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                                Appellate Court                         Date: 2017.10.19
                                                                        14:22:00 -05'00'




                  Singapori v. Jagaria, 2017 IL App (1st) 160937



Appellate Court    RICHARD SINGAPORI and ESHAAN HOSPITALITY, INC., an
Caption            Illinois Corporation, Plaintiffs-Appellants and Cross-Appellees, v.
                   JIGNESH JAGARIA and NOVAK HOSPITALITY, INC., an Illinois
                   Corporation, Defendants-Appellees and Cross-Appellants.



District & No.     First District, Sixth Division
                   Docket No. 1-16-0937


Filed              July 28, 2017



Decision Under     Appeal from the Circuit Court of Cook County, No. 15-L-5220; the
Review             Hon. Patrick J. Sherlock, Judge, presiding.



Judgment           Affirmed.


Counsel on         Kenneth J. Ashman and Neal D. Kitterlin, of Ashman Law Offices, of
Appeal             Chicago, for appellants.

                   Sullivan, Hincks & Conway, of Oak Brook (John J. Conway and
                   Andrew S. Johnson, of counsel), for appellees.



Panel              JUSTICE CUNNINGHAM delivered the judgment of the court, with
                   opinion.
                   Presiding Justice Hoffman and Justice Delort concurred in the
                   judgment and opinion.
                                                OPINION

¶1       The plaintiffs, Richard Singapori and Eshaan Hospitality, Inc. (Eshaan), filed the instant
     action against the defendants, Jignesh Jagaria and Novak Hospitality, Inc. (Novak), alleging
     breach of a confidentiality provision contained in an “Agreement” between the parties.1 The
     circuit court granted the defendants’ motion to dismiss, finding that the confidentiality
     provision at issue was void and unenforceable as a matter of public policy because its sole
     purpose was to conceal the parties’ misrepresentations to third-party financial institutions. On
     appeal, the plaintiffs argue that the court erred in determining that the confidentiality provision
     is contrary to public policy because allegations of the amended complaint do not establish that
     the parties violated federal bank fraud laws (see 18 U.S.C. §§ 1344, 1014 (2012)). The
     defendants cross-appeal, contending that the court erred in denying their petition for attorney
     fees. For the reasons that follow, we affirm.
¶2       The following facts are derived from the various pleadings, which we accept as true in the
     context of a motion to dismiss. See Wackrow v. Niemi, 231 Ill. 2d 418, 420 (2008).
¶3       Singapori and Jagaria, uncle and nephew, were the sole shareholders of two corporations,
     Eshaan and Novak. Singapori held a 51% ownership interest in both corporations, while
     Jagaria held the remaining 49% interest. In June 2011, Singapori and Jagaria became interested
     in purchasing a Red Roof Inn hotel in Deerfield, Illinois. To finance the purchase, Singapori
     and Jagaria, on Eshaan’s behalf, applied for two loans in the amount of $1,317,500 and
     $946,000 from the International Bank of Chicago (IBC) and SomerCor 504 (SomerCor),
     respectively. Both loans were to be guaranteed by the Small Business Administration (SBA).2
     A partial copy of the loan application submitted to the IBC is attached as an exhibit to the
     amended complaint. The first page of that application contains a cautionary note, immediately
     above Jagaria’s signature, stating: “Applicant(s) are aware that any knowing or willful false
     statements for the purposes of influencing the actions of Creditor can be a violation of federal
     law 18 U.S.C. sec. 1014 and may result in fine or imprisonment or both.” The amended
     complaint alleges that Jagaria made several false statements in the loan application regarding
     his citizenship status, arrest history, and his experience in the hotel industry, notwithstanding
     the admonition requiring candor and truthfulness. The IBC and SomerCor both approved
     Eshaan’s request for a loan.
¶4       At the closing, on August 8, 2011, Eshaan executed two notes, promising to repay the
     loans. IBC’s note provided that any ownership change of 25% or more of the common stock of
     Eshaan would constitute a default, while the note with SomerCor stated that any changes in
     “ownership or business structure without [SomerCor]’s prior written consent” would trigger a
     default. Upon default, IBC and SomerCor would have the right to require immediate payment
     of all amounts owing under their respective notes. In addition to the security agreements,
     Singapori was required to sign a personal guaranty of the loans, as well as a “Borrower and
     Operating Company Certification,” upon which he certified that he “will not, without the prior

