Chicago Business Litigation Lawyer Blog

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.

Continue reading "Attorney Fees Not Available When Failure to Provide Home Repair Pamphlet Was Unintentional" »

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.

As Illinois consumer rights lawyers we are pleased to see that Illinois Attorney General LIsa Madigan maintains an extensive website with many resources to provide information on important consumer rip-offs and ways for consumers to protect themselves. The website contains links to many publications and articles on consumer rights topics such as id theft, autobuying finance and repair, and consumer alerts and warnings. The website also provides access to consumer complaint forms to file with the Attorney General.

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

Our Naperville, Evantston, Aurora, Waukegan, Joliet, Elgin, Highland Park, Northbrook, Wilmette, Wheaton, Oak Brook, and Chicago consumer lawyers provide assistance in fair debt collection, consumer fraud and consumer rights cases including in Illinois and throughout the country. You can click here to see a description of the some of the many individual and class-action consumer cases we have handled. A video of our lawsuit which helped ensure more fan friendly security at Wrigley Field can be found here. You can contact one of our Chicago area consumer protection lawyers who can assist in lemon law, unfair debt collection, junk fax, prerecorded telephone solicitations, and other consumer, consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

One of the best websites to learn about consumer law issues Is the Illinois Attorney General's website. The site contains numerous links to useful consumer protection warnings and links to other top consumer websites. The Illinois Attorney General also provides forms for filing consumer fraud complaints with the Attorney General.

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

Our Naperville, Aurora, Waukegan, Joliet, Elgin, Highland Park, Northbrook, Wilmette, Wheaton, Oak Brook, and Chicago consumer lawyers provide assistance in 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 protection lawyers who can assist in lemon law, unfair debt collection, junk fax, prerecorded telephone solicitations, and other consumer, consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

DiTommaso-Lubin’s auto fraud, lemon law, and consumer fraud trial lawyers were impressed by a recent First District Court of Appeals ruling against the credit arm of General Motors for a wrongful repossession. The court said a trial court was correct to rule that General Motors Acceptance Corporation acted unfairly when it repossessed a truck in violation of its agreement with the owner. In Demitro v. General Motors Acceptance Corporation, No. 1-06-3417 (Ill. 1st. Feb. 9, 2009), the appeals court declined to overturn a Cook County trial court ruling that GMAC violated the Illinois Consumer Fraud and Deceptive Business Practices Act.

Demitro purchased a Chevrolet Suburban in 2002 and had no trouble making payments until 2003, when he underwent surgery and went on disability in May of 2003. His payment checks for June and July of that year bounced, and in August, he spoke with a GMAC representative who told him so. The next day, Demitro called GMAC and authorized about one month’s payment to be deducted from his checking account. The GMAC representative then called a repossession agency that had already been authorized to take Demitro’s truck and put the repossession on hold. The representative sent Demitro a letter giving him seven days to make the back payments and keep his account current. After that time expired, it said, GM could exercise its right to repossess the truck.

On the very next day, Demitro awoke to discover that his truck had been repossessed. The GMAC representative was notified. He acknowledged that the repossession was a mistake and a violation of the seven-day extension in the letter, but nonetheless recommended to management that they keep the truck. They did, and informed Demitro that he was now liable for repossession charges of $39,695.04 as well as the outstanding balance on his account. Unable to get to the bank, Demitro informed GMAC that his telephone payment would bounce. GMAC later withdrew that payment from his account after he had added more money, but failed to credit him for the payment.

Demitro offered to pay his entire account balance, minus the repossession charges, before the seven-day period was up, but the offer was refused. GMAC sold the repossessed truck, applied the proceeds to Demitro’s payment plan, and held Demitro legally responsible for paying the remainder, as well as repossession and sales costs. Demitro sued and the parties filed cross-motions for summary judgment. After a hearing, the trial court granted him summary judgment on his Consumer Fraud Act claim, saying GMAC violated the law by retaining the repossessed vehicle in violation of the seven-day extension letter. He was granted actual damages, attorney fees and costs totaling more than $61,000. GMAC appealed.

The First District started with GMAC’s argument that no evidence of a Consumer Fraud Act violation existed. The act requires that the defendant’s conduct was deceptive or unfair, that consumers relied on it and that it happened during trade or commerce. Demitro’s suit claimed GMAC’s conduct in violating its seven-day extension was unfair because it was oppressive. Noting that the facts were not in dispute, the appeals court agreed. GMAC did not merely breach a contract, as it argued, because its behavior raised consumer protection concerns.

GMAC also argued that it was entitled to repossess because Demitro’s telephone payment bounced, either because he defaulted under the agreement or because that action was a repudiation of the contract. In either case, the court wrote, Demitro still had six days under the letter to bring his account current, and made multiple statements showing he intended to do so. In fact, the judges wrote, the undisputed facts show that GMAC prevented Demitro from meeting the terms of the extension by refusing to accept his offer of payment in full by the deadline.

