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While many consider an oral agreement to be as binding as a legal contract, not everyone chooses to see it that way. Bruton Smith, owner of Speedway Motors Inc. (SMI) and Charlotte Motor Speedway, discovered this for himself regarding an agreement he made with Cabarrus County in North Carolina.

According to the lawsuit, Smith agreed to build a drag strip and make more than $200 million in upgrades to the Charlotte Motor Speedway. In return, Concord and Cabarrus county officials offered $80 million in tax breaks. The deal was announced in November 2007 but was never put into writing until the day after the zMax Dragway officially opened in August 2008, three weeks before its first scheduled race.

The contract stipulated that SMI was to spend its millions in infrastructure improvements within three years, but would be reimbursed through property tax breaks as improvements increased the value of the drag strip. Smith rejected the contract and SMI and Charlotte Motor Speedway sued the city in September 2009. Concord was dropped from the case after agreeing to pay $2.8 million and getting land easements. It is a common method used by North Carolina governments to encourage company investment.

SMI’s lawyers allege that local officials made a verbal promise in 2007 to provide $80 million in no more than six years. They also allege that the county had a financial motive and therefore cannot defend itself with a local law which protects municipalities from lawsuits.
Lawyers for Cabarrus County on the other hand, claim that the 2007 agreement was “an agreement to agree, which is not an agreement at all”. They also said that the fact that SMI built the drag strip and made other improvements before the deal was finalized is not the fault of the county.

The county’s lawyers further declare that it would be difficult for the county to come up with $80 million quickly because it is permitted to collect no more than $104 million in property taxes each year. According to the lawyers, that information is public knowledge and so SMI cannot claim that it was blindsided.

The dispute began when Smith gave the orders for workers to start grazing land on speedway property for the $60 million drag strip 20 miles north of Charlotte before obtaining the requisite permits to do so. When the area residents complained about the potential for increased noise, Smith dismissed the complaints. In a 2008 interview, he asked, “Do you have any friends that built a house close to a speedway that didn’t know there was a speedway here? Can you imagine? All of you knew there was a speedway here, right?”
When local officials delayed in granting the permits, Smith threatened to build the drag strip elsewhere and move the speedway, which helps to foster a motorsports industry with an estimated worth of $6 billion a year in North Carolina.

It is not clear whether SMI – which owns the track and seven others in Georgia, Tennessee, California, Kentucky, Nevada, New Hampshire and Texas – has yet received any of the $80 million it was allegedly promised.

A judge dismissed the lawsuit last year but Smith is now trying to resurrect it. A three-judge state Court of Appeals panel will hold a closed-door discussion to determine whether the lawsuit will be heard by a jury. They are expected to reach a decision within the next three months and, if they decide to allow the case to move forward, it could be appealed to the Supreme Court. If the lawsuit does not move forward, SMI may have to wait as long as 40 years to be reimbursed.

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Far from solidarity in troubled times, the attorneys for Drew Peterson seemed to turn on each other as soon as their client was convicted. Each blames the other for the loss of the case and the dispute will now begin a legal battle of its own.

The plaintiff is Joel Brodsky, formerly the lead attorney for Drew Peterson in his murder trial, although he has since resigned from the legal team. Steven Greenberg, another member of the legal team who is still representing Peterson, is one of the defendants in the case. The lawsuit is the result of a 15-page letter, which Greenberg wrote and distributed. According to the lawsuit, the letter contains “false and misleading” statements which are allegedly an attempt to defame Brodsky as revenge for Brodsky attempting to fire Greenberg from Peterson’s case.

Among other things, the letter calls Brodsky a liar and an incompetent lawyer. One section reads, “You wafted the greatest case by ignorance, obduracy and ineptitude, … Your effort to blame me is suggestive of a six-year-old changing the rules of the game when he falls behind. … You are nothing more than a bully.” The letter also accuses Brodsky of “single-handedly” losing the trial and provides an unflattering description of his leadership, saying he insisted on the other lawyers calling him “coach”.

Allegedly, Greenberg developed a grudge against Brodsky after Brodsky told him to stop appearing on national television during the trial. The lawsuit alleges that this grudge caused Greenberg “to ignore the best interest of Peterson and become irrationally fixated and obsessed with destroying Brodsky”.

