Chicago Business Litigation Lawyer Blog

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, 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 help ensure more fan friendly security 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, 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 help ensure more fan friendly security 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 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, 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 help ensure more fan friendly security 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 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.

Our Chicago class action attorneys recently noted that the U.S. District Court for the Northern District of Illinois has conditionally certified a wage and hour class action alleging that Illinois Bell Telephone failed to pay overtime to its hourly employees. In Russell v. Illinois Bell Telephone Co., 08 C 1871 (filed April 1, 2008), Constemecka Russell alleges that Illinois Bell regularly required her and other hourly employees to work off the clock, and sought to conditionally certify these employees as a class and notify them of the action. Several of her colleagues have joined and submitted affidavits supporting her allegations. The case is pending, but the judge granted those motions Sept. 15 over most of Illinois Bell's objections.

U.S. District Judge Matthew Kennelly's opinion granting certification and notice repeats many of Russell's allegations about the unpaid overtime. Russell worked in sales for the company at a call center, and she alleges that she was paid only for time she spent logged into the call center's computer system. However, there were certain work tasks that she had to perform without being logged in, during lunch and rest breaks, including tasks like filling orders as well as time spent logging onto the computers and opening software programs. She estimated that she spent between 15 minutes and an hour per day doing this unpaid work, which sometimes would have entitled her to overtime.

In response to Russell's request for class certification and notice, Illinois Bell argued that class certification is inappropriate because it doesn't use the phone system to keep time, and thus there is no common policy or practice linking the proposed plaintiffs. The court was unimpressed by this argument. It pointed to multiple assertions by Russell that company practice was to require unpaid work before and after time on the phone, as well as affidavits by joining plaintiffs stating that managers explicitly instructed them to work off the clock. It also dismissed arguments that written policies were evidence that Illinois Bell complied with the law.

Illinois Bell also took issue with the notice Russell proposes to send potential plaintiffs, arguing that including the names of the judges involved might mislead recipients into thinking the judge endorses this lawsuit. The court dismissed this argument, pointing out that the letter is not on court letterhead, contains no judicial signatures and in fact contains an explicit disclaimer that the court has not taken a position in the case. Illinois Bell also objected to Russell's request for telephone numbers and partial Social Security numbers of potential plaintiffs, arguing that both privacy and the Illinois Rules of Professional Conduct bar their release. The judge agreed with respect to the Social Security numbers, but granted the telephone numbers, saying the interest in locating class members outweighs privacy concerns about home telephone numbers.

In the Sept. 15 ruling, the district judge granted only conditional certification; the court may choose to revoke certification if it believes the assembled class of plaintiffs isn't similar enough. That decision is pending, and as experienced Chicago class action lawyers, we know it is not likely to happen quickly. If you believe you might be part of a class of employees also forced to work off the clock, DiTommaso-Lubin may be able to help your pursue your own overtime class action. For a free consultation on your rights as an employee, contact us today.

A statement that a car has not been involved in an accident and "it's fine" can constitute common-law fraud and a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, the First District Court of Appeal has ruled. In Hanson-Suminski v. Rohrman Midwest Motors, Inc., 1-07-0755 (Nov. 7, 2008), a customer successfully sued after she discovered that her used car had been in an accident, even though the dealer who sold it to her had told her it was not. The appeals court rejected the dealership's arguments that both the decision and the financial award were erroneous.

The plaintiff, Traci Hanson-Suminski, bought a used 2002 Honda Civic from defendant Arlington Acura in Palatine, Ill. On the test drive, she asked the salesman if the car had been in an accident, to which he replied "No, it's fine." She did not take the car to an independent mechanic or get a Carfax sheet, nor did the salesman advise her that she could do so. She discovered that the car had indeed been in a rollover accident causing "moderate or severe" damage the following year, when she tried to trade it in. At trial, witnesses testified that the car had a "green light" at the auction where the dealership bought it, indicating no title problems, but that a car in good condition should have been more expensive. The plaintiff prevailed on her common-law fraud claim at a jury trial and on her Consumer Fraud Act claim at a bench trial. To avoid an illegal double recovery, the judge ruled that the Consumer Fraud Act claim would be satisfied with the jury's common-law fraud verdict.

