Chicago Business Litigation Lawyer Blog

We recently had a win in the Illinois Appellate Court in S37 v. Advanced Refrigeration. The Appellate Court affirmed the trial court's decision to certifiy a class action regarding the claims in that. Advanced sells appliances to various businesses and added a charge on its invoices called government processing requirment. This fee was not required to be paid by the government and was not a government mandated fee. Advanced created the fee to recover costs it allegedly incurrs in complying with government requirements. The Class-Action Complaint alleged that the fee was deceptive in that it allegedly made a profit generating fee appear as if it were a government required fee. Advanced denied these allegations and opposed class-certification. The trial court denied Advanced's motion to dismiss and then certified the case as a class-action.

The Appellate Court granted leave for an appeal of the class-certification decision. Advanced argued that it disclosed the true nature of the fee to all customers and that such alleged disclosure gave rise to individual issues blocking class certification. The Class argued that this defense did not create invididual issues barring class-certification as the defense of full disclosure was common the entire class given Advanced's claim that it told all customers that the fee wasn't a government mandated fee or tax as the fee's name allegedly suggested it was.

The Appellate Court rejected Advanced's arguments and found that the trial court properly exercised its discretion in certifying the class-action.

The Appellate Court held:

We agree with the plaintiff that this case fits the pattern of cases routinely certified as class actions by Illinois courts. See Martin v. Heinold Commodities, Inc., 163 Ill. 2d 33, 643 N.E.2d 734 (1994) (resolved as a class action, the court held the commodity option contracts broker’s disclosure statement was misleading, in violation of the Illinois Consumer Fraud Act, because the “foreign service fee” to be charged investors was a commission from which it would receive compensation); Harrison Sheet Steel Co. v. Lyons, 15 Ill. 2d 532, 155 N.E.2d 595 (1959)(class action was proper where the defendant refused to refund illegal occupation taxes collected from its customers); P.J.’s Concrete Pumping Service, Inc. v. Nextel West Corp., 345 Ill. App. 3d 992, 1003, 803 N.E.2d 1020 (2004) (“The primary factual issue in this case is a uniform billing practice that allegedly violated the Consumer Fraud Act in the same manner as to all class members. The propriety of such a uniform practice is amendable to being resolved in a class action.”).

The Appelalte Court also noted that the brief of the National Association of Consumer Advocates (which filed a friend of the court submission) stated that class-actions provided a way for small claims like this to proceed to court and to obtain justice when small alleged wrongs in the aggregate allegedly harm many consumers:

“ ‘The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.’ ” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 617 (1997), quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997).

You can view the full opinion of the Appellate Court by clicking here.

Continue reading "Class Certification Order Affirmed By Appellate Court" »

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Many of us have had work done to our homes at some point, and sometimes difficulties arise during the course of such projects. DiTommaso-Lubin is familiar with the legal issues that arise in such cases, and our lawyers are always concerned about protecting the rights of consumers. Universal Structures LTD v. Buchman is a case about a home improvement construction deal gone bad.

In Universal Structures LTD v. Buchman, Defendants contracted with Plaintiff to perform a series of demolition and remodeling projects at their home in Northfield, Illinois. The work was eventually completed and Defendants paid most of the amount billed by Plaintiff, but the payment left an outstanding balance of over $100,000. Plaintiff then recorded a mechanic's lien for the unpaid amount and eventually filed a lawsuit to foreclose on the lien. Defendants successfully moved to dismiss the lawsuit because Plaintiff failed to present them with a written contract or work order to be signed and also did not present Defendants with a consumer rights brochure. The trial court dismissed Plaintiff's suit because each of those failures constituted a violation of the Home Repair and Remodeling Act.

On appeal, the Court reviewed whether Plaintiff was “precluded from asserting a mechanic's lien upon defendant's property . . . when there was no signed contract or work orders and no delivery by plaintiff of the consumer rights brochure” as required by the Act. The Court found that Plaintiff had entered into a valid oral contract with Defendants and had tendered written, itemized work orders for approval before performing any work, which created a right to a mechanic's lien. Furthermore, there is no language in the Act that that invalidates an oral agreement in the absence of a signed contract or failure to provide the consumer rights brochure. The Court pointed out that a contract is unenforceable under that Act only when the subject matter or purpose of the contract violated the law. As such, the Court reversed the lower court's ruling and remanded the case for further proceedings.

