Chicago Business Litigation Lawyer Blog

Employees Not Entitled to Compensation for Showering Time After Shift

2010-01-30T15:09:31Z

Our Illinois overtime rights lawyers were interested to see a recent ruling on unpaid overtime from the Seventh U.S. Circuit Court of Appeals. In Musch v. Domtar Industries, No. 08-4305 (7th Cir. Nov. 25, 2009), Alan Musch and his colleagues were maintenance workers at two Wisconsin paper mills owned by Domtar Industries. In their lawsuit, they say their job routinely exposes them to dangerous chemicals, requiring them to put on special protective gear before shifts and to shower and change after. They are not paid for the time it takes to do those things, however. They sued for unpaid overtime pay for the showering and changing time, as well as for time spent shaving, a requirement under Domtar company policy.

After the case was filed, Domtar moved for summary judgment dismissing the case. It argued that company policy says workers should shower and change immediately after exposure to a hazardous chemical, even if that means the employee goes into overtime. Because it has that policy, the company argued, overtime compensation was inappropriate. The district court agreed and granted summary judgment for Domtar. After the court declined to reconsider, the plaintiffs appealed both rulings. They argued that the district court missed or ignored evidence showing that chemicals actually were on workers’ skin; that is, they do not shower because they merely think they might have the chemicals. Thus, changing and showering time is appropriate for overtime pay under the Fair Labor Standards Act.

In its analysis, the Seventh Circuit started by noting that the FLSA and Wisconsin law both require employers to pay for all of the work employees do. However, federal law makes a distinction between work and preliminary or postliminary activities. Changing and washing is ordinarily considered preliminary or postliminary, the court wrote, but may sometimes be considered part of the job if it’s “integral” and “indispensable” to the job. The plaintiffs argued evidence showed that they didn’t always realize there were chemicals on their skin until the end of shifts, meaning showering after shifts would be following the company’s stated policy.

The Seventh Circuit disagreed. The plaintiffs’ evidence showed that showers were sometimes necessary, it wrote, but not that the Domtar policy of showering after any exposure was insufficient. Furthermore, the court said, employees admitted to bringing work clothes home to wash them, suggesting that they don’t believe the chemical exposure is that serious. Finally, employees are free to seek overtime under the existing company policy when they are required to shower and change, the Seventh said. Because these are all “normal conditions” under the meaning of the FLSA, the post-shift changing and showering is postliminary activity, not an essential job requirement, the court wrote. Thus, it upheld the trial court’s orders.

]]> Based in Chicago and Oak Brook, Ill., DiTommaso-Lubin represents workers around Illinois, Wisconsin and the United States who believe they aren’t getting the overtime to which they are legally entitled. As the Seventh Circuit noted, workers are legally entitled to be paid for all of the time they spend working -- and time and a half for all of their time over 40 hours in a week. However, employers don’t always respect these laws because overtime can get expensive. Unscrupulous employers routinely break the law by shaving time from timecards, requiring employees to work off the clock, misclassifying them as managers and more. Our Wheaton, Naperville, Evanston, Waukegan, Joliet, Aurora and Chicago workers’ rights and wage claim attorneys help clients recover months or years of unpaid overtime and demonstrate that they know their rights.

If you believe your employer has been breaking the law by withholding your overtime pay, you should call the Chicago wage and hour lawyers at DiTommaso-Lubin. To learn more about your legal options and discuss your case, you can call us toll-free at 1-877-990-4990 or send us an email.

Attorney Fees Not Available When Failure to Provide Home Repair Pamphlet Was Unintentional

2010-01-27T15:38:28Z

Our Chicago consumer fraud attorneys were interested to see a split decision from earlier this year in a case involving a dispute over faulty home repairs. In Kunkel v. P.K. Dependable Construction, No. 5-07-0684 (Ill. 5th Feb. 13, 2009), Herbert and Jeral Dean Kunkel sued P.K. Dependable Construction for failing to adequately replace their roof and adding new leaks. They also alleged that P.K. failed to provide the consumer rights pamphlet required under the Illinois Home Repair and Remodeling Act. Their lawsuit alleged breach of contract and warranty and violations of the Illinois Consumer Fraud Act.

