THOMPSON CORRUGATED SYSTEMS , INC . and THOMPSON CORRUGATED SYSTEMS , LLC v. Engico, S.r .l.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 23-1302 & 23-2206
THOMPSON C ORRUGATED S YSTEMS , I NC . and THOMPSON
C ORRUGATED S YSTEMS , LLC,
Plaintiffs-Appellees,
v.
ENGICO, S.R .L.,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Southern District of Illinois.
No. 3:20-cv-00122 — J. Phil Gilbert, Judge.
____________________
A RGUED S EPTEMBER 20, 2023 — DECIDED J ULY 31, 2024
____________________
Before R IPPLE, JACKSON -A KIWUMI , and LEE, Circuit Judges.
JACKSON -A KIWUMI , Circuit Judge. Two decades ago,
Thompson Corrugated Systems, Inc., orally agreed to act as
the North America sales representative for Italian manufac-
turer Engico, S.r.l. But after more than a decade of low sales,
the relationship began to sour and Engico wanted out. When
Engico found another representative and tried to end the

-- 1 of 12 --

2 Nos. 23-1302 & 23-2206
relationship, Thompson Corrugated Systems objected, sought
commissions on some of Engico’s recent sales, and sued when
Engico refused to pay. The district court granted partial sum-
mary judgment in favor of Thompson Corrugated Systems.
We affirm.
I
Thompson Corrugated Systems, Inc. (“TCS”), is an Illinois
company that has represented builders of corrugated box ma-
chinery since 1988. Engico, S.r.l., based in Lissone, Italy, pro-
duces and sells corrugated box machinery around the world.
Engico did not conduct any business in North America un-
til 2004. That year, the principals for TCS and Engico, Fred
Thompson, Sr., and Raphael Benzoni, respectively, entered
into an oral agreement to have TCS serve as Engico’s repre-
sentative in North America. The parties agreed that Engico
would compensate TCS with “an 8% commission of [sic] En-
gico sales, less transportation and installation costs.”
As Engico’s representative in North America, TCS was re-
sponsible for creating promotional videos and brochures and
attending expos and trade shows to advertise Engico’s prod-
ucts. Executing these responsibilities led TCS to procure two
sales for Engico between 2004 and 2017. The first sale was to
Lawrence Paper in 2005 for €2,900,000.00. For this sale, Engico
paid TCS a commission of 8% of the machine’s gross sale price
consistent with the parties’ agreement the year before. The
next sale was to Jayhawk Boxes, Inc., a wholly-owned subsid-
iary of Lawrence Paper, in 2017 for €3,450,000.00. TCS’s com-
mission on this sale differed because in 2012, the parties rene-
gotiated the commission structure. Under the new agreement,
TCS’s commissions would be calculated on a sliding scale:

-- 2 of 12 --

Nos. 23-1302 & 23-2206 3
TCS would receive 6% for the first million euros of the ma-
chine’s gross sale price, 5% for the next million, 4% for the
next million, and 3% on any additional amounts. The commis-
sion TCS earned for the 2017 sale to Jayhawk Boxes was con-
sistent with the sliding scale agreement.
But prompt payment for the 2005 and 2017 sales did not
mean all was well between TCS and Engico. To the contrary,
their relationship had begun deteriorating before the 2017
sale. In October 2016, Engico attempted to terminate its agree-
ment with TCS due to lack of sales. TCS resisted. TCS ex-
plained that the low sales were caused by a slump in the
North American manufacturing market, which was just be-
ginning to recover. Switching representatives just as the mar-
ket was recovering was not wise, TCS warned, but if Engico
still wanted to, TCS would need “the normal six-month notice
of pending termination.” During that time, TCS offered to
continue representing Engico and to prepare a list of compa-
nies that would be interested in doing business with Engico
over the next 12 months. That list, TCS explained, would pro-
vide the basis for any residual commissions TCS would be en-
titled to for its role in developing those prospective custom-
ers. The parties dispute whether Engico accepted TCS’s pro-
posal, but it is undisputed that Engico allowed TCS to stay on
beyond the six-month notice period. Indeed, as late as Octo-
ber 2017, Benzoni was still telling prospective customers that
TCS was Engico’s representative in the United States.
The topic of termination came up again in February 2018,
when Benzoni and Thompson met in Charlotte, North Caro-
lina, to define the parties’ relationship. In Charlotte, they
agreed that (1) TCS would remain Engico’s North America
representative until Thompson retired at the end of 2021, and