         1
           We note that certain documents in the record, including portions of the amended complaint, spell
     Jagaria’s last name as “Jigaria.”
         2
           The SBA is a federal government agency that assists small businesses in obtaining financing by
     guarantying loans made to them by private banks. United States v. McCarrick, 294 F.3d 1286, 1288 n.2
     (11th Cir. 2002).

                                                   -2-
     written consent *** change the ownership structure of or interests in the Borrower and
     Operating Company during the term of the Note ***.”
¶5       Less than a year later, Singapori and Jagaria became interested in purchasing another Red
     Roof Inn hotel, this time in Lansing, Illinois (hereinafter referred to as the Lansing hotel). In
     April 2012, Singapori and Jagaria, on behalf of Novak, applied for two loans in the amount of
     $1.25 million and $758,000 from the IBC and SomerCor, respectively. Again, both loans were
     to be guaranteed by the SBA. The amended complaint alleges that Jagaria made several false
     statements in the loan application to SomerCor regarding his citizenship status, arrest history,
     and his experience in the hotel industry. The loan application also states that Singapori and
     Jagaria each have a 50% ownership interest in Novak.
¶6       After the loan applications were submitted to the IBC and SomerCor, a dispute arose
     between Singapori and Jagaria, which delayed their ability to obtain financing. On September
     19, 2012, Singapori and Jagaria entered into an “Agreement” to “resolve their differences and
     move forward with the purchase of [the] Lansing [hotel] and adjust their respective interests in
     [Eshaan and Novak].” The amended complaint alleges that, pursuant to the “Agreement,”
     Singapori transferred all of his shares in Novak to Jagaria, and Jagaria transferred all of his
     shares in Eshaan to Singapori. As a consequence, Singapori became the sole owner of Eshaan
     and Jagaria became the sole owner of Novak.
¶7       Although Singapori and Jagaria sought to terminate their business relationship and shared
     ownership interest in Eshaan and Novak, section 7 of the “Agreement” required the parties to
     work together to ensure the successful operation of their hotels. That section provides as
     follows:
                  “7. The parties agree to fully cooperate with each other and to take all actions and
              perform all acts as shall be necessary for the successful operation of the respective
              hotels. Said cooperation shall include the signing of corporate, financial, franchise and
              other documents as shall be needed from time to time and to execute any and all deeds,
              affidavits, bills of sale and all other closing documents ***.”
¶8       Moreover, according to the amended complaint, the parties recognized that “severe
     negative financial consequences could occur *** if the terms of the Agreement were not kept
     strictly confidential.” For example, disclosure of the ownership change in Eshaan could trigger
     a default under Eshaan’s loans with the IBC and SomerCor, while disclosure of the ownership
     change in Novak could result in the denial of its pending loan applications. As a consequence,
     the parties’ “Agreement” contained “a strict confidentiality provision, which included a
     liquidated damages clause to ensure confidentiality and guard against the uncertainty of ***
     whether disclosure would or would not result in defaults under the various [loan] agreements
     and guarantees.” Section 8 of the “Agreement” states as follows:
                  “8. The terms of this Agreement shall be kept confidential between the parties and
              shall not be disclosed for any reason to any person or entity including any bank,
              financial institution, franchisor, employee, agent or attorney without the prior written
              consent of the other party. Any disclosure without written approval of the other party
              shall require the payment of the sum of ONE HUNDRED THOUSAND DOLLARS
              ($100,000.00) to the non-disclosing party for each incident or event of prohibited
              disclosure without any necessity of proof of actual damages by the other. All claims of
              improper disclosure must be proven by a claiming party to a court of competent
              jurisdiction as a prerequisite to any liability of a party under this paragraph.”

