Chicago Business Litigation Lawyer Blog

The National Consumer Law Center has improved what already was one of the best websites on the internet for consumer law and class-action issues with a brand new website. NCLC encourages

you to take a look around the website and discover all it has to offer. In a time of historic changes in consumer financial regulation, it contains a treasure trove of cutting-edge information and resources for lawyers, consumer advocates, policymakers, and the public.

The website describes state consumer protection and fraud laws:

Every state has a consumer protection law that prohibits deceptive practices, and many prohibit unfair or unconscionable practices as well. These statutes, commonly known as Unfair and Deceptive Acts and Practices or UDAP statutes, provide bedrock protections for consumers. In billions of transactions annually, UDAP statutes provide the main protection to consumers against predators and unscrupulous businesses.

You can view NCLC's new website here.

The website has this to say about illegal debt collection:

Nearly all households who are behind on their bills paid their bills until they faced a financial catastrophe: unemployment, illness, disability, divorce, or succumbed to some of the daily exhortations in their mailbox to borrow and on TV to buy on credit. During recessions even more consumers fall behind because they are laid off by an employer. Recognizing this, federal and many states’ laws require that financially distressed consumers not be abused, deceived, lose their privacy, or be treated unfairly. Debt collectors use various forms of illegal intimidation, including talking with friends and employers about a consumer’s debt without permission from the debtor; making harassing or abusive telephone calls; threatening to take actions that are illegal or not intended; and suing on debts that were paid or not owed. Fortunately there are more lawyers focusing on helping consumers with debt collection harassment than ever before.

You can view the illegal debt collection page here. It has links to alot of useful information on illegal debt collection laws.

The website discusses lemon law and auto fraud issues:

A car is often essential for working families. The family car can be the key to a better job or any job at all, access to health care, and the ability to find affordable housing with access to child care and a reasonable commute. All too often abuses in the sale and financing of cars hinder the efforts of families to buy and keep a safe, reliable car at reasonable terms. Families are maneuvered into buying cars with defects known by the dealer but not disclosed to the consumer. Financing arranged by the dealer is designed not to help the consumer get the best deal, but instead to line the dealer’s pockets through unfair practices such as loan packing and dealer mark-ups. High pressure sales tactics, fraud, and abusive practices such as yo-yo sales, are used to put families in cars and loans that trap families with negative equity, high payments, and unreliable cars.

Our Naperville, Illinois 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. The Chicago consumer lawyers at DiTommaso-Lubin are 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 Hinsdale and Waukegan 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 protection attorneys who can assist in consumer fraud, consumer rip-off, lemon law, unfair debt collection, predatory lending, wage claims, unpaid overtime and other consumer, or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

You can view our Naperville and Chicago attorneys listings on Super Lawyers. Super Lawyers only selects 5% of the attorneys in the State to receive the Super Lawyer designation.

Vincent L. DiTommaso

online at

visit superlawyers.com

Peter S. Lubin

online at

visit superlawyers.com

As Chicago class-action attorneys, we were pleased to see that the Seventh Circuit upheld a decision in favor of retired UPS employees protesting a change in their employee contributions to health benefits. In Green v. UPS Health & Welfare Package for Retired Employees, No. 09-2445 (7th Cir. Feb. 10, 2010), a class of participants in the UPS retiree health plan (the Plan) belonging to the International Brotherhood of Teamsters Local 705 challenged a decision by UPS to raise the amount of health insurance contributions required of them, but not of other plan participants.

UPS employs Teamsters and negotiates its collective bargaining agreements with the international office of the IBT as well as with a few locals, including Local 705. Local 705’s agreement at issue here was negotiated in 2002 and expired on July 31, 2008. That agreement said UPS would provide the same health plan to Local 705 retirees that it provides to all retirees. The Plan said UPS may raise participants’ contributions once a certain threshold average annual cost per participant is reached, but that each employee shall share equally in the cost. If an additional contribution is retired, the Plan said additional contributions would not be required until after the collective bargaining agreement ended.

The average annual cost of health care rose above the threshold in 2006. In October of 2007, UPS sent out a notice that retirees’ monthly contributions would increase from $50 to $114 as of January 1, 2008. The international union complained that the increase was being implemented too early, before the July 31 end of the original collective bargaining agreement. However, it was also negotiating a new collective bargaining agreement with UPS at the time and eventually won an agreement from UPS not to implement the new fee until after the new agreement expired. This was not the case for Local 705, which complained that it wouldn’t even start a new bargaining process until July 31. UPS responded by delaying the extra payment until after the agreement expired.