-- 3 of 12 --

4 Nos. 23-1302 & 23-2206
(2) TCS would continue to receive commissions on all sales in
North America through 2021. But as both parties got back to
work, that agreement proved fragile. Engico’s subsequent
sales in North America highlighted that fragility.
In May 2019, Engico sold another machine to Lawrence
Paper. TCS was not involved in that sale. TCS says it is be-
cause Engico cut them out; Engico says it was because Law-
rence Paper did not want TCS involved. Whatever the reason,
all agree that TCS did not receive a commission for that sale.
Instead, four days after the sale, Benzoni called Thompson to
inform him that Engico intended to terminate the parties’
business relationship effective January 1, 2020. Benzoni also
said that Engico would only pay TCS commissions for busi-
ness solicited directly by TCS. Thompson objected during that
call and again in writing eight days later, explaining that En-
gico’s desired course departed from the agreement the parties
reached in Charlotte.
The termination discussions continued over the next few
months. In August 2019, Benzoni and Thompson met at the
Haire Group’s offices in Merrillville, Indiana. By that point,
Engico had selected Haire to replace TCS when the termina-
tion was complete. At the August 2019 meeting, Benzoni reit-
erated that Engico would terminate the relationship effective
on January 1, 2020. The parties have different recollections
about the rest of that meeting. Engico represents that it made
two offers to TCS: first, Engico offered to pay TCS a commis-
sion based on the sliding scale for the May 2019 sale to Law-
rence Paper; second, Engico offered TCS the opportunity to
work with Haire for the remainder of 2019 to ensure a smooth
transition. TCS represents that Engico said that it would not
pay TCS a commission on the 2019 sale to Lawrence Paper. In

-- 4 of 12 --

Nos. 23-1302 & 23-2206 5
the end, TCS never received commission for the 2019 sale, but
it continued to provide representation for Engico in North
America.
Shortly after the meeting at Haire, TCS communicated to
Engico that it had a North American buyer for a machine that
Lawrence Paper wanted to send back to Engico. The buyer
was Welch Packaging, whom TCS had previously introduced
to Engico. TCS had developed the relationship with Welch for
years on Engico’s behalf and was finally ready to make the
sale. But, even after repeated outreach to Engico to facilitate
the sale, TCS could not push the sale through. That changed
in January 2020. Haire, not TCS, sold the used machine to
Welch—Haire’s first sale as Engico’s new representative in
North America. TCS did not receive commission on this sale
either.
Engico, on its own, sold one last machine in North Amer-
ica before TCS’s representation ended on January 1, 2020. On
October 30, 2019, Engico contracted to sell a machine to Pres-
ident Container. Engico argues, and TCS does not dispute,
that TCS was not involved in this sale and did not recruit Pres-
ident Container as a customer. TCS responds that the sale oc-
curred in its territory and while TCS was Engico’s representa-
tive so, consistent with the parties’ agreement in Charlotte,
TCS should receive a commission. TCS did not receive a com-
mission.
January 2020 marked the end of the parties’ relationship.
That same month, TCS sued Engico. TCS claimed Engico
breached the parties’ agreement when it refused to pay TCS
commissions on (1) the May 2019 sale to Lawrence Paper
Company, (2) the October 2019 sale to President Container,
and (3) the January 2020 sale to Welch Packaging. TCS also

-- 5 of 12 --

6 Nos. 23-1302 & 23-2206
included state law claims for an accounting, unjust enrich-
ment, and violation of the Illinois Sales Representative Act.
The parties cross-moved for summary judgment. In response
to TCS’s motion, Engico argued that the 2004 oral agreement
was not enforceable because the essential terms were not def-
inite, and the 2018 agreement reached in Charlotte was barred
by the Statute of Frauds.
The district court granted partial summary judgment to
TCS with respect to the commission Engico owed on the 2019
sale to Lawrence Paper. The court found that the 2004 oral
agreement was valid because the terms were sufficiently def-
inite. In particular, the court found that (1) TCS and Engico
agreed that TCS would procure customers for Engico; (2) the
sales territory was North America; (3) Engico originally
agreed to pay TCS an 8% commission, which was later modi-
fied to a sliding scale, for sales in which TCS was involved;
and (4) the duration was unspecified, which, under Illinois
law, created a contract that was terminable at will by either
party. The court left the remaining claims (the 2019 sale to
President Container, the 2020 sale to Welch Packaging, and
the state law claims) to the jury.
At trial, the district court informed the jury that the court
had already found an enforceable oral contract between TCS
and Engico. But the Court also instructed the jury that, to pre-
vail on its breach of contract claims for the two remaining
commissions, TCS was required to prove: (1) the terms of the
contract between the parties; (2) performance by TCS of its
obligations under the contract; (3) Engico’s failure to perform
its obligations under the contract; and (4) resulting damage to
TCS.