Continue reading "Appellate Court Holds Mechanics Lien Pursuant to an Oral Contract Valid Under Home Repair and Remodeling Act" »

Continue reading "Video -- Luxury Used Car Dealer Arrested for Consumer Fraud" »

A recent federal court decision our firm litigated provides insight into a party's duty in e-discovery in federal court cases. The Court noted that all parties must make a thorough search of all computers in response to e-discovery requests. The Court entered sanctions against the defendant RV dealer and its owner for failing to comply with their obligations under Rule 26 of the Federal Rules of Civil Procedure to make a thorough electronic search of all computers utilizing search engines as opposed to simply producing what appeared in readily viewed files in the computers.

The case IWOI, LLC v. Monaco Coach Corp. and Barrington Motors Sales is pending in the Federal Court for the Northern District of Illinois. Plaintiff claims that Defendants violated the Magnuson Moss Warranty Act and the Illinois Consumer Fraud and Deceptive Business Practices Act by selling it a Monaco RV costing hundreds of thousands of dollars which allegedly had a preexisting "bump steer" problem. Defendants denied these allegations and claimed there was no "bump steer" problem or if there was such a problem it was a minor nuisance that didn't give rise to safety concerns.

After some discovery irregularities, Plaintiff obtained the right to have it own forensic computer expert Daniel Stratton to search Defendants' computers for withheld or missing documents. The motion for sanctions and other relief centers on what the Plaintiff found as a result of its expert's search.

Stratton discovered an e-mail from defendant Barrington Motor Sales' president Sean Bransky to Adam Gudger, the sales manager of defendant Monaco Coach Corporation (“Monaco Coach”). In support of Plaintiff's sanctions motion, Stratton attested in an affidavit that the email could have been located through an ordinary word search using the native search engine in the Windows operating system.

In the May 26, 2006 e-mail, Bransky describes the problems with the motor home that his dealership experienced when the motor home was driven:

The main issue is the drivability of the coach. When it arrived, we drove it and it did not drive like any other Beaver we've driven. It was very difficult to keep the road and a tremendous amount of bump steer. Also, there was a terrible clunking when the suspension moved up and down. We sent it to the frame/suspension specialists (Champion Frame align) and they said the trailing arms hit the frame at the front brackets when the vehicle dips with the air spring set at 10.5″. When they adjust the springs to 11.5,” the trailing arms don't hit but the bump steer increases to the point where it is hardly driveable.

We called Monaco and spoke with Taylor Spike who was very prompt and concerned about the issues. He sent out a factory chassis specialist from Indiana whose name was Randy. Randy spent a day and a half trying to figure this one out. He cured the trailing arm issue that was hitting the frame, but cannot cure the bump steer issue. There is still a large amount of clunking and banging under the coach when it is driven but he did not know what it was. He left back to Indiana today saying coach is still bad and does not know what to do except for trying heavier shocks and air limitors from the front air bags.

In awarding sanctions for Defendants' failure to produce this email, the Court found that:

The relevance of this document is obvious. Defendants, in their opposition to the motion for sanctions, spend a great deal of time explaining how this e-mail does not contradict Mr. Bransky's deposition testimony. That question ultimately is not for this Court to resolve. We note, however, that in his testimony, Mr. Bransky categorically denied that his dealership knew that the motor home had a bump steer problem and stated that even if such a problem existed, it did not present a safety issue. Both of these assertions seem, at least in part, to be contradicted by this e-mail message.

In concluding that Defendants should pay half the cost of Plaintiffs' expert as a sanction for failing to produce this one email the Court reasoned:

To claim now that plaintiff is at fault for not telling defendants how to search their computer system is specious. Defendants were on notice that plaintiff believed the production was inadequate and apparently did nothing further to locate additional electronic discovery until plaintiff forced the issue.The burden is not on plaintiff to figure out what relevant information might be stored on defendants' computers. Federal Rule of Civil Procedure 26(b)(1) states plainly that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.” .. The Rule, thus, places the burden on the party responding to discovery to identify whether there may be materials responsive to discovery requests that are stored on its system, but because of burden or cost are not reasonably accessible. In this case, that did not happen. Instead, defendants apparently pulled only materials that were still available on employees' desktops and made no effort, at least not one that has been explained to this Court, to look any further, even when they became aware that there was a possibility that there may be missing documents. Although Mr. Bransky may not have the necessary expertise to have found the document—which was not on a back-up tape or in other more remote storage but, instead, was on his own hard drive, as well as on defendants' network server—defendants were obligated to search those drives more throughly than they apparently did or explain why such a search would be too burdensome, costly or difficult and, therefore, should be excused.

