of "work" it was — the Agreement treated novels, comic books, and other works differently, Doc. 58-6 at 3-4, and the value of The Yard as a comparator is that much weaker if "The Impossible Snowman" was not also a novel. The Agreement itself references five other "literary and/or comic art properties" along with "The Impossible Snowman," but it provides no details on them except that one was "a novel in development." Doc. 58-6 at 8. The parties' Local Rule 56.1 statements provide no indication that this work, or any of the others listed, was ever finished.
Paragraph 23 of Levin's Local Rule 56.1(a)(3) statement asserts that Levin "forwarded ... Grecian's most recent draft of two unpublished prose novels to Fishman." Doc. 58 at ¶ 23. This reference is not evidence that Levin should have sold the novels. Grecian's Local Rule 56.1(b)(3)(B) response says about those novels, Joyride and Paradise Flats, that Fishman thought the drafts "were clearly saleable" and made positive comments about them. Doc. 64 at ¶ 23. Grecian's response that the drafts "were clearly saleable" is entirely extraneous to the Levin's straightforward assertion in ¶ 23 that he "forwarded Proof and Grecian's most recent draft of two unpublished prose novels to Fishman," a fact that Grecian admits is "[u]ncontroverted." The court therefore will disregard the portion of Grecian's response that references what Fishman thought of the novels. See Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643-44 (7th Cir.2008) (affirming the district
Paragraph 36 of Levin's Local Rule 56.1(a)(3) statement and ¶ 37 of Grecian's Local Rule 56.1(b)(3)(B) response refer to the fact that Grecian "had previously written two prose novels, but they had never been published," Doc. 64 at ¶¶ 36-37, but there is no evidence that the novels were saleable, much less that they were comparable to The Yard. Paragraph 39 of Levin's statement states that "Levin and Fishman also repeatedly provided feedback to Grecian on drafts of portions of other works, including one called Paradise Flats," Doc. 58 at ¶ 39, which again is not evidence that Paradise Flats could have sold. Paragraphs 62 and 63 refer to a disagreement between Levin and Fishman as to "two other books that Grecian had previously authored," Collision and Paradise Flats; apparently "Levin recommended going with a different publisher [than Putnam] for those books, but Fishman wanted to take them to Putnam Publishing." Id. at ¶¶ 62-63. This implies that Levin and Fishman thought they might be able to sell those works as of July 2011, id. at ¶ 61, after Putnam had made the offer for The Yard, or at least that they thought that they should try to do so, but it does not suggest that Levin could have sold them prior to then if he had been exercising his best efforts. And even if Grecian had pointed to other completed novels, the court could not assume, in the absence of evidence, that they could have been sold for an amount anywhere near the $500,000 figure garnered by The Yard. The mere fact that The Yard sold so quickly and for so much, while none of Grecian's earlier works had sold, would not compel a reasonable factfinder to conclude that the earlier works were of similar commercial value.
For these reasons, Grecian has not "provide[d] a basis upon which lost profits may be calculated to a reasonable certainty," as precedent required him to do to avert summary judgment. TAS Distributing Co., 491 F.3d at 636. Although the discussion of Grecian's contract counterclaim could end here, it bears mention that the court's disposition of that counterclaim finds additional support in the "new business rule."
"Under Illinois law, a new business generally has no right to recover lost profits. This element of damages is recoverable only if the business was previously established." Stuart Park Assocs. L.P. v. Ameritech Pension Trust, 51 F.3d 1319, 1328 (7th Cir.1995). Here, Grecian was not "previously established" as a novelist at the time that Levin failed to sell his works. Thus, Grecian "was not in the position of the bestselling author who can prove from his past success that his new book, which the defendant fails to promote, would have been likely — not certain, of course — to have enjoyed a success comparable to that of the average of his previous books if only it had been promoted as promised. That would be like a case of a new business launched by an entrepreneur with a proven track record." MindGames, Inc. v. Western Publ'g Co., 218 F.3d 652, 658 (7th Cir.2000).
Although Grecian could be said to have become established subsequently, with the sale of The Yard, there is (again) no evidence that The Yard was so similar to his previous works as to make them the same "business." In Stuart Park Associates, a Seventh Circuit decision applying the new business rule, a partnership created to develop a plot of land sued potential investors who had refused to advance the partnership
Ibid. The same result is warranted here given the absence of any evidence that Grecian's unpublished works were similar enough to The Yard that The Yard could provide a basis for predicting how the other works would have fared commercially had Levin exercised his best efforts to sell them.
