Chicago Business Litigation Lawyer Blog

As Chicago business, shareholder rights and commercial law litigators, we frequently handle cases involving allegations of business fraud or financial mismanagement, often as part of complex business dispute, that require significant expertise in financial issues. When handling a divorce involving a family business or other closely held company, we also sometimes find we need an expert's help properly valuing the business, so we can help our clients get the most equitable possible distribution of marital property.

Our Chicago and Naperville business litigation attorneys have handled many complex business and commecial law litigation matters which have involved presenting or cross-examining accounting witnesses.

While we're confident in our legal skills, these situations call for specialized financial skills. To give our clients the best possible representation in business, shareholder and other commercial disputes, we sometimes retain a forensic accountant or fraud examiner. Both of these jobs are twofold: They help attorneys and their clients understand the complex financial aspects of their cases, and they may also be called to testify as expert witnesses. A forensic accountant's job is to examine a person or corporation's accounts "cold," from the outside; the subject isn’t generally expected to cooperate. Similarly, a fraud examiner delves deep into a company's finances, looking for the source of anything that seems inconsistent or suspicious. Both can serve as expert witnesses who help establish the value of a business or testify to the existence of fraud.

The goal for both forensic accountants and fraud examiners is to make sure the other side of the case is being completely truthful about its income and accounting practices. As you might imagine, this is a frequent concern in divorces involving a spouse who’s part of a small or closely held business, which may need to be properly valued for the divorce. The company may also need to be investigated when the owning spouse is believed to be hiding assets. However, this concern also comes up in business disputes, such as breach of fiduciary duty lawsuits. When minority shareholders believe the majority is withholding important financial information, using a forensic accountant or fraud examiner may be the most reliable way to discover and prove the truth.

This practice is relatively recent but growing; a simple Web search turns up many accountants and examiners who regularly serve as expert witnesses. Two legal journals serving our Midwestern neighbors, The Wisconsin Law Journal and Michigan Lawyers Weekly, offer online articles on the subject for lawyers who want to learn more.

In an Illinois business contract lawsuit, the Third District Court of Appeal has ruled that a company's president may not hold his financer and business partner liable for the company's debts as an alter ego. Semade v. Estes, 05--CH--31 (June 29, 2007).

Charles Semade and Nicholas Estes formed a private corporation, Heartland Pottery Company, in 1995. Estes provided financing; Semade served as president and CEO. Unfortunately, the company did not succeed. Semade filed a lawsuit against Heartland in 1998 for unpaid salary and expense reimbursements. In that case, he won a judgment of more than $294,000, only to discover that Heartland had no assets.

Semade then filed a complaint against Estes himself, contending that Estes should be liable for the judgment because he was the company's alter ego. Under the law, that means he alleged that Estes and Heartland were the same person for all practical purposes, allowing Semade to "pierce the corporate veil" of limited liability. Semade alleged that Estes controlled all parts of the company and put income and assets in his personal accounts. However, Estes moved for summary judgment, saying Semade lacked standing because he was a director and officer of the company. The trial court agreed, and on appeal, the Third District Court of Appeal agreed.

In its analysis, the court relied on the Illinois Supreme Court ruling in In re Rehabilitation of Centaur Insurance Co., 158 Ill. 2d (1994). That case does leave corporate officers liable, the court noted, but only to third parties who were defrauded by an officer conducting his or her personal business through the corporation. The court declined to create a new rule allowing directors to pierce the corporate veil, pointing out that such a rule would allow directors to abuse the doctrine, discarding and taking up the veil as it suits them. Furthermore, the majority argued, directors have broad rights (and a fiduciary duty) to inspect a corporation's books.

Justice Holdridge, dissenting, pointed out that the majority relied on corporate documents to determine Semade's status -- not the de facto arrangement to which both parties testified. For that reason, the justice wrote, the facts were not sufficient to support a dismissal.

As business dispute litigators in Illinois, we believe this issue is one to watch.