You can view the full opinion by clicking here.

Continue reading "RV Dealer Sanctioned For Failing to Perform Adequate E-Mail Search of Computers in Discovery in Federal Court Lawsuit" »

DiTommaso-Lubin prosecutes consumer protection class-action lawsuits on a regular basis, and in order to best serve our present and future clients, we are always mindful of new Illinois cases in the field. Howard v. Chicago Transit Authority is a consumer rights decision from the Appellate Court of Illinois that our attorneys found in the course of their research.

Howard v. Chicago Transit Authority is a case between those who ride public transportation in Chicago and the Chicago Transit Authority (CTA). Initially, the named Plaintiff started the litigation because of Defendant CTA's policy of allowing the transit cards needed to ride on Defendant's transit system to expire one year after the cards are issued. The named Plaintiff had purchased such a card, and when that card expired, he lost the remaining balance on his card. After discovering that he had lost the money on the card, Plaintiff filed a putative class-action lawsuit, alleging violations of the Consumer Fraud and Deceptive Business Practices Act and the Uniform Deceptive Trade Practices Act. Defendant then filed a motion to dismiss, which was granted by the trial court. Plaintiffs then appealed the lower court's dismissal.

The Appellate Court reviewed the trial court's dismissal de novo and examined the reasoning used by the lower court's decision. The case was dismissed by the trial court because Defendant successfully argued that Plaintiff's claims could not stand due to the terms and conditions of the card. These terms and conditions clearly stated that the transit card had an expiration date and could not be redeemed for cash, replaced, or refunded. Additionally, upon purchase of the transit card, the Court held that Plaintiff had entered into a valid contract of carriage and therefore Defendant had committed no wrongful conduct. Plaintiff claimed that the terms and conditions of the card referred only to the use of the card itself and not the use of money placed on the card. The Court disagreed and upheld the trial court's ruling that use of the card was part and parcel of using the money on the card. The Court went on to state that “the terms on a fare pass are incorporated into the carrier's contract for carriage and are enforceable as written.” Thus, because the contract for carriage contained the expiration clause and Plaintiffs accepted those terms, the contract was valid and the suit was properly dismissed.

Continue reading "Court Rules that Expiration of Public Transit Passes is Legal" »

Judge Allows Redlining Suits to Proceed
Two cases, one stemming from practices in Memphis and another in Baltimore, accuse Wells Fargo of steering black clients to expensive subprime loans.

The Article reports:

“The City of Memphis and Shelby County have not alleged that Wells Fargo lending practices resulted in a host of social and political ills plaguing entire sections of the community,” Judge Anderson wrote in a 32-page order. “Rather plaintiffs contend that defendants have targeted individual property owners with specific lending practices (reverse redlining), resulting in specific effects (foreclosures and vacancies) at specific properties, which in turn created specific costs (services and tax revenue) for local government.”

Judge Anderson’s ruling came two weeks after Judge J. Frederick Motz, of Federal District Court in Maryland denied Wells Fargo’s attempt to dismiss a similar lawsuit brought by the mayor and city council of Baltimore. Two previous versions of that lawsuit, claiming reverse redlining, in which the bank steered African-Americans toward more predatory loans, had been dismissed by the court

Continue reading "New York Times Reports: "Judge Allows Redlining Suits to Proceed"" »

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Posted In: Chicago Class Action Attorneys , Chicago Consumer Attorneys , Class-Action , Consumer Fraud/Consumer Protection , Consumer Protection Laws

We bring suit for odometer fraud and other car dealer scams such as selling rebuilt wrecks as certified used cars. Super Lawyers has selected our DuPage and Cook County auto-fraud and lemon law attorneys as among the top 5% in Illinois. We only collect our fee if we win or settle your case. We recently settled a used car fraud case for $100,000 for a $9,000 car that was three cars welded together. Our co-counsel in auto-fraud cases has achieved two six figure punitive damages awards in the last year against Illinois car dealers. For a free consultation call us at our toll free number (877) 990-4990 or contact us on the web by clicking here.

We bring suit for odometer fraud and other car dealer scams such as selling rebuilt wrecks as certified used cars. Super Lawyers has selected our DuPage and Cook County auto-fraud and lemon law attorneys as among the top 5% in Illinois. We only collect our fee if we win or settle your case. For a free consultation call us at our toll free number (877) 990-4990 or contact us on the web by clicking here.