Finally, the court rejected multiple arguments by GMAC that the large attorney fees award was unreasonable, since GMAC never requested a hearing on the matter and “vigorously contested all issues.” It upheld the trial court in all respects and remanded the case for consideration of an additional attorney fees award for Demitro for the appeal.

The Chicago consumer rights litigation firm of DiTommaso-Lubin represents consumers like Demitro who have been victims of auto dealer finance fraud by an auto company or a lender. Based in Chicago and Oakbrook Terrace, Ill., we represent consumers all over the Chicago area including in Naperville, Wheaton and Aurora who were harmed financially by misconduct by a business including car dealers and automobile finance companies. If you’re a victim of these unfair business practices and you’re ready to fight back, please contact us to set up a free consultation.

New York Attorney General Andrew Cuomo entered into a 50 million dollar settlement with health insurance carriers for alleged deceptive setting of "usual, customary and reasonable and rates" for out of net work health care providers through use of a conflicted rating agency owned by an insurance company. A news story on the settlement is below:

Our private law firm is investigating alleged deceptive use by health insurance companies of bogus low ball out of net work rates to avoid paying for needed health care and is considering filing consumer fraud class actions on behalf of victims of this practice.

Class action lawsuits our firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs. DiTommaso-Lubin is proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers' rights are protected from corporate misdeeds.

Our Naperville, Waukegan, Aurora, Wheaton, Oak Brook, and Chicago consumer attorneys provide assistance in 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 lawyers here who can assist in health insurance fraud, unfair debt collection, junk fax and other consumer, consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

The website for the United States Postal Service outlines many tips to avoid becoming a victim of mail fraud or ponzi schemes or indentity theft. You can click here to link to the website. The website has this to say about investment fraud and ponzi schemes:

Investment Fraud (Ponzi Schemes) Fraudulent investment schemes are often marketed by telephone salespersons armed with high pressure and sophisticated selling techniques. Some swindlers surround themselves with the trappings of legitimacy -- rented office space, a receptionist, investment counselors, and professionally designed color brochures describing the investment.

Seniors are a prime target for fraudulent investment schemes since many have saved a good amount of money for their retirement years. Fraudulent schemes require you to invest your money -- often lots of it. Most promise you either a large increase in the value of your investment or higher-than-market interest on your capital, or both.

These schemes are fraught with danger: in most cases, you will never again see the funds you invested. And you may not even receive the promised interest. If you do receive interest, you will often be paid late. Often, unbeknownst to you, your interest will be paid from the investments of others who are newly brought into the program in order to keep it alive. The swindler hopes these payments will allay any suspicions you might have as to the strength of your investment.

If answers to any of the following questions are yes, you may be dealing with a swindler who wants you to put money in to a fraudulent investment:

Does the salesperson make it sound as you can't lose?

Are you promised an unusually high rate of return or interest payment on your capital?

Are you pressured to make a decision immediately or within a short period of time because new investment units "are selling fast?"

Does the salesman have any prior successful experience in the investment area he is promoting?
Protect yourself. Be suspicious of any deal that promises fantastic return at little risk. Know whom you are dealing with. If you are not sure, check the company's reputation with your local Better Business Bureau, Postal Inspector's Office, or District Attorney's Consumer Protection Unit. Protect your retirement nest egg. If you've been the victim of an investment fraud where the mail was used, contact your local postmaster or the nearest Postal Inspector.

An informative video interview of US Postal Inspector Wanda Shipp provides additional insights for avoiding mail and investment fraud scams which are often targeted at senior citizens:

The Postal Inspection Service's website states that Postal Inspectors base investigations of mail fraud on the number, pattern, and substance of complaints received from the public. The Postal Inspection Service carefully reviews the information you provide. It may share the information with other agencies when there is a possible violation within their jurisdiction. If you feel you've been victimized in a fraud scheme that involves the U.S. Mail, submit a Mail Fraud Complaint Form to the U.S. Postal Inspection Service by clicking here to link to that webpage.

The Postal Service states that If money is lost through a fraudulent scheme conducted via the mail, Inspectors lack the authority to ensure you receive a refund and can’t require that products, services, or advertisements--on the Internet or elsewhere--be altered.

If you are a victim of mail fraud, investment fraud, investment broker fraud, a ponzi scheme, other forms of consumer fraud, unfair debt collection practices, or purchased a lemon automobile, rv or boat our Illinois based consumer fraud and class-action private sector lawyers may be able to assist you obtaining redress if the U.S. Postal Inspection Service, FTC, Illinois Attorney General or other government agency is unable to help you get your money back.

Class action lawsuits our firm has been involved in or spear-headed have led to very large consumer recoveries and in addition substantial awards totalling over a million dollars going to national and local consumer rights 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 organizations and law school legal aid clinics obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers' rights are protected from corporate misdeeds.