The Kunkels hired P.K. in July of 2003 to replace their roof, which had been leaking over their porch but nowhere else. The contract included a five-year warranty for defects and said P.K. would check for sheeting damage after tearing off shingles and make any repairs necessary for an additional fee. Mrs. Kunkel testified that during the work, she witnessed P.K. employees knocking loose the home’s stucco siding. When she complained, they patched the areas with cement. Aside from some sheeting damage, the work proceeded without incident and the Kunkels paid in full. Unfortunately, it rained a few days later and the Kunkels discovered leaks inside their home. They estimate that P.K. made 20 to 25 attempts over the next three years to fix the leaks, but not all were successful. They entered into evidence an estimate of $1,475 to repair the water damage to their kitchen ceiling.

At a bench trial, a roofing contractor hired by the Kunkels testified that the best way to fix the problem was to remove and replace the roof for an estimate of $5,250. A P.K. employee, Tim Utley, testified that damage he had seen to the sheeting suggested that there were leaks before his company did its work. He also contradicted Mrs. Kunkel’s testimony on the stucco siding, saying he did not tear it up and that it would be impossible to do what their roofing expert suggested because the condition of the stucco was so poor. Utley said he told Mr. Kunkel that he should replace the stucco siding because that was the source of the leaks, testimony that the Kunkels dispute. In the end, the court found for the Kunkels, awarding them $6,725 in compensatory damages (the amount of the kitchen ceiling and roof replacement estimates) and $6,151.50 in attorney fees and court costs. After a motion to reconsider was denied, P.K. appealed.

The Fifth District started with P.K.’s contention that the trial court’s decision was against the manifest weight of the evidence. The trial judge had to resolve conflicts in the evidence, the court wrote, but there was plenty of evidence to support the way the judge resolved it. Thus, the Fifth declined to disturb that ruling. It next turned to the question of whether damages were correctly set. The damages were based on estimates submitted by the Kunkel’s expert and another contractor. This follows Illinois law requiring damages for defective workmanship to reflect the cost of correcting the defects, the court said. Again, witnesses for P.K. testified otherwise, but the Fifth District declined to second-guess the trial judge. And attacks on the sufficiency of the estimate came late, the court said, because P.K. did not challenge its admission into evidence at the time or cross-examine the expert about it. Thus, the damages stand.

Next, the Fifth examined P.K.’s challenge to the Kunkel’s attorney fees award. The Consumer Fraud Act allows plaintiffs to recover attorney fees, the court wrote, but they must prove actual damages. In this case, that finding was based on the trial court’s determination that P.K. violated the section of the Home Repair and Remodeling Act requiring it to provide a consumer rights pamphlet. It’s true that undisputed evidence shows that P.K. did not provide the pamphlet, the court wrote, but the Act requires that violations be knowing to be actionable. No evidence is in the record showing knowledge or state of mind, the court wrote, so there was no violation of the Act. The court also noted that there was no evidence showing that P.K.’s failure to provide the pamphlet caused actual damages. Finally, it disagreed with the trial court’s finding that P.K. failed to complete its work, which would also violate the Act, because it did not believe the Legislature intended to equate defective performance with no performance at all. Thus, it vacated the attorney fee award.

]]> DiTommaso-Lubin is dedicated to protecting consumers’ rights against fraud, rip-offs and unfair business practices. Based in Chicago and Oak Brook, Ill., we have practiced consumer rights law in Illinois for more than two decades. Our Wheaton consumer protection attorneys have a strong record of success in holding companies accountable for exploiting consumers, including in cases of overbilling, “lemon” automobiles and mobile homes, deceptive advertising and ATM fee fraud. Numerous state and federal laws require businesses to treat consumers fairly -- and provide accountability -- but all too often, consumers don’t understand that they have these rights or choose to enforce them. Our Chicago, Northbrook, Waukegan, Naperville and Wheaton Illinois consumer rights lawyers fight back by filing lawsuits that hold exploitative businesses accountable and return their ill-gotten profits to victims.

If you’ve been taken advantage of by a company doing business in Illinois, the law is on your side and so is DiTommaso-Lubin. To learn more about your rights and your legal options, contact us today for a free case evaluation at 1-877-990-4990 or through our Web site.

