Chicago Business Litigation Lawyer Blog

Our Chicago non-compete contract litigators also practice in Wisconsin, so we were interested in a decision from that state’s Court of Appeals on the severability of a covenant not to compete. In Frank D. Gillitzer Electric Co., Ltd. v. Marco Anderson et. al., 2010 WI App. 31 (Jan. 20, 2010), the court reversed a grant of summary judgment for five former employees of an electrical contractor in Milwaukee. All of them had enrolled in a training program to become licensed electricians, and signed an agreement with Gillitzer that they would reimburse the company for the cost of schooling if they failed to finish it, or left Gillitzer within four years of completing it. The same contract said they also agreed not to join a competing business in the counties where Gillitzer does business within four years of leaving the company.

All five defendants dropped out or were kicked out of the apprenticeship program before finishing, but remained with Gillitzer until voluntarily resigning. After they left, Gillitzer sued them for the cost of the training. In trial court, the defendants moved for summary judgment. They argued that the non-compete portion of the agreement was unenforceably broad and inextricably linked to the repayment portion, making the entire agreement unenforceable. They also argued that the repayment provision was a restrictive covenant under Wisconsin law. The trial court granted the summary judgment and dismissed the case, triggering an appeal from Gillitzer.

On appeal, Gillitzer conceded that the non-compete part of the agreement was unenforceable. Wisconsin law favors former employees when examining the reasonableness of covenants not to compete. Streiff v. American Family Mutual Insurance Co., 118 Wis. 2d 602, 348 N.W.2d 505 (1984). Thus, the appeals court said, the issue was whether the training reimbursement part of the agreement was enforceable. The defendants argued that it was indivisible from the rest of the agreement, and thus, the entire agreement was indivisible under Wisconsin statutes sec. 103.465. Gillitzer argued that the two covenants are individual and divisible, and that the reimbursement portion is not a restrictive covenant under Wisconsin law.

The appeals court sided with Gillitzer. Using the divisibility test fashioned by the Wisconsin Supreme Court in Streiff, it looked at whether the reimbursement provision and the non-compete provision are interdependent and must be read together to be understood. In this case, they are not, the court said; they are “distinct, mutually exclusive [and] independent” under Streiff and can be separated with no loss of meaning. This would also be true under the more recent precedent set by Star Direct, Inc. v. Dal Pra, 2009 WI 76, 319 Wis. 2d 274, 767 N.W.2d 898, the court said, although it declined to reach the issue of whether Star Direct set a new divisibility test. Thus, it reversed the Milwaukee circuit court’s summary judgment order.

Continue reading " Contract Enforceable Despite Unenforceable Covenant Not to Compete, Wisconsin Appeals Court Rules " »

Mortgage News Daily has put together a list of resources for Illinois consumers who have been victims of mortgage fraud. You can link to the webpage here.

The webpage states:

The list of resources below has been compiled for anyone that suspects that they may be a victim of any type of fraud or scam. The list was originally designed as a resource to report mortgage fraud, predatory lending scams and identity theft in Illinois but may also serve those who are victims of many types of fraud in Illinois. Other types of fraud may include:

Internet Scams
Phishing/Email Scams
Credit Card Fraud
Investment Scams
Financial - Debt Elimination
Business/MLM Scams
Etc.

FBI Field Offices, Mortgage Fraud

White Collar Crime Supervisor
click here for internet site
Everett McKinley Dirksen FOB
219 S. Dearborn Street, Rm 905
Chicago, IL 60604-1702
Phone: (312) 431-1333

White Collar Crime Supervisor
http://springfield.fbi.gov/
400 W. Monroe Street, Suite 400
Springfield, IL 62704-1800
Phone: (217) 522-9675

Illinois Office of the Attorney General
click here for internet site

Chicago Main Office
100 West Randolph Street
Chicago, IL 60601
Phone: (312) 814-3000
TTY: (312) 814-3374

Springfield Main Office
500 South Second Street
Springfield, IL 62706
Phone: (217) 782-1090
TTY: (217) 785-2771

Carbondale Main Office
1001 East Main Street
Carbondale, IL 62901
Phone: (618) 529-6400/6401
TTY: (618) 529-6403

Consumer Fraud Bureau of the Attorney General’s Office
Consumer Complaint Form:
click here for internet site
500 South Second Street
Springfield, IL 62706
Phone: (217) 782-1090

HUD Field Office
Springfield Field Office
500 W. Monroe St., Suite 1 SW
Springfield, IL 62704
Phone: (217) 492-4120
Fax: (217) 492-4154