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¶9          In October 2012, following execution of the “Agreement,” the IBC and SomerCor agreed
       to loan Novak $1.25 million and $758,000, respectively. Although Singapori no longer held an
       ownership interest in Novak, he signed various closing documents purporting to be the
       “President” of the company, including a note, a loan agreement, and a “Borrower’s
       Certification to Lender,” certifying that Novak has provided accurate financial information and
       will not change its ownership structure without the prior written consent of the IBC,
       SomerCor, or the SBA. He also signed a personal guaranty of the loans. The loan and guaranty
       documents enumerate various events of default, including changes in ownership or business
       structure without prior written consent, the failure to disclose material facts, and making
       materially false or misleading representation to the IBC, SomerCor, or the SBA.
¶ 10        At some point after Singapori and Jagaria entered into the “Agreement,” Jagaria’s family
       became involved in a dispute that proceeded to litigation in India. During the course of that
       litigation, Jagaria submitted an affidavit to the Indian court, which disclosed the contents of the
       “Agreement” without Singapori’s or Eshaan’s written consent. In the affidavit, Jagaria stated,
       in pertinent part, as follows:
                    “32. With the assistance of attorneys, Richard Singapori and I drafted and signed an
                agreement that provided I surrender my 49% interest in Red Roof Inn of [Deerfield]
                and that Richard Singapori pay me $600,000. I used these [sic] to buy Red Roof Inn of
                Lansing, Illinois.
                    33. Since entering into the agreement referred to in paragraph 32, Richard
                Singapori and I were no longer in business together.”
¶ 11        In December 2015, the plaintiffs filed a six-count amended complaint in the circuit court of
       Cook County, claiming that the defendants breached the confidentiality provision. The
       amended complaint alleges that Jagaria breached the confidentiality provision by disclosing
       the terms of the “Agreement” to the court in India (count I), an attorney involved in that
       litigation (count II), and his mother, Jayshree Jagaria (count III). Counts IV through VI of the
       amended complaint contain the same claims except they are brought against Novak. In their
       prayer for relief, the plaintiffs seek $100,000 in liquidated damages for each disclosure.
¶ 12        In January 2016, the defendants filed a combined motion to dismiss the plaintiffs’ amended
       complaint pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS
       5/2-619.1 (West 2014)). The defendants argued that the amended complaint should be
       dismissed pursuant to section 2-619(a)(9) of the Code because the liquidated damages clause is
       unenforceable as a matter of public policy, as it operates as a penalty. In the section 2-615
       portion of the motion, the defendants asserted that the plaintiffs’ amended complaint should be
       dismissed because it failed to allege actual damages.
¶ 13        In response, the plaintiffs maintained that the liquidated damages clause is not a penalty
       because the amount—$100,000 per disclosure—is reasonable and bears some relationship to
       the damages that might be sustained should the IBC, SomerCor, or the SBA learn about the
       ownership changes in Eshaan and Novak and determine that a default occurred. The plaintiffs
       further argued that the amended complaint adequately pled damages based upon the liquidated
       damages clause and they need not prove actual damages.
¶ 14        In March 2016, the circuit court dismissed the plaintiffs’ amended complaint with
       prejudice on grounds not raised by either party. Specifically, the court noted that federal bank
       fraud laws prohibit individuals from obtaining credit from a financial institution “by means of
       false or fraudulent pretenses, representations, or promises.” 18 U.S.C. § 1344(2) (2012); see