DiTommaso-Lubin's Oak Brook and Chicago Attorneys Peter Lubin and Vincent DiTommaso Named 2010 Illinois Super Lawyers as Class-Action, Business Litigation and Consumer Rights Attorneys

2010-01-26T20:17:28Z

Vincent L. DiTommaso

online at

visit superlawyers.com

Peter S. Lubin

online at

visit superlawyers.com

DiTommaso-Lubin has more than two and half decades of experience helping business clients unravel the complexities of Illinois and out-of-state business laws. Our Chicago business, commercial, class-action and consumer 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 oe 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, Wheaton, Elmhurst, Geneva, Aurora, Elgin, Rockford 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 Video Summarizing Wage Claims for Unpaid Overtime -- Our Chicago Attorneys are Investigating and Litigating a Number of Unpaid Overtime Claims

2010-01-26T04:50:35Z

How Overtime Pay Works

In our work as Illinois and nationwide wage and hour attorneys, we frequently see workers who have been misclassified as exempt from overtime. Whether this was an honest mistake or an intentional attempt to save money, it effectively “steals” wages from the misclassified employees. DiTommaso-Lubin stands up for the rights of workers in Chicago, Illinois and throughout the country who are victims of overtime wage theft, including misclassified employees as well as those pressured to work off the clock; lie on timesheets; or simply not paid an overtime rate. Our Oak Brook, Waukegan, Elgin, Warrenville, Lisle, Wheaton, Northbrook, Aurora, Elgin, Evanston, Joliet and Chicago unpaid overtime lawyers handle both individual and class action employment cases. Based in Chicago and Oak Brook, Ill., we represent clients throughout Illinois, the Midwest and the United States.

A Video Summarizing Some Legal Issues Relating to Non-Compete Agreements -- Our Chicago Attorneys Prosecute and Defend Covenant Not to Compete Lawsuits

2010-01-25T04:42:13Z

Non-Compete Clauses

DiTommaso-Lubin prosecutes and defends cases involving controversies over a covenant not to compete, or other restrictive covenants. Our Illinois restrictive covenant attorneys represent clients in active litigation over the validity and enforcement of these covenants, as well as helping to evaluate whether litigation may arise over such a contract. With more than 25 years of experience, we have handled these claims for businesses of every size, from large corporations to family-owned businesses, as well as individual employees. Based near Naperville, Aurora, Geneva, Lisle, Warrenville, Downers Grove, Wheaton, Wilmette, Evanston, Ill., and downtown Chicago, we represent clients throughout the state of Illinois, as well as in Indiana and Wisconsin. To learn more about how our Illinois covenant not to compete lawyers can help you, please do not hesitate to contact us through our Web site or call toll-free at 1-877-990-4990.

Excerpts From the "Crisis of Wage Theft" Disclose That Wage Theft is Causing Workers to Lose Billions of Dollars in Unpaid Overtime

2010-01-24T19:35:28Z

In These Times online edition has posted excerpts from book "Crisis of Wage Theft". You can read the excerpts by clicking here.

The book describes the billions of dollars in wages are being illegally stolen from millions of workers each and every year through large corporations failing to pay workers minimum wages or time and half for overtime. It states:

Billions of dollars in wages are being illegally stolen from millions of workers each and every year. The employers range from small neighborhood businesses to some of the nation’s largest employers—Wal-Mart, Tyson, McDonald’s, Target, Pulte Homes, federal, state, and local governments and many more.
Wage theft occurs when workers are not paid all their wages, workers are denied overtime when they should be paid it, or workers aren’t paid at all for work they’ve performed. Wage theft is when an employer violates the law and deprives a worker of legally mandated wages.

Wage theft is widespread and pervasive across all types of companies. Various surveys have found that:

• 60 percent of nursing homes stole workers’ wages.
• 89 percent of nonmonitored garment factories in Los Angeles and 67 percent of nonmonitored garment factories in New York City stole workers’ wages.
• 25 percent of tomato producers, 35 percent of lettuce producers, 51 percent of cucumber producers, 58 percent of onion producers, and 62 percent of garlic producers hiring farm workers stole workers’ wages.
• 78 percent of restaurants in New Orleans stole workers’ wages.
• Almost half of day laborers, who tend to focus on construction work, have had their wages stolen.
• 100 percent of poultry plants steal workers’ wages.