Are you a consumer with questions or concerns related to potential fraud and do not know what government agency to contact? The Chicago Federal Reserve Bank provides a web page that allows you to link to government agencies that may help you. The web page has links to federal and state banking agencies, federal and state securities agencies, and state insurance agencies located in Illinois, Indiana, Iowa, Michigan, and Wisconsin. You can also link to various useful financial , insurance, and banking tools, and to lists of financial services regulators, and consumer complaint filing information. Click here to link to the Chicago Federal Reserve Fraud web page.

If you need legal assistance in pursuing a civil lawsuit because government regulators cannot help you in recovering money lost due to fraud, our private sector lawyers can assist you by clicking here to contact us.

Our law firm helps Chicago area consumers who are victims of auto and RV fraud or who purchased vechicles that are lemons to pursue lawsuits to regain their lost investment. For more information about our Nationwide Consumer Rights lawyers click here.

There are many practical ways to protect yourself from auto and RV fraud or from purchasing a lemon vechicle.

The National Association of Consumer Advocates provides the following well thought out advice on how to avoid auto fraud:

Auto Fraud Purchasing a new or used automobile is a major investment for the average American today. Not only is there the initial cost of the automobile itself to consider. In a commuter society, reliable transportation is a key factor to financial prosperity for most Americans. Many of us depend on our cars to get to the places where we can earn more money, so that we can not only pay off the car loan, but also the car insurance, the mortgage, the credit card, and the household bills. Having a dependable vehicle is as central as ever to the way most Americans earn their daily bread.

The last thing an auto buyer should expect after buying a new or used car are problems that result from auto fraud, which occurs when the seller of the vehicle either fails to disclose the complete history of the car you are buying, or alters or destroys evidence pertaining to any part of the vehicle's age, condition or inherent or acquired defects. Auto fraud can come in a variety of forms when purchasing a used car. Odometer rollbacks, salvage or flood vehicles, yo-yo sales, credit consolidation sales, and resale of damaged vehicles without full disclosure are all examples of auto fraud.

SIX QUICK STEPS TO AVOID AUTO FRAUD:
Tip 1: Make friends with a mechanic
A mechanic can be your best friend when it comes time to purchase a car. More than anybody else, a good and experienced mechanic can tell you the specific problems to watch out for when buying a particular brand or model of a car, and can also tell you which cars are relatively hassle-free. Based on what type of car you are looking for, your needs for the car could widely vary. Once you know the type of vehicle you want, twenty minutes talking to a friendly mechanic can help you determine the best manufacturer.

Tip 2: Arrange for financing through your bank or credit union
Whenever possible, you'll want to seek financing approval from your bank or credit union before shopping for your car. Banks almost always offer a substantially lower rate than what a used car dealership will offer. If you have a prior lending history with your bank and are in good standing, you can usually receive up to 90 per cent financing. Car dealerships make huge profits by providing their own financing to auto buyers, so they want you to borrow from them. By securing an auto loan through your bank for an amount you can afford before purchasing a car, you'll find yourself in far more control when negotiating a final price.

Tip 3: Ask for a copy of the warranty, take it home and read it
Many used car dealers are notorious for providing "dealer warranties." While the big print in these documents promises comprehensive coverage and prompt service for the vehicle you buy, it is the small print that dealers refer to when something actually does go wrong with your car. The phrase "wear and tear items not included" is a common one in dealer warranties, and one you will hear over and over again if your car begins to have problems.

Remember that car dealers are always trying to increase the final sales cost of your car through add-ons and features. A dealer warranty is often pitched as a vital add-on by the car salesperson, but unfortunately, when push comes to shove the true value of the warranty is sometimes questionable. Make sure you clarify exactly what is covered with the car salesman. If your concerns are not explicitly answered in the warranty, ask for a signed, authorized amendment from the dealer with the correct wording that you are seeking.

Tip 4: If necessary, amend the warranty to protect yourself from Lemon fraud
After you have satisfied yourself that you are getting adequate repair and maintenance coverage for the price of your warranty, you'll want to make sure the following statements are somewhere on the warranty:

"THIS CAR HAS NOT BEEN RETURNED TO A DEALER OR MANUFACTURER BECAUSE OF LEMON LAW DEFECTS OR COMPLAINTS."