After the July 31, 2008 expiration date, Local 705 negotiated a new collective bargaining agreement incorporating the Plan with no changes. In January of 2009, UPS sent out another letter saying that effective in February, it would increase retirees’ monthly contributions from $50 to $157.58 to $472.75, depending on how many family members were covered. This was not applied to the international Teamsters, who were under a separate agreement. The Local 705 retirees filed this lawsuit, arguing that their monthly contribution, higher than the international union’s, violated the Plan’s provision that all retirees would share equally in a rate hike. They also argued that the Plan barred UPS from making the rate hike effective before the end of their collective bargaining agreement. They asked for an injunction against the rate hike and agreed to a bench trial. The court found for the retirees on the “shared equally” issue and for UPS on the timing of the rate hike. Both appealed.

On appeal, the Seventh Circuit agreed with the trial court that the “shared equally” language applied to payments. UPS had argued that this language applies to how it calculates contributions, but the Seventh and the district court both found this was contradicted by the plain language of the Plan and thus “arbitrary and capricious” under Hess v. Hartford Life & Accident Ins. Co., 274 F.3d 456, 461 (7th Cir. 2001).

However, the appeals court also upheld the district court’s ruling that UPS could collect the additional contributions before the end of the current collective bargaining agreement. UPS interpreted “current” to refer to the 2002 agreement, when the Plan’s language was written; Local 705 interpreted it to refer to the 2008 agreement. The Seventh found that the interpretation by UPS was reasonable, in part because it had incorporated the Plan into the collective bargaining agreement without changes. It also said the December 2007 notice that rates would go up was further evidence that UPS was using the 2002 agreement as “current.” Thus, its interpretation was not arbitrary and capricious. The judgment of the district court was affirmed on both counts.

Continue reading " Seventh Circuit Rules UPS Violated ERISA by Raising Contributions for Only Some Retirees " »

A recent article in the Wall Street Journal reported on the perils faced by start-up business when faced with a trade mark infringement lawsuit filed against it by a large established corporation:

Jimmy Winkelmann started a clothing company several years ago to mock fellow students who wore the outdoorsy The North Face brand, despite having no inclination to venture into the wilderness. He dubbed his company "The South Butt" and flipped The North Face's half-dome logo to look like buttocks.

But at least one party wasn't amused: The North Face.

Mr. Winkelmann, now a student at the University of Missouri at Columbia, received a cease-and-desist letter from the company last summer. He declined to comply, prompting a trademark infringement suit that was settled out of court in April.

The South Butt is still in operation. Mr. Winkelmann's lawyer and a spokeswoman for The North Face, a unit of VF Corp., said the matter was resolved amicably, but declined to comment further. It's unclear if Mr. Winkelmann is required to make any payments to The North Face or if the company has imposed any conditions on his marketing efforts.

Small businesses, unwittingly or not, have a history of running into scuffles by playing off a larger company's protected trademarks—sometimes resulting in legal battles they can ill afford, given the limited resources of most start-up operations. Some 3,500 trademark cases are filed each year in U.S. district courts, according to FTI Consulting Inc., a Baltimore advisory firm that tracks intellectual-property statistics.

To read the full article click here.

Based in Chicago and Oak Brook, Illinois, DiTommaso-Lubin represents clients in trademark infringement litigation throughout Illinois, the Midwest and the United States including in Naperville, Wheaton, Hinsdale and Lake Forest. Our Chicago business attorneys represent businesses of all sizes, from family-owned small businesses to large corporations and partnerships. Our Lake Forest, Illinois trade libel attorneys also handle related claims of online defamation of a product, service or business, as well as unfair competition and other business claims. If your business is facing online infringement and unfair defamation of your products or services, we can help. To set up a consultation with one of our Chicago business law attorneys, to learn more about us, please contact us online or call us toll-free at 1-877-990-4990.

Our Geneva, Illinois 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. The Chicago consumer attorneys at DiTommaso-Lubin are 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 Elmhurst 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 protection attorneys who can assist in consumer fraud, consumer rip-off, lemon law, unfair debt collection, predatory lending, wage claims, unpaid overtime and other consumer, or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

You can view our Oak Brook and Chicago attorneys listings on Super Lawyers. Super Lawyers only selects 5% of the attorneys in the State to receive the Super Lawyer designation.