-- 6 of 12 --

Nos. 23-1302 & 23-2206 7
The jury found Engico liable for breach of contract for fail-
ing to pay commissions for the two sales. The jury awarded
TCS damages consistent with the sliding scale arrangement
for those two sales, and exemplary damages for all three un-
paid commissions. Engico appeals only the district court’s
grant of partial summary judgment, so we say no more about
the jury trial.
II
We review a district court’s grant of summary judgment
de novo. Foster v. PNC Bank, Nat'l Ass'n, 52 F.4th 315, 320 (7th
Cir. 2022). Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also, Celotex Corp. v. Catrett, 477 U.S.
317, 322–23 (1986). At the summary judgment stage, we con-
strue the record and all reasonable inferences that may be
drawn from it in the light most favorable to the nonmoving
party. Weaver v. Speedway, LLC, 28 F.4th 816, 820 (7th Cir.
2022).
Where, as here, our subject matter jurisdiction is premised
on diversity of citizenship, “state law applies to substantive
issues.” Skyrise Constr. Grp., LLC v. Annex Constr., LLC, 956
F.3d 950, 956 (7th Cir. 2020).
A
Engico first argues that the 2004 agreement did not contain
definite and certain terms about the applicable commission
rate, the exclusivity of the agreement, the identity of the spe-
cific entity that was entitled to receive commissions, the du-
ration of the agreement, the grounds for terminating the
agreement, or the availability of post termination

-- 7 of 12 --

8 Nos. 23-1302 & 23-2206
commissions. Without these terms, Engico argues, the agree-
ment was invalid and unenforceable. We are unpersuaded.
In Illinois, “[a] contract ‘is sufficiently definite and certain
to be enforceable if the court is enabled from the terms and
provisions thereof, under proper rules of construction and ap-
plicable principles of equity, to ascertain what the parties
have agreed to do.’” Bus. Sys. Eng'g, Inc. v. Int’l Bus. Machs.
Corp., 547 F.3d 882, 888 (7th Cir. 2008) (quoting Acad. Chi. Pub-
lishers v. Cheever, 578 N.E.2d 981, 983 (Ill. 1991)). “A contract
may be enforced even though some contract terms may be
missing or left to be agreed upon, but if the essential terms are
so uncertain that there is no basis for deciding whether the
agreement has been kept or broken, there is no contract.”
Acad. Chi. Publishers, 578 N.E.2d at 984.
Illinois courts have found that “[t]he essential terms of a
sales representative [agreement] include the commission
structure, the territory, the services to be performed, the du-
ration of the agreement and/or a termination provision.” An-
derson v. Fel-Pro Chem. Prod., L.P., No. 95C4604, 1996 WL
33410082, at *6 (N.D. Ill. Dec. 19, 1996) (citing O’Neil & Santa
Claus, Ltd. v. Xtra Value Imports, Inc., 365 N.E.2d 316, 318 (Ill.
App. Ct. 3rd Dist. 1977)). Our task is to discern whether these
essential terms were provided for in the oral agreement be-
tween Engico and TCS. We conclude they were.
Commission structure. Engico argues that the parties did
not agree on a set commission structure, only that a commis-
sion would be paid on a case-by-case basis. The record evi-
dence directly contradicts this position. At Benzoni’s deposi-
tion on May 15, 2021, he testified that the parties had reached
a “gentlemen’s agreement” that provided that TCS “would
get commissioned [] at eight percent less the cost of

-- 8 of 12 --

Nos. 23-1302 & 23-2206 9
transporting the products.” Engico’s expert, Lance Head, also
testified that the parties’ original agreement was “for an 8 per-
cent commission of all products sold in North America.” Ben-
zoni’s and Head’s shared understanding of the parties’ initial
commission structure was confirmed by contemporaneous
practice when Engico paid TCS an 8% commission on the 2005
sale to Lawrence Paper.
Similarly, Benzoni’s own declarations establish that in
February 2011 the parties agreed that “future commissions
would have to be on a sliding scale” and that the scale would
be “six percent (6%) for the first million, five percent (5%) for
the next million, four percent (4%) for the next million, and
three percent (3%) on any further amounts.” The parties’ sub-
sequent dealings confirm this agreement, too: Engico paid
TCS the sliding scale commission on its sale to JayHawk
Boxes in 2017. Thus, we conclude that the commission struc-
ture term was sufficiently certain and definite.
Territory & Services. Engico does not dispute the territory
and services terms, nor could it. When asked about the terms
of the verbal agreement with TCS at that 2021 deposition Ben-
zoni testified that “TCS was supposed to look for opportuni-
ties to sell the Engico technology on the North – in the North
American market.”
Duration & Termination. Engico next contends that the dis-
trict court erred in granting summary judgment on TCS’s con-
tract claim because the parties never agreed to the contract’s
duration or grounds for termination. That argument is also
without merit. True, the parties did not explicitly agree at the
outset on the duration of their relationship, but that is of little
moment when, in Illinois, contracts of indefinite duration are
presumptively terminable “at the will of the parties.” Jespersen