Our Naperville, Waukegan, Wilmette,Wheaton, Oak Brook, and Chicago consumer attorneys provide assistance in 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 protection lawyers here who can assist in lemon law, tele-marketing fraud, infomercial scams and frauds, unfair debt collection, junk fax, pre-recorded telephone solicitations, and other consumer, consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

The below video provides useful tips for avoiding internet fraud when purchasing a car online:

Our Naperville, Wheaton, Oak Brook, and Chicago consumer attorneys provide assistance in lemon law, breach of warranty auto-dealer, auto-fraud, RV fraud, and boat fraud cases. Click here to review examples of some of the consumer fraud and class action cases we have litigated. We represent consumers in cases where the sellers have concealed that cars, Rvs or boats have been in serious accidents, in a flood or have other hidden defects which the sellers concealed at the time of sale. We also litigate many other types of consumer fraud and consumer rights cases 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.

Class action lawsuits our firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs. DiTommaso-Lubin is proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers' rights are protected from corporate misdeeds.

You can contact one of our Chicago area consumer protection lawyers here who can assist in lemon law, unfair debt collection, junk fax, prerecorded telephone solicitations, and other consumer, consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

One of the best websites especially for lawyers to learn about consumer law issues and to review first rate legal briefs prepared by the top attorneys in the country who specialize in consumer rights issues is the website of Trial Lawyers for Public Justice.

The website contains a section with briefs prepared by Trial Lawyers for Public Justice on a number of important consumer law issues that have nation impact. You can click here to look at that section and read any of the briefs contained in that section. The website also has a page with descriptions of some key cases and landmark consumer rights victories by Trial Lawyers for Public Justice.

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

Our Naperville, Aurora, Waukegan, Joliet, Northbrook, Wilmette, Wheaton, Oak Brook, and Chicago consumer attorneys provide assistance in 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 protection lawyers here who can assist in lemon law, unfair debt collection, junk fax, prerecorded telephone solicitations, and other consumer, consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

If you believe you are the victim of a consumer fraud or scam that is harming many other individuals you should file a report with the Federal Trade Commission. The FTC maintains a Consumer Sentinel database which can be used by law enforcement authorities all over the world to fight consumer fraud. Click here if you want to learn more about that database or want to make a complaint with the FTC.

The FTC has this to say about its Consumer Sentinel database:

Your complaints can help us detect patterns of wrong-doing, and lead to investigations and prosecutions. The FTC enters all complaints it receives into Consumer Sentinel, a secure online database that is used by thousands of civil and criminal law enforcement authorities worldwide. The FTC does not resolve individual consumer complaints.

The FTC works for the consumer to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them.

If you are a victim of consumer fraud, unfair debt collection practices, or purchased a lemon automobile, rv or boat our Illinois based consumer fraud and class-action private sector lawyers may be able to assist you obtaining redress if the FTC, Illinois Attorney General or other government agency is unable to help you get your money back.

Class action lawsuits our firm has been involved in or spear-headed have led to very large consumer recoveries and in addition substantial awards totalling over a million dollars going to national and local consumer rights 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 organizations and law school legal aid clinics obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers' rights are protected from corporate misdeeds.

Our Naperville, Waukegan, Wilmette,Wheaton, Oak Brook, and Chicago consumer attorneys provide assistance in 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 protection lawyers here who can assist in lemon law, tele-marketing fraud, infomercial scams and frauds, unfair debt collection, junk fax, pre-recorded telephone solicitations, and other consumer, consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

One of the best websites to learn about consumer law issues and to find lawyers who specialize in consumer rights issues is the website of the National Association of Consumer Advocates.

The website contains numerous links to sections on Auto Fraud, Lemon Law, Predatory Lending Practices, Credit Reporting Problems and Debt Collection Abuse.

Class action lawsuits our firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs. DiTommaso-Lubin is proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers' rights are protected from corporate misdeeds.

Our Naperville, Wheaton, Oak Brook, and Chicago consumer attorneys provide assistance in 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 protection lawyers here who can assist in lemon law, unfair debt collection, junk fax, prerecorded telephone solicitations, and other consumer, consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

In a consumer fraud class action, the Fifth District Court of Appeal has ruled that consumers may sue over a manufacturer's intentional suppression of important facts, even when when disclosure of the hidden information would have alerted the consumer to the product's dangers and caused the consumer not to purchase the product. In De Bouse v. Bayer, 5-06-0077 (Oct. 9, 2008), plaintiff Teresa De Bouse filed a proposed class action against pharmaceutical companies Bayer and GlaxoSmithKline, as well as several individuals, alleging that they violated the Illinois Consumer Fraud and Deceptive Business Practices Act by intentionally concealing information casting doubt on the safety and efficacy of the statin drug Baycor.

This is actually the second appellate decision in De Bouse; the Illinois Supreme Court had returned it to the appeals court with instructions to reconsider it in light of a contemporary decision on the Consumer Fraud Act called Barbara's Sales v. Intel Corp., 227 Ill. 2d 45, 879 N.E.2d 910 (2007). In that case, the state Supreme Court held that claims that a product was "the best" was "puffing" (routine exaggeration by advertisers) and did not amount to deception. Thus, a deceptive advertising campaign was not enough to violate the Consumer Fraud Act in this case, the Supreme Court ruled. The Fifth District, on remand, pointed out that while the drug makers were accused of a deceptive advertising campaign, their campaign was not "puffing" and involved alleged suppression of material facts so Barbara's Sales did not apply.

