Chicago Business Litigation Lawyer Blog

Is it illegal in Illinois to Sell a Used Car Knowing it has a Defective Engine?

May 28, 2024 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Selling a used car knowing it has a defective engine is illegal in Illinois.

According to the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act), it is unlawful to use deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact with the intent that others rely upon such concealment, suppression or omission (815 ILCS 505/2) Therefore, if a person sells a used car knowing it has a defective engine and does not disclose this information to the buyer, it would be considered a violation of the Act.

The case of Lipinski v. Martin J. Kelly Oldsmobile, Inc. is especially relevant (White v. DaimlerChrysler Corp., 368 Ill.App.3d 278 (2006)). Here, a used-car purchaser alleged that the dealership knew his model of car had a defect that it tended to consume oil, that the dealership failed to inform him of the defect, and that he would not have purchased the car if he knew of the defect. The plaintiff stated all the necessary elements to sustain his claim under the Consumer Fraud Act(White v. DaimlerChrysler Corp., 368 Ill.App.3d 278 (2006)) (Lipinski v. Martin J. Kelly Oldsmobile, Inc., 325 Ill.App.3d 1139 (2001)), (Connick v. Suzuki Motor Co., Ltd., 174 Ill.2d 482 (1996)).

In the case of Hanson-Suminski v. Rohrman Midwest Motors, Inc., the court found that a dealership violated the Consumer Fraud Act by misrepresenting the car’s history and thereby inducing the plaintiff to purchase the car (Hanson-Suminski v. Rohrman Midwest Motors, Inc., 386 Ill.App.3d 585 (2008)).

Several other cases also support the interpretation that misrepresenting or omitting material facts about a car’s condition at the time of sale is actionable under Illinois law.

In conclusion, selling a used car in Illinois with knowledge of a defective engine and not disclosing this to the buyer would be considered a violation of the Consumer Fraud Act.

Why Retain Lubin Austermuehle DiTommaso to Sue a Used Car Dealer for Used Car Fraud?

May 28, 2024 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Retaining Lubin Austermuehle DiTommaso to sue a used car dealer for used car fraud might be a strategic decision based on several key factors:

Extensive Experience

Knowledge: Lubin Austermuehle DiTommaso is a law firm with significant experience in consumer fraud and commercial litigation, including cases involving used car fraud.

What are the Best Defenses to a Class Action?

May 23, 2024 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Based on our research and experience, the best defenses to a class action generally revolve around the requirements of typicality and adequacy of the class representative (Danis v. USN Communications, Inc., 189 F.R.D. 391 (1999)). The presence of even an arguable defense peculiar to the named plaintiff or a small subset of the plaintiff class may destroy the required typicality of the class as well as bring into question the adequacy of the named plaintiff’s representation. This fear arises from the possibility that the named plaintiff could become distracted by the presence of an individual defense, which could compromise the representation of the rest of the class (Al Haj v. Pfizer Inc., — F.R.D. —- (2020)), (Lipton v. Chattem, Inc., 289 F.R.D. 456 (2013)), (CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721 (2011)).

A defense unique to a proposed class representative does not need to be a sure bet to defeat the adequacy required for class certification; it only needs to be arguable and substantial (Al Haj v. Pfizer Inc., — F.R.D. —- (2020)). Similarly, defenses that are specific to the named representative may defeat the requirements of typicality or adequacy of the representative (Danis v. USN Communications, Inc., 189 F.R.D. 391 (1999)). However, these defenses need to be “unique, arguable and likely to usurp a significant portion of the litigant’s time and energy” (Danis v. USN Communications, Inc., 189 F.R.D. 391 (1999)).

It’s important to note that the assertion of individual defenses does not necessarily defeat a plaintiff’s ability to represent a class adequately (P.J.’s Concrete Pumping Service, Inc. v. Nextel West Corp., 345 Ill.App.3d 992 (2004)), (Walczak v. Onyx Acceptance Corp., 365 Ill.App.3d 664 (2006)). A class action, in which a defendant is alleged to have acted wrongfully in the same basic manner as to the entire class, is not necessarily defeated merely because certain defenses may be urged against individual class members (735 ILCS 5/2-801).

Moreover, defenses that are unique to a named plaintiff are relevant to the inquiry into whether plaintiff’s claims are typical but are not necessarily dispositive of the issue (Sebo v. Rubenstein, 188 F.R.D. 310 (1999)). In many instances when a unique defense exists a class is defeated but the court is not required to deny certification for speculative reasons; the certification decision always remains within the sound discretion of the court (Danis v. USN Communications, Inc., 189 F.R.D. 391 (1999)).