HUD Regional Office
Chicago Regional Office
Ralph Metcalfe Fed Building
77 West Jackson Boulevard
Chicago, IL 60604-3507
Phone: (312) 353-5680
Fax: (312) 886-2729

State of Illinois, Office of Banks and Real Estate
click here for internet site
310 South Michigan Avenue, Suite 2130
Chicago, IL 60604-4278
Toll Free: (877) 793-3470
Phone: (312) 793-3977

Nationally Chartered Credit Union
Region IV – Austin
click here for internet site
4807 Spicewood Springs Rd., Suite 5200
Austin, TX 78759-8490
Phone: (512) 342-5600
Fax: (512) 342-5620

State-Chartered Credit Unions
Illinois Department of Financial Institutions
100 West Randolph Street, Ste. 15-700
Chicago, IL 60601
Phone: (217) 782-2834
Fax: (312) 814-5168

Savings & Loan Association or Savings Bank
Office of Thrift Supervision
click here for internet site
E-mail: consumer.complaint@ots.treas.gov

Southeast Region – Chicago
1 South Wacker Drive - Suite 2000
Chicago, Illinois 60606
Phone (312) 917-5000
Complaints: (800) 842-6929

National Fair Housing Alliance
To locate your local office:
click here for internet site
1212 New York Avenue, NW Ste 525
Washington, DC 2005
Phone: (202) 898-1661
Fax: (202) 371-9744

Illinois Division of Real Estate and Banks,
Real Estate Division
click here for internet site
500 East Monroe Street
Springfield, Illinois 62701-1509
Phone: (217) 785-9300

Illinois Division of Real Estate and Banks,
Appraisal Division
click here for internet site
500 East Monroe Street
Springfield, Illinois 62701-1509
Phone: (217) 782-3000

Better Business Bureaus

Tri-State Better Business Bureau
click here for internet site
E-mail: info@evansville.bbb.org
1139 Washington Square
Evansville, IN 47715
Phone: (812) 473-0202
Fax: (812) 473-3080

Better Business Bureau Chicago & North Illinois
click here for internet site
E-mail: feedback@chicago.bbb.org
330 N. Wabash, Ste. 2006
Chicago, IL 60611
Phone: (312) 832-0500
Fax: (312) 832-9985

Better Business Bureau of Central Illinois
click here for internet site
E-mail: bbb@heart.net
112 Harrison Street
Peoria, IL 61602
Phone: (309 688-3741
Fax: (309) 681-7290

Better Business Bureau of E. Missouri & South Illinois
click here for internet site
E-mail: bbbstl@stlouisbbb.org
12 Sunnen Drive, Ste. 121
Saint Louis, MO 63143
Phone: (314) 645-3300
Fax: (314) 645-2666

Our Chicago consumer rights private law firm handles individual and class action predatory lending, mortgage fraud, unfair debt collection, lemon law and other consumer fraud cases that government agencies and public interest law firms such as the Illinois Attorney General may not pursue. Class action lawsuits our law firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs. DiTommaso-Lubin is proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers' rights are protected from consumer rip-offs and unscrupulous or dishonest practices.

Our Wheaton, Joliet, Barrington and Chicago consumer attorneys provide assistance in fair debt collection, consumer fraud and consumer rights cases including in Illinois and throughout the country. You can click here to see a description of the some of the many individual and class-action consumer cases we have handled. A video of our lawsuit which helped ensure more fan friendly security at Wrigley Field can be found here. You can contact one of our Chicago consumer law attorneys who can assist in lemon law, unfair debt collection, predatory lending, mortgage and real-estate fraud, wage claims, unpaid overtime and other consumer, consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

The National Association of Consumer Advocates is the premier lawyers organization for pursuit of consumer rights. Its website is one of the best resources for consumer law issues. You can view the website by clicking here.

The website has this to say about predatory lending practices:

Predatory Lending Practices There are a number of different forms that predatory lending takes. In each instance, however, a financial institution takes unfair advantage of a consumer’s financial needs by charging usurious interest rates and other unconscionable fees and charges:

Predatory Mortgage Lending: drains wealth from families, destroys the benefits of homeownership, and often leads to foreclosure. It is estimated that predatory mortgage lending costs Americans more than $9.1 billion each year.

Predatory mortgage lending involves a wide array of abusive practices. Here are brief descriptions of some of the most common.