We bring suit for odometer fraud and other car dealer scams such as selling rebuilt wrecks as certified used cars. Super Lawyers has selected our DuPage and Cook County auto-fraud and lemon law attorneys as among the top 5% in Illinois. We only collect our fee if we win or settle your case. For a free consultation call us at our toll free number (877) 990-4990 or contact us on the web by clicking here.

When dealing with businesses, you have a right to expect that they will deal with you in an honest and forthright manner, but when they don't, Illinois and Federal laws exist to provide consumers with legal recourse. DiTommaso-Lubin's consumer rights practice group deals with consumer fraud and misrepresentation claims every day, and we are always tracking changes in the law. Recently, the Appellate Court of Illinois ruled on a case concerning possible violations of the Consumer Fraud and Deceptive Business Practices Act.

In Griffith v. PS Illinois Trust, Plaintiff initially stored several personal items in a commercial storage facility operated by Defendant. During the time that Plaintiff's items were in storage, Defendant allegedly “repeatedly bungled the automatic billing for storage of the property, improperly converted and sold the property” and then created a fictitious lien notice to legitimize its actions. Plaintiff filed suit for compensatory and punitive damages, and received a favorable verdict from the trial court. Defendant then appealed the lower court's ruling on several grounds, including claims that Plaintiff was improperly granted a double recovery, that damages should not have exceeded $5,000, and that the judgment under the Consumer Fraud Act should be reversed.

The Court first addressed Defendant's assertion that Plaintiffs received a double recovery when Plaintiff received compensatory damages for both a conversion claim and an Act violation claim. In upholding the trial court's grant of damages on both causes of action, the Court found that there was no double recovery because the “cumulative compensatory damage award was merely equivalent to the value of the lost property.” The Court then declined to uphold the damages limitation clause contained within the parties' original agreement because Defendant had committed an intentional act (conversion) which made the clause unconscionable and contrary to public policy. Finally, the Court upheld the trial court's finding of liability under the Consumer Fraud Act because there was clear support in the record that Defendant acted unfairly and deceitfully in its dealings with Plaintiff.

Continue reading "Court Upholds Judgment Against Public Storage Facility for Consumer Fraud Act Violations" »

Below is a video describing that common practice of deceiving used car buyers into purchasing a rebuilt wreck.

If you have already fallen victim to this scam or other used car frauds our Chicago lemon law and auto fraud lawyers may be able to assist you.

Our Chicago auto-fraud attorneys focus on bringing suit for auto-fraud claims. We recently settled a suit involving purchase of $9,000 used car that was in reality 3 different cars welded together for $100,000. Our fees come from the recovery and we only get paid if we win or settle your case. We have obtained similar large six figure or near six figure settlements for clients who purchased certified used cars that in fact were rebuilt wrecks. Many automobile manufacturers will not stand behind their used car certifications and blame the car dealer fro certifying a used car that is a rebuilt wreck but which was nevertheless certified in the manufacturer's name.

If you believe you purchased a motorcycle, car, rv or other product that is a lemon, have been a victim of auto fraud, auto dealer fraud, auto repair fraud or have been deceived into buying a flood car, rebuilt wreck or 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 in the Chicago area or anywhere in the country. For a free consultation on your rights as an employee, contact us today.

Our Auto Dealer Fraud, Auto Repair Fraud Auto Fraud, RV Fraud, Motorcycle 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 Naperville and Oakbrook 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 Wheaton area consumer rights, predatory lending or consumer protection lawyers who can assist in auto dealer fraud, auto repair fraud, 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.

To Get In, Push Buttons, or Maybe Swipe a Magnet
By JOHN SCHWARTZ
Published: March 26, 2011
A lawsuit argues that push-button locks are easily, and discreetly, foiled, accuse Kaba of deceptive trade practices, common-law fraud, negligence and product liability.

To read the full article click here.

You can link to a video showing how easily Kaba locks allegedly can be by-passed with a magent at this blog site by clicking here.

Continue reading "New York Times Reports on Class-Action Lawsuit Which Alleges that Kaba Push Button Locks Are Susceptible to a Magnet Opening Them" »

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Visit msnbc.com for breaking news, world news, and news about the economy

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The Chicago Tribune Reports that aggressive debt collectors are clogging the Cook Courts with many new debt claims and that their poor record keeping practices and other missteps are resulting in judgments sometimes entering for debts that have already been repaid. You can read the full article by clicking here.

Continue reading "Chicago Tribune Reports: "Debt Collectors Pushing to Get Their Day in Court -- More aggressive strategies fill court dockets, result in mistaken identities"" »

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