Although wage theft is the most pernicious when employers steal money from workers earning low wages, wage theft affects many middle-income workers too, including construction workers, nurses, dieticians, writers, bookkeepers, and many more. Wage theft affects young workers, mid-career workers, and older workers. Although some of the worst wage theft occurs when immigrant workers aren’t paid minimum wage or aren’t paid at all, the largest dollar amounts are stolen from native-born white and black workers in unpaid overtime.

Millions of workers are having their wages stolen. Two, possibly as many as 3, million workers aren’t being paid the minimum wage. More than 3 million workers are misclassified by their employers as independent contractors when they are really employees, which means their employers aren’t paying their share of payroll taxes and many workers are being illegally denied overtime pay. Untold millions more aren’t being paid overtime because their employers claim they are exempt from the overtime laws, when they really aren’t. Several million more aren’t being paid for their breaks or have illegal deductions made from paychecks. The scope of these abuses is staggering.

]]> 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 or were paid under the minimum wage, 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, Evanston, Aurora, Waukegan, Arlington Heights, Elgin, Elmhurst, Joliet, Elgin, Woodridge, Naperville, Highland Park, Northbrook, Wilmette, Wheaton, Oak Brook, Lombard, Warrenville, Lisle, Downers Grove, 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.

A Short Primer on What to Watch Out For to Avoid Car Dealer and Auto Fraud Scams -- Our Chicago Attorneys Have Sued Auto Dealers Over Many Types of Auto and Auto Loan Fraud

2010-01-24T04:23:18Z

Car Buying Scams

If you believe you know someone who has been a victim of auto fraud or has been deceived into buying a flood, rebuilt wreck or salvage vechicle or who has been cheated on car financing or an extended warranty DiTommaso-Lubin may be able to help rectify the problem. We or experienced co-counsel are prepared to file suit in the right case anywhere in the country. For a free consultation on your rights as an employee, contact us today.

Our Auto Fraud, RV Fraud, and Boat Fraud private law firm and our affliated co-counsel handle individual and class action consumer rights, lemon law, and auto fraud lawsuits that government agencies and public interest law firms 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 consumers' rights are protected from unscrupulous, illegal or dishonest practices.

Wage Claim Class-Action Lawsuits for Unpaid Overtime Are on the Rise -- Our Chicago Attorneys Are Investigating and Litigating a Number of Unpaid Overtime Claims

2010-01-23T04:05:11Z

Daniel Barr on unpaid overtime for MCSO en Yahoo! Video

In our work as Illinois and nationwide wage and hour attorneys, we frequently see workers who have been misclassified as exempt from overtime. Whether this was an honest mistake or an intentional attempt to save money, it effectively “steals” wages from the misclassified employees. DiTommaso-Lubin stands up for the rights of workers in Chicago, Illinois and throughout the country who are victims of overtime wage theft, including misclassified employees as well as those pressured to work off the clock; lie on timesheets; or simply not paid an overtime rate. Our Oak Brook, Waukegan, Wheaton, Northbrook, Aurora, Elgin, Evanston, Joliet and Chicago unpaid overtime lawyers handle both individual and class action employment cases. Based in Chicago and Oak Brook, Ill., we represent clients throughout Illinois, the Midwest and the United States.

Loan Underwriters Are ‘Production’ Employees Eligible for Overtime, Court Rules

2010-01-16T15:06:17Z

Our Chicago overtime rights lawyers were interested in a recent wage and hour decision out of the Second Circuit. In Whalen v. J. P. Morgan Chase Co., No. 08-4092 (2nd. Cir. Nov. 20, 2009), a group of loan underwriters sued J.P. Morgan Chase, their employer, for unpaid overtime in a proposed class action. The plaintiffs contended that they were misclassified as administrative employees, because their duties did not meet the federal Department of Labor’s definition of administrative duties. The district court in New York disagreed and granted summary judgment for Chase. But the Second Circuit reversed that judgment, saying loan underwriters cannot be exempt administrative employees because their work furthered Chase’s core business of making loans, rather than helping to run or direct the company.