According to the lawsuit, the letter put Brodsky’s law office “in a false light in the public eye” which caused him to lose profits.

Brodsky also named the Chicago Tribune, its parent Tribune Co., Tribune reporter Stacey St. Clair, AOL Patch Media Corp., and Patch editor Joseph Hosey as defendants for publishing the defamatory letter.

Greenberg called the lawsuit “frivolous” and claims not to be worried by it because the “truth is a defense”. Tribune Editor Gerould W. Kern released a written statement which said, “We stand behind our reporting and our reporters, and we intend to defend this suit vigorously.
Walter P. Maskym, a Chicago attorney representing Brodsky in the case, said he is confident that Brodsky will win the case and “that his good name will be cleared and his professional reputation restored.”

In addition to defamation, the lawsuit is asserting claims for alleged false-light invasion of privacy and violation of the Illinois Deceptive Trade Practices Act.

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While Toyota’s problems with unintended acceleration in their vehicles have garnered much media attention, Toyota is hardly the only car company to experience these problems. Audi experienced similar issues in the 1980’s from which it took them a decade to recover in the American market. Honda, Jeep, Mercedez-Benz, Hyundai and Kia have all had reported issues over the years.

Most recently brought before the court with alleged unintended acceleration issues is Ford. In fact, according to the Transportation Department’s inspector general, a 2011 report revealed that Ford actually had the same number of deaths and injuries from these acceleration issues as Toyota: 374 from 2003 through 2009. Ford alone received 22% of all of the complaints regarding unintended acceleration during that period. That’s more than any other single car manufacturer.
The National Highway Traffic Safety Administration’s (NHTSA’s) data shows that complaints regarding Ford vehicles increased dramatically from 2005 to 2007. Injuries from acceleration issues peaked between 2004 and 2006.

A spokesperson for Ford though, has released a statement that the NHTSA has investigated many cases of alleged unintended acceleration over the years and has found that driver error is more commonly the cause of these accidents. They also stated that the NHTSA is much more “scientific and trustworthy than work done by personal injury lawyers and their paid experts”.
The NHTSA also could not find evidence of electronic malfunctions in Toyota vehicles in a 2011 report it did with the National Aeronautics and Space Administration. Nevertheless, Toyota recently settled a class action lawsuit for $1.1 billion to put the matter to rest. Toyota, as well as BMW, Mercedez-Benz, Audi and Volkswagen, have all begun installing brake override systems into every vehicle they make. These brake override systems will stop the car when the brake and the gas petal are activated at the same time. Ford also began installing these “brake override accelerators” into its vehicles in 2010.

Despite the fact that the NHTSA concluded that most of the Toyota alleged acceleration issues in Toyota vehicles were due to driver error, the recall of nearly 10 million vehicles and the publicity as well as the congressional hearings, have prompted the NHTSA to propose a rule which would require all vehicles to have a brake override system.

The case recently filed against Ford was filed in the U.S. District Court for the Southern District of West Virginia and includes 20 Ford owners in 14 states. The case covers Ford vehicles made between 2002 and 2010 and alleges a “design defect” in the electronic control of the gas pedals which made the vehicles susceptible to sudden, unintended acceleration. The lawsuit alleges that the vehicles should have had a brake override system and is seeking damages for the reduced value of the vehicles.

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A business sued two individuals in a New Jersey federal district court in Inventory Recovery Corp. v. Gabriel, alleging that the defendants materially misrepresented the details of a sale of several hundred internet domain names. The plaintiff asserted multiple causes of action, including fraud, breach of fiduciary duty, and breach of contract. The court dismissed all but two of the causes of action on the defendants’ motion.

The plaintiff, Illinois-based Inventory Recovery Corporation (IRC), sought to purchase 324 internet domain names from the defendants, Richard Gabriel and Ashley Gabriel. The defendants used the domain names in the business of selling nutraceutical food, which the court describes as food with health benefits. IRC’s president met with the defendants in January 2010 to discuss the purchase of the domain names and the associated business, and negotiations continued into February. Richard Gabriel provided IRC with financial documents related to business income and expenses. This included expenses for Google advertising, the business’ main marketing activity. He allegedly described robust sales and a positive relationships with the merchant banks that serviced customer payments for the business.