Lastly, it’s worth noting that while the merits are not typically before the appellate court when reviewing the district court’s certification of the class, the claim of the class representative may be subject to a defense that makes it an inappropriate representative of the class because other class members may not be subject to the same defense, or perhaps to any defense (CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721 (2011)).

What Illinois Laws Prevent a Partner from Cheating Another Partner?

May 23, 2024 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Under the Illinois Uniform Partnership Act (IUPA), all partners are liable for any wrongful act or omission by any partner (In re Keck, Mahin & Cate, 274 B.R. 740 (2002)), (Bane v. Ferguson, 707 F.Supp. 988 (1989)). This includes acts that occur in the ordinary course of the partnership’s business or are authorized by the partners (Bane v. Ferguson, 707 F.Supp. 988 (1989)), (In re Ascher, 141 B.R. 652 (1992))[3]. The liability is not limited even for “innocent” partners.

As for the protection against cheating, partners are fiduciaries for one another under Illinois law (Bane v. Ferguson, 707 F.Supp. 988 (1989)). This means they have a duty to exercise the utmost good faith and honesty in all partnership dealings (Johnson v. Woldman, 158 B.R. 992 (1993)). Particularly, the Uniform Partnership Act in Illinois imposes a trust duty (Johnson v. Woldman, 158 B.R. 992 (1993)), (Federal Deposit Ins. Corp. v. Braemoor Associates, 686 F.2d 550 (1982)). It mandates that every partner must account to the partnership for any benefit and hold as a trustee for it any profits derived by him/her without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership, or from any use by him/her of its property.

However, this fiduciary duty is only recognized when a partner derives profits without the consent of the other partners (Johnson v. Woldman, 158 B.R. 992 (1993)). Also, the liability of any partner does not extend to former partners. Additionally, partners cannot sue their fellow partners for acts that occur in the ordinary course of business or are authorized by the co-partners until there has been a final settlement of partnership accounts (In re Ascher, 141 B.R. 652 (1992)).

If a partner believes that he/she has been cheated, the appropriate remedy to seek under the Illinois Partnership Act could be an accounting, especially if the issue between partners requires an accounting.

In federal cases, the principle is generally the same. For instance, in the case of In re Keck, Mahin & Cate, it was established that under Illinois law and the Agreement, partners are liable for claims arising before or during the time they were partners (In re Keck, Mahin & Cate, 274 B.R. 740 (2002)). Continue reading ›

Why Retain Lubin Austermuehle DiTommaso to Defend Your Class Action Lawsuit?

May 23, 2024 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

When facing a class action lawsuit, the stakes are incredibly high. The complexity of these cases requires a legal team with specialized expertise and a track record of success. Lubin Austermuehle DiTommaso stands out as a premier choice for several compelling reasons:

Extensive Experience in Class Action Defense

Lubin Austermuehle DiTommaso’s legal team has extensive experience in defending class action lawsuits across various industries. Our attorneys are well-versed in the intricate procedural and substantive aspects of class action law, ensuring that every angle of your case is meticulously analyzed and strategically addressed.

What is Joint Venture? When is Joint Venture Partner Required to Account? Lubin Austermuehle DiTommaso Concentrate on Breach of Fiduciary Duty in the Chicago Area.

May 12, 2024 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

The elements required to establish a joint venture are broadly consistent across the search results. They include:

1. An express or implied agreement to carry on an enterprise (805 ILCS 206/202), (Ambuul v. Swanson, 162 Ill.App.3d 1065 (1987)), (Yokel v. Hite, 348 Ill.App.3d 703 (2004)).

2. A manifestation of intent by the parties to be associated as joint venturers (805 ILCS 206/202), (Ambuul v. Swanson, 162 Ill.App.3d 1065 (1987), (O’Brien v. Cacciatore, 227 Ill.App.3d 836 (1992)).

3. A joint interest as shown by the contribution of property, financial resources, effort, skill, or knowledge by each joint venturer (805 ILCS 206/202), (Ambuul v. Swanson, 162 Ill.App.3d 1065 (1987)), (Yokel v. Hite, 348 Ill.App.3d 703 (2004)).

4. Some degree of joint proprietorship or mutual right to exercise control over the enterprise (805 ILCS 206/202), (Ambuul v. Swanson, 162 Ill.App.3d 1065 (1987)).

5. Provision for the joint sharing of profits and losses (805 ILCS 206/202), (Ambuul v. Swanson, 162 Ill.App.3d 1065 (1987)), (O’Brien v. Cacciatore, 227 Ill.App.3d 836 (1992)).