On appeal, the defendant argued that the plaintiff should not have prevailed on her Consumer Fraud Act claim, in part because she failed to show that fraud could have been avoided with reasonable prudence, and because the salesman's statement was mere "puffery." In its opinion, the appeals court cited Harkala v. Wildwood Reality, Inc., 200 Ill. App. 3d 447, 453 (1990), to show that the plaintiff had no obligation to double-check the salesman's statement that the car had not been in an accident. Furthermore, it said, a car's accident history is not a matter of public knowledge, as that case required. "Puffery" is a legal term for exaggerations used in advertising, which no reasonable person would believe. Because it was reasonable to believe the salesman was not lying, and it is not reasonable to think that car salespeople always claim cars are accident-free, the court said, it dismissed the puffery claim as without merit.

The defendant also appealed as to damages, arguing that the amount of damages was excessive because it was based on "optimal retail value" of the car rather than the price the plaintiff actually paid. The court disagreed, pointing to caselaw saying that absolute certainty of an item's value is not required in consumer fraud damages awards; there must only be adequate basis for the award in the record. The defendant then argued that the Consumer Fraud Act award was barred by the common-law fraud award and the doctrine of election of remedies -- which says that a plaintiff who makes two inconsistent legal claims for the same injury must choose which remedy to rely on, or the second is waived. However, the appeals court noted that both fraud claims were part of the same action and that in fact one claim was satisfied by the judgment of the other, so election of remedies did not apply.

DiTommaso-Lubin has an active practice in auto dealer and RV dealer fraud, including consumer fraud class actions. If you believe you're a victim of deceptive practices by an auto dealer or have bought a "lemon," please contact our Chicago class action and consumer attorneys today to learn about your rights and the legal remedies available to you.

As Naperville, Oak Brook, Wheaton, and Chicago business trial lawyers with substantial experience in shopping center claims, we were interested to see a recent decision by the First District Court of Appeal on the obligations of people who guarantee a lease. A change in the lease and a directed verdict at trial do not relieve a couple of their liability as guarantors of a commercial lease, the court has ruled. In Chicago Exhibitors Corporation v. Jeepers! Of Illinois and Swento, 1-06-3313 (Aug. 30, 2007), the court ruled that a guaranty agreement written to survive changes to the lease is enforceable even if the lease is assigned to a new tenant who changes it without the guarantor's approval.

Harvey and Cherry Swento owned a business that leased space from a predecessor landlord to Chicago Exhibitors Corporation (CEC). To sweeten that lease, the Swentos in 1991 personally guaranteed their lease payments and all of their other obligations as tenants, with a clause specifying that the guaranty would survive changes to or assignment of the lease. In 1997, they sold their business to Jeepers! of Illinois, Inc. and executed an agreement in which Jeepers! indemnified them from losses stemming from their personal guaranty. Jeepers! then failed to pay its rent, causing CEC to demand an amendment to the lease that reaffirmed the Swentos' personal guaranty. CEC declined to recognize the transfer of lease obligations from the Swentos' company to Jeepers! until rent was paid in full and Jeepers! executed its own guaranty.

Jeepers! never did take on the guaranty, but it failed to pay its rent again several times. In an effort to avoid eviction, it agreed to several changes to the lease in January of 2001. The Swentos did not sign this amendment, even though it called for the ratification of all guarantors. When CEC eventually sued Jeepers! for unpaid rent and repairs, it included the Swentos as guarantors. In the trial, the Swentos asserted that the January 2001 amendment was a material change that discharged them from their obligations as guarantors; CEC successfully moved in limine for a ruling that it was not. The parties then agreed to move straight to the damages phase of the trial, so the judge granted a directed verdict on liability. The Swentos were eventually found liable for unpaid rent and damages as well as attorney fees. They appealed the in limine motion, the directed verdict and the award of attorney fees.

In its decision, the appeals court found that the January amendment to the lease was not material enough to release the Swentos from their obligations. In Illinois, changes to a contract must make the guarantor's obligations materially different from what they originally signed, including a substantial increase in risk. None of the changes in the amendment changed the Swentos' financial obligations, the court said, so it was not a material enough change to release them from their guaranty. Nor was the Swentos' lack of control over Jeepers! enough to constitute an increase in risk, especially since their original guaranty was written to endure despite changes in the lease.