The original appeal to the appeals court came with three certified questions:
1. May a consumer who bought a drug that was later recalled for safety reasons bring a Consumer Fraud Act case, even if she was not directly marketed to?
2. Is offering a drug for sale an implicit representation that it's safe, under Illinois law, such that the manufacturer is liable under the Consumer Fraud Act?
3. Are omissions or fraudulent statements, made to a third party but intended to influence a consumer's decisions, enough to support a Consumer Fraud Act claim?

On remand, the appeals court pointed out that the drug makers in this case are accused of indirect deception -- that is, deception of a decision-maker that the plaintiff trusted, her doctor -- and deception by silence or concealment. The state Supreme Court has ruled that both are forms of fraud under the Consumer Fraud Act, the appeals court said, and thus it can answer yes to questions one and three. It declined to answer question two because it mixes questions of fact and law, which is impermissible under Illinois Supreme Court Rule 308(a). Finally, the appeals court denied the defendant's appeal of class certification as untimely, despite a clerical error that delayed notice of the certification. The remainder of the case was remanded to the trial court. Justice Welch, dissenting, argued that defendants should have been granted summary judgment because the plaintiff has admitted that she was not directly deceived.

Based in Chicago and Oak Brook, Ill., DiTommaso-Lubin protects consumers' rights in health care product fraud cases and class action lawsuits. If you've been harmed by a defective prescription drug or other health product and you'd like to learn more about your legal options, please contact our Chicago class action lawyers and consumer attorneys today for a free consultation.

The National Consumers League's Fraud Center is one of the best informational websites on the internet to learn about consumer rights and protection issues. Informed consumers are best armed to protect themselves from consumer scams and consumer frauds. The website contains sections for Telemarketing Fraud, Internet Fraud, Scams Against Businesses, Scams Against Elderly, Counterfeit Drugs, and a Fraud News section.

DiTommaso-Lubin is a private consumer rights law firm who associates with other law firms around the country that can help you recover funds lost due to fraud against brick and mortar companies in the United States with assets. All too often with many internet and telemarketing frauds this may not be possible as the scam artists may be overseas, hard to locate or without assets.

Class action lawsuits our firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs. DiTommaso-Lubin is proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers' rights are protected from corporate misdeeds.

Our Naperville, Waukegan, Wilmette, Wheaton, Oak Brook, and Chicago consumer attorneys provide assistance in 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 protection lawyers here who can assist in lemon law, unfair debt collection, junk fax, prerecorded telephone solicitations, and other consumer, consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

The Federal Trade Commission ("FTC") website provides useful information regarding recognizing telephone and telemarketing frauds.
The website states:

Who’s Calling? Recognize & Report Phone Fraud Recognize Phone Fraud Every sales call you get by phone is an opportunity for a gut check: Ask yourself these questions — and if the answers give you some doubt about the caller’s intentions or methods, end the call.

Who’s calling — and why? Telemarketers must tell you it’s a sales call, the name of the seller and what they’re selling before they make their pitch. If they don’t, say “no thanks,” and get off the phone.

What’s their hurry? Fast talkers who use high pressure tactics could be hiding something. Take your time. Most legitimate businesses will give you time and written information about an offer before asking you to commit to a purchase.

If it’s free, why are they asking me to pay? Question charges you need to pay to redeem a prize or gift. Free is free. If you have to pay, it's a purchase - not a prize or a gift.

Why am I “confirming” my account information — or giving it out at all? Some callers have your billing information before they call you. They’re trying to get you to say “okay” so they can claim you approved a charge.

What time is it? The law allows telemarketers to call only between 8 am and 9 pm. A seller calling earlier or later is flouting the law.

Do I want more calls like this one? If you don’t want a business to call you again, say so. If they call back, they’re breaking the law.

Report Phone Fraud
Recognizing fraudulent callers is important; reporting them to the appropriate law enforcement authorities is critical, too. When you report, you can help stop telephone scammers. Report telephone hucksters to the FTC and your state Attorney General so they can prosecute fraudulent telemarketers who try to steal your money.

If your number is on the National Do Not Call Registry, you should get calls only from those companies with which you do business — or those that have your permission to call. If you get calls from a company you don’t have a relationship with — or from a company you have told not to call you — report it. Jot down the name and number of the caller, and the date and time of the call.

To report phone fraud, visit FTC.gov or call 1-877-FTC-HELP.

To report violations of the National Do Not Call Registry, visit DoNotCall.gov or call 1-888-382-1222.

Your complaint is entered into the Consumer Sentinel Network, a database that is used by law enforcement agencies across the country and around the world. It can help them track down scam artists, detect patterns in their calls, find other victims, and ultimately, stop the fraud.

Register Your Number
You can limit the number of telemarketing calls you receive by placing your phone number on the National Do Not Call Registry. Once your number is registered, feel free to hang up if you get a cold call from a company with which you don't already do business — or report it!