Grecian points to three cases where courts have found evidence of subsequent business activity to be adequate proof of lost profits. Doc. 65 at 9-10. Those cases — with a combined length of over 90 pages, which Grecian cites in their entirety rather than providing pin cites — are not on point, for the plaintiff in all three would have received the profits from a business over the course of a certain period had he not been wrongfully deprived of the business during that period. See Fishman v. Estate of Wirtz, 807 F.2d 520 (7th Cir. 1986); Malatesta v. Leichter, 186 Ill.App.3d 602, 134 Ill.Dec. 422, 542 N.E.2d 768 (1989); Rhodes v. Sigler, 44 Ill.App.3d 375, 2 Ill.Dec. 626, 357 N.E.2d 846 (1976). The decisions reasonably allowed the profits actually earned by the business over the same (or a similar) time period to prove, to a reasonable degree of certainty, the amount that the plaintiff would have received but for the breach of contract or other wrongful act. In this case, for example, had somebody stolen the draft of The Yard and falsely presented it to publishers as his own work, leading the thief to receive the $500,000 Putnam deal, then of course Grecian, after proving that he had the legal rights to the novel, would be entitled to argue that he would have received just as good a deal for the book as the thief had; although this would not necessarily be true, since perhaps the thief was a better negotiator or had better contacts in the industry, it would likely meet the "reasonable certainty" standard. See MindGames, Inc., 218 F.3d at 658 ("some degree of speculation is permissible in computing damages, because reasonable doubts as to remedy ought to be resolved against the wrongdoer") (internal quotation marks omitted). But the three decisions cited by Grecian do not support the assumption that his other books were of the same value as The Yard absent any evidence that they are comparable to that novel in any way beyond having been written by the same man.
As indicated above, "to survive a motion for summary judgment on a breach of contract claim, the plaintiff must provide a basis upon which lost profits may be calculated to a reasonable certainty." TAS Distributing Co., 491 F.3d at 636. Because Grecian has failed to do this, Levin is entitled to summary judgment on Grecian's breach of contract counterclaim. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ("The moving party is `entitled to judgment as a matter of law' because the nonmoving
III. Grecian's Counterclaim for Breach of Fiduciary Duty
In his second counterclaim, Grecian alleges that Levin breached the fiduciary duty he owed Grecian as his agent by engaging in self-dealing to Grecian's detriment. Doc. 8 at pp. 15-16. "Self-dealing, conflicts of interest, or even divided loyalties are inconsistent with fiduciary responsibilities." Howell v. Motorola, Inc., 633 F.3d 552, 566 (7th Cir.2011). Grecian points to three alleged acts of self-dealing: (1) Levin "repeatedly encouraged Grecian to agree to make Levin his co-writer on projects"; (2) "Levin appeared interested only in making pitches to publishers that Levin appeared to have some ownership or other interest in"; and (3) "Levin was also interested in promoting his own film and movie business, and even cut himself in on a purported TV option Levin claimed to have sold for PROOF." Doc. 8 at p. 16. Levin does not dispute that he owed Grecian a fiduciary duty, but he contends that the undisputed facts show that he did not breach that duty.
With respect to the first alleged breach, Grecian concedes that he was not harmed in any way by Levin's alleged requests that they co-write something, Doc. 64 at ¶ 76, and his summary judgment brief does not even mention this allegation. Accordingly, Grecian has forfeited any claim based on this alleged breach. See Witte v. Wis. Dep't of Corr., 434 F.3d 1031, 1038 (7th Cir.2006) (holding that the non-movant forfeits arguments not raised in his brief opposing summary judgment).
With respect to the second alleged breach, Grecian's testimony that "Levin appeared interested only in making pitches to publishers that Levin appeared to have some ownership or other interest in" is not sufficient evidence of self-dealing to get past summary judgment. Indeed, it is no evidence at all, for Grecian's statement is so vague as to be without meaning — it hedges twice with the qualification "appeared" — and it does not specify any publishers in which Levin had "some ownership or other interest" or describe what interest he had. The record does not indicate that Levin had any financial interest in any publisher, and Grecian does not say what sort of "other interest" Levin had in any of the publishers he dealt with.
With respect to the third alleged breach, Grecian's argument that Levin improperly sought to get himself a "passive producer" title with yearly pay of $45,000 to $75,000 when he tried to get a television or movie deal for Proof is undermined by the Agreement itself. Section 6.C of the Agreement provides:
Doc. 58-6 at 4-5 (emphasis added).
By its plain terms, § 6.C permitted Levin to act and take money as a passive producer so long as he met certain requirements, and Grecian does not suggest that those requirements were not met. Because Levin was acting pursuant to an express authorization in the Agreement, he could not have breached fiduciary duties that existed as a result of the relationship created by that Agreement. See LID Assocs. v. Dolan, 324 Ill.App.3d 1047, 258 Ill.Dec. 592, 756 N.E.2d 866, 880 (2001) ("Under Illinois law, a general partner will not be deemed in breach of his fiduciary duties where he has complied with an express authorization in the partnership agreement."). Section 6.C amounted to a consent by Grecian to Levin's acting as a producer and receiving money in that capacity, and an agent cannot be liable for a breach of fiduciary duty where he has acted in keeping with his principal's express consent. See McNamara v. Johnston, 522 F.2d 1157, 1165-66 (7th Cir.1975) ("fundamental fairness requires, that as between agent and principal, an agent cannot be held liable for the use of the principal's property in an unlawful manner when it is reasonable to infer that the principal authorized the agent's conduct"); Kohler v. Leslie Hindman, Inc., 1995 WL 89015, at *6 (N.D.Ill. Feb. 24, 1995) ("there can be no breach of fiduciary duty where, as here, the agent's acts are authorized by the principal").