                                                    -4-
       also 18 U.S.C. § 1014 (2012). The court found that “[t]he confidentiality provision in the
       parties’ contract was drafted with one purpose in mind—to keep [the parties’] prior and
       continuing misrepresentations to the SBA lenders secret.” The court concluded that “[t]he
       provision is patently against public policy and will not be enforced by this Court.” This timely
       appeal followed.
¶ 15        At the outset, we note that the plaintiffs suggest that the circuit court dismissed their
       amended complaint pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2014)). In
       fact, the court never identified whether the dismissal order was entered pursuant to section
       2-615 or 2-619 of the Code; rather, it simply stated it was granting the defendants’ section
       2-619.1 motion to dismiss. In any case, the circuit court dismissed the amended complaint on
       grounds that the confidentiality provision is unenforceable because it is against public policy.
       As the factual basis of this determination appears on the face of the pleadings, section 2-615 of
       the Code applies. See K. Miller Construction Co. v. McGinnis, 238 Ill. 2d 284, 292 (2010)
       (affirmative defense that contract is illegal may be raised in a section 2-615 motion where the
       defense is established by facts apparent on the face of the complaint).
¶ 16        Motions to dismiss under section 2-615 challenge the legal sufficiency of a complaint
       based on defects apparent on its face. Id. at 291. When reviewing a dismissal order under
       section 2-615, we accept as true all well-pleaded facts in the complaint and all reasonable
       inferences that may be drawn from those facts. Id. “The critical inquiry is whether the
       allegations of the complaint, when construed in the light most favorable to the plaintiff, are
       sufficient to establish a cause of action upon which relief may be granted.” Kanerva v. Weems,
       2014 IL 115811, ¶ 33. A cause of action should not be dismissed pursuant to section 2-615
       unless it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to
       recover. Id. Our review of an order granting a section 2-615 motion to dismiss is de novo.
       McGinnis, 238 Ill. 2d at 291.
¶ 17        Turning to the merits, the plaintiffs argue that the circuit court erred in dismissing their
       amended complaint on grounds that the confidentiality provision violated public policy
       because the well-pleaded facts do not establish that the parties’ agreement violated federal
       bank fraud laws. We disagree.
¶ 18        As a general rule, courts will not enforce private agreements that are contrary to public
       policy. O’Hara v. Ahlgren, Blumenfeld & Kempster, 127 Ill. 2d 333, 341 (1989). The public
       policy of the state of Illinois is found not only in the constitution, statutes, and long-standing
       case law (Clark v. Children’s Memorial Hospital, 2011 IL 108656, ¶ 79) but can also be found
       in federal law (Wheeler v. Caterpillar Tractor Co., 108 Ill. 2d 502, 506 (1985)). Because
       Illinois public policy favors the freedom to contract, we use our power to declare a contractual
       provision void on public policy grounds sparingly. American Access Casualty Co. v. Reyes,
       2013 IL 115601, ¶ 9. “A contractual provision will not be invalidated on public policy grounds
       unless it is clearly contrary to what the constitution, the statutes, or the decisions of the courts
       have declared to be the public policy or unless it is manifestly injurious to the public welfare.”
       Id. The question of whether a contract is contrary to public policy turns on the particular facts
       and circumstances of each case. Id.
¶ 19        The Illinois Supreme Court has noted that “[t]here is no public policy more basic, nothing
       more implicit in the concept of ordered liberty [citation], than the enforcement of a State’s
       criminal code.” Palmateer v. International Harvester Co., 85 Ill. 2d 124, 132 (1981). “ ‘Public
       policy favors the exposure of crime, and the cooperation of citizens possessing knowledge