You can register your phone number at DoNotCall.gov, or by calling 1-888-382-1222 (TTY: 1-866-290-4236) from the number you wish to register. If you register online, you must click on the confirmation email you receive to complete your free registration.

Your registration will not expire. Your number is on the list until you take it off, or your number is disconnected and re-assigned to someone else.

Placing your number on the Registry stops most telemarketing calls, but not all. Once your number has been on the Registry for 31 days, you still may get calls from, or on behalf of:

Political organizations, charities, and pollsters

Companies with whom you have an existing business relationship
Companies you’ve given permission to call
Companies that you do business with may call for 18 months. If you ask a company for information, it may call for three months.

The Registry accepts personal cell phone and home phone numbers. Federal Communications Commission regulations prohibit the use of automated dialers to call cell phone numbers, so most telemarketers won’t cold-call consumers on their cell phones – despite urban myths and emails to the contrary.

Telemarketing fraud is a crime.
Professional criminals posing as legitimate telemarketers try to worm their way into your wallet. They are very good at what they do: their “pitch” is perfect, their tone is friendly and sincere, and their answers to your questions seem to make sense. It’s no wonder that consumers, regardless of their age, education or experience, can fall for telemarketing frauds.

By learning how to recognize and report telephone fraud, you can help stop some scams – and if you put your phone numbers on the National Do Not Call Registry, you can reduce the number of unwanted telemarketing calls you get.

Check ftc.gov/phonefraud for information about:

Buying Club Memberships
Charities and Fundraising
Credit & Loan Offers
Government Grant Scams
Identity Theft & Telemarketing
Medical Discounts Plans
Reloading Scams
Sweepstakes & Lotteries
Travel Scams
Work-at-Home & Business Opportunities
To learn more about how to recognize and report phone fraud, and how to place your phone number on the National Do Not Call Registry, go to ftc.gov/phonefraud.

The FTC works for the consumer to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them.

If you are a victim of telephone fraud or a telemarketing scam our Illinois based consumer fraud and class-action private sector lawyers may be able to assist you obtaining redress if the FTC, Illinois Attorney General or other government agency is unable to help you get your money back.

Class action lawsuits our firm has been involved in or spear-headed have led to very large consumer recoveries and in addition substantial awards totalling over a million dollars going to national and local consumer rights 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 organizations and law school legal aid clinics obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers' rights are protected from corporate misdeeds.

Our Naperville, Waukegan, Wimette, Highland Park, Wheaton, Oak Brook, and Chicago consumer attorneys provide assistance in 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 protection lawyers here who can assist in lemon law, tele-marketing fraud, infomercial scams and frauds, unfair debt collection, junk fax, pre-recorded telephone solicitations, and other consumer, consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

One of the best websites to obtain information about consumer law topics and purchase consumer and lawyer oriented publications and books about consumer rights issues is the website of the National Consumer Law Center.

A particularly well done book offered by the National Consumer Law Center is called Surviving Debt. It is a "how to" book that consumers can use to learn about their rights regarding matters such as unfair debt collection practices. The National Consumer Law Center provides a detailed description of the book.

The National Consumer Law Center describes Surviving Debt as follows:

This new edition contains strategies on:

Dealing with debt collectors
Saving your home or car
Which debts to pay first and common mistakes consumers make that can actually get them into even more trouble
Managing credit card debt
Stopping eviction, lockouts and utility shut-offs
When you should and should not worry about your credit rating
When to refinance
Student loan consolidation options
How to find effective credit counseling agencies
Alternatives to filing bankruptcy and more
And includes a detailed index, and list of helpful websites
You Have Many Important Consumer Rights

If you are having debt problems, you may feel overwhelmed and powerless. During periods of financial hardship, you may not have the resources to pay pressing debts, to meet family needs, and to get necessary legal help. You may feel helpless to fight debt collectors pressing you for payment or threatening to seize your home, car, or other possessions.

In writing this book, we hope to help you even the playing field, and to make the best choices possible despite difficult financial circumstances. We will explain which debts you can ignore for a period of time while you get back on your feet. When you cannot ignore a particular debt without serious consequences, such as foreclosure or repossession, this book sets out helpful options to deal with these problems, both in the short term and the long run.

This book also explains your rights as a consumer. You are not powerless. Many federal and state laws are designed to provide help to people facing financial problems. These include protection against abusive debt collectors, relief from unfair business practices, limits on wage garnishments and seizures of property, and the right to eliminate many obligations in bankruptcy. In most cases, however, you need to know about your rights in order to exercise them. This book attempts both to explain these rights and tell you when and how to utilize them.

Class action lawsuits our firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs. DiTommaso-Lubin is proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers' rights are protected from corporate misdeeds.