Excessive fees: Points and fees are costs not directly reflected in interest rates. Because these costs can be financed, they are easy to disguise or downplay. On competitive loans, fees below 1% of the loan amount are typical. On predatory loans, fees totaling more than 5% of the loan amount are common.

Abusive prepayment penalties: Borrowers with higher-interest subprime loans have a strong incentive to refinance as soon as their credit improves. However, up to 80% of all subprime mortgages carry a prepayment penalty -- a fee for paying off a loan early. An abusive prepayment penalty typically is effective more than three years and/or costs more than six months’ interest. In the prime market, only about 2% of home loans carry prepayment penalties of any length.

Kickbacks to brokers (yield spread premiums): When brokers deliver a loan with an inflated interest rate (i.e., higher than the rate acceptable to the lender), the lender often pays a “yield spread premium" -- a kickback for making the loan more costly to the borrower.

Loan flipping: A lender "flips" a borrower by refinancing a loan to generate fee income without providing any net tangible benefit to the borrower. Flipping can quickly drain borrower equity and increase monthly payments -- sometimes on homes that had previously been owned free of debt.

Unnecessary products: Sometimes borrowers may pay more than necessary because lenders sell and finance unnecessary insurance or other products along with the loan.

Mandatory arbitration: Some loan contracts require "mandatory arbitration," meaning that the borrowers are not allowed to seek legal remedies in a court if they find that their home is threatened by loans with illegal or abusive terms. Mandatory arbitration makes it much less likely that borrowers will receive fair and appropriate remedies in cases of wrongdoing.

Steering & Targeting: Predatory lenders may steer borrowers into subprime mortgages, even when the borrowers could qualify for a mainstream loan. Vulnerable borrowers may be subjected to aggressive sales tactics and sometimes outright fraud. Fannie Mae has estimated that up to half of borrowers with subprime mortgages could have qualified for loans with better terms. According to a government study, over half (51%) of refinance mortgages in predominantly African-American neighborhoods are subprime loans, compared to only 9% of refinances in predominantly white neighborhoods.

Short Term Predatory Lending
Payday Lending (sometimes called cash advance): is the practice of using a post-dated check or electronic checking account information as collateral for a short-term loan. To qualify, borrowers need only personal identification, a checking account, and an income from a job or government benefits, like Social Security or disability payments.

Overdraft Loans (also called "bounce protection" plans): are offered by banks to low-income consumers. In exchange for covering account overdrafts up to a set dollar limit, banks charge bounced check fees, ranging from about $20 to $35 for each transaction. Some banks also charge a per day fee of $2 to $5 until the consumer's account has a positive balance. In addition to writing checks, customers can borrow against their bounce protection limit using their debit cards and by making ATM withdrawals.

Car Title Loans: Like payday loans, car title loans are marketed as small emergency loans, but in reality these loans trap borrowers in a cycle of debt. A typical car title loan has a triple-digit annual interest rate, requires repayment within one month, and is made for much less than the value of the car. Car title loans put at high risk an asset that is essential to the well-being of working families -- their vehicle.

Tax Refund Anticipation Loans (RALs): are short-term cash advances against a customer's anticipated income tax refund. But the loans are offered at high interest rates, ranging from about 40% to over 700% APR. Also, they speed up the refund process by as little as one week, compared to what consumers can expect by filing online and having their refunds deposited directly into their banking accounts.

Our Chicago consumer rights private law firm handles individual and class action predatory lending, unfair debt collection, lemon law and other consumer fraud cases that government agencies and public interest law firms such as the Illinois Attorney General may not pursue. Class action lawsuits our law firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs. DiTommaso-Lubin is proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers' rights are protected from consumer rip-offs and unscrupulous or dishonest practices.

Our Wheaton, Hinsdale, Highland Park, Deerfield, Barrington and Chicago consumer attorneys provide assistance in fair debt collection, consumer fraud and consumer rights cases including in Illinois and throughout the country. You can click here to see a description of the some of the many individual and class-action consumer cases we have handled. A video of our lawsuit which helped ensure more fan friendly security at Wrigley Field can be found here. You can contact one of our Chicago consumer law attorneys who can assist in lemon law, unfair debt collection, predatory lending, wage claims, unpaid overtime and other consumer, consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

The Chicago Tribune Reports that Illinois is set to institute long needed additional legistlation to protect employees from wage theft. You can view the article here. The article discusses that wage theft has become a widespread problem that needs to be remedied. It states:

Ismael and Efren Sanchez, both bricklayers, said their boss did not pay them for three months. When the father and son asked for their salaries, the employer claimed to have the same problem. I don't have the money. Not believing it, the Sanchezes complained to the Illinois Department of Labor, saying they were owed nearly $13,000. Even though the state ruled in their favor, they have waited months for relief, and their home in south suburban Markham went into foreclosure in March. Labor activists call such cases "wage theft." Concerned that it threatens the most vulnerable of workers, they are trying to revamp the state's oversight by adding teeth to its enforcement of labor laws, including felony violations for employers who are repeat offenders. ... The new legislation would put enforceability into the Labor Department's rulings. The bill also would make an employer's second offense a felony and make it easier for workers to file civil lawsuits for owed wages.