                                                    -5-
       thereof is essential to effective implementation of that policy.’ ” Id. (quoting Joiner v. Benton
       Community Bank, 82 Ill. 2d 40, 44 (1980)). As such, individuals “acting in good faith who
       have probable cause to believe crimes have been committed should not be deterred from
       reporting them by the fear of unfounded suits by those accused.” (Internal quotation marks
       omitted.) Id. at 132-33; see also Roberts v. United States, 445 U.S. 552, 557 (1980) (noting that
       the “[c]oncealment of crime has been condemned throughout our history”). It is apparent that
       the concealment of crime and “agreements to conceal information relevant to the commission
       of crime have very little to recommend them from the standpoint of public policy.” Branzburg
       v. Hays, 408 U.S. 665, 696 (1972).
¶ 20       Given the magnitude of the public policy interest here, it is not surprising that contracts
       barring the reporting of crimes are held to be unenforceable. In Williamsen v. Jernberg, 99 Ill.
       App. 2d 371, 372 (1968), for example, the defendant was accused by Williamsen of fraud,
       deceit, and larceny. The defendant agreed to make up the loss and sign a note in return for
       Williamsen’s promise to drop criminal charges that were pending against the defendant’s
       brother. This court held that the note given to one who knows of the commission of a crime for
       the purpose of compounding or concealing the crime or of preventing prosecution therefore is
       illegal and void. Id. at 375; see also Griner v. Griner, 34 Ill. App. 3d 792, 793 (1976). These
       cases indicate that, when two interests collide, Illinois has expressed a stronger interest in the
       punishment of wrongful behavior than in the strict enforcement of contracts.
¶ 21       Secondary authorities provide further support for the proposition that an agreement to
       conceal a crime contravenes public policy. See Restatement of Contracts § 548(1) (1932) (“A
       bargain in which either a promised performance or the consideration for a promise is
       concealing or compounding a crime or alleged crime is illegal.”). This rule applies “whether
       the crime in question is a felony or a misdemeanor, and whether the accused is innocent or
       guilty of the crime.” Restatement of Contracts § 548(1) cmt. a (1932).
¶ 22       In this case, the circuit court’s determination that the confidentiality provision was
       unenforceable as contrary to public policy was based upon the federal bank fraud statute (18
       U.S.C. § 1344 (2012)) and the fraud and false statements statute (18 U.S.C. § 1014 (2012)).
       Section 1344 provides:
                    “Whoever knowingly executes, or attempts to execute, a scheme or artifice—
                        (1) to defraud a financial institution; or
                        (2) to obtain any of the moneys, funds, credits, assets, securities, or other
                    property owned by, or under the custody or control of, a financial institution, by
                    means of false or fraudulent pretenses, representations, or promises;
                shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both.”
                18 U.S.C. § 1344 (2012).
       Section 1014 states, in pertinent part, as follows:
                    “Whoever knowingly makes any false statement or report *** for the purpose of
                influencing in any way the action of the *** Small Business Administration *** upon
                any application, advance, discount, purchase, purchase agreement, repurchase
                agreement, commitment, [or] loan *** shall be fined not more than $1,000,000 or
                imprisoned not more than 30 years, or both.” 18 U.S.C. § 1014 (2012).
¶ 23       These federal laws establish a clearly mandated public policy, one that is national in scope,
       and were enacted to protect the financial integrity of federally insured financial institutions and