The parties entered into a series of contracts on February 26, 2010 for the sale of the domain names. They closed the same day, and the plaintiff paid the $5.6 million purchase price with a real estate parcel in the Bahamas, an airplane, and a sum of cash. According to testimony presented in the case, the plaintiff allegedly later discovered that the business did not have good relationships with its merchant banks, its Google advertising account was suspended, and the defendants had allegedly artificially inflated the business’ revenues.

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Amidst the many legal and financial troubles it has been facing lately, Apple can scratch one class-action lawsuit off the list. The class-action combined a number of lawsuits that had been filed in San Francisco against the company and dealt with Apple’s warranty policy for its iPhone and iPod touch.

According to the lawsuit, Apple allegedly refused to repair or replace merchandise still under one- or two-year warranty if a piece of white tape inside the device had changed color. The tape was supposed to turn pink or red when it came into contact with water. Since said water contact is known to damage electronic devices, Apple customer service personnel were instructed not to repair devices with tape that had changed color.

However, the tape manufacturer, 3M, said that humidity could potentially turn the tape at least pink. The customer service manual also states that “If a customer disputes whether an iPod with an activated [Liquid Contact Indicator] has been damaged by liquid contact and there are no external signs of damage from corrosion, then the iPod may still be eligible for warranty service.”

Although the tech giant admits no wrongdoing, it has agreed to settle the case for $53 million. This has the potential to affect hundreds of thousands of iPhone, iPhone 3G, and iPhone 3GS owners as well as customers who bought the first three generations of the iPod touch media player. Each member of the claim could get as much as $400 although, if there are enough people with claims, it could end up being less than half that much.
This is not the first time Apple has had to contend with complaints regarding its warranty policies. Recently, the CEO, Tim Cook, apologized to China after the state-run CCTV network and Chinese celebrities chastised the company on its replacement and repair policies in the more than 1 billion customer market.

The EU has also repeatedly castigated the firm over its warranty policies and Italy even threatened to close Apple’s offices if a warranty concern wasn’t addressed.

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Many food and beverage companies are labeling their products “Natural”, “100% Natural” or “All Natural” in order to attract more health-conscious consumers. Two such consumers are Lauren Ries and Serena Algozer. Ms. Ries claims she bought an “All Natural Green Tea” at a gas station because she was thirsty and looking for a healthy alternative to soda. Ms. Algozer claims she purchased several AriZona ice teas over the years, but neither plaintiff has a receipt for any of these purchases, nor can they remember the prices.

They filed a class-action lawsuit against AriZona Ice Tea in the U.S. District Court for the Northern District of California, alleging that the drinks contained ingredients such as high fructose corn syrup and citric acid. According to the lawsuit, these ingredients are man-made products rather than the natural flavorings they claim to be, thereby making the “natural” labels misleading.

AriZona Ice Tea though, was able to provide testimony from expert witnesses that said otherwise. Dr. Thomas Montville, for example, a Rutgers University food scientist, maintained that both these ingredients are natural substances. The beverage company was also able to provide declarations from their suppliers that both citric acid and high fructose corn syrup are natural ingredients.

The plaintiffs’ attorneys on the other hand, were unable to produce a single expert witness in the three years of the case, which had been scheduled to go to trial on May 13, 2013. They also failed to respond to contentions that the plaintiffs failed to support their claims for restitution or disgorgement. They pointed to the fact that patents existed for the production of high fructose corn syrup, but the judge refused to take “judicial notice” of the fact. The judge was also unconvinced by the deposition of Don Vultaggio, the owner of Hornell Brewing Company, which supported the plaintiffs’ claim that consumers are likely to be confused and misled by the “natural” labels on the ice tea containers.

The lawsuit sought restitution, disgorgement of profits, injunctive relief, and attorneys’ fees. They claimed these under California laws such as the False Advertising Law, the Unfair Competition Law, and the Consumer Legal Remedies Act.