If you believe you might be part of a class of employees forced to work off the clock or have othewise been denied overtime pay, DiTommaso-Lubin may be able to help your pursue your own overtime class action. For a free consultation on your rights as an employee, contact us today. Our consumer rights private law firm handles individual and class action wage claim and other employee and consumer rights cases that government agencies and public interest law firms such as the Department of Labor may decide not pursue. Class action lawsuits our law firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs. DiTommaso-Lubin is proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to employee and consumer fraud and rip-offs, and in the right case filing employee or consumer protection lawsuits and class-actions you too can help ensure that other emploment and consumers' rights are protected from unscrupulous, illegal or dishonest practices. Our Naperville, Arlington Heights, Lombard, Highland Park, Hinsdale and Chicago fair labor and unpaid overtime lawyers and attorneys provide assistance in wage claims, fair debt collection, consumer fraud and consumer and employment rights cases including in Illinois and throughout the country. You can click here to see a description of the some of the many individual and class-action consumer cases we have handled. A video of our lawsuit which helped ensure more fan friendly security at Wrigley Field can be found here. You can contact one of our Chicago area employee rights or consumer protection lawyers who can assist in wage claim, lemon law, unfair debt collection, junk fax, prerecorded telephone solicitations, and other employment, unfair wage, consumer, consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

The National Consumers League's webpage contains numerous tips for avoiding internet fraud. You can view the site by clicking here. Be on the watch for credit repair scams promising to clean your negative credit history. Below are tips fron the League's website on how to avoid credit repair scams:

No one can erase negative information if it’s accurate. Only incorrect information can be removed. Accurate information stays on your record for 7 years from the time it’s reported (10 years for bankruptcy). Even information about bills you fell behind on but now are paid will remain on your report for these time periods.

Credit repair services can’t ask for payment until they’ve kept their promises. Federal law also requires credit repair services to give you a explanation of your legal rights, a detailed written contract, and three days to cancel (this applies to for-profit services, not to nonprofit organizations, banks and credit unions, or the creditors themselves).

Be cautious about emails for credit services. Many unsolicited emails are fraudulent.

You can correct mistakes on your credit report yourself. If you were recently denied credit because of information in your credit report, you have the right to request a free copy. Otherwise there is a small fee, unless your state law provides for one free report a year. It doesn’t cost anything to question or dispute items in your report. Follow the instructions provided by the credit bureau. The major credit bureaus are: Equifax, 800- 685-1111, www.equifax.com; Experian, 800-682-7654, www.experian.com; and TransUnion, 800-916-8800, www.transunion.com. Contact all three, as the information each has may vary.

You can add an explanation to your report. If there is a good reason why you weren’t able to pay bills on time (job loss, sudden illness, etc.) or you refused to pay for something because of a legitimate dispute, give the credit bureau a short statement to include in your file.

Know that you can’t create a second credit file. Fraudulent companies sometimes offer to provide consumers with different tax identification or social security numbers in order to create a new credit file. This practice, called “file segregation,” is illegal, and it doesn’t work.

If you have credit problems, get counseling. Your local Consumer Credit Counseling Service (CCCS) can provide advice about how to build a good credit record. The CCCS may also be able to make payment plans with your creditors if you’ve fallen behind. These services are offered for free or at a very low cost. To find the nearest CCCS office, call toll-free, 800-388-2227, or go to www.nfcc.org.

Our Chicago consumer rights private law firm handles individual and class action unfair debt collection and other consumer fraud cases that government agencies and public interest law firms such as the Illinois Attorney General may not pursue. Class action lawsuits our law firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs. DiTommaso-Lubin is proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers' rights are protected from consumer rip-offs and unscrupulous or dishonest practices.