Our Aurora, Illinois 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. The Chicago consumer lawyers at DiTommaso-Lubin are 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 Evanston and Hinsdale 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 protection attorneys who can assist in consumer fraud, consumer rip-off, lemon law, unfair debt collection, predatory lending, wage claims, unpaid overtime and other consumer, or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

You can view our Oak Brook and Chicago attorneys listings on Super Lawyers. Super Lawyers only selects 5% of the attorneys in the State to receive the Super Lawyer designation.

Vincent L. DiTommaso

online at

visit superlawyers.com

Peter S. Lubin

online at

visit superlawyers.com

The Federal Government has set up a consumer action website that contains insightful and detailed information about how consumers can protect their rights in many different types of consumer transactions. The website also has a link to the new Consumer Action Handbook. It describes the Consumer Action Handbook as follows:

This everyday guide to being a smart shopper is hot off the press and chock-full of helpful tips about preventing identity theft, understanding credit, filing a consumer complaint, and much more. In the 2010 edition, you'll find updated information about filing for bankruptcy, finding a lawyer, and planning a funeral, along with many other useful topics.

You can view a pdf copy of the 2010 Consumer Action Handbook here.

The website also has links for consumer complaint forms. It provides helpful tips on specific consumer issues, like buying a car or home or preventing identity theft.

If you are unable to resolve your consumer complaint and it involves issues of unfair dealing, consumer fraud or deception, our private consumer protection law firm can bring and individual or class action lawsuit in the right case to protect your rights and those of other consumer victims.

Our Chicago consumer attorneys handle 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. The Waukegan consumer fraud lawyers at DiTommaso-Lubin are 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 Chicago consumer trial 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 Naperville 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.

Our Wheaton, Illinois 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. The Chicago consumer attorneys at DiTommaso-Lubin are 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 Waukegan 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 protection 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.

Our Naperville, Illinois 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. The Chicago consumer lawyers at DiTommaso-Lubin are 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 Joliet 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 rights 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.

You can view our Oak Brook and Chicago attorneys listings on Super Lawyers. Super Lawyers only selects 5% of the attorneys in the State to receive the Super Lawyer designation.

Vincent L. DiTommaso

online at

visit superlawyers.com

Peter S. Lubin

online at

visit superlawyers.com

Our Chicago business trial lawyers assist our clients in obtaining and collecting on money judgments. You can contact one of our Chicago business attorneys online by clicking here or call (888) 990-4990 for a free consultation. Our Oak Brook, Wheaton and Chicago commerical law attorneys have over 25 years of experience litigating claims on behalf of our business clients and have been featured in national and local media. Super Lawyers selected our Oak Brook and Chicago attorneys as among the top 5% in Illinois.

Vincent L. DiTommaso

online at

visit superlawyers.com

Peter S. Lubin

online at

visit superlawyers.com

As Chicago employment contract litigation attorneys, we noted a favorable decision for employees from the Seventh Circuit in October. Lewitton v. ITA Software, Inc., No. 08-3725 (7th Cir. Oct. 28, 2009) upheld a former employee’s right to buy stock options that had vested during his employment, even though he tried to make the purchase after leaving. Derek Lewitton was hired in April of 2005 as vice-president of sales at ITA Software, which makes a software program that compares the prices of airplane flights. His contract said some of his stock options would be forfeited if ITA didn’t meet certain revenue goals, subject to a time delay to account for delays in the development of a new program called 1U.

Unfortunately, 1U was never widely adopted among ITA’s clients, and ITA scaled it back considerably. Lewitton left ITA in May of 2007. In August of the same year, he tried to buy 138,900 shares of ITA stock. ITA let him buy only 34,722, arguing that the remaining 104,178 were forfeited under his contract. Lewitton sued ITA for breach of his employment contract. ITA removed the case to federal court under diversity jurisdiction, after which Lewitton moved for summary judgment, arguing that his employment contract was clear on his right to purchase stock options. The judge granted summary judgment, agreeing that the contract “unambiguously” granted 5,660 options for each month he was at ITA, and that no forfeiting events had taken place. ITA appealed.

The Seventh Circuit started by examining whether the language of Lewitton’s employment contract was ambiguous under Illinois law, which both parties agreed applies. The principal question, the court wrote, is whether the contract unambiguously allows Lewitton to buy the 5,660 shares per month he claims. The contract specifies that those shares are forfeited if ITA didn’t meet certain goals in by the end of an assessment period, but that assessment period would be deferred it the development schedule for 1U was “materially deferred.” In trial court, both sides agreed that 1U’s development didn’t go the way it was expected to go. On that basis, the trial court found that the assessment period was never triggered, and thus the stock options were not forfeited. On appeal, ITA argued that “materially deferred” was ambiguous and not intended to apply when ITA put the program on indefinite hold.