"THIS CAR HAS BEEN INSPECTED FOR COLLISION DAMAGE AND COLLISION REPAIRS AND HAS BEEN FOUND TO BE FREE OF COLLISION DAMAGE OR REPAIRS."

If these statements aren't on the warranty, insist that they be added, acknowledged and signed by an authorized representative of the dealership.

Tip 5: Take it for a long spin
Leave a copy of your driver's license with the dealer and take the car out for a while. Drive the car in multiple road conditions: city streets with heavy traffic, highways with open spaces, straight and curvy roads, and hills. Test the brakes, steering, features, air conditioning and gauges. If you can arrange it, pick up your new friend the mechanic and bring his highly trained ear along for the ride. Let him take a look under the hood. If he likes what he sees, and you have faith in his judgment, then you are probably in good shape.

Tip 6: Don't be in a rush
Above all else, don't let a car salesman rush or cajole you into a one-day, stop and shop sale. Avoid impulse buying. It is to the salesman's benefit, and only his benefit, if the sale happens quickly. It is to your benefit to do as much research as possible to insure you purchase a safe and reliable vehicle. You should be prepared to spend at least two weeks doing adequate research before making a used car purchase.

Lemon Law
State lemon laws have been created to protect consumers when they have purchased a defective vehicle. Typically, a lemon law requires a manufacturer to provide a refund or replacement for a defective new vehicle that is not repaired within a reasonable number of attempts. Most such laws provide for refund or replacement when a substantial defect cannot be fixed in 4 tries, a safety defect within 2 tries or the auto is out of service for 30 days, within the first 12-18,000 miles/12-24 months.

Beyond state lemon laws, a consumer has the right to a refund or replacement of a lemon vehicle under the Uniform Commercial Code (UCC). The main difference is the UCC law does not define a lemon so it's up to a court to decide if an auto company must give you a refund or or a new car. The federal Magnuson-Moss Warranty Act provides for the award of attorney fees from the manufacturer if you have to sue to return a lemon under the UCC. Many state lemon laws also provide for attorney fees.

Practical Tips for Using Lemon Laws
Success in using state lemon laws depends upon keeping good records and providing the right notice to your vehicle’s manufacturer:

Repair Record: Keep close track of the number of repair attempts and the time the car is out of service. Submit a written, dated list of problems to the dealer each time the car is in for repairs (keep a copy). List the symptoms your car has; for example, "stalling" instead of "check carburetor." This establishes a record of what problem was addressed even though the dealer may work on different parts in attempting to fix the problem. Insist on getting a copy of the repair order that lists the symptoms described, repairs done, any parts replaced, and the time the car was in the repair shop.

Notice Required: You must follow your state's notice requirement before you are entitled to a refund or replacement. Where written notice to the manufacturer is required, send a certified, return receipt letter stating your vehicle's need for repair to the manufacturer's consumer relations office and to the nearest zone/regional office listed in your owner's manual or warranty booklet. Make sure you send this notice by the time you take the car in for the repair attempt that qualifies it as a lemon. Give the dealer a copy of this letter when you deliver the car for repair; keep a copy.

Your Refund Or Replacement: After you believe your vehicle qualifies as a lemon and you have followed the above steps, ask the manufacturer for a refund or replacement. You may have to pay a small offset for use of the car but no more than for the mileage up until the first repair attempt which qualified you for the lemon law. If the manufacturer has a valid arbitration program that is incorporated into your written warranty, you may be required to go through arbitration to get your refund or replacement.

The Illinois Supreme Court handed a victory to plaintiffs throughout Illinois with its 2006 ruling in an insurance dispute over whether insurers must cover the costs of a junk fax class action lawsuit for an insured covered for an “advertising injury.” In Valley Forge Insurance Co. v. Swiderski Electronics, Inc., 2006 Ill. LEXIS 1655, the state Supreme Court ruled that business insurers have a duty to defend “junk fax” class action lawsuits.