                                                    -6-
       assure a basis for federal prosecution of those who victimize these banks through fraudulent
       schemes. United States v. Jacobs, 117 F.3d 82, 93 (2d Cir. 1997). We also note that Illinois has
       indicated its own interest in preventing this precise injury by enacting section 17-10.6 of the
       Criminal Code of 2012 (720 ILCS 5/17-10.6 (West 2014)). Indeed, the language of section
       17-10.6(c) is virtually identical to that of section 1344, insofar as section 17-10.6(c)
       criminalizes any “scheme or artifice *** to defraud a financial institution” by means of false
       pretenses, representations, or promises. 720 ILCS 5/17-10.6(c) (West 2014).
¶ 24       In the instant case, taking the well-pleaded facts in the amended complaint as true, there is
       no question that the effect of the “Agreement,” executed on September 19, 2012, worked a
       substantial economic injury to the IBC, SomerCor, and the SBA, and was in violation of state
       and federal law. Not only do the plaintiffs candidly admit in their amended complaint that
       Jagaria made several false statements on the loan applications to the IBC and SomerCor, but
       the exhibits attached to the amended complaint reveal that Singapori himself engaged in
       deceptive and fraudulent acts when he, at Novak’s loan closing on October 10, 2012, signed a
       note, loan agreement, and borrower’s certification purporting to be the “President” of Novak.
       By listing himself as a “50% [sic]” owner of Novak on the loan applications and then signing
       his name as the president of Novak and certifying that he accurately disclosed all material
       facts, Singapori intentionally misled the ICB, SomerCor, and the SBA. It was through this
       affirmative fraudulent act that Singapori concealed the fact that an ownership change in Novak
       occurred and that Jagaria had become the sole owner of the company. To hold the parties
       bound by their contractual obligation to maintain silence would in this case require this court to
       assist the plaintiffs in concealing their fraudulent misrepresentations to the IBC and SomerCor
       in violation of state and federal law.
¶ 25       Moreover, although the plaintiffs devote their entire argument on this issue to the narrow
       question of whether the facts pled in the amended complaint conclusively establish that a
       federal crime occurred, we note that courts have held that a contract may violate public policy
       even where no crime occurred.3 For example, the Tenth Circuit Court of Appeals held that
       “[a]n agreement, the object of which is the commission of a civil wrong against a third person,
       is *** illegal and void even though such wrong may not be an indictable offense or crime.”
       Lachman v. Sperry-Sun Well Surveying Co., 457 F.2d 850, 852-54 (10th Cir. 1972); see also
       Restatement (Second) of Contracts § 192, at 60 (1981) (“A promise to commit a tort or to
       induce the commission of a tort is unenforceable on grounds of public policy.”); 6A Arthur
       Linton Corbin, Corbin on Contracts § 1455, at 525 (1962) (“A bargain is illegal if it is made for
       the purpose of defrauding one or more third persons, or if its terms are such that it will have
       such an effect.”); 7 Richard A. Lord, Williston on Contracts § 16:14, at 480 (4th ed. 2010)
       (“[A] bargain which contemplates a wrong to a third person, or to undefined members of the
       public, whether trespass, breach of trust, or fraud, is illegal.”). Likewise, “[a] bargain to refrain
       from disclosing to a third person, to whom a duty of disclosure exists, information of value or
       interest to him is illegal” and “a bargain necessarily involving a breach of a previous contract
       with another party or tending to induce such wrongful non-performance” is illegal. Lord, supra


           3
             With only limited guidance from Illinois authorities, however, we turn to cases in other
       jurisdictions considering the enforceability of a contract, the object of which is the commission of a
       civil wrong against a third person.

                                                     -7-
       § 16:14; see also Unami v. Roshan, 659 S.E.2d 724, 725-27 (Ga. Ct. App. 2008), S.R. & P.
       Import Co. v. American Union Bank, 204 N.Y.S. 755 (Sup. Ct. 1924).
¶ 26        In Shea v. Grafe, 274 N.W.2d 670, 671-72 (Wis. 1979), the plaintiff purchased a motor
       home from the defendant for $19,000 with a $1000 down payment. To facilitate financing for
       the purchase, the parties’ inflated the terms of the sales contract showing a purchase price of
       $21,000 with a down payment of $4500. Financing was approved by a bank and the plaintiff
       took possession of the motor home. Shortly thereafter, however, the plaintiff experienced
       problems with the motor home’s water system, became “thoroughly disgusted with the motor
       home,” and brought action against the defendants alleging violations under the Wisconsin
       Consumer Act. Id. at 672. In reversing the trial court’s judgment in the plaintiff’s favor, the
       Wisconsin Supreme Court held that the purchase contract was void as against public policy
       because it “involve[d] the defrauding or victimizing of third persons [(the bank)] as its ultimate
       result.” (Internal quotation marks omitted.) Id. at 673. The court reasoned that:
                     “Responsible financing is a vital part of a healthy economy and is essential to
                commerce. Lending institutions must be able to rely on the integrity of the
                representations of those who seek financing. Public policy, therefore, demands that
                courts decline to enforce a contract or grant relief based on a contract upon the
                application of either of the conspiring parties unless failure to enforce or grant the relief
                sought would create a greater injustice than that sought to be avoided by
                nonenforcement.” Id.
       Because the contract contained inflated selling price and down payment figures, which were
       designed to induce the lending institution to finance the transaction, the Wisconsin Supreme
       Court concluded that “the contract contemplated misleading the institution and therefore is
       tainted with illegality.” Id. Since the contract was void as contrary to public policy, the court
       concluded it was “obliged to return the parties to the position in which [it] found them.” Id. at
       674.
¶ 27        Similarly, here, taking the well-pleaded facts in the plaintiffs’ amended complaint as true,
       it is clear there is no question that the purpose of the confidentiality provision was to conceal
       the parties’ prior and continuing misrepresentations to the banks and the SBA. Singapori and
       Jagaria had existing loans with the IBC and SomerCor that barred them from changing the
       ownership structure of Eshaan without prior written consent of SomerCor and the SBA.
       Singapori and Jagaria nevertheless entered into an “Agreement” changing their ownership
       interests in Eshaan without SomerCor’s or the SBA’s knowledge or written consent and
       admittedly sought to conceal their actions with the confidentiality provision. Indeed, the
       plaintiffs, in their amended complaint, candidly admit that the purpose of the confidentiality
       provision was to “protect against disclosure” and guard against the possibility that disclosure
       to the banks or the SBA would result in a default under the loan agreement and guarantee.
       Regardless of whether the parties’ conduct constitutes a federal crime, the injury inflicted upon
       the third-party banks is the same. It is this injury that the law has an interest in correcting. We
       do not see any indication that the nature of the injury, whether criminal or tortious, is essential
       to the central issue of whether the confidentiality provision is contrary to the public policy of
       this State.
¶ 28        In sum, based upon our review of the amended complaint and the exhibits attached thereto,
       it clearly and conclusively appears that the “Agreement” and loan transaction were knowingly
       entered into by both Singapori and Jagaria for the purpose of defrauding the IBC, SomerCor,