The Seventh disagreed, finding the term unambiguous. The ordinary dictionary definitions of the words are clear, the court wrote. And in fact, the contract includes parts that explain a material deferral by using the words “defer” and “delay” interchangeably. That example clearly shows that the parties agreed to delay the assessment period until after 1U was launched. Because 1U was never launched, the assessment period was never started, the court wrote, and thus the stock option forfeiture provision does not apply. The court dismissed ITA’s argument that the contract was never intended to give Lewitton more shares than other ITA executives. That argument was supported by negotiations and internal ITA communications, the court wrote, and caselaw requires it to consider none of that extrinsic evidence. Furthermore, the contract had a clause specifying that it supersedes all prior “agreements, understandings or negotiations.”

ITA also argued that even if the contract is unambiguous, the case presented an issue of material fact inappropriate for summary judgment. The issue in question, ITA said, is whether ITA really did delay the 1U program rather than ending it altogether. However, the court found that this was “just another attempt to create ambiguity where none exists.” At the district court, the Seventh Circuit noted, ITA made several statements through affidavits and discovery conceding that work was still being done, although resources devoted to it were significantly reduced or nonexistent. Nothing in the record points to a genuine issue of material fact on this question, the court wrote, so the trial court was upheld in its summary judgment order. Finally, the Seventh dismissed ITA’s contention that the district court should determine whether the options are valid under Delaware law (it’s a Delaware corporation), because it had explicitly waived that argument in an agreed order. Thus, the Seventh upheld the district court on all issues.

Continue reading " Former Employee’s Stock Options Remain Valid Under Employment Contract " »

NPR reports:

Years before it was made public, manufacturers, distributors and builders knew there was a big problem with imported drywall from China, according to documents introduced at a Miami trial. The problem with the drywall has affected thousands of homeowners. ....

According to Gonzales, who's on the national plaintiffs' steering committee for Chinese drywall, the case is important in another way as well.

There's clear evidence in the record that they knew in 2006 about this problem, and they didn't become the hero of the homeowners by preventing them from buying homes with Chinese drywall.

- Attorney Ervin Gonzalez speaking of Banner Supply, which provided contaminated drywall to hundreds of homes
"This is the first inkling that we have that Knauf had real knowledge of the problem," he says.

Knauf is a German-based multinational and the largest manufacturer of Chinese drywall used in the U.S. The company is the defendant in a series of lawsuits being heard in federal court in New Orleans.

In a statement, Knauf confirms that it investigated customer complaints of odor in 2006 and conducted tests, but it found that the drywall "had no adverse impact on homeowners' health."

As to why it didn't issue a recall of its product, Knauf says it "can only act on complaints filed by its customers."

Attorney Victor Diaz, who represents about 150 South Florida homeowners in a class-action lawsuit, says Knauf and Banner Supply weren't the only companies that knew early on there was a problem with Chinese drywall.

Our Chicago consumer fraud attorneys bring class action lawsuits when manufacturers and distributors cheat consumers and businesses and knowingly sell them defective products. Our Chicago consumer lawyers have handled individual and class action consumer protection cases throughout Illinois and with co-counsel all over the country for over 25 years. If you or your business is a victim of consumer fraud or purchased a defective product that has a mass design defect, please contact one of our Oak Brook or Wheaton consumer trial attorneys online or at (888) 990-4990.

Our Oak Brook and Chicago business lawyers prosecute and defend contract dispute lawsuits. Our top attorneys each have over 25 years of experience handling business trials. You can look at our Chicago business lawyers' record in business lawsuits and see our cases covered by the press at our website. Our Chicago business law attorneys have also been selected by Super Lawyers and the Leading Lawyer Network as among the top 5% of Illinois attorneys as rated by their peers in business litgation and class action litigation.

Vincent L. DiTommaso

online at

visit superlawyers.com

Peter S. Lubin

online at

visit superlawyers.com

Our Chicago covenant not to compete and trade secret attorneys can assist your company or business in drafting agreements to protect your business from rogue former employees who engage in unfair competition. Our Chicago business lawyers and Chicago business trial attorneys can file lawsuits seeking a TRO, injunction and actual damages to protect your business from employees who steal customer information and violate non-compete agreements. To see the types of cases our Chicago business law lawyers handle you can look at our website. To contact one of our Chicago business law attorneys, click here. You can also view our Chicago business attorneys listings in Super Lawyers.