Judge Richard Seeborg had partially certified the class for the injunction against the “natural” label, but had refused to certify a class for restitution. Recently, Judge Seeborg found in favor of the defendants and granted summary judgment against the plaintiffs. According to his 13-page order, the plaintiffs “offer not a scintilla of evidence from which a finder of fact could determine the amount of restitution or disgorgement to which plaintiffs might be entitled if this case were to proceed to trial”.

The judge also determined that the plaintiffs’ counsel could not adequately represent the class and, on those grounds, granted the request to decertify the class.

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The Federal Telephone Consumer Protection Act (TCPA) makes it illegal to send unsolicited advertisements to fax machines. The Act provides that damages in these cases will be equal to the actual monetary loss suffered by the plaintiff or $500 per fax, whichever is greater. In the event that violation of the Act is found to be knowing and willful, the penalty is tripled.
In Standard Mutual Insurance Co. v. Lay, the defendant, a real estate agency, had hired a “fax broadcaster” which allegedly assured that only people who had agreed to receive advertisements would get its blast fax. This turned out not to be the case though, and the subsequent class-action litigation sought the triple penalty of $1,500 for each of the 3,478 faxes, which had reportedly been sent. The case settled for more than $1.7 million.

Meanwhile, the insurer filed a declaratory judgment action, seeking a declaration of no coverage. After the underlying action settled, the class representative became involved with the declaratory judgment action. The Circuit Court ruled in favor of the insurer and the Appellate Court upheld that ruling, stating that the TCPA penalties could not be insured as a matter of public policy, since they were punitive damages.

The attorney for Lay argued that it was the nature of the conduct, rather than the nature of the penalty, which should determine insurability. He explained that the insured’s conduct was not willful or wanton and did not involve the type of intentional wrongdoing which public policy does not allow to be insured as it would encourage such conduct. The attorney argued that a point by point or “conduct by conduct” analysis is necessary when determining whether conduct is uninsurable as a matter of public policy because it involves willful and wanton misbehavior. The attorney argued that Valley Forge Insurance Co. v. Swiderski Electronics ruled that TCPA damages have the potential to be covered under an advertising injury policy, much like the one involved in the case currently before the Court and that no intentional wrongdoing was involved.

The attorney for the insurer argued that there was an issue of possible breaches by the insured of the policy. The insurer defended under a reservation of rights letter. About four months after the case was filed, the attorney that had been hired by the insurer was fired by the insured. A month or two later, the insured agreed to the $1.79 million settlement with a covenant not to execute against any of the insured’s assets. The insurer’s attorney thereby suggested that there were questions of a breach of the cooperation clause and a voluntary payment had been undertaken. Chief Justice Kilbride asked the attorney if the insurer knew about and objected to the insured’s settlement. The attorney responded that the insurer had not been aware of the settlement.

The attorney for the class representative counter-argued that the insured had the right to settle under the circumstances and that the insurer had certainly known about the settlement.
The Illinois Supreme Court heard these arguments on the final day of the March term and is expected to make a decision in the fall. You can watch the oral argument before the Supreme Court by clicking here.

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Although banks have not generally been looked upon favorably lately, U.S. District Judge Naomi Reice Buchwald decided to look favorably upon 16 banks seeking dismissal of antitrust allegations, racketeering, and state-law claims. The allegations come from leading suits which had been seeking class action certification and claimed that the banks broke federal antitrust laws by allegedly suppressing the London Interbank Offered Rate (otherwise known as Libor).
Libor is calculated on a daily basis for different currencies on estimated borrowing rates submitted by banks on panels. The lawsuits are targeting banks who sat on the panels used to work out US-dollar rates. Executives and traders at certain banks allegedly tried to manipulate Libor in order to increase trading profits or improve the banks’ image.

However, Judge Buchwald says in her 161-page ruling that, because the Libor-setting process is a “cooperative endeavor” and was “never intended to be competitive” the banks would have had no motivation to intentionally put in false numbers. Therefore, any losses suffered by investors and other plaintiffs would have resulted from the banks’ “misrepresentation, not harm from competition”. With this being the case, the banks can not be charged with breaking federal antitrust laws.

