Chicago Business Litigation Lawyer Blog

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

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

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

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

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

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

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

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

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

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

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

You can view the full opinion by clicking here.

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

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Continue reading "Confessions from a Car Dealer's Backroom" »

Continue reading "Dateline NBC Story on Auto Dealer Fraud and How Not to Buy a Car" »

Although it is a bit hokey the below video provides useful information on various well worn automobile dealer scams and tricks and how consumers can avoid them.

If you have already fallen victim to any of these scams our Chicago lemon law and auto fraud lawyers may be able to assist you.

Our Chicago auto-fraud attorneys focus on bringing suit for auto-fraud claims. We recently settled a suit involving purchase of $9,000 used car that was in reality 3 different cars welded together for $100,000. Our fees come from the recovery and we only get paid if we win or settle your case. We have obtained similar large six figure or near six figure settlements for clients who purchased certified used cars that in fact were rebuilt wrecks.

If you believe you purchased a motorcycle, car, rv or other product that is a lemon, have been a victim of auto fraud, auto dealer fraud, auto repair fraud or have been deceived into buying a flood car, rebuilt wreck or salvage vechicle DiTommaso-Lubin may be able to help rectify the problem. We or experienced co-counsel are prepared to file suit in the right case in the Chicago area or anywhere in the country. For a free consultation on your rights as an employee, contact us today.

Our Auto Dealer Fraud, Auto Repair Fraud Auto Fraud, RV Fraud, Motorcycle Fraud and Boat Fraud private law firm and our affliated co-counsel handle individual and class action consumer rights, lemon law, and autofraud lawsuits that government agencies and public interest law firms may decide not pursue. Class action lawsuits our law firm has been involved in or spear-headed have led to substantial awards totalling over a million dollars to organizations including the National Association of Consumer Advocates, the National Consumer Law Center, and local law school consumer programs. DiTommaso-Lubin is proud of our achievements in assisting national and local consumer rights organizations obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to employee and consumer fraud and rip-offs, and in the right case filing employee or consumer protection lawsuits and class-actions you too can help ensure that consumers' rights are protected from unscrupulous, illegal or dishonest practices.

Our Joliet and Northbrook consumer law, auto fraud and lemon law lawyers and attorneys provide assistance in car, RV and automobile and consumer fraud and consumer rights cases including in Illinois and throughout the country. You can click here to see a description of the some of the many individual and class-action consumer cases we have handled. A video of our lawsuit which helped ensure more fan friendly security at Wrigley Field can be found here. You can contact one of our Wheaton area consumer rights, predatory lending or consumer protection lawyers who can assist in auto dealer fraud, auto repair fraud, lemon law, auto fraud, RV fraud, wage claim, lemon law, unfair debt collection, junk fax, prerecorded telephone solicitations, and other consumer fraud or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.

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

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

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

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

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, Evanston, Aurora, Waukegan, Joliet, Elgin, Highland Park, Hinsdale, Elmhurst, 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.

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.

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.

A federal breach of warranty case of ours IWOI v. Monaco Couch recently survived a motion to dismiss in U.S. District Court for the Northern District of Illinois. Our client, a limited liability company formed in Montana, bought a motor home in Illinois and allegedly discovered that it had a twisted frame causing it to list to one side, requiring constant steering corrections. On discovering this alleged defect, the individual owning the LLC brought it back to the dealership the very next day for the first of three unsuccessful repair attempts. Per the manufacturer's warranty, he submitted his complaints in writing to the manufacturer, Monaco Coach after these three repair attempts. The alleged defects remain, and we alleged in our filings that neither the manufacturer nor the dealer has agreed to accept the motor home for return or fixed the problems.

Our client sued both the manufacturer and the dealer under the federal Magnuson-Moss Warranty Act, the Illinois Consumer Fraud Act and other state claims. In defense, the defendants argued that our client was not a "consumer" within the meaning of federal law; this claim was flatly denied by the Court, which found no allegations in the Complaint to support it. On the Illinois Consumer Fraud Act issues, the Court also identified several alleged facts suggesting that Monaco Coach may well have known of the problems before the RV was sold, as we alleged. Thus, those claims also survived.

Furthermore, the trial court decided that our client could revoke its acceptance of the dealer's "AS IS" condition and the dealer's disclaimer of all implied warranties, a claim under the Illinois Commercial Code. The Seventh Circuit has addressed this issue in Priebe v. Autobarn, Ltd., 240 F.3d 584, 588 (7th Cir. 2001), in which it adopted an earlier ruling stating that consumers may revoke their acceptance even when the dealer has properly disclaimed implied warranties, if the evidence is clear that the vehicle's substantial defects clearly impair its value to the plaintiff. This allowed our client's Magnuson-Moss Act and state conversion claims to survive as well.

Although this case is at the trial court level, we believe the judge's interpretation of Seventh Circuit and Illinois precedent on Magnuson-Moss and the Illinois Consumer Fraud Act is good news for consumers. As auto and RV dealer fraud lawyers in Chicago, Naperville and Oak Brook, Ill., we believe automotive dealers take advantage of consumers' lack of education about their rights far more often than they are caught. When they are caught, they should not be allowed to wiggle out of liability for their actions with an unfair, high-pressure contract that the consumer has little room to renegotiate. Both the Magnuson-Moss Act (which governs how warranties may be offered) and the Illinois Consumer Fraud Act were specifically intended to help consumers fight this behavior.

If you believe you may be a victim of automotive dealer fraud or another type of consumer fraud and you're ready to fight back, please contact DiTommaso-Lubin online, via telephone or at our offices near or in Naperville, Wheaton, Oak Brook or Chicago.

To see more about our firm and the consumer rights, consumer fraud, lemon law and class action cases we have handled click here.