It is important to note that all four criteria must be established or a joint venture does not exist (Fogt v. 1-800-Pack-Rat, LLC, 2017 IL App (1st) 150383 (2017)).

The obligation of a joint venturer to account to another member of the joint venture arises from the fiduciary nature of their relationship. The relationship between joint venturers, like that existing between partners, is fiduciary in character and imposes upon the participants an obligation of loyalty and good faith in their dealings with each other with respect to the enterprise (Ambuul v. Swanson, 162 Ill.App.3d 1065 (1987)). In the case of a sale of joint venture property by one joint adventurer, the other is entitled to an accounting on principal and interest profit, if any, received by the seller on the purchase money mortgage received when the joint venture property was liquidated (Burtell v. First Charter Service Corp., 83 Ill.App.3d 525 (1980)).

However, it’s important to note that whether or not a joint venture exists is a question for the trier of fact as they are in the best position to judge the credibility of the witnesses (Ambuul v. Swanson, 162 Ill.App.3d 1065 (1987)), (Thompson v. Hiter, 356 Ill.App.3d 574 (2005)), (Andrews v. Marriott Intern., Inc., 2016 IL App (1st) 122731 (2016)). Continue reading ›

What are the Best Defenses Under Illinois Law for a Partner Accused of Breaching Fiduciary Duties to the Partnership or Other Partners?

May 11, 2024 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Under Illinois law, defenses for a partner accused of breaching fiduciary duties to the partnership and his other partners can be varied and nuanced (LID Associates v. Dolan, 324 Ill.App.3d 1047 (2001)), (Pielet v. Hiffman, 407 Ill.App.3d 788 (2011)). Here are some potential defenses:

1. Compliance with Partnership Agreement: A partner who has acted in accordance with an express authorization in the partnership agreement may not be deemed in breach of fiduciary duties (1515 North Wells, L.P. v. 1513 North Wells, L.L.C., 392 Ill.App.3d 863 (2009). However, no language in a partnership agreement, however clear and explicit, can reduce a partner’s fiduciary duty toward other partners (Pielet v. Hiffman, 407 Ill.App.3d 788 (2011)).

2. Good Faith and Fairness: A partner can defend on the grounds that he has acted in good faith and fairness in his dealings with other partners (Winston & Strawn v. Nosal, 279 Ill.App.3d 231 (1996)). Under Illinois law, a fiduciary relationship exists between partners and each is bound to exercise the utmost good faith in all dealings and transactions related to the partnership business (Pielet v. Hiffman, 407 Ill.App.3d 788 (2011)), 1515 North Wells, L.P. v. 1513 North Wells, L.L.C., 392 Ill.App.3d 863 (2009)).

3. Lack of Personal Advantage: If a partner can show that he has not advantaged himself at the expense of the firm, this could be a defense against an accusation of fiduciary duty breach.

4. Right to Manage Partnership Affairs: If a partner was managing the affairs of the partnership and did not conceal, misrepresent or seek to take advantage of his partner, he might be able to argue that he was not in breach of fiduciary duties (Mermelstein v. Menora, 372 Ill.App.3d 407 (2007)).

5. Discrepancies in Accounting or Interpretation of Rights and Duties: Discrepancies or errors in accounting, or misinterpretations of rights and duties under partnership agreements, can be invoked as a defense, especially if the partner did not seek personal advantage.

6. Duty of Good Faith: If it can be shown that the partner always exercised good faith in his dealings with other partners, he can defend against the accusations (Pielet v. Hiffman, 407 Ill.App.3d 788 (2011)), (Winston & Strawn v. Nosal, 279 Ill.App.3d 231 (1996)).

Remember that each case is unique and the success of these defenses can depend on the specifics of the partnership agreement and the facts of the case. These defenses are not exhaustive and other defenses may be available depending on the specifics of a case. Continue reading ›

How do you Protect Beneficiaries in Illinois Estates From Breaches of Fiduciary Duty By the Administrator?

May 10, 2024 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

To protect beneficiaries in Illinois estates from breaches of fiduciary duty by the administrator, several measures can be taken based on the duties and responsibilities outlined in the relevant laws and cases.