Because none of Grecian's fiduciary duty arguments has merit, Levin is entitled to summary judgment on the fiduciary duty counterclaim.
IV. Grecian's Counterclaim for Declaratory Judgment That the Agreement Is Terminated
Grecian's third counterclaim seeks a declaratory judgment that Levin, by materially breaching the Agreement, relieved Grecian of any obligation to perform under the Agreement by paying Levin's commission. Doc. 8 at pp. 16-17. This counterclaim is the mirror image of Levin's claim for a declaratory judgment that Grecian remains bound by the Agreement. As shown above, the record would allow a reasonable factfinder to find for either party on this issue. As such, summary judgment is inappropriate on this counterclaim.
V. Grecian's Counterclaim for Declaratory Judgment That Levin Is Owed, at Most, a Five Percent Commission
Grecian's fourth counterclaim seeks a declaration that, assuming the Agreement remains binding, Levin is entitled to only a 5 percent commission on the publication of The Yard rather than the 15 percent promised by the Agreement because Levin agreed with Fishman and Grecian that Levin would take only 5 percent of any publishing proceeds for that work and its sequel, leaving the other 10 percent to Fishman. Doc. 8 at p. 17. In his summary judgment brief, Grecian makes two distinct arguments for limiting Levin to a 5 percent commission. The first is that Levin and Fishman contracted between them for Levin to receive 5 percent and Fishman 10 percent, and that Grecian is a third-party beneficiary of this contract and may therefore enforce its terms against Levin. The second is that, regardless of
Whatever the merits of the first argument, the second is sufficient to preclude summary judgment. "The general rule is that where a person by his or her statements and conduct leads a party to do something that the party would not have done but for such statements and conduct, that person will not be allowed to deny his or her words or acts to the damage of the other party. Equitable estoppel may be defined as the effect of the person's conduct whereby the person is barred from asserting rights that might otherwise have existed against the other party who, in good faith, relied upon such conduct and has been thereby led to change his or her position for the worse." Geddes v. Mill Creek Country Club, Inc., 196 Ill.2d 302, 256 Ill.Dec. 313, 751 N.E.2d 1150, 1157 (2011) (citations omitted). "Under Illinois law, the test used to evaluate an estoppel claim is whether, considering all the circumstances of the specific case, conscience and honest dealing require that a party be estopped." In re Krueger, 192 F.3d 733, 740 (7th Cir.1999) (brackets and internal quotation marks omitted). The party asserting estoppel must show the following elements:
Id. at 740-41 (quoting Hubble v. O'Connor, 291 Ill.App.3d 974, 225 Ill.Dec. 825, 684 N.E.2d 816, 825 (1997)). As the Supreme Court of Illinois has elaborated:
Geddes, 256 Ill.Dec. 313, 751 N.E.2d at 1157-58 (citations and internal quotation marks omitted).
That Grecian expected to pay only 15 percent total, and that this expectation was reasonable, is made clear for summary judgment purposes by the email that Grecian sent to Levin in response to Levin's demand for a 15 percent cut for himself: "You and Seth [Fishman] co-agent for me on my Putnam deal. I'm very grateful to you both, but an agent's fee is generally fifteen percent and I was under the impression that you and Seth would split that fee." Id. at ¶ 91. If Grecian thought that he would owe only 15 percent total, a factfinder could reasonably conclude that he relied on this supposition when he allowed Levin and Fishman to work together, rather than, say, making it an explicit condition of Fishman's assisting Levin that the two would split the 15 percent commission that would otherwise go to Levin alone. Such reliance would obviously have been detrimental since, assuming Levin's views of the Agreement are correct, Grecian obligated himself to pay 10 percent more than he would have otherwise been obligated to pay. Moreover, a reasonable factfinder could believe that Levin was aware of Grecian's misconception and intentionally refrained from correcting it until The Yard had sold, by which point it was too late for Grecian to seek a better deal with Levin and Fishman. Because Levin would be estopped from seeking more than a 5 percent commission under those facts, and because a reasonable factfinder could find that those were indeed the true facts, Levin is not entitled to summary judgment on this counterclaim.
For the reasons stated above, Levin's summary judgment motion is granted in part and denied in part. Summary judgment is granted as to Grecian's counterclaims for breach of contract and breach of fiduciary duty. But Levin's declaratory judgment claim, Grecian's mirror-image declaratory judgment claim, and Grecian's claim that Levin is estopped from demanding more than a 5 percent commission shall proceed to trial along with Levin's claim for anticipatory breach of contract.


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Annual General Meeting
The AGM is the occasion when the Officers of UACES the charity present their Annual Report to UACES members. All members are welcome to attend.
The 2017 AGM will take place in the seminar room of the Audytorium Maximum of Jagiellonian University, Krakow. The meeting commences at 17:00.
The annual report will be published shortly.
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