Vincent L. DiTommaso

online at

visit superlawyers.com

Peter S. Lubin

online at

visit superlawyers.com

A California wage and hour ruling caught the attention of our Illinois employment rights attorneys because it caused substantial dissent and inspired a replacement decision more than six months after its original opinion was published. Rutti v. Lojack Corporation Inc., No. 07-56599 (9th. Cir. March 2, 2010) concerned whether commute time and time spent at home on work-related tasks should be compensated at work. In its most recent decision, a three-judge panel of the Ninth U.S. Circuit Court of Appeals agreed that commute time is not federally compensable, but split on whether the time is compensable under state law. Similarly, all three agreed that Mike Rutti’s minimal time spent checking assignments for the day from home was not compensable, but disagreed on whether longer evening periods spent transmitting data counted as work time.

Rutti was one of about 450 technicians nationwide for Lojack, Inc. to install alarms in customers’ cars. He spent most of the day on the road traveling between job sites in a company-owned vehicle, but began and ended the day at home, performing administrative tasks for Lojack. Lojack paid him an hourly wage starting when he arrived at the first work site and ending when he left the last one. He file a proposed class action lawsuit seeking compensation under federal and state wage and hour laws for his preliminary and postliminary activities, as well as commute time to and from work sites. The trial court granted Lojack summary judgment dismissing all of the federal claims but upheld a state-law claim seeking compensation for commuting, before dismissing the remaining state-law claims for lack of subject matter jurisdiction. Rutti appealed to the Ninth Circuit.

On appeal, the Ninth separated the case into three issues: whether the commute time was compensable; whether his off-the-clock activities were substantial enough to be compensable; and when Rutti’s work day started under the “continuous work day” doctrine adopted by the Department of Labor. On the commute time issue, the appeals court agreed with the trial court, but only as to Rutti’s Fair Labor Standards Act claims. A 1996 federal law called the Employee Commuter Flexibility Act says employees need not be compensated for travel time, preliminary activities or postliminary activities that take place outside of a normal work day. That’s true even when the vehicle used is the employer’s vehicle and is subject to restrictions on its use, as long as it’s subject to an agreement between the parties.

Rutti had more luck on the issue of off-the-clock activities performed at home before and after work. These are also subject to the ECFA, the Ninth wrote, but only if they are not “principal activities.” In addition, caselaw says they must not be minimal activities. The activity at the beginning of the day included receiving job orders, mapping them and planning his route for the day. This is related to his commute, the court found, and commuting is not compensable. They are also relatively minimal, taking no more than a few minutes. Thus, the Ninth upheld the trial court on the preliminary activities. However, it reversed the trial court as to Rutti’s postliminary activities, which it said were more time-consuming. This included connecting with Lojack’s servers to upload data about his work for the day. This was part of Rutti’s regular work and necessary to Lojack’s business, the court wrote, making it part of the company’s “principal business activities.” The court also found that it was not minimal, citing evidence that it could take more than 10 to 15 minutes because of frequent failures, and that it was a regular part of the work. Thus, it may very well have been compensable time under federal law and should not have been dismissed at the summary judgment stage.

Finally, the court ruled that Rutti may have a case under the “continuous work day” doctrine set forth in Dooley v. Liberty Mutual Ins. Co., 307 F. Supp. 2d 234 (D. Mass. 2004), which held that automobile damage appraisers who worked from home were entitled to compensation for commutes because activities they performed at home were “principal activities” that formed part of a continuous work day. Because the court had already determined that Rutti’s preliminary activities were not compensable, it wrote, the morning commute is not part of a continuous workday. The evening commute might be, the Ninth said, except that 29 C.F.R. § 785.16 says employers may not be compelled to compensate workers for periods when they are relieved from duty so long that they can use the time for their own purposes. This was the case with the postliminary upload time, the court said, because Lojack gave technicians 12 hours in which to upload.