Banks have already been hit hard by federal regulators. So far, Royal Bank of Scotland Group PLC (RBS) has agreed to pay $612 million to U.S. and British authorities. UBS AG agreed to pay $1.5 billion, and Barclays agreed to pay $453 million. About a dozen firms still remain under scrutiny, including Citigroup, Inc., Credit Suisse Group AG, Duetsche Bank AG, HSBC Holdings PLC, WestLB AG, and Royal Bank of Canada, among others.

Judge Buchwald acknowledged that, because of these settlements to federal agencies, her ruling may be “unexpected”. She pointed out though that, unlike government agencies, private plaintiffs have many requirements to meet under the statutes to bring a case.
“Therefore, although we are fully cognizant of the settlements that several defendants here have entered into with government regulators, we find that only some of the claims that plaintiffs have asserted may properly proceed.” Among the claims that she did not dismiss are the allegations of breaching commodities laws.

Michael Hausfeld, chairman of Hausfeld LLP, which is representing the city of Baltimore as a plaintiff in one of the largest Libor class-action suits, says that his clients will now have to decide if they want to file an amended suit or appeal the judge’s ruling. Unless the plaintiffs successfully appeal the ruling, it will mean a significant reduction in the potential costs to the banks. The ruling is also likely to diminish the financial incentive for new plaintiffs to join the investors, cities, lenders, and other parties that have already filed suits.

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Our Chicago autofraud and Lemon law lawyers near Aurora and Naperville, Illinois bring suit for auto dealer fraud and other car dealer scams such as selling rebuilt wrecks as certified used cars or misrepresenting a car as being in good condition when it is rebuilt wreck or had the odometer rolled back. Super Lawyers has selected our DuPage, Kane, Lake and Cook County auto-fraud, car dealer fraud, consumer fraud and lemon law attorneys as among the top 5% in Illinois. We only collect our fee if we win or settle your case. For a free consultation call us at our toll free number 630-333-0333 or contact us on the web by clicking here.

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Many people these days take for granted that nothing we do on the internet is private. However, most of us still expect our personal computers and smartphones to remain free from internet stalkers. A recent lawsuit against comScore however, has revealed that this is not always the case.

ComScore is a publicly traded company based in Reston, Virginia that collects internet user data. It monitors and measures what people do on the internet and turns that information into actionable data for its clients, which includes some of the largest e-commerce sites, online retailers, advertising agencies, and publishers. The company says that its more than 2,000 clients use the data for online marketing and targeted advertising.

ComScore uses the OSSProxy software. It is typically bundled with free software products such as screen savers and music sharing software and gets downloaded to the systems of end users that install them. It constantly collects and sends a wide range of data to comScore servers, including the names of every file on the computer, information entered into a web browser, and the contents of PDF files, among other things. ComScore insists that all of its data is stripped of all identifying information and personal data before it gets sold to clients.

However, a lawsuit filed in 2011 by two internet users, one from Illinois and the other from California, alleges that comScore violated the federal Stored Communication Act (SCA), the Electronic Privacy Communication Act (EPCA), and the Computer Fraud and Abuse Act (CFAA). The lawsuit alleges that comScore changed security settings and opened back doors on end-user systems, stole information from word processing documents, emails, and PDFs, redirected user traffic, and injected data collection code into browsers and instant messaging applications.

The lawsuit also alleges that the company secretly tracked and sold Social Security numbers, credit card numbers and passwords, along with other personal information.
In order to collect this data, comScore’s software allegedly modifies computer firewall settings, redirects internet traffic, and can be upgraded and modified remotely. The lawsuit also alleges that, contrary to comScore’s assertions, the company does not separate the personal information from the data it sells. The suit also alleges that comScore intercepts data that it has no business accessing.

Recently, District Judge James Holderman of the United States District Court for the Northern District of Illinois granted the two plaintiffs class action status. Any individual who downloaded and installed comScore’s tracking software on their systems after 2005 now has a claim against the company. The judge also certified a subclass, consisting of members of the primary class who downloaded comScore’s software during a specific time frame but were never provided a functional hyperlink to the user agreement, which describes how the software works.
Under the SCA and ECPA, each class member would be entitled to a maximum of $1,000 in statutory damages.

The judge denied certification of a third claim against comScore regarding unjust enrichment.

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