Firstly, it’s important to establish that the relationship between an executor or administrator and a beneficiary is that of a trustee and cestui que trust, and is fiduciary in nature (In re Estate of Lis, 365 Ill.App.3d 1 (2006). This fiduciary duty requires the administrator to act with the highest degree of fidelity and utmost good faith in handling estate assets (Matter of Estate of Pirie, 141 Ill.App.3d 750 (1986), (In re Estate of Neisewander, 130 Ill.App.3d 1031 (1985, (Will v. Northwestern University, 378 Ill.App.3d 280 (2007). However, this fiduciary relationship does not extend to all affairs and transactions between administrators and beneficiaries (In re Estate of Lis, 365 Ill.App.3d 1 (2006)), (Will v. Northwestern University, 378 Ill.App.3d 280 (2007), (Epstein v. Davis, 2017 IL App (1st) 170605 (2017).

One of the main duties of an administrator is to collect the estate, convert it into cash, and distribute it to those entitled thereto (In re Estate of Wallen, 262 Ill.App.3d 61 (1994), (In re Estate of Zagaria, 2013 IL App (1st) 122879 (2013), (In re Estate of Cappetta, 315 Ill.App.3d 414 (2000). In this process, the administrator is expected to perform their responsibilities with the degree of skill and diligence which an ordinary prudent man bestows on his own similar private affairs (Matter of Estate of Pirie, 141 Ill.App.3d 750 (1986), (Will v. Northwestern University, 378 Ill.App.3d 280 (2007).

An administrator is also obligated to act in the best interests of the estate, which includes carrying out the wishes of the decedent and acting in the best interest of the estate (Estate of Hudson By Caruso v. Tibble, 2018 IL App (1st) 162469 (2018). This means that the administrator should act in good faith to protect the interests of beneficiaries (Will v. Northwestern University, 378 Ill.App.3d 280 (2007), (Szymakowski v. Szymakowski, 185 Ill.App.3d 746 (1989). Continue reading ›

What Illinois Law Protects Minority Shareholders or LLC Members from Breaches of Fiduciary Duty in Closely Held Companies?

May 10, 2024 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

In Illinois, the protections for minority shareholders or LLC members from breaches of fiduciary duty in closely held companies can be found in a combination of statutory provisions and case law.

Firstly, the Illinois Limited Liability Company Act (805 ILCS 180/15-3) specifies that a member of a manager-managed LLC does not owe a fiduciary duty to the LLC unless they are a manager under the terms of the operating agreement (Katris v. Carroll, 362 Ill.App.3d 1140 (2005)), (Tully v. McLean, 409 Ill.App.3d 659 (2011)). This means that members of an LLC who are not managers do not owe a fiduciary duty to the company or to other members (Katris v. Carroll, 362 Ill.App.3d 1140 (2005), (800 South Wells Commercial LLC v. Cadden, 2018 IL App (1st) 162882 (2018). However, members in a member-managed LLC do owe each other fiduciary duties of loyalty and care (Anest v. Audino, 332 Ill.App.3d 468 (2002), (Schultz v. Sinav Limited, — N.E.3d —- (2024).

Secondly, under the Illinois Business Corporations Act (805 ILCS 5/12.50), a minority shareholder may sue a corporation directly for its dissolution if they can establish that the majority shareholders have acted in a way that is illegal, oppressive, or fraudulent. This provides a means for minority shareholders to recover their investment from the corporation when no other methods are available (Kalabogias v. Georgou, 254 Ill.App.3d 740 (1993).

Moreover, under common law, a controlling shareholder in a cash-out merger owes the minority shareholders the default fiduciary duties of loyalty and due care, and courts apply an exacting standard of judicial review known as “entire fairness” (Schultz v. Sinav Limited, — N.E.3d —- (2024). Additionally, LLCs can contractually impose fiduciary duties on their managers. Furthermore, the Illinois courts have held that minority shareholders in closely held corporations may sue company directors for breaches of fiduciary duty (Elleby v. Forest Alarm Service, Inc., 2020 IL App (1st) 191597 (2020)). Continue reading ›

Why You Should Choose Lubin Austermuehle DiTommaso as Your Lawyers to Protect Your MInoirty Interests in a Closely Held Illinois Company From Breaches of Fiduciary Duty?

May 10, 2024 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Choosing the right law firm to protect your minority interests in a closely held company is crucial, particularly when it comes to addressing breaches of fiduciary duty. Lubin Austermuehle DiTommaso is a firm that you might consider for several reasons:

Concentration in Business Litigation: Firms like Lubin Austermuehle DiTommaso that concentrate in business litigation are likely to have a deep understanding of the complexities involved in disputes within closely held companies. This specialization can be beneficial in effectively navigating the legal landscape to protect minority shareholders.
Experience with Fiduciary Duties: The protection of minority interests often hinges on issues related to fiduciary duties. A firm experienced in this area will understand the nuances of fiduciary responsibilities and how breaches can occur, which is critical in formulating a robust legal strategy.