For four years, plaintiff Andrew Whalen worked for Chase as an underwriter. His job was to evaluate whether to grant loans to individuals, using detailed guidelines provided by Chase. Some underwriters were sometimes permitted to deviate from these standards. Whalen contended that he frequently worked more than 40 hours a week, but Chase classified him as an administrative employee exempt from the overtime provisions of the Fair Labor Standards Act. Whalen eventually sued for a declaratory judgment that Chase violated the FLSA by failing to pay overtime, but Chase prevailed on cross-motions for summary judgment. Whalen appealed.

The Second started by looking at the definition of administrative employees. The federal Department of Labor says administrative work is “directly related to management policies or general business operations” and “customarily and regularly exercises discretion and independent judgment.” Using a variety of documents from the Department on the financial services industry, the court drew a distinction between exempt employees with advisory duties and non-exempt employees who carry out the employer’s day-to-day operations.

Whalen’s job was to sell loans according to Chase’s detailed standards, the court wrote, not to advise customers on which loans to get. This puts the job firmly on the “production” side of Chase’s business, the court wrote, as distinct from management duties or “general business operations” such as human resources. Furthermore, the Second wrote, Chase itself referred to underwriters’ duties as “production” work. In doing so, the court drew a distinction between “production” and “administrative” work supported by its own past decision in Reich v. State of New York, 3 F.3d 581 (2d Cir. 1993) as well as by precedents in the Ninth, Third and First Circuits. Whalen’s job did not met the management/general business operations test set forth by the Department of Labor, the court wrote, which is enough to conclude that he was not a bona fide administrative employee. Thus, the Second Circuit reversed the trial court’s summary judgment decision.

]]> In our work as Illinois and nationwide wage and hour attorneys, we frequently see workers who have been misclassified as exempt from overtime. Whether this was an honest mistake or an intentional attempt to save money, it effectively “steals” wages from the misclassified employees. DiTommaso-Lubin stands up for the rights of workers in Chicago, Illinois and throughout the country who are victims of overtime wage theft, including misclassified employees as well as those pressured to work off the clock; lie on timesheets; or simply not paid an overtime rate. Our Oak Brook, Waukegan, Wheaton, Northbrook, Aurora, Elgin, Joliet and Chicago unpaid overtime lawyers handle both individual and class action employment cases. Based in Chicago and Oak Brook, Ill., we represent clients throughout Illinois, the Midwest and the United States.

If you know you’re not getting paid the overtime you’re owed, you should talk to DiTommaso-Lubin right away. To tell us about your case and learn more about how we can help, please contact us through our Web site or call 1-877-990-4990 toll-free today.

Our Chicago Auto-Fraud and Lemon Law Attorneys File Suit on Behalf of Consumer Who Were Deceived Into Purchasing Flood Cars or Rebuilt Wrecks

2010-01-16T01:47:39Z

As the below video shows it is easy for dishonest cars dealers to sell you a rebuilt wreck or flood vechicle by simply making quick cosmetic fixes.

Keep Dangerous Flood-Damaged Cars Out of Your Driveway @ Yahoo! Video

Our Naperville, Evanston, Aurora, Waukegan, Arlington Heights, Downers Grove, Lisle, Evanston, Elgin, Elmhurst, Joliet, Elgin, Woodridge, Naperville, Highland Park, Northbrook, Wilmette, Wheaton, Waukegan, Oak Brook, Lombard, Hinsdale and Chicago consumer law, auto fraud and lemon law lawyers and attorneys provide assistance in car, RV and automobile and 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 area consumer rights, predatory lending or consumer protection lawyers who can assist in lemon law, auto fraud, RV fraud, wage claim, lemon law, unfair debt collection, junk fax, prerecorded telephone solicitations, and other consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

Consumer Frauds Often Targets the Elderly or Disabled -- Our Chicago Attorneys Handle Individual and Class Action Consumer Fraud and Deception Cases Throughout Illinois and the Midwestern States

2010-01-14T02:17:53Z

This video describes how senior citizens and disabled persons are often targeted for consumer scams and rip-offs.