Our Naperville, and Lombard and Chicago consumer lawyers provide assistance in fair debt collection, consumer fraud and consumer rights cases including in Illinois and throughout the country. You can click here to see a description of the some of the many individual and class-action consumer cases we have handled. A video of our lawsuit which helped ensure more fan friendly security at Wrigley Field can be found here. You can contact one of our Chicago consumer protection lawyers who can assist in lemon law, unfair debt collection, wage claims, unpaid overtime and other consumer, consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

Our Illinois insurance bad faith attorneys were pleased to see a recent decision from the Fifth District Court of Appeals that upheld a driver’s right to fair treatment from her auto insurance company. American Family Mutual Insurance Company v. Stagg, Ill. 5th No. 5-08-0088 (Aug. 10, 2009) Diane Stagg had an insurance policy with American Family that included uninsured and underinsured motorist coverage. That part of the policy had a provision stating that the parties could demand arbitration if they couldn’t agree on the existence or amount of coverage. It also said that arbitration awards would be binding and could be entered as judgments in court if they did not exceed the minimum limits set by the Illinois Safety Responsibility Law. If they did exceed that limit, either party has the right to a trial. The limit for bodily injury at the time was $20,000.

Stagg was later hit by an at-fault driver with a very small amount of insurance. She collected the $25,000 available in liability insurance from the at-fault driver, but requested more under her uninsured motorist coverage. She and American Family went to arbitration and she was awarded $36,340.75. However, the arbitrators set off $25,000 for the at-fault driver’s payment and $5,000 in expenses American Family had paid, leaving her with an award of just $6,340.75. Four months later, American Family filed a complaint to enforce that judgment, saying Stagg hadn’t objected to the award within time limits set by the Illinois Uniform Arbitration Act. The next month, Stagg filed a separate action against American Family, seeking a new trial.

The parallel claims may have caused some conflicting decisions by the court, but it eventually clarified that it intended to grant Stagg’s motion to dismiss American Family’s complaint. American Family appealed, arguing that the arbitration award was $6,340.75, too low to meet the contract’s threshold for going to court. Stagg argued that the arbitration award was actually 36,340.75, making it larger than the minimum limit cited in the contract. In its analysis, the court found that the term “arbitration award” as used in the contract was subject to more than one interpretation. Under American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 479 (1997), the court said, ambiguous language in an insurance policy should be construed against the drafter. Thus, Stagg is entitled to a new trial under the contract.

The court then addressed American Family’s contention that Stagg missed the deadline to appeal the arbitration award under the Uniform Arbitration Act. The Fifth agreed with Stagg, who argued that the limitation didn’t apply because she isn’t challenging the award through the Act, but instead requesting a new trial. The arbitration award was never binding under the contract’s language, the court said, meaning that Stagg had no obligation to state any grounds for overturning it. Thus, the court’s decision to dismiss American Family’s complaint was upheld.

Continue reading " Fifth District Allows New Trial for Insurance Customer Unhappy With Arbitration Award " »

A little-noticed U.S. Supreme Court decision from this year will have an important effect on the work of our Illinois wage and hour class action lawyers. In Hertz Corp. v. Friend et al., No. 08-1107, __ S. Ct. __ (Feb. 23, 2010), the court ruled that the “principal place of business” test for a corporation’s citizenship refers to the place where the corporation’s high-level officers direct, control and coordinate its activities. This clarifies the law and resolves a number of discrepancies among lower courts around the country. It also overturns a Ninth U.S. Circuit Court of Appeals decision denying that federal courts have diversity jurisdiction in a proposed class-action wage-and-hour case brought by employees of Hertz Corporation.

Melinda Friend and John Nhieu sued Hertz Corp. for alleged violations of California state wage laws, and sought to certify a class of California plaintiffs with similar grievances. Hertz sought to remove the case to federal court under the Class Action Fairness Act, which allows cases to be moved when they have diverse citizenship and a dispute of more than $5 million. The plaintiffs argued that Hertz was a California citizen under Ninth Circuit precedent, which held that corporations’ “principal place of business” is where their business activity is “significantly larger” or “substantially predominates.” For Hertz, they argued, that was California because the company had the most offices and business there.

Hertz, which is incorporated in Delaware, argued that its “principal place of business” was New Jersey, where its corporate headquarters is found. It conceded that it had more offices in California than in any other state, but pointed out that California is just one of 44 states where it operates and accounts for far less than 50% of its revenue, rentals, employees or locations. Nonetheless, the district court followed Ninth Circuit precedent and sent the case back to state court. Hertz appealed, but the Ninth Circuit affirmed the ruling. The Supreme Court granted certiorari.