Using all of that reasoning, the majority upheld most of the trial court’s rulings, but vacated rulings as to state-law claims for compensation and postliminary claims for the data upload. A separate concurring opinion by Judge Silverman and joined by Judge Hall agreed as to the California state-law claims for commuting. California requires employers to compensate their workers for all time “during which an employee is subject to the control of an employer, the judges wrote, citing Morillion v. Royal Packing Co., 22 Cal. 4th 575, 578 (2000). Because Rutti was subject to multiple rules governing his behavior with the company truck, he was clearly under Lojack’s control, they wrote. Another concurrence authored by Judge Hall alone said the panel should have upheld the trial court on the postliminary data upload as well, because they were minimal. Finally, Judge Callahan dissented from the majority’s opinion on the state-law claims, arguing that Morillion did not apply because Rutti was not required to commute by company bus, as in that case.

Continue reading " In Contentious Case, Ninth Circuit Rules Commute Time Not Compensable Under Federal Law " »

The American Bar Association has published an excellent guide for ordinary people to consumer law issues. You can view the Guide online by clicking here. The introduction to the Guide explains:

This book helps you understand the everyday transactions that make up economic life, and sets out the basic rights and obligations of people playing the free-enterprise game. When you've better informed, your choices will be greater and you'll get the most for your money. And the better able you are to protect what you earn—by spending or investing it wisely—the more opportunity you'll have to enjoy the rewards of your hard work.

The Guide describes consumer fraud laws such as the Illinois Consumer Fraud and Deceptive Business Practices Act:

Many states have analogous laws, known as the “Little FTC Acts,” by which many states have created their own versions of the FTC. One of the notable aspects of the Little FTC Acts, or the consumer fraud laws, is that private citizens are often authorized to recover extra damages (that is, 5 more than they lost) and attorney fees if they show that a deceptive practice by a merchant caused them a loss.

Our Chicago consumer protection 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. The Waukegan consumer fraud lawyers at DiTommaso-Lubin are 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 Chicago 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 Oak Brook 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.

Computer Security:
How To Protect Yourself From Online Fraud

Our Chicago business attorneys and Chicago consumer lawyers file suit, including class actions, to obtain damages for businesses and consumers who are victims of many different types of fraud including online fraud. You can contact one of our Chicago business trial attorneys or Chicago consumer law attorneys by clicking here.

Nationwide Consumer Rights' Attorneys Peter S. Lubin and Vincent L. DiTommaso were selected as Chicago and Oak Brook Super Lawyers and named to the Leading Lawyers Network in Illinois. Only the top 5% of attorneys in the State are selected for these designations.

The attorneys at Nationwide Consumer Rights with offices in Oak Brook, Chicago and Wilmette handle consumer rights and consumer protection litigation and consumer class actions throughout the Chicago area and Illinois and with associated counsel all over the country. Nationwide Consumer Rights' Chicago and Oak Brook consumer lawyers handle auto-fraud, lemon law, unpaid over time, consumer fraud, and unfair debt collection practices cases. To contact one of our Chicago consumer lawyers at Nationwide Consumer Rights click here.

Vincent L. DiTommaso

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Peter S. Lubin

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Our Waukegan 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. The Wheaton consumer fraud lawyers at DiTommaso-Lubin are 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 Woodstock 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.

Our Wheaton consumer protection 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. The Wheaton consumer fraud lawyers at DiTommaso-Lubin are 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 Joliet 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.

Our Naperville consumer protection 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. The Wheaton consumer fraud lawyers at DiTommaso-Lubin are 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 Oak Brook 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 lawyers 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.

Our Chicago consumer protection 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. The Chicago consumer fraud lawyers at DiTommaso-Lubin are 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 Chicago 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 lawyers 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.

A recent California state appeals court decision caught the eyes of our Chicago employment class action attorneys because it addressed fine distinctions in class certification. In Jaimez v. Daiohs USA, 2010 Cal. App. LEXIS 156 (Feb. 8, 2010), California’s Second District Court of Appeal ruled that a trial court improperly denied class certification when it relied on individual testimony to establish the existence of a uniform employer policy. It agreed, however, that plaintiff Alex Jaimez was an inappropriate class representative.

From 2001 to 2007, Jaimez was a route sales representative for DAIOHS First Choice Services, which provides refreshments and vending-machine products to offices. From 2003 to 2007, all of them were reclassified from overtime-exempt to non-exempt, receiving an hourly wage plus overtime when applicable. In 2007, Jaimez filed this action in Los Angeles Superior Court, seeking to certify four classes of employees who were allegedly denied overtime; meal breaks; rest breaks; or pay stubs.