The underlying dispute in the Illinois Supreme Court case started when private investigator Ernie Rizzo filed a proposed class action lawsuit against Swiderski Electronics for sending him “junk faxes.” Unsolicited advertisements sent via fax violate both the federal Telephone Consumer Protection Act and the Illinois Consumer Fraud and Deceptive Business Practices Act. Swiderski had an insurance policy from Valley Forge Insurance Company, which insured Swiderski against a personal or advertising injury that arises out of “Oral or written publication, in any manner, of material that violates a person’s right of privacy[.]” The insurer claimed that because the faxes had not revealed Rizzo’s own personal information, they did not invade his privacy and thus were not covered. They also claimed that sending information via fax does not constitute publication.

The insurer asked a trial court for a declaratory judgment stating it was not obligated to cover Swiderski; all parties filed cross-motions seeking summary judgment. The trial court ruled in favor of Swiderski, as did the appellate court and, eventually, the Illinois Supreme Court. That court rejected Valley Forge’s arguments, rejecting the claim that faxing is not “publication,” using the plain meaning of the word. It also ruled that privacy under the federal TCPA and caselaw includes the right to be left alone:

The receipt of an unsolicited fax advertisement implicates a person’s right of privacy insofar as it violates a person’s seclusion, and such a violation is one of the injuries that a TCPA faxad claim is intended to vindicate.

That contradicts the a 2004 decision by the Seventh U.S. Circuit Court of Appeals in American States Insurance Co. v. Capital Associates of Jackson County Inc., 392 F.3d 939, which found no duty to defend under very similar circumstances. The Seventh Circuit’s earlier ruling said privacy rights may include the right to seclusion in some cases, but “advertising injury” clauses do not, so insurers have no duty to defend in junk fax cases. Because the Seventh is bound by Illinois Supreme Court precedent in cases involving Illinois law, the more recent ruling overturns American States, handing a victory to plaintiffs and businesses who are plagued by unwanted junk faxes.

Our firm obtained a favorable verdict in a consumer fraud case with Terrill v. Oakbrook Hilton Suites & Garden Inn 788 NE2d 789 (2nd Dist 2003). In that case, our client, Cathy Terrill, was overcharged for a hotel room; her bill contained a charge for “taxes” that included an undisclosed non-tax charge for security services. This case was part of a set of class actions in Du Page County from 2000 to 2007 (Oakbrook Terrance Hotel Overcharge Class Actions), all of which alleged that hotels misled and overcharged their customers by including non-tax charges as “taxes” on their bills.

In Terrill, the Oakbrook Terrace Hilton moved for summary judgment at the trial court, claiming the Hotel Operators Occupation Tax Act (35 ILCS 145/3(f)) and Illinois Supreme Court precedent barred Terrill’s suit. The trial judge denied that motion and the hotel appealed. It claimed that because the security fees paid for extra security from Oakbrook Terrace law enforcement -- a local government entity with the power to collect taxes -- it had already paid the extra money to the state Department of Revenue and could not be sued.

The Illinois Second District Court of Appeal rejected that argument, calling it “untenable at best”:

It is clear, given the facts of this case, that defendant misapprehends the concept of accountability. Because defendant remitted the 2% service fee to Oakbrook Terrace instead of the Department, defendant cannot use the Act or case law to shield itself from direct liability. Unjust enrichment principles are based on the idea that no one ought to enrich himself unjustly at the expense of another.

Thus, Terrill’s claim was not barred and the suit was allowed to proceed. The case went back to the appellate court in a later, unpublished decision, in which the court struck Hilton's response brief and affirmed the trial court's grant of summary judgment and award to the Class of 100% of the tax overcharges plus prejudgment interest and attorneys fees and costs. Class members ultimately received a check in the mail for 98% of the over charge. Our firm is proud of our leadership role in this case and others where consumers and businesses have recouped tax and billing overcharges billing fraud class actions, as well as our role in setting precedent with published cases. We have experience handling many types of fraud and business fraud cases and have litigated fraud cases in Chicago, and throughout the country. If you are a victim of fraud, consumer fraud or deceptive billing practices you can contact one of our experienced fraud attorneys by clicking here.