Writing for the majority, Justice Breyer started by dismissing a jurisdictional argument raised by the plaintiffs, who claimed that the Supreme Court’s jurisdiction was improper because the law allowing Hertz to appeal a remand order mentions only courts of appeal. However, other federal statutes give the court authority, the opinion said, and “We normally do not read statutory silence as implicitly modifying or limiting Supreme Court jurisdiction that another statute specifically grants.”

Turning to the meat of the case, the justices noted that the “principal place of business” language arose in response to an overload of diversity cases in federal court, as well as concerns about abuses of diversity jurisdiction. To resolve that, Congress allowed corporations to claim citizenship where they are incorporated, “and of the State where it has its principal place of business.” But this has been difficult to apply, the opinion said, resulting in splits across the circuits. To resolve it, the justices reviewed the appeals courts’ interpretations and chose a popular “nerve center” test that assigns citizenship according to where the corporation’s business is directed and controlled, as applied in cases like Wisconsin Knife Works v. National Metal Crafters, 781 F. 2d 1280, 1282 (CA7 1986).

The justices wrote that the “nerve center” will typically but not always be a headquarters, where officers and directors do business and where the public recognizes the company to be based. This helps avoid some of the flaws of approaches like the Ninth Circuit’s, they wrote, which sometimes confuse the company’s presence in a state with the state itself. For example, a rule that measures the amount of business activity in the state could grant California citizenship to many corporations, simply because California is the largest state by population. It is also a simple rule, which benefits the courts as well as corporations. This may occasionally produce odd situations, the opinion noted, as when directors and officers are housed in a different state from that where the bulk of actual business takes place. But this is a price of simplicity. Given that rule, the justices wrote, Hertz is entitled to diversity jurisdiction because it is uncontested that its “nerve center” is in New Jersey, not California. It vacated the Ninth Circuit’s ruling and returned the case to trial court.

Continue reading " Supreme Court Clarifies Diversity Jurisdiction Standard in Wage and Hour Case " »

The online magazine of the Association of Certified Fraud Examiners is a great resouce for tips on uncovering the varying forms of business fraud. You can click here to view it.

A recent issue of the magazine had a very informative article about how certain types of documents are susceptible to employee forgies and other frauds . The article had this to say about fax invoices:

FACSIMILE DOCUMENTS

Facsimile documents, even though they’re reproductions of original documents, are considered original source documents. So fraud perpetrators often use them to support fictitious disbursement transactions because internal reviewers or even external auditors aren’t likely to question them. Faxes obviously still have a legitimate purpose for emergency or other rush transactions. However, the organization should always require that vendors subsequently mail the original source documents to them. The staff should hold the faxes until the original source documents have been received and then file them with any other documents supporting the disbursement transaction.

Unscrupulous employees might use the organization’s fax machine to send themselves vendor invoices. So always double check the vendor’s fax telephone number shown on the top of the facsimile with numbers in the organization’s vendor file, in the telephone book, or from the vendor’s website. And be suspicious if the number is missing; fraud perpetrators might have removed it from the faxed document before processing it. A fax in the file doesn’t necessarily mean the transaction is valid.

DiTommaso-Lubin's Chicago business trial lawyers have more than two and half decades of experience helping business clients on unraveling complex business fraud and breach of fiduciary duty cases. We work with skilled forensic accountants and certified fraud examiners to help recover monies missappropriated from our clients. Our Chicago business, commercial, and class-action litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and sucessfully as possible, helping business clients protect their investements and get back to business as usual. From offices in Oak Brook, near Waukegan, and Elmhurst, we serve clients throughout Illinois and the Midwest.

If you’re facing a business or class-action lawsuit, or the possibility of one, and you’d like to discuss how the experienced Illinois business dispute attorneys at DiTommaso-Lubin can help, we would like to hear from you. To set up a consultation with one of our Naperville and Chicago business law attorneys and class action and consumer trial lawyers, please call us toll-free at 1-877-990-4990 or contact us through the Internet.

DiTommaso-Lubin's Chicago business trial lawyers have more than two and half decades of experience helping business clients on unraveling complex business fraud and breach of fiduciary duty cases. We work with skilled forensic accountants and certified fraud examiners to help recover monies missappropriated from our clients. Our Chicago business, commercial, and class-action litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and sucessfully as possible, helping business clients protect their investements and get back to business as usual. From offices in Oak Brook, near Wuakegan, Aurora, Highland Park, Wilmette, Elmhurst, and Chicago, we serve clients throughout Illinois and the Midwest.