Our Naperville, Aurora, Elgin, Wilmette, Highland Park, Waukegan, Wheaton, Oak Brook, and Chicago consumer attorneys provide assistance in 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 protection lawyers here who can assist in lemon law, unfair debt collection, junk fax, prerecorded telephone solicitations, and other consumer, consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

As Illinois and Chicago area consumer rights attorneys with a substantial auto dealer fraud and lemon law practice, we were pleased that a federal district court ruled in October that a manufacturer may be held liable for a dealer's implied warranty under the Magnuson-Moss Warranty Act. Semitekol v. Monaco Coach Corporation, No. 06 C 6424 (Oct. 21, 2008), is an RV dealer fraud case pending in the Northern District of Illinois. The plaintiffs, a married couple, purchased a Monaco motor home from an RV dealer, Barrington Motor Sales. The motor home turned out to have electrical problems, a malfunctioning air-conditioner and heating problems. Numerous attempts to fix it were unsuccessful, and the motor home spent 180 of the 341 days they owned it in repair shops before the couple revoked its acceptance of the motor home.

The couple sued Monaco, among others, alleging that it breached its own written warranty, the federal Magnuson-Moss Warranty Act and the implied warranty of merchantability created by Illinois law. Monaco moved to dismiss the implied warranty allegation, arguing that Illinois law requires direct contact between a buyer and seller to create an implied warranty. In this case, the manufacturer pointed out, Barrington Motor Sales was the actual seller of the Monaco motor home. The plaintiffs responded by arguing that direct contact in this case was established by BMS's advertising and actual status as an "authorized Beaver Monaco dealership"; the fact that Monaco referred customers to BMS to deal with problems and customer service concerns; consumers' ability to find and contact BMS through Monaco's Web site; BMS's authorization to distribute Monaco publications; and the fact that plaintiffs had the option of picking up their new motor home at either company.

In its analysis, the district court agreed that BMS was acting as Monaco's agent. It dismissed arguments that past caselaw does not support such a finding, pointing out that unlike the current plaintiffs, none of the plaintiffs in the cases the defense cited showed any evidence for an agency relationship. The court did not agree that there actually was an agency relationship, or even that an agency relationship is enough to establish the direct contact necessary to prove an implied warranty under Illinois law. Rather, it pointed out that these are questions of fact that are improper to resolve with a motion to dismiss. Thus, the motion was denied. Dismissal motions by BMS and two parts manufacturers also failed.

Based in Chicago and in Oak Brook, Ill., DiTommaso-Lubin handles auto dealer and motor home dealer fraud and other consumer fraud litigation for clients in Wheaton, Naperville,Waukegan, Joliet, Aurora, Elgin 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 by an auto dealer or other business, please contact us as soon as possible to learn about your rights at a free consultation.

As Chicago class action attorneys, our firm has been able to help many Illinois tenants protect their rights under a special state law that not every renter knows about. The Illinois Security Deposit Interest Act requires many Illinois landlords to pay their renters the interest on security deposits. The law applies to landlords of buildings with 25 or more rental units, and to deposits held six months or more. Under those circumstances, the law requires landlords to pay interest on security deposits once a year, after the end of the yearly rental agreement, except when the renter owed unpaid rent. Landlords who willfully fail to do this can be sued for the amount of the withheld interest, as well as attorney fees and court costs.

That was the case in Wang v. Williams and Royal Rentals, 343 Ill.App.3d 495, 797 N.E.2d 179, 277 Ill.Dec. 832 (Sept. 10, 2003). Zhiyuan Wang of Carbondale sued his landlord, Royal Rentals, for failing to return his security deposit, failing to pay interest during the two years he rented from Royal, consumer fraud and breach of contract. The trial court dismissed his interest claim and his breach of contract claim, both of which were based on the Security Deposit Interest Act, because Wang's lease included a provision stating "TENANTS agree to waive right to interest on security deposit." Wang appealed to the Fifth District Court of Appeal.

On appeal, Royal Rentals argued that legal rights, including Wang's rights under the Security Deposit Interest Act, can be waived when the right in question is conferred only for the benefit of individuals rather than the public. The court found this unconvincing. It pointed out that the Security Deposit Interest Act protects the rights of renters, a class of people. In support, it cited several cases, including Gittleman v. Create, Inc., 189 Ill. App. 3d 199, 545 N.E.2d 237, 240 (1989), a similar case in which tenants sued their landlord for a security deposit refund and interest. That lease had a provision reading "It is understood that the security deposit is net of security deposit interest, if any." That court found for the tenants, saying the provision was intentionally vague about how interest should be paid and suggesting that the landlord used that vagueness to try to circumvent the Security Deposit Interest Act.

On the Wang case's breach of contract matter, the plaintiff pointed out that Illinois contracts incorporate relevant parts of Illinois law unless otherwise specified. Royal Rentals argued that Wang's lease didn't implicitly incorporate the Security Deposit Interest Act because it included explicit provisions to the contrary. However, the appeals court said, language in a lease may not supersede state law. Indeed, the Royal Rentals provision, which the court called "an apparent attempt to circumvent the Act," showed that interest on a security deposit is an essential element of a lease, it wrote. Thus, it reversed the trial court on both counts and remanded the case for trial.

