Chicago Business Litigation Lawyer Blog

Appellate Court Overturns Grant of Summary Judgment in Successor Liability Case

October 9, 2011 | Peter S. Lubin and James V. DiTommaso

For many business owners, they operate their companies with the hopes that they will continue to be successful ventures long after they are gone. However, both low level and senior personnel eventually move on, and businesses may have obligations to their surviving family members. DiTommaso Lubin is familiar with such agreements, and often times companies may not wish to honor those obligations after employees are no longer working for the company. Pielet v. Pielet is one case discovered by our Crystal Lake business litigation lawyers that addresses that very issue.

In Pielet v. Pielet, Arthur Pielet allegedly entered into a consulting agreement with Defendants that provided him lifelong monthly payments in exchange for his consulting services for Defendants scrap metal business, and should he pass on, those payments were to continue and be paid to his wife until her death. Arthur Pielet eventually died, and Defendants then allegedly ceased making payments to his widow, who filed suit alleging a breach of contract and successor liability among other causes of action. Plaintiff successfully filed a motion for summary judgment, and Defendants appealed the trial court’s decision.

On appeal, Plaintiff argued that Defendant PBS One, a successor in interest to Pielet Corp. (the company who was originally obligated under the consulting agreement), was liable under the agreement because they had entered into a purchase and assignment agreement with Pielet Corp. In response, PBS One argued that a novation had occurred whereby Pielet LP had substituted for Pielet Corp. in the consulting agreement, which absolved PBS One of liability. PBS One supported their claims with deposition testimony that, in the absence of providing a defense, at least raised an issue of material fact as to the existence of the novation. Additionally, PBS One argued that because the company had dissolved four years prior to the cessation of payments (and the accrual of Plaintiff’s claims), the applicable Illinois Survival Statute prevented Plaintiff’s claim.

The Appellate Court began with its analysis of the Survival Statute, and found that the statute applies to “rights”, “liabilities”, and “causes of action.” Because the case at bar concerned Plaintiff’s “right” to payment and Defendants’ “liability” to pay, and Plaintiff raised her claim to payment within the five-year period allowed under the statute, her claim was allowed under the law. The Court went on to discuss Defendant’s second argument regarding the existence of a novation that would place liability elsewhere. The Court did not make a finding of a novation, but the facts indicated that a novation could be inferred at two different points in time. Thus, the Court concluded that a triable fact question existed as to whether a novation occurred, and if there was a novation, at what point in time did it occur. In so holding, the Court reversed the trial court’s grant of summary judgment on all of the appealed causes of action, and remanded the case.

Injunctive Relief for the Breach of a Noncompete Agreement in Illinois – EBN Enterprises, Inc. v. CL Creative Images, Inc.

October 8, 2011 | Peter S. Lubin and James V. DiTommaso

A noncompete agreement typically protects a business that discloses confidential information or business practices to another business or individual from having that information later used against it in competition. Such agreements are generally enforceable and even standard in a wide variety of industries. However, just because a business can prove that someone violated a noncompete agreement does not mean that the business can prevent that person or entity from continuing to do so. In EBN Enterprises, Inc. v. CL Creative Images, Inc., the Northern District of Illinois explains the additional hoops that a party to a noncompete agreement must jump through in order to get an injunction preventing another party from continuing to breach the agreement.

Defendants owned a hair salon and operated it under a franchise agreement with Plaintiffs, the owners of the “Fantastic Sams” salon trade name and operation. The 10-year agreement allegtedly allowed Defendants to use the Fantastic Sams name and trademarks for Defendants’ salon. In return, Defendants agreed to pay a weekly royalty fee and a portion of certain costs. Defendants also agreed that they would not have any connection with a hair care business located within five miles of any Fantastic Sams salon for two years following the agreement’s termination.

The parties allegedly repudiated the agreement shortly before its termination and Defendants continued to operate a salon – now under the name “Corda’s Hair Salon” – at the same location. Plaintiffs filed suit, seeking an injunction preventing Defendants from operating a hair salon within five miles of the Fantastic Sams salon that Defendants previously operated. In order to obtain such relief, the court stated that Plaintiffs must show that: 1) they will suffer irreparable harm without a preliminary injunction; 2) traditional legal remedies will not adequately remedy the harm; and 3) their claim has some likelihood of success on the merits.

Plaintiffs made the requisite showing of success on the merits – a “greater than negligible chance of winning,” according to the court – because Defendants’ continued operation of their salon is in an alleged breach of the franchise agreement. Nevertheless, Plaintiffs failed to show that they will be irreparably harmed unless Defendants are enjoined from operating the salon. The court declined to presume such harm based solely on the breach of the agreement. Instead, it found that Plaintiffs failed to show that the injunction was necessary to prevent use of Plaintiffs’ confidential information, unfair appropriation of other proprietary or unique aspects of Plaintiffs’ business or consumer confusion or to preserve any relationships Plaintiffs would have with customers. Accordingly, the court denied Plaintiffs’ injunction request.

Class Action Certification in Toxic Pollution Cases: It’s Not Whether You Will Win or Lose, but How You Will Play the Game – Price v. Martin

October 8, 2011 | Peter S. Lubin and James V. DiTommaso

A recent ruling out of Louisiana makes clear that in determining whether a group of plaintiffs in a toxic contamination case should be permitted to bring their claims as a class action, the question is not whether the plaintiffs can ultimately win the case, but whether they’ve simply met the basic requirements for class certification.

Price v. Martin, Louisiana’s Third Circuit Court of Appeal affirmed a trial court’s certification of the plaintiff class in an action alleging that the defendants – local railroad tie manufacturers – contaminated the property surrounding their operation, finding that the plaintiffs met the certification requirements regardless of the likelihood of their success on the merits of their claims.

The plaintiffs are persons residing in Alexandria, Louisiana, near the Dura-Wood Treating Company facility, owned by defendants at various times over a 66-year period. They