If you’re facing a business or class-action lawsuit, or the possibility of one, and you’d like to discuss how the experienced Illinois business dispute attorneys at DiTommaso-Lubin can help, we would like to hear from you. To set up a consultation with one of our Chicago, Joliet, Waukegan, Wheaton, or Naperville business trial attorneys and class action and consumer trial lawyers, please call us toll-free at 1-877-990-4990 or contact us through the Internet.

A very informative video prepared by Canadian accountants describing issues relating to business fraud and the types of fraud businesses face and how such frauds can be prevented.

DiTommaso-Lubin's Chicago business trial lawyers have more than two and half decades of experience helping business clients on unraveling complex business fraud and breach of fiduciary duty cases. We work with skilled forensic accountants and certified fraud examiners to help recover monies missappropriated from our clients. Our Chicago business, commercial, and class-action litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and sucessfully as possible, helping business clients protect their investements and get back to business as usual. From offices in Oak Brook, near Wheaton, Naperville, Evanston, and Chicago, we serve clients throughout Illinois and the Midwest.

If you’re facing a business or class-action lawsuit, or the possibility of one, and you’d like to discuss how the experienced Illinois business dispute attorneys at DiTommaso-Lubin can help, we would like to hear from you. To set up a consultation with one of our Chicago, Joliet, Waukegan, Wheaton, or Naperville business trial attorneys and class action and consumer trial lawyers, please call us toll-free at 1-877-990-4990 or contact us through the Internet.

In a wage-and-hour class action, the Illinois Second District Court of Appeal reversed all parts of a Kane County trial court’s ruling denying class certification. Our Chicago unpaid overtime lawyers were interested to read the ruling in Cruz et al v. Unilock Chicago, Inc., 383 Ill.App.3d 752, 892 N.E.2d 78, 322 Ill.Dec. 831 (2008), because it helped establish that trial courts may go beyond the complaint to determine class certification -- but reminded them that they should not determine class certification on the merits of the case.

Wilfredo Cruz and the four other lead plaintiffs worked at Unilock Chicago’s Aurora manufacturing plant, which makes cement paving “stones.” They were hourly employees with a half-hour lunch break. In their complaint, the plaintiffs said they were required to be at their stations 10-15 minutes before work started, in uniform, to discuss anything the previous shift needed them to know. This required employees to show up 15-30 minutes early to change and get to their stations. Similarly, they say they were required to wait for the next shift to arrive before leaving, brief that shift, clean up and change. They say they punched in for these times, but Unilock had an automatic system that deducted up to 30 minutes before a shift and 15 minutes afterward, in order to meet the company’s labor budget. Furthermore, they claim that Unilock automatically deducted the 30-minute lunch break from their time records, then regularly required them to cut short or work through lunch. If necessary, these deletions would be backed up by a manual edit by the plant’s manager, who removed time before or shifts that went past the 30- or 15-minute defaults.

Unilock disputes much of this. It concedes that time records were manually edited, but said this was necessary because workers forgot to punch in or out, and that edits were confirmed with shift supervisors. This actually added time, it argued. Nonetheless, the plaintiffs sued, claiming that all of these practices resulted in underpayment of both regular time and overtime. Citing violations of the Illinois Wage Payment and Collection Act and the Minimum Wage Law, they moved to certify a class of more than 300 current and former hourly employees who had worked at Unilock’s Aurora plant since June of 1999. The trial court denied this motion for class certification, saying that plaintiffs had failed to meet any of the four standards for class certification. Plaintiffs appealed, arguing that the trial court improperly made findings of fact and rulings that assessed the merit of the claims themselves, rather than of the class certification request.

The Second District agreed. It started its analysis by refereeing the parties’ disagreement about whether courts may consider facts and allegations beyond the complaint in order to determine class certification. After a review of caselaw, the court decided that they can, relying in part on Szabo v. Bridgeport Machines, Inc., 249 F.3d 672 (7th Cir.2001). However, it was careful to say that courts should look into whether the plaintiff’s claim would satisfy the requirements for class certification, not the merits of the claim itself.

The Third next agreed with plaintiffs that the trial court had impermissibly decided several class certification issues on the merits of the case. For example, the trial court relied on depositions and pleadings when it determined that nobody had lost pay because employees who arrived early were permitted to leave early, “accept[ing] as conclusive the defendant’s evidence.” This and other examples are factual determinations that should not be determined at the class certification stage, the appeals court said. Many applied to the numerosity requirement of class certification. Not only were the trial court’s reasons for ruling on numerosity improper, the appeals court said, but evidence submitted by plaintiffs shows that 80 to 90 employees did not receive overtime, and defendants offered nothing in support of their assertion that this evidence was manipulated. For that and other reasons, the appeals court found sufficient evidence that the proposed class met the numerosity requirement.