The Illinois Home Repair and Remodeling Act does not apply to subcontractors, the state Supreme Court ruled April 3. The court’s decision in MD Electrical Contractors, Inc. v. Abrams, (Il. Sup. Ct. 2008; Doc. No. 104000) resurrected an electrical subcontractor’s breach of implied contract lawsuit against a Napierville family.

The dispute started in 2004, when Abrams family contracted with Apex Builders, Inc. for improvements to their home. MD Electrical Contractors, Inc., did just under $15,000 worth of electrical work on the project as a subcontractor. It was not paid for that work, and in 2005, it sued the family for payment. In its complaint, MD stipulated that it had no contract with them. The Home Repair and Remodeling Act (HRRA) requires repair and remodeling contractors that work with individual homeowners to provide a written contract and a consumers’ rights brochure to customers. Because MD had not provided a contract or a brochure to the defendants, as required by the HRRA, defendants argued that there could be no implied contract, under the plaintiffs’ theory of quantum meruit. They successfully moved to dismiss at the trial court level, but were reversed by the appellate court, which ruled that the HRRA does not apply to subcontractors. The Illinois Supreme Court agreed.

In its review, the court noted that the common understanding in home repair work is that subcontractors work directly for contractors, who in turn work for homeowners. That understanding is critical for interpreting the HRRA, said the court. Relying on the plain language of the law and the accompanying brochure, definitions of terms, other laws and legislative intent, it found that the HRRA does not apply to subcontractors:

The statute’s plain language limits its application to only those who contract directly with the homeowner. To allow any other interpretation not only would be contrary to our principles of statutory interpretation, but would also do severe damage to industry practice and other statutes. The Home Repair and Remodeling Act is unambiguous and only applies to those who form direct contracts with the homeowner.

The court declined to take up the issue of quantum meruit, noting that defendant forfeited that argument by failing to property present it in their petition for appeal. It remanded the case to trial court. Justices Freeman and Burke, dissenting, argued that the majority made unwarranted assumptions about the nature of subcontractor-client relationships and that the HRRA could be an affirmative defense.

The Seventh U.S. Circuit Court of Appeals issued a ruling May 13 in United Stars Industries, Inc. v. Plastech Engineered Products, Inc., 07-2919 (7th Cir. 2008), a business contract dispute in which Plastech alleged that its tubing supplier, United Stars, overcharged it by about $1.6 million. The case is also notable because the appellate court upheld $30,000 in sanctions against the law firm Jones Day for “frivolous claims.”

The underlying dispute started when United Stars notified Plastech, its customer, that it had been charging Plastech surcharges for the cost of raw materials, even though about 9% of those materials were lost during processing. Plastech contends that it did not agree to pay the full amount of those surcharges; thus, it believed United Stars owed it about $900,000, and Plastech refused to pay another $700,000 bill, for a total of $1.6 million in dispute. Plastech stopped paying United Stars, even after reaching a purported compromise in 2005, then found another vendor. In the ensuing lawsuit, in U.S. District Court for the Western District of Wisconsin, the judge awarded $1.3 million to United Stars, sending Plastech into bankruptcy.

On appeal, Plastech contended that the trial judge erred in deciding that the companies reached a compromise in 2005. However, the Seventh said, Plastech’s claim fails regardless of whether there was a compromise, because it did not present “a scrap of evidence” to support its interpretation of the companies’ contract. Furthermore, the language of the contract itself favored United Stars.

Plastech’s interpretation of the contract formed the basis of a counterclaim for the alleged $900,000 overcharge, which the Seventh said would have failed if it had been tried. For that reason, the court upheld $30,000 in sanctions against Plastech’s law firm, Jones Day, for violating Rule 11(3)(c) of the Federal Rules of Civil Procedure, which prohibits frivolous claims. The opinion quoted U.S. District Judge Barbara B. Crabb, who said Plastech and its lawyers failed to produce any credible evidence for their costly-to-defend counterclaim, but did use it as a basis for discovery requests. According to the National Law Journal, Jones Day maintains that its actions were appropriate.