The Swentos also argued that a directed verdict denying them a chance to defend themselves was inappropriate because they never signed the January 2001 amendment, which they argued superseded the lease and thus waived CEC's rights against them. The court found those arguments unconvincing, but more importantly, pointed out that they are waived on appeal because the Swentos failed to raise them at trial. Finally, the appeals court rejected the Swentos' argument that they shouldn't be held responsible for an agreement they didn't sign, again saying that the January 2001 changes to the lease were not material enough to release them from their obligations. Thus, the trial court's decision was unanimously affirmed.

With offices in Chicago and Oak Brook, Ill., DiTommaso-Lubin handles commercial real estate litigation of all kinds, including a variety of contractual disputes and shopping center tenant matters. If you have a legal problem regarding a shopping center or another real estate matter, we would like to help. To set up a confidential consultation with our Chicago business and real-estate trial attorneys, please contact our Oak Brook business and real-estate trial attorneys today.

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 business trial attorneys with substantial experience in disputes involving shopping centers, our firm was interested to see a recent Fourth District Court of Appeal decision allowing a shopping center to go through with its lease despite a restrictive covenant in a land sale by its predecessor. In Regency Commercial Associates v. Lopax, 4-06-0332 (May 4, 2007), the appeals court upheld the trial court's ruling that the business at issue was not covered by the covenant, and that starting the lease while the case was still pending did not bar it from requesting a declaratory judgment.

Regency Commercial Associates, LLC and Lopax, Inc. are companies that own neighboring parcels of land in Savoy, Ill. The prior owner of Regency's land, Arbours Development Limited Partnership, sold Lopax its land, which Lopax then leased to a Kentucky Fried Chicken franchisee. The sales contract between Lopax and Arbours restricted Arbours from allowing another "fast-food restaurant ... or restaurant facility whose principal food product is chicken[.]" It also lists the types of businesses allowed, which include "casual dining." Regency later purchased Arbours' rights under the contract.

When Regency wanted to lease to a Buffalo Wild Wings restaurant, it negotiated with Lopax, arguing that the restaurant is "casual dining" and not fast food. Lopax disagreed, saying it believed the contract restricts any restaurant that primarily serves chicken. Regency filed for declaratory judgment, asking the court to find that Buffalo Wild Wings is not fast food and that the covenant restricts only fast-food restaurants that primarily sell chicken. Finding that there was a genuine issue of material fact to try, the court denied Lopax's motion to dismiss.

During this phase, Lopax discovered that Buffalo Wild Wings franchisee had already signed a lease with Regency, contingent on the lawsuit's success, before Regency's filing. Lopax then filed for summary judgment based on nonliability for past conduct -- the legal theory that a plaintiff may not seek declaratory judgment after already taking a contract-breaching action. Regency contended that because the lease didn't take effect until the case was over, there was no lease. Lopax also moved to compel discovery of the lease. The court denied both that and the summary judgment motion. Lopax appealed both denials, as well as the denial of its motion to dismiss.

In its analysis, the Fourth District noted that the language of the restrictive covenant was ambiguous as to whether all chicken restaurants are banned, or just fast food restaurants. Using documents that illuminated the parties' reasoning at the time the contract was written, it decided that the covenant restricted only fast-food restaurants primarily serving chicken. On the issue of nonliability for past conduct, the appeals court pointed out that the lease is not effective until this case is over and none of the actions adverse to Lopax -- opening the buffalo wings restaurant -- have taken place, so Regency is not seeking to avoid liability for past conduct. Finally, the court upheld the trial court's decision that the lease was irrelevant and therefore should not be discoverable. It is worth noting that Justice Cook dissented from this decision.

As Chicago, Wheaton, Oak Brook and Naperville business trial lawyers with substantial experience with shopping center tenants disputes and shopping center tenants' rights issues, we welcome clarifications to real estate contract law, especially on restrictive covenants. If you are involved in a similar dispute over a shopping center or other commercial real estate and you would like to speak with us about your options, please contact DiTommaso-Lubin for a confidential consultation.