Consumer Fraud Increasingly Targets Elderly en Yahoo! Video

Based in Chicago, Wilmette and Oak Brook, Ill., DiTommaso-Lubin handles informercial, stock broker, auto dealer and RV dealer fraud and other consumer fraud and lemon law litigation for clients in Wheaton, Naperville,Wheaton, Waukegan, Evanston, Joliet, Aurora, Elgin, Lisle and in other parts of Illinois, the Midwest and throughout the United States. In addition to helping individuals and families, our Chicago class action attorneys have successfully handled numerous consumer rights class actions. If you believe you're a victim of fraud and misrepresentations or a deceptive business practice, please contact us as soon as possible to learn about your rights at a free consultation.

Appeals Court Upholds Verdict in Case Over Storage Company Incorrectly Selling Property

2009-12-29T17:36:46Z

Our Chicago consumer protection attorneys were pleased to see a pro-consumer decision from the First District Court of Appeal recently. In Dubey v. Public Storage Inc., Ill. 1st No. 1-09-0094 (Oct. 23. 2009), the appeals court upheld a decision in favor of a woman who lost everything in her storage unit due to a record-keeping error. Varitka Dubey made all of her payments for a rented storage unit on time, but Metropublic Storage Fund repossessed all of the property in her unit and sold it at auction for “nonpayment.” The problem that turned out to apply to a different unit. This decision upholds a jury’s award in Dubey’s favor, but reduces the amount to conform to her agreement to store no more than $5,000 worth of property.

Dubey entered the storage unit rental agreement in September of 2002. At that time, she signed an agreement that the property she would store would be worth no more than $5,000 and that Metropublic wouldn’t be responsible for losses of more than that amount. The agreement also said that Metropublic could pursue all legal remedies if Dubey failed to meet her obligations under the agreement. Dubey testified in court that she did not notice the unit listed on her rental agreement, nor was it emphasized by the Metropublic employee who helped her. She then moved personal property into the unit that she claimed was worth $150,000. She visited the unit several more times through the end of 2002. Her rent was automatically charged to a credit card and always paid on time.

In February of 2003, Dubey returned to her unit and discovered that her key didn’t work. A Metropublic employee told her that the unit was not hers. The employee opened the unit and Dubey discovered that nearly all of her property was gone except for some broken toys belonging to her daughters. Further investigation showed that records showed someone else was listed as the owner of the unit Dubey had used, and that Dubey’s rental agreement listed a different unit. At trial, testimony showed that the unit had already been rented to someone else. The employee told Dubey her property had been auctioned off in January for non-payment of the rent, for total proceeds of $99,145. Dubey asked about personal items like family photos and was told that they were probably thrown out, but denied permission to search the garbage.

Dubey sued Metropublic for breach of contract, conversion and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act. Metropublic countersued for breach of contract because Dubey stored property worth more than $5,000 in her unit. At trial, the jury found for Dubey on all counts, awarding her
$755,000 in compensatory and punitive damages on the common-law claims and $276,580 in compensatory and punitive damages for the Consumer Fraud Act claims. She was also awarded attorney fees. Both parties appealed, with Dubey asking for more compensatory damages to reflect the true value of the lost property, and Metropublic arguing that Dubey shouldn’t have been awarded three different recoveries for the same injury and that she shouldn’t have been awarded more than the $5,000 listed in the contract. It also disputed the decision, the punitive damages and the attorney fees.

The First’s analysis started by agreeing that, under Illinois law, Dubey may recover only once for the breach of contract and conversion claims. Thus, it reduced the compensatory damages for those claims to $5,000 from $10,000. However, its analysis did not extend to the Consumer Fraud Act, and it let the $69,145 awarded under that count stand. The court then addressed the claim that the Consumer Fraud Act award should not have been larger than $5,000. The court found that Metropublic had waived that issue by ignoring chances to bring it up before and during trial. But even if it were not waived, the court declined to reconsider the trial court’s finding that the clause was an exculpatory clause invalid under the Landlord and Tenant Act. In addition to dismissing Metropublic’s arguments, the court found the contract unconscionable because Dubey had no time to read it closely and Metropublic didn’t stress the $5,000 limit.

