|

The elements required to establish a joint venture are broadly consistent across the search results. They include:

1. An express or implied agreement to carry on an enterprise (805 ILCS 206/202), (Ambuul v. Swanson, 162 Ill.App.3d 1065 (1987)), (Yokel v. Hite, 348 Ill.App.3d 703 (2004)).

2. A manifestation of intent by the parties to be associated as joint venturers (805 ILCS 206/202), (Ambuul v. Swanson, 162 Ill.App.3d 1065 (1987), (O’Brien v. Cacciatore, 227 Ill.App.3d 836 (1992)).

3. A joint interest as shown by the contribution of property, financial resources, effort, skill, or knowledge by each joint venturer (805 ILCS 206/202), (Ambuul v. Swanson, 162 Ill.App.3d 1065 (1987)), (Yokel v. Hite, 348 Ill.App.3d 703 (2004)).

4. Some degree of joint proprietorship or mutual right to exercise control over the enterprise (805 ILCS 206/202), (Ambuul v. Swanson, 162 Ill.App.3d 1065 (1987)).

5. Provision for the joint sharing of profits and losses (805 ILCS 206/202), (Ambuul v. Swanson, 162 Ill.App.3d 1065 (1987)), (O’Brien v. Cacciatore, 227 Ill.App.3d 836 (1992)).

It is important to note that all four criteria must be established or a joint venture does not exist (Fogt v. 1-800-Pack-Rat, LLC, 2017 IL App (1st) 150383 (2017)).

The obligation of a joint venturer to account to another member of the joint venture arises from the fiduciary nature of their relationship. The relationship between joint venturers, like that existing between partners, is fiduciary in character and imposes upon the participants an obligation of loyalty and good faith in their dealings with each other with respect to the enterprise (Ambuul v. Swanson, 162 Ill.App.3d 1065 (1987)). In the case of a sale of joint venture property by one joint adventurer, the other is entitled to an accounting on principal and interest profit, if any, received by the seller on the purchase money mortgage received when the joint venture property was liquidated (Burtell v. First Charter Service Corp., 83 Ill.App.3d 525 (1980)).

However, it’s important to note that whether or not a joint venture exists is a question for the trier of fact as they are in the best position to judge the credibility of the witnesses (Ambuul v. Swanson, 162 Ill.App.3d 1065 (1987)), (Thompson v. Hiter, 356 Ill.App.3d 574 (2005)), (Andrews v. Marriott Intern., Inc., 2016 IL App (1st) 122731 (2016)). Continue reading ›

|

Under Illinois law, defenses for a partner accused of breaching fiduciary duties to the partnership and his other partners can be varied and nuanced (LID Associates v. Dolan, 324 Ill.App.3d 1047 (2001)), (Pielet v. Hiffman, 407 Ill.App.3d 788 (2011)). Here are some potential defenses:

1. Compliance with Partnership Agreement: A partner who has acted in accordance with an express authorization in the partnership agreement may not be deemed in breach of fiduciary duties (1515 North Wells, L.P. v. 1513 North Wells, L.L.C., 392 Ill.App.3d 863 (2009). However, no language in a partnership agreement, however clear and explicit, can reduce a partner’s fiduciary duty toward other partners (Pielet v. Hiffman, 407 Ill.App.3d 788 (2011)).

2. Good Faith and Fairness: A partner can defend on the grounds that he has acted in good faith and fairness in his dealings with other partners (Winston & Strawn v. Nosal, 279 Ill.App.3d 231 (1996)). Under Illinois law, a fiduciary relationship exists between partners and each is bound to exercise the utmost good faith in all dealings and transactions related to the partnership business (Pielet v. Hiffman, 407 Ill.App.3d 788 (2011)), 1515 North Wells, L.P. v. 1513 North Wells, L.L.C., 392 Ill.App.3d 863 (2009)).

3. Lack of Personal Advantage: If a partner can show that he has not advantaged himself at the expense of the firm, this could be a defense against an accusation of fiduciary duty breach.

4. Right to Manage Partnership Affairs: If a partner was managing the affairs of the partnership and did not conceal, misrepresent or seek to take advantage of his partner, he might be able to argue that he was not in breach of fiduciary duties (Mermelstein v. Menora, 372 Ill.App.3d 407 (2007)).

5. Discrepancies in Accounting or Interpretation of Rights and Duties: Discrepancies or errors in accounting, or misinterpretations of rights and duties under partnership agreements, can be invoked as a defense, especially if the partner did not seek personal advantage.