This case is important because it establishes that renters cannot waive their rights under the Security Deposit Interest Act, and that renters are a protected class of people, rather than protected individuals. As Illinois tenants' rights lawyers, we believe those are important legal tools for renters seeking to protect their legal rights. At DiTommaso-Lubin, we handle tenants' rights cases as both individual cases and as class actions involving renters with complaints against the same landlord. If you think you may have a case under the Security Deposit Interest Act or another landlord-tenant law, you can contact our Chicago class action lawyers for a free consultation on your case and your rights.

As Chicago class action attorneys with a focus on consumer rights and consumer protection law, we know that renters in Chicago are fortunate to be protected by a law requiring landlords to pay interest on the renters' own security deposits once a year, as long as the tenant stays for more than six months. Section 080 of the Chicago Residential Landlord and Tenant Ordinance (PDF) also specifies that landlords must return security deposits, minus unpaid rent or reasonable costs of repairs, within 45 days of the tenant's departure. Unlike with the corresponding state law, this is true regardless of the number of units the landlord owns. If a landlord fails to comply, the tenant has the right to sue for twice the amount of the deposit, plus interest and attorneys' fees.

The ordinance also applies even if the landlord did not willfully (that is, intentionally) withhold the payment. That provision was established by the decision of the First District Court of Appeal in Lawrence v. Regent Realty Group, 307 Ill.App.3d 155, 717 N.E.2d 443, 240 Ill.Dec. 350 (1999). In that case, Aurelia Lawrence sued her landlord for withholding interest on a pet deposit. At trial, the court decided that a pet deposit is a security deposit for the purposes of the law (rather than a fee or charge). But because the landlord didn't willfully refuse to pay interest on that pet deposit, it declined to impose the penalty of twice the deposit plus interest and attorney fees. Lawrence moved for a new trial, which was denied, and appealed to the First District.

In its analysis, the appeals court noted that it did not need to decide whether the landlord actually did willfully fail to pay; what mattered was whether the ordinance required willfulness in the first place. In order to require willfulness, the court wrote, a law must be penal (intended to punish) rather than remedial (intended to make the victim whole). Both sides agreed that the case turned on the issue of penal versus remedial. The court first decided that its decision should not be controlled by Szpila v. Burke, 279 Ill. App. 3d 964, 665 N.E.2d 357 (1996), in which the appeals court decided that a tenant was entitled to damages once rather than for each separate violation of the ordinance. In that case, the First District said, it found willfulness because to do otherwise would give a result that was out of proportion to the violation and unjust. A similar case, Namur v. Habitat Co., 294 Ill. App. 3d 1007, 691 N.E.2d 782 (1998), was dismissed because it did not address the question at issue here.

In this case, the court looked to legislative intent to guide it as to whether the Landlord and Tenant Ordinance is remedial or penal. The plain language of Chicago Municipal Code sec. 5-12-010 states that the ordinance "shall be liberally construed ... to promote its purposes and policies," it noted. The court then cited an entire paragraph from Friedman v. Krupp Corp., 282 Ill. App. 3d 436, 668 N.E.2d 142 (1996), in which it had previously written that the ordinance is remedial, because the law itself says its purpose is to establish rights and obligations in the landlord-tenant relationship and to promote the public welfare. Viewing it as penal would undermine the goals of the ordinance, wrote the court. Thus, the appeals court remanded the case to trial court, with instructions to enter judgment for "double damages" plus interest for Lawrence, and to hold a hearing on attorneys' fees.

This decision established that tenants do not need to prove that a landlord willfully withheld the security deposit interest they're owed -- only that the landlord did so. This is an important tool for us as Chicago tenants' rights lawyers, because it allows us to pursue valid cases that might otherwise have been actiionable. From offices in Chicago and Oak Brook, DiTommaso-Lubin handles tenants' rights cases like this, both for individuals like Lawrence and as class actions that bring together neighbors harmed by the same landlord's illegal practices. If you believe your landlord has illegally withheld your security deposit or its interest and you'd like to pursue a claim, please contact our Oak Brook and Chicago class action lawyers for a free consultation outlining your legal options.

A consumer fraud case here in Chicago met an interesting end in late September. In Trujillo v. Apple Computer, No. 07 C 4946, 2008 WL 4368937 (N.D.Ill., Sept. 22, 2008) lead plaintiff Jose Trujillo filed a proposed class action against Apple and AT&T Mobility, the iPhone's service provider. Trujillo contended that Apple and AT&T did not disclose a de facto service fee of $79 plus shipping for the iPhone's battery, which must be replaced after 300 charges. That claim failed when the U.S. District Court for the Northern District of Illinois granted summary judgment to Apple and AT&T on Sept. 23 on the merits of Trujillo's claims. However, as Chicago, Naperville and Oak Brook consumer rights and consumer fraud attorneys, we are very interested in a decision from the same court on the day before handing a victory to consumers. The court decided to not compel the mandatory binding arbitration required in Trujillo's contract with AT&T, finding that contract procedurally unconscionable under Illinois state law.