The court then dispensed with every argument Metropublic made except its argument that the punitive damages award is unconstitutional. Among the tests for whether a punitive award is unconstitutionally excessive is the ratio of punitive to compensatory damages. The U.S. Supreme Court said in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 425, 155 L. Ed. 2d 585, 605-06, 123 S. Ct. 1513, 1524 (2003) that very few ratios significantly exceeding single digits will satisfy due process. The ratio for the conversion award was 149 to 1, a disparity the First found disturbing. It also found that Dubey may be entitled to more compensatory damages for her losses, since the it had found the rental contract invalid. Thus, it vacated those two damages awards and sent them back to trial court for reconsideration.

]]> Based in Chicago and Oak Brook, Ill., the Chicago consumer fraud lawyers at DiTommaso-Lubin are dedicated to protecting consumers’ rights and exposing unfair, fraudulent business practices. That includes extreme carelessness with property entrusted to a business by consumers as well as excessive building, automotive fraud and other unfair and anticonsumer practices. Our Chicago, Hinsdale, Lake Forest, Wheaton, Naperville and Evanston Illinois consumer fraud attorneys have more than two decades of experience fighting companies big and small on behalf of consumers, including individuals as well as large groups of consumers pursuing class action lawsuits. If you suspect a company has taken advantage of you and you’re ready to fight back, we can help. To learn more about your legal options at a free consultation, please contact us online or call toll-free today at 1-877-990-4990.

Google Sues for Declaratory Judgment That Keyword Advertising Does Not Infringe

2009-12-09T18:31:28Z

Google, the target of multiple online trademark infringement lawsuits, made a preemptive strike back in early August when it countersued the named plaintiff in a pending case against it. According to law professor Eric Goldman’s Technology & Marketing Law Blog, Google sued John Beck Amazing Profits, LLC, in the Northern District of California on July 27. The suit was a response to an Eastern District of Texas filing against Google on May 14, which was a putative class action led by John Beck. The web search giant seeks a declaratory judgment that it is not infringing on John Beck’s trademarks as well as damages for an alleged breach of its AdWords contract by John Beck when it sued in Texas -- in a district with a reputation as advantageous for intellectual property complaints -- rather than California.

In the first lawsuit, John Beck -- a Los Angeles company that sells real estate investment advice-- sued Google as well as several companies that use its technology for selling its trademarks as keywords using Google AdWords. The proposed class was very large, including all trademark holders in the United States whose trademarks have been sold as a keyword or AdWord for the past four years. However, according to Google’s countersuit, the complaint in that case had not been served to Google as of August 2, even though it was filed May 14.

Google responded with its suit for declaratory judgment, which targeted only John Beck. Its complaint alleges that John Beck’s original lawsuit was anti-competitive and subverted trademark law’s goal of preventing deception of consumers. It asked the court for declaratory judgments that it did not infringe John Beck’s trademark, contribute to such infringement, vicariously infringe it or falsely designate the origin of its mark. It also made a claim for damages from John Beck’s alleged breach of Google’s own AdWords contract, which it entered into as an AdWords customer. That contract included a provision that disputes should be settled in the Northern District of California, Google’s home jurisdiction, making John Beck’s choice to file in East Texas a breach of contract. As Professor Goldman observed, Google is probably also trying to move the venue of the original East Texas suit to the Northern District of California.

The original John Beck lawsuit was one of multiple lawsuits with similar trademark-infringement allegations against Google for its AdWords program. At DiTommaso-Lubin, our Chicago online trademark infringement lawyers and Wheaton, Waukegan, Joliet and Chicago trial lawyers have investigated, and pursued similar claims. As of early August 2009, no court has ruled on the substance of these claims, although rulings on related matters have been slightly favorable to trademark holders. As with all trademark claims, the plaintiffs in cases like John Beck’s class action can ultimately win only if they show that Google’s advertisements create a likelihood of confusion among consumers looking for their products online, which can depend heavily on the circumstances and details of each case. Our Illinois Internet trademark attorneys work hard to prove those claims on behalf of clients.