The plaintiffs argued that First Choice had improperly classified RSRs as exempt before the change, illegally denying overtime, meal breaks and rest breaks. After the change, the company continued not paying overtime, the plaintiffs claimed, but pressured RSRs to finish their routes in eight hours even when the routes were long. The plaintiffs also claimed that they were not informed that they were entitled to another meal break if they worked more than 10 hours. Before 2006, they said, meal breaks were automatically removed from time records regardless of whether they were taken; after 2006, employees were pressured to sign a statement that they took the break, even when they didn’t. These were the result of consistent, uniform corporate policies, the motion said, making class certification appropriate. The proposed class sought back wages and penalties under state law.

First Choice opposed the class certification motion by submitting testimony from 25 current RSRs who said they had no such problem. All of them said they were able to take rest and meal breaks when they wished, are encouraged to do so and have time to do so. Relying on these declarations, the trial court denied class certification, saying Jaimez was not typical enough an the proposed class did not have common questions of law and fact. It also said Jaimez was not a good representative, because pretrial testimony showed that he’d lied about a previous criminal conviction for petty theft when he was hired. Plaintiffs then asked for leave to file a First Amended Complaint with new class representative, but was denied. They appealed both orders.

On appeal, the Second District said the trial court misapplied state class certification standards by considering conflicting issues of fact rather than evaluating whether the plaintiffs’ theory of recovery was appropriate for class treatment. In this case, the plaintiff’s “theory of recovery” includes questions of fact and law that predominate over all RSRs in the class, including questions about First Choice’s policies, record-keeping and misclassification of employees. When the trial court used the RSR declarations submitted by First Choice to deny this, the appeals court said, it incorrectly reached the merits of the claim rather than the question of predominance. In fact, the appeals court said the declarations actually support to some extent the allegations made by the plaintiffs about policies and practices. That RSRs may have different damages does not mean they don’t have common questions of law and fact to try.

The appeals court further found that Jaimez was a sufficiently typical representative of the class, noting that he had submitted nine declarations from others that were substantially similar. However, it also found that he was not an adequate representative because of his dishonesty about his criminal conviction. Thus, the appeals court upheld the trial court’s class certification ruling on that issue, but reversed on all other issues. It also reversed the denial of leave to file a First Amended Complaint, noting that the trial court itself invited Jaimez to file such a complaint and that First Choice did not oppose it. The case was remanded to trial court with instructions to certify subclasses after a new class representative is appointed.

Continue reading " Existence of Individual Damages Does Not Preclude Predominating Class Issues, Appeals Court Rules " »

The below article on internet defamation appeared in the New York Times:

Venting Online, Consumers Can Find Themselves in Court

Stephen McGee for The New York Times
Justin Kurtz with his car, which was towed from his apartment complex parking lot near Western Michigan University.

By DAN FROSCH
Published: May 31, 2010

After a towing company hauled Justin Kurtz’s car from his apartment complex parking lot, despite his permit to park there, Mr. Kurtz, 21, a college student in Kalamazoo, Mich., went to the Internet for revenge.

Outraged at having to pay $118 to get his car back, Mr. Kurtz created a Facebook page called “Kalamazoo Residents against T&J Towing.” Within two days, 800 people had joined the group, some posting comments about their own maddening experiences with the company.

T&J filed a defamation suit against Mr. Kurtz, claiming the site was hurting business and seeking $750,000 in damages.

Web sites like Facebook, Twitter and Yelp have given individuals a global platform on which to air their grievances with companies. But legal experts say the soaring popularity of such sites has also given rise to more cases like Mr. Kurtz’s, in which a business sues an individual for posting critical comments online.

The towing company’s lawyer said that it was justified in removing Mr. Kurtz’s car because the permit was not visible, and that the Facebook page was costing it business and had unfairly damaged its reputation.

Some First Amendment lawyers see the case differently. They consider the lawsuit an example of the latest incarnation of a decades-old legal maneuver known as a strategic lawsuit against public participation, or Slapp.

The label has traditionally referred to meritless defamation suits filed by businesses or government officials against citizens who speak out against them. The plaintiffs are not necessarily expecting to succeed — most do not — but rather to intimidate critics who are inclined to back down when faced with the prospect of a long, expensive court battle.

“I didn’t do anything wrong,” said Mr. Kurtz, who recently finished his junior year at Western Michigan University. “The only thing I posted is what happened to me.”