6. Duty of Good Faith: If it can be shown that the partner always exercised good faith in his dealings with other partners, he can defend against the accusations (Pielet v. Hiffman, 407 Ill.App.3d 788 (2011)), (Winston & Strawn v. Nosal, 279 Ill.App.3d 231 (1996)).

Remember that each case is unique and the success of these defenses can depend on the specifics of the partnership agreement and the facts of the case. These defenses are not exhaustive and other defenses may be available depending on the specifics of a case. Continue reading ›

|

To protect beneficiaries in Illinois estates from breaches of fiduciary duty by the administrator, several measures can be taken based on the duties and responsibilities outlined in the relevant laws and cases.

Firstly, it’s important to establish that the relationship between an executor or administrator and a beneficiary is that of a trustee and cestui que trust, and is fiduciary in nature (In re Estate of Lis, 365 Ill.App.3d 1 (2006). This fiduciary duty requires the administrator to act with the highest degree of fidelity and utmost good faith in handling estate assets (Matter of Estate of Pirie, 141 Ill.App.3d 750 (1986), (In re Estate of Neisewander, 130 Ill.App.3d 1031 (1985, (Will v. Northwestern University, 378 Ill.App.3d 280 (2007). However, this fiduciary relationship does not extend to all affairs and transactions between administrators and beneficiaries (In re Estate of Lis, 365 Ill.App.3d 1 (2006)), (Will v. Northwestern University, 378 Ill.App.3d 280 (2007), (Epstein v. Davis, 2017 IL App (1st) 170605 (2017).

One of the main duties of an administrator is to collect the estate, convert it into cash, and distribute it to those entitled thereto (In re Estate of Wallen, 262 Ill.App.3d 61 (1994), (In re Estate of Zagaria, 2013 IL App (1st) 122879 (2013), (In re Estate of Cappetta, 315 Ill.App.3d 414 (2000). In this process, the administrator is expected to perform their responsibilities with the degree of skill and diligence which an ordinary prudent man bestows on his own similar private affairs (Matter of Estate of Pirie, 141 Ill.App.3d 750 (1986), (Will v. Northwestern University, 378 Ill.App.3d 280 (2007).

An administrator is also obligated to act in the best interests of the estate, which includes carrying out the wishes of the decedent and acting in the best interest of the estate (Estate of Hudson By Caruso v. Tibble, 2018 IL App (1st) 162469 (2018). This means that the administrator should act in good faith to protect the interests of beneficiaries (Will v. Northwestern University, 378 Ill.App.3d 280 (2007), (Szymakowski v. Szymakowski, 185 Ill.App.3d 746 (1989). Continue reading ›

|

In Illinois, the protections for minority shareholders or LLC members from breaches of fiduciary duty in closely held companies can be found in a combination of statutory provisions and case law.

Firstly, the Illinois Limited Liability Company Act (805 ILCS 180/15-3) specifies that a member of a manager-managed LLC does not owe a fiduciary duty to the LLC unless they are a manager under the terms of the operating agreement (Katris v. Carroll, 362 Ill.App.3d 1140 (2005)), (Tully v. McLean, 409 Ill.App.3d 659 (2011)). This means that members of an LLC who are not managers do not owe a fiduciary duty to the company or to other members (Katris v. Carroll, 362 Ill.App.3d 1140 (2005), (800 South Wells Commercial LLC v. Cadden, 2018 IL App (1st) 162882 (2018). However, members in a member-managed LLC do owe each other fiduciary duties of loyalty and care (Anest v. Audino, 332 Ill.App.3d 468 (2002), (Schultz v. Sinav Limited, — N.E.3d —- (2024).

Secondly, under the Illinois Business Corporations Act (805 ILCS 5/12.50), a minority shareholder may sue a corporation directly for its dissolution if they can establish that the majority shareholders have acted in a way that is illegal, oppressive, or fraudulent. This provides a means for minority shareholders to recover their investment from the corporation when no other methods are available (Kalabogias v. Georgou, 254 Ill.App.3d 740 (1993).

Moreover, under common law, a controlling shareholder in a cash-out merger owes the minority shareholders the default fiduciary duties of loyalty and due care, and courts apply an exacting standard of judicial review known as “entire fairness” (Schultz v. Sinav Limited, — N.E.3d —- (2024). Additionally, LLCs can contractually impose fiduciary duties on their managers. Furthermore, the Illinois courts have held that minority shareholders in closely held corporations may sue company directors for breaches of fiduciary duty (Elleby v. Forest Alarm Service, Inc., 2020 IL App (1st) 191597 (2020)). Continue reading ›

|

Choosing the right law firm to protect your minority interests in a closely held company is crucial, particularly when it comes to addressing breaches of fiduciary duty. Lubin Austermuehle is a firm that you might consider for several reasons:

  1. Concentration in Business Litigation: Firms like Lubin Austermuehle that concentrate in business litigation are likely to have a deep understanding of the complexities involved in disputes within closely held companies. This specialization can be beneficial in effectively navigating the legal landscape to protect minority shareholders.
  2. Experience with Fiduciary Duties: The protection of minority interests often hinges on issues related to fiduciary duties. A firm experienced in this area will understand the nuances of fiduciary responsibilities and how breaches can occur, which is critical in formulating a robust legal strategy.
Continue reading ›

|

In Illinois, there are several circumstances under which a partner can sue another partner (Battles v. LaSalle Nat. Bank, 240 Ill.App.3d 550 (1992)), (In re Ascher, 141 B.R. 652 (1992), (Hux v. Woodcock, 130 Ill.App.3d 721 (1985)):

1. A partner can sue another for a breach of fiduciary duty, such as if a partner sells partnership property to a third party without approval from all partners (Battles v. LaSalle Nat. Bank, 240 Ill.App.3d 550 (1992)), (Nussbaum v. Kennedy, 267 Ill.App.3d 325 (1994).

2. A partner or partnership can bring an action against a co-partner if the plaintiff’s claim can be decided without a full review of the partnership accounts. This means that if the issue between partners can be resolved without an accounting, one partner can sue the other. However, if such an issue requires an accounting, that is the proper remedy to seek under the Illinois Partnership Act (In re Ascher, 141 B.R. 652 (1992)).

3. The capacity to sue is determined under Illinois law, and a partnership must sue in the name of all its partners (Stotler and Co. v. Reisinger, Not Reported in F.Supp. (1987). In other words, to sue a partnership, it is necessary to sue and serve all of the partners (Gerut v. Poe, 11 F.R.D. 281 (1951)).

4. A partner may not sue individually to recover damages for injury to the partnership (Hux v. Woodcock, 130 Ill.App.3d 721 (1985)), (Creek v. Village of Westhaven, 80 F.3d 186 (1996)). The lawsuit must be filed on behalf of the partnership and not the individual partner.

5. In cases involving a limited partnership, a limited partner can sue the general partners for alleged breaches of fiduciary and contractual duties arising under a written limited partnership agreement (Illinois Rockford Corp. v. Dickman, 167 Ill.App.3d 113 (1988)). However, limited partners do not have a cause of action for damages to their interest in a limited partnership as long as the partnership exists and has not been dissolved or liquidated (766347 Ontario Ltd. v. Zurich Capital Markets, Inc., 249 F.Supp.2d 974 (2003)).

6. A partner may maintain an action against a co-partner absent an accounting in certain situations, including upon claims involving express personal contracts between the partners, and also upon claims involving the failure to comply with an agreement constituting a condition precedent to the formation of a partnership (Hux v. Woodcock, 130 Ill.App.3d 721 (1985)).

7. Illinois courts may imply rights of action from Illinois statutes under certain circumstances. These include instances where the plaintiff is a member of the class for whose benefit the Illinois legislature enacted the statute; implication of the right is consistent with the underlying purpose of the statute; the plaintiff’s claimed injury is one which the Illinois legislature designed the statute to prevent; and a private right of action is necessary to effectuate the purposes of the statute (Bane v. Ferguson, 707 F.Supp. 988 (1989)). Continue reading ›

|

Yes, an individual can sue a college or university for a Title IX violation. The Supreme Court has recognized that Title IX entitles a person injured by a violation to sue for damages. In such cases, the plaintiff must demonstrate that an official of the educational institution who has the authority to institute corrective measures has actual notice of the misconduct and is deliberately indifferent to it (Doe v. St. Francis School Dist., 694 F.3d 869 (2012)).

Title IX violations in the educational context have been encountered in several legal proceedings. Examples include Hendrichsen v. Ball State University, where a student sued alleging a professor’s advances created a hostile learning environment, and Doe v. University of Southern Indiana, where a student sued after a Title IX committee found that he had sexually assaulted another student (Hendrichsen v. Ball State University, 107 Fed.Appx. 680 (2004)). Gash v. Rosalind Franklin University involved a former student suing for Title IX sex discrimination after his expulsion for violation of the university’s Title IX policy (Gash v. Rosalind Franklin University, — F.Supp.3d —- (2023)).

The Conviser v. DePaul University case expanded the scope of individuals who can sue for Title IX violations. The court found that a Title IX retaliation plaintiff need not plead that she is a university student or faculty member to have statutory standing. This suggests that individuals beyond students and faculty can also bring a Title IX claim if they witness and report discrimination and face retaliation (Conviser v. DePaul University, 649 F.Supp.3d 686 (2023).

However, it’s important to note that certain circumstances may fall outside the scope of Title IX. For instance, in Shannon v. Board of Trustees of The University of Illinois, the court found that an assault that occurred off-campus and out-of-state did not constitute “Title IX Sexual Harassment” and was not within Title IX’s jurisdiction (Shannon v. Board of Trustees of The University of Illinois, 2024 WL 218103 (2024)). But all off-campus assaults are not necessarily immune from Title IX. Each claim is different and a number of cases have proceeded even though the assault was off campus.

Furthermore, not all entities related to education are subject to Title IX. For example, the Supreme Court held in National Collegiate Athletic Ass’n v. Smith that the NCAA is not subject to the requirements of Title IX merely because it receives dues from its member institutions which receive federal financial assistance (National Collegiate Athletic Ass’n v. Smith, 525 U.S. 459 (1999)).

It’s also crucial to bear in mind that some of the legal principles established in certain cases may no longer be applicable due to their abrogation. For example, Delgado v. Stegall was abrogated by Doe No. 55 v. Madison Metropolitan School District in 2018, and Doe v. Smith was abrogated by Trentadue v. Redmon in 2010. Similarly, Boulahanis v. Board of Regents was abrogated by Trentadue v. Redmon in 2010. These abrogations may affect the interpretation and application of the principles established in these cases to current claims.

Lastly, Title IX, as codified in 20 U.S.C.A. § 1681, prohibits sex-based discrimination in any education program or activity receiving Federal financial assistance, with certain exceptions (20 U.S.C.A. § 1681). Continue reading ›

|
  1. Experience: Lubin Austermuehle has specific experience dealing with Title IX cases, which involve allegations of sexual discrimination, harassment, or violence in educational settings. Their familiarity with such cases can be crucial in navigating the complexities of both the legal aspects and the educational policies involved.
  2. Understanding of Educational Law: A law firm that concentrates on Title IX and discrimination cases, will have a deep understanding of the legal frameworks that govern educational institutions. This expertise can be instrumental in ensuring that your rights are protected throughout the process.
  3. Advocacy and Representation: It’s crucial to have effective representation when facing a Title IX accusation, whether you are the complainant or the respondent. A specialized law firm can provide strong advocacy, ensuring that your side of the story is heard and that you are treated fairly under the law.
Continue reading ›

|

Yes, the Illinois Attorney General can sue your company for consumer fraud (In re Tapper, 123 B.R. 594 (1991)), (People of State of Ill. ex rel. Hartigan v. Commonwealth Mortg. Corp. of America, 732 F.Supp. 885 (1990), (People of State of Ill. v. Life of Mid-America Ins. Co., 805 F.2d 763 (1986). The Attorney General can act under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFDBPA), and can take action when there is reason to believe that your company is engaging in, or about to engage in, any method, act, or practice declared unlawful under the ICFDBPA (People of State of Ill. v. Life of Mid-America Ins. Co., 805 F.2d 763 (1986)), (People ex rel. Devine v. Time Consumer Marketing, Inc., 336 Ill.App.3d 74 (2002)), (People ex rel. Madigan v. United Const. of America, Inc., 2012 IL App (1st) 120308 (2012)).

The Attorney General can file a lawsuit to halt deceptive practices without needing to demonstrate anyone has been directly harmed, a requirement necessary for a private plaintiff. B. Sanfield, Inc. v. Finlay Fine Jewelry Corp., 168 F.3d 967 (1999)), (Harris v. Kashi Sales, LLC, 609 F.Supp.3d 633 (2022)). Deceptive practices can include deceptive advertising or violations of the Illinois Consumer Fraud Act and the Illinois Uniform Deceptive Trade Practices Act (People of State of Ill. ex rel. Hartigan v. Commonwealth Mortg. Corp. of America, 732 F.Supp. 885 (1990)), (People ex rel. Devine v. Time Consumer Marketing, Inc., 336 Ill.App.3d 74 (2002)).