]]> Based in Chicago and Oakbrook Terrace, Illinois, DiTommaso-Lubin represents clients in trademark infringement litigation throughout Illinois, the Midwest and the United States. We represent businesses of all sizes, from family-owned small businesses to large corporations and partnerships. Our Elgin, 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 to learn more about us, please contact us online or call us toll-free at 1-877-990-4990.

Our Chicago Auto Fraud and Lemon Law Attorneys File Suit to Provide Justice to Consumers Who Purchased Certified Used Cars That are Rebuilt or Were Involved in a Serious Accident

2009-12-05T23:39:14Z

Our Chicago Auto Fraud and Lemon Law Lawyers can assist victims of auto dealers and automakers who purchased certified used cars that turned out to be rebuilt wrecks, salvage vechicles or involved in a serious accident. We have represented a number of victims of this practice. Automakers charge car dealers a fee to certify used cars. However the Automakers do not police their dealers to ensure that the dealers have properly certified and inspected the used cars before certifying them for the Automaker.

If you believe you know someone who has been a victim of auto fraud or have been deceived into buying a flood car or rebuilt wreck of salvage vechicle DiTommaso-Lubin may be able to help rectify the problem. We or experienced co-counsel are prepared to file suit in the right case anywhere in the country. For a free consultation on your rights as an employee, contact us today.

Our Auto Fraud, RV Fraud, and Boat Fraud private law firm and our affliated co-counsel handle individual and class action consumer rights, lemon law, and autofraud lawsuits that government agencies and public interest law firms 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 consumers' rights are protected from unscrupulous, illegal or dishonest practices.

Our Predatory Loan, Installment Loan and Pay Day Loan Consumer Attorneys Want to Stop Predatory Loan Churning Practices Targeting Mentally Impaired Elder and Disabled Persons

2009-12-03T15:11:30Z

Our co-counsel has sucessfully litigated cases against high interest rate small loan outfits for cheating disabled persons by putting them into small loans that they don't need and then churning the loan so that it eats up much of the victim's social security payments. We are looking for cases to bring against high interest rate pay day lenders and installment payment lenders who have taken advantage of mentally impaired individuals. We want to put an end to high interest rate lenders harming disabled mentally impaired individuals.

The National Consumer Law Center's website provides great insight into the predatory practices of high interest rate pay day and installment payment lenders.

To view NCLC's information sheet on high interest rate loans click here. NCLC's website describes the loan churning practices of pay day and predatory small lenders as follows:

Lenders then encourage consumers to rollover or refinance one payday loan with another. The result is that the consumer pays another round of charges and fees and obtains no additional cash in return. For example, if a consumer is charged 15% on the face amount of the check of $200, the consumer receives only $170 in cash and the lender pockets a $30 fee. The APR is 458% if this loan is repaid in two weeks. If, instead, it is rolled over into a new payday loan, an additional fee of $30 is tacked on which raises the loan amount to $230. The APR jumps to 917%.� These loans are exorbitantly expensive and can drive consumers ever deeper into debt. Further, payday lenders often threaten to use the criminal system to collect these debts or routinely file criminal charges when a check is returned for insufficient funds.

These routine loan churning problems are exasperated when the predatory high interest rate lenders target mentally impaired elder or disabled individuals. This is a practice that our firm and its affliated consumer attorneys around the country have targeted as a priority practice which we want to stop by fling suit on behalf of the victims.

If you believe you know someone who has been a victim of predatory loan churing by payday lenders DiTommaso-Lubin may be able to help rectify the problem. We or experienced co-counsel are prepared to file suit in the right case anywhere in the country. For a free consultation on your rights as an employee, contact us today.

Our consumer rights private law firm and our affliated co-counsel handle individual and class action consumer rights and predatory lending cases that government agencies and public interest law firms 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, Evanston, Aurora, Waukegan, Arlington Heights, Downers Grove, Elgin, Elmhurst, Joliet, Elgin, Woodridge, Naperville, Highland Park, Northbrook, Wilmette, Wheaton, Waukegan, Oak Brook, Lombard, Hinsdale and Chicago consumer and predatory lending lawyers and 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 area consumer rights, predatory lending or consumer protection lawyers who can assist in wage claim, lemon law, unfair debt collection, junk fax, prerecorded telephone solicitations, and other consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.