According to court documents, AT&T was the only wireless phone carrier for the iPhone when Trujillo purchased the phone in 2007. (Without a service provider, the iPhone's telephone function will not work.) Trujillo activated a service plan with AT&T online, through Apple's iTunes software, which directs the user to AT&T's Web site. In order to sign up, the user must click a box indicating that he or she has read and agrees to AT&T's service agreement. The service agreement is many pages, and in fact, displays as multiple separate pages on AT&T's Web site. If the user does not check the box indicating that he or she has read this agreement, that user cannot sign up and will not have access to all of the iPhone's functions.

In court papers filed earlier in the case, AT&T argued that Trujillo had the opportunity to read the service agreement when he signed up for service through iTunes. It also said he had access to the service agreement before this, in two separate ways: in paper booklets at the Apple store and online, on the AT&T Wireless Web site. But in later supplementary papers, it admitted that neither of those statements was true. The paper booklets, it turned out, were not available in the Apple store, though they may have been available in an AT&T store that Trujillo later visited to have a credit check done. The court's opinion also noted that a footnote in the new papers said the applicable terms of service were not available online after all, though an obsolete version was available through the Web site's search function. The true terms of service were available when Trujillo signed up through iTunes, it said, but in a small window, with the language relevant to arbitration about two-thirds of the way through.

For those reasons, the court dismissed AT&T's arguments that Trujillo had access through the paper booklets or through the obsolete terms of service on its Web site, noting that he had no way of knowing to search for the terms of service online or how to find them. Thus, the terms of service were not available to Trujillo until after he had bought the iPhone, and he could not have returned it for a full refund. Under Illinois law governing unconscionability and its interpretation in Razor v. Hyundai Motor Am., 222 Ill.2d 75, 99, 854 N.E.2d 607, 622 (2006), this made the service agreement, including its mandatory binding arbitration clause, procedurally unconscionable under Illinois law. The court found this sufficient under Razor to make the entire agreement unenforceable, regardless of the parties' claims on substantive unconscionability.

As we said, we believe this decision is significant for consumers. By refusing to uphold an arbitration clause that the plaintiff never saw before making his purchase and did not have a significant chance to renegotiate or turn down, the court removed a substantial barrier to many Illinois consumer rights lawsuits. If this type of arbitration agreement is unenforceable, many more Illinois consumers will be allowed full access to the justice system.

It should be noted that the court seemed extremely upset with the conduct of AT&T and a particular in-house lawyer for the company, who swore in the original papers to personal knowledge of their truth. When it later turned out that those papers had two major misrepresentations, and the lawyer had no personal knowledge of some of the facts at issue, Judge Matthew F. Kennelly pointed out that sanctions would be appropriate. However, he declined to impose them.

To learn abour our Chicago, Naperville and Oak Brook consumer rights and business litigation practice and the cases we have handled, including cases where we have defeated unfair arbitration provisions click here.

Chicago and Oak Brook-based DiTommaso-Lubin has recently been working on a proposed class action consumer protection case with national reach, in tandem with colleagues in Maryland. Our case alleges violations of the Fair Credit Reporting Act, a federal law regulating when and how credit reporting agencies may provide information about consumers to third parties like marketing companies. The FCRA requires that credit agencies may only give out consumers' information if they have written permission or to companies that will extend a "firm offer of credit" to the consumers.

Our proposed lead plaintiff received a flyer offering him an automotive loan from a company that turned out to allegedly have nothing to do with the offer. That is, there was no firm offer of credit, in violation of the FCRA. It's important that our plaintiff suffered no actual financial damage due to this privacy violation, fortunately. However, under the FCRA, he doesn't need to if the violation of the law was "willful." Instead, he may sue for "statutory damages," an amount of money set by law, as well as the cost of attorneys' representation and any punitive damages the court decides to impose to punish illegal or very unethical behavior by the defendant.

The statutory damages authorized by the FCRA are very small by the standards of modern litigation -- $100 to $1,000 per person. In fact, this amount is so small that it might discourage both plaintiffs and their lawyers from pursuing a case, given the small reward. However, a proposed class action changes that landscape dramatically. In a class action, plaintiffs with the same complaint share the same lawyers, in essence pooling their resources. In doing so, they also pool the money they stand to win, from which the lawyers are paid. This allows them to move forward with a claim they might otherwise have had to abandon -- giving them greater access to justice.

In fact, even though a case with small damages might seem inappropriate for class-action status, it is actually one of the most appropriate cases for that status. We were able to make that argument to the court, citing multiple cases from around the United States federal courts, including cases from here in the Seventh Circuit and the greater Chicago area. The case is still pending, but we are confident about the facts and the quality of the legal work on our side of this case.

In addition to regulating how your information is disclosed to marketers and companies, the Fair Credit Reporting Act lays down rules for how credit reporting agencies should handle disputes, errors and negative information on your credit. Based in Oak Brook and Chicago, and serving people in Naperville, Wheaton, greater Chicago and throughout Illinois, our class action lawyers handle both FCRA lawsuits and consumer class actions and other types of class actions. To learn more about how you can fight for your rights please contact us for a free evaluation of your case.

To see more about our firm and the cases we have handled click here.