                                                     -8-
       and the SBA. Defrauding a financial institution is contrary to law and against public policy,
       and a ruling here in accordance with the argument advanced by the plaintiffs would serve to
       frustrate this policy. In addition, we will not enforce a contract that purports to bar a
       party—here, Jagaria—from reporting another party’s alleged misconduct. We have no doubt
       that a confidentiality provision requiring Jagaria to conceal possible crimes or tortious conduct
       against a third party is contrary to public policy. We conclude, therefore, that the circuit court
       properly dismissed the plaintiffs’ amended complaint where the confidentiality provision is
       contrary to public policy and void ab initio. See Brelsford v. Stoll, 304 Ill. App. 222, 229-30
       (1940) (holding contract void ab initio where both parties entered into it for the purpose of
       conducting an illegal gambling enterprise).
¶ 29       Having found that the circuit court properly dismissed the plaintiffs’ amended complaint,
       we need not address the parties’ alternative arguments as to whether the liquidated damages
       clause is an unenforceable penalty.
¶ 30       We finally address the defendants’ cross-appeal in which they assert that the circuit court
       erred in denying their petition for attorney fees. The defendants argue that, pursuant to section
       15 of the “Agreement,” the prevailing party in litigation is entitled to reasonable attorney fees
       and costs. We disagree.
¶ 31       “Generally, where the parties to a contract against public policy are in pari delicto, or
       equally at fault, a court will not aid either party but will leave both parties where it finds them.”
       O’Hara, 127 Ill. 2d at 348. “This rule is designed not to help any party but rather to protect the
       public.” Id. “It is believed that by refusing to enforce such contracts, courts will deter similar
       contracts in the future.” Id.
¶ 32       In this case, Singapori and Jagaria were jointly engaged in an enterprise that was illegal and
       contrary to public policy. They stood on equal footing and are equally at fault for entering into
       the “Agreement.” Accordingly, the parties are in pari delicto, and we will not aid either party
       but instead leave them where we found them. We conclude, therefore, that the trial court did
       not err in denying the defendants’ petition, pursuant to section 15 of the “Agreement,” for
       attorney fees and costs.
¶ 33       For the foregoing reasons, we affirm the judgment of the circuit court of Cook County
       dismissing the plaintiffs’ amended complaint with prejudice and denying the defendants’
       petition for attorney fees and costs.

¶ 34       Affirmed.




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