Many states have anti-Slapp laws, and Congress is considering legislation to make it harder to file such a suit. The bill, sponsored by Representatives Steve Cohen of Tennessee and Charlie Gonzalez of Texas, both Democrats, would create a federal anti-Slapp law, modeled largely on California’s statute.

Because state laws vary in scope, many suits are still filed every year, according to legal experts. Now, with people musing publicly online and businesses feeling defenseless against these critics, the debate over the suits is shifting to the Web.

“We are beyond the low-tech era of people getting Slapped because of letters they wrote to politicians or testimony they gave at a City Council meeting,” said George W. Pring, a University of Denver law professor who co-wrote the 1996 book “Slapps: Getting Sued For Speaking Out.”

Marc Randazza, a First Amendment lawyer who has defended clients against suits stemming from online comments, said he helped one client, Thomas Alascio, avoid a lawsuit last year after he posted negative remarks about a Florida car dealership on his Twitter account.

“There is not a worse dealership on the planet,” read one post, which also named the dealership.

The dealership threatened to sue Mr. Alascio if he did not remove the posts. Mr. Randazza responded in a letter that although Mr. Alascio admitted that the dealership might not be the worst in the world, his comments constituted protected speech because they were his opinion.

While the dealership did not sue, that outcome is unusual, said Mr. Randazza, who conceded that sometimes the most pragmatic approach for a Slapp defendant is to take back the offending comments in lieu of a lawsuit.

In the past, Mr. Randazza said, if you criticized a business while standing around in a bar, it went “no further than the sound of your voice.”

Now, however, “there’s a potentially permanent record of it as soon as you hit ‘publish’ on the computer,” he said. “It goes global within minutes.”

Laurence Wilson, general counsel for the user review site Yelp, said a handful of lawsuits in recent years had been filed against people who posted critical reviews on the site, including a San Francisco chiropractor who sued a former patient in 2008 over a negative review about a billing dispute. The suit was settled before going to court.

“Businesses, unfortunately, have a greater incentive to remove a negative review than the reviewer has in writing the review in the first place,” Mr. Wilson said.

Recognizing that lawsuits can bring more unwanted attention, one organization has taken a different tack. The group Medical Justice, which helps protect doctors from meritless malpractice suits, advises its members to have patients sign an agreement that gives doctors more control over what patients post online.

Dr. Jeffrey Segal, chief executive of Medical Justice, said about half of the group’s 2,500 members use the agreement.

“I, like everyone else, like to hear two sides of the story,” he said. “The problem is that physicians are foreclosed from ever responding because of state and federal privacy laws. In the rare circumstance that a posting is false, fictional or fraudulent, the doctor now has the tool to get that post taken down.”

The federal bill, in the House Subcommittee on Courts and Competition Policy, would enable a defendant who believes he is being sued for speaking out or petitioning on a public matter to seek to have the suit dismissed.

“Just as petition and free speech rights are so important that they require specific constitutional protections, they are also important enough to justify uniform national protections against Slapps,” said Mark Goldowitz, director of the California Anti-Slapp Project, which helped draft the bill.

Under the proposed federal law, if a case is dismissed for being a Slapp, the plaintiff would have to pay the defendant’s legal fees. Mr. Randazza would not disclose specifics on the legal fees he has charged his clients, but he said the cost of defending a single Slapp suit “could easily wipe out the average person’s savings before the case is half done.”

Currently, 27 states have anti-Slapp laws, and in two, Colorado and West Virginia, the judiciary has adopted a system to protect against such suits. But the federal bill would create a law in states that do not have one and offer additional protections in those that do, Mr. Goldowitz said.

In Michigan, which does not have an anti-Slapp measure, Mr. Kurtz’s legal battle has made him a local celebrity. His Facebook page has now grown to more than 12,000 members.

“This case raises interesting questions,” said the towing company’s lawyer, Richard Burnham. “What are the rights to free speech? And even if what he said is false, which I am convinced, is his conduct the proximate cause of our loss?”

On April 30, Mr. Kurtz and his lawyers asked a judge to dismiss the suit by T&J, which has received a failing grade from the local Better Business Bureau for complaints over towing legally parked cars. Mr. Kurtz is also countersuing, claiming that T&J is abusing the legal process.

“There’s no reason I should have to shut up because some guy doesn’t want his dirty laundry out,” Mr. Kurtz said. “It’s the power of the Internet, man.”

Continue reading " Venting Online, Consumers Can Find Themselves in Court -- Our Chicago Business Law Attorneys Prosecute and Defend Online Defamation Suits " »