-- 9 of 12 --

10 Nos. 23-1302 & 23-2206
v. Minn. Mining & Mfg. Co., 700 N.E.2d 1014, 1015 (Ill. 1998).
That means that either TCS or Engico “could terminate the
agreement for any reason or no reason without committing a
breach of contract.” Id. at 1017. Where state law provides the
default rule, a contract term is not unenforceable for indefi-
niteness. See Bruzas v. Richardson, 945 N.E.2d 1208, 1215 (Ill.
App. Ct. 3rd Dist. 2011) (holding that a contract is not indefi-
nite if the court can fill in the gaps through “proper rules of
construction and applicable principles of equity”).
Because Illinois law provides the duration term, we need
not address Engico’s additional argument about the lack of a
termination clause. Illinois courts have held that a sales rep-
resentative agreement must have either a durational clause or
a termination clause but need not have both. See Anderson,
1996 WL 33410082, at *6. Thus, we conclude that this material
term, too, was satisfied.
Failing to persuade on any of those essential terms, Engico
invites us to consider other terms that Engico deems essential.
Specifically, Engico contends that because its agreement with
TCS lacked an exclusivity term and terms providing for the
identities of the parties and the calculation of post-termina-
tion commissions, the agreement was not sufficiently definite.
But Engico fails to identify any Illinois cases deeming En-
gico’s proffered terms essential to a sales representative
agreement. We decline Engico’s invitation to create new law
for Illinois. See Lexington Ins. Co. v. Rugg & Knopp, Inc., 165
F.3d 1087, 1093 (7th Cir. 1999) (noting that federal courts have
no power to create state law).

-- 10 of 12 --

Nos. 23-1302 & 23-2206 11
B
Engico next argues that the district court erred in rejecting
its claim that the 2018 oral agreement was unenforceable un-
der the Statute of Frauds. We agree with the district court that
the Statute of Frauds does not apply, but we take a different
route to that conclusion.
Under the Illinois Statute of Frauds, “[n]o action shall be
brought … upon any agreement that is not to be performed
within the space of one year from the making thereof, unless
the promise or agreement upon which such action shall be
brought, or some memorandum or note thereof shall be in
writing, and signed by the party to be charged therewith or
some other person thereunto by him lawfully authorized.”
740 I LL. C OMP . S TAT. 80/1 (West 2010). In Illinois, “[a] writing
has been considered ‘signed’ for the purpose of the statute of
frauds even if it merely contains something which manifests
that the instrument has been executed or adopted by the party
to be charged with it.” Thompson v. Bebout, 2011 IL App (5th)
110041-U, ¶ 18 (citing Just Pants v. Wagner, 617 N.E.2d 246, 251
(Ill. App. Ct. 1st Dist. 1993)).
The definition of “writing” has also been liberally con-
strued. For example, following the lead of Illinois courts, we
have held that a party’s deposition may satisfy the Statute of
Frauds’ writing requirement if it contains the agreement’s es-
sential terms. See Bower v. Jones, 978 F.2d 1004, 1009 (7th Cir.
1992) (“A deposition may qualify as a signed writing for stat-
ute of frauds purposes.”); cf. URSA Farmers Coop. Co. v. Trent,
374 N.E.2d 1123, 1124–25 (Ill. App. Ct. 4th Dist. 1978) (holding
that a deposition can satisfy the writing requirement under
the UCC Statute of Frauds).

-- 11 of 12 --

12 Nos. 23-1302 & 23-2206
In this case, Benzoni’s deposition satisfies the Statute of
Frauds’ writing requirement. As we explained above, Ben-
zoni’s deposition testimony admitted the contract’s existence
and its essential terms. Consequently, the Statute of Frauds
does not bar enforcement of the parties’ oral agreement.
For these reasons, we AFFIRM the judgment of the district
court.

-- 12 of 12 --