The Attorney General can file suit under the ICFDBPA when it appears your company has engaged in, is engaging in, or is about to engage in practices declared to be unlawful by the Act (815 ILCS 505/3), (815 ILCS 505/6.1). The Attorney General has the power to obtain and impose injunctions, and the ICFDBPA provides the Attorney General with the full authority to impose an injunction that can effectively tie up the company’s known assets. People of State of Ill. ex rel. Hartigan v. Peters, 871 F.2d 1336 (1989). They can even bring an action in the name of the People of the State against your company to restrain by preliminary or permanent injunction the use of such method, act, or practice (People ex rel. Devine v. Time Consumer Marketing, Inc., 336 Ill.App.3d 74 (2002), (815 ILCS 505/7).

However, a nonresident plaintiff can only sue under the ICFDBPA if the circumstances leading to the cause of action primarily and substantially occurred in Illinois. Irwin v. Jimmy John’s Franchise, LLC, 175 F.Supp.3d 1064 (2016). The company’s headquarters being located in Illinois is not a decisive factor as to whether a nonresident possesses standing to sue under the ICFDBPA. Irwin v. Jimmy John’s Franchise, LLC, 175 F.Supp.3d 1064 (2016).

It’s important to note that under the ICFDBPA, to state a claim, a plaintiff must show a deceptive or unfair act or promise by the defendant, the defendant’s intent that the plaintiff rely on the deceptive or unfair practice, and that the unfair or deceptive practice occurred during a course of conduct involving trade or commerce (Harris v. Kashi Sales, LLC, 609 F.Supp.3d 633 (2022)).

Continue reading ›

|

Hiring Lubin Austermuehle to defend your company in an Illinois Attorney General consumer fraud investigation could be strategically beneficial for several reasons:

  1. Focus on Consumer Law: Lubin Austermuehle likely has a comprehensive understanding of consumer law, particularly as it pertains to the regulations and practices within Illinois. This focus on consumer law can be critical in navigating the specifics of a consumer fraud investigation conducted by the state’s Attorney General.
  2. Experience with Regulatory Bodies: If the firm has experience dealing with regulatory bodies, including the Illinois Attorney General’s office, it can provide your company with an advantage. Such experience means the firm understands the procedures, expectations, and typical workflows of the office, which can lead to more effective communication and negotiation.
  3. Defensive Strategies: The firm can develop robust defensive strategies tailored to the specifics of your case. This can include challenging the validity of the investigation, negotiating for lesser penalties, or demonstrating compliance with consumer protection laws.
  4. Preventive Advice: Beyond just defense, Lubin Austermuehle can offer preventive advice to help your company avoid future legal pitfalls. This includes revising current business practices, improving compliance protocols, and training staff to adhere to state and federal consumer laws.
  5. Reputation Management: During an investigation by the Attorney General, maintaining a positive public image is crucial. A law firm experienced in handling such cases can help manage the public and media perception, which is vital for preserving customer trust and company reputation.
  6. Cost-Effective: While defending against a consumer fraud investigation can be expensive, a specialized firm like Lubin Austermuehle might offer more cost-effective solutions through efficient management of the case, potentially reducing long-term costs associated with prolonged legal battles or heavier penalties.
  7. Personalized Attention: Depending on the size and focus of the firm, your company might benefit from more personalized service, ensuring that your specific needs and concerns are addressed promptly and thoroughly.

Continue reading ›

Contact Information
Chicago Office
19 S LaSalle St #702
Chicago, IL 60603
Phone: 630-333-0333
Mailing Address
17W220 22nd St #410
Oakbrook Terrace, IL 60181
Phone: 630-333-0333 Please direct all mail correspondence to our Oakbrook Terrace address.
Highland Park Office
189 Whistler Rd
Highland Park, IL 60035
Phone: 630-710-4990
We accept the following credit cards
Credit Cards Accepted
We accept payment via Venmo at: @L-A-LAW

Please direct all mail correspondence to our Oakbrook Terrace address.

Phone: 603-333-0333
Visit our site: chicagobusinesslawfirm.com

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2024, Lubin Austermuehle, P.C.
JUSTIA Law Firm Blog Design