It then addressed the requirement that class members have common questions to decide, which predominate over other issues in their cases. Again, it found that the trial court was incorrect in determining that these issues didn’t exist. The trial court wrote that there was no commonality or predominance because there was no evidence supporting the plaintiffs’ contentions about widespread unfair policies or time record manipulation. The plaintiffs argued that these conclusions ignored evidence or improperly reached the merits of the claim, and the appeals court agreed. The existence of disputed policies like requirements to work through lunch or editing time records is a common question, the appeals court said, regardless of how strong the evidence for it is at the pretrial stage. It would also be a predominant issue if the trial court determines that there was such a policy -- which is a question for the merits of the claim, the court noted.

Finally, the appeals court rejected the trial court’s determination that the class representatives are inadequate because plaintiff Cruz had been a low-level supervisor. The trial court incorrectly relied on caselaw that isn’t sufficiently similar, the appeals court wrote, to determine that a supervisor cannot represent a class including the supervised. When the supervisor’s interests are the same as those of the supervisees and he or she did not participate in the alleged wrongdoing, it is inappropriate to deny his or her adequacy. Jefferson v. Windy City Maintenance, Inc., No. 96-C-7686, 1998 WL 474115 (N.D.Ill. August 4, 1998). Furthermore, if evidence implicating Cruz arises in discovery, the appeals court said, he can be discharged without discharging all the representatives. Thus, it reversed the trial court on all counts and remanded the case to Kane County circuit court with instructions to certify the class.

Continue reading " Appeals Court Reverses Denial of Class Certification in Unpaid Wages Claim " »

Our Chicago covenant not to compete lawyers wrote a blog post last autumn about an interesting case from the Illinois Fourth District Court of Appeal. In Sunbelt Rentals v. Ehlers, No. 4-09-0290 (Ill. 4th Sept. 23, 2009), the appeals court rejected the “legitimate business interests” test used by Illinois courts to determine whether a contract’s non-compete clause is enforceable against a former employee. It said the test had never been valid, particularly in light of Mohanty v. St. John Heart Clinic, S.C., 225 Ill. 2d 52, 866 N.E.2d 85 (2006). This was a departure from previous rulings and created a split with other state appeals courts, but has not yet been challenged in the Illinois Supreme Court. However, the U.S. District Court for the Northern District of Illinois rejected the Fourth District’s reasoning in a December decision.

In Aspen Marketing Services, Inc. v. Russell and Eventnext Marketing, Inc., 2009 WL 4674061 (N.D. Ill. Dec. 3, 2009), defendant Yvon Russell and his new business, Eventnext, were sued by Russell’s former employer, Aspen. Russell had formerly been Group President for Aspen, after it bought a previous marketing company of his. When that purchase took place, Russell signed a contract with non-compete, non-solicitation and non-disclosure covenants. It barred Russell from disclosing any non-public information about Aspen, ever; soliciting Aspen clients, former clients or prospects for a year and a half after leaving; and competing with the company in any business for six months after leaving.

Russell was terminated on June 27, 2007, and started Eventnext on November 27, 2007. Aspen sued, claiming Russell successfully solicited at least one Aspen client shortly afterward. In federal district court, Russell moved to dismiss all counts, saying the restrictive covenants were overly broad and thus unenforceable. In particular, he argued that the geographic limit of the non-compete clause was overbroad because it covered the entire United States. The court found that this was not unreasonable in scope, given the nationwide nature of Aspen’s business.

It went on to consider the second half of the Illinois test of enforceability of covenants not to compete: whether the restriction serves a legitimate business interest. In a footnote, the court acknowledged the Sunbelt ruling, but said it was not binding because it had not been taken up by the Illinois Supreme Court, the Seventh Circuit or the federal district court. Aspen alleged that Russell had “near exclusive” knowledge of its business, had confidential information and used it in Eventnext. Taking those assertions as true, the district court concluded that the geographic scope was reasonable. It also rejected an argument about scope of competition barred, noting that the clause barred all competition for only six months. For those reasons, Russell’s motion to dismiss on that count was denied. The court also rejected several other motions, though it granted one as to tortious interference. The case continues.

Continue reading " Federal District Court Rejects State Interpretation of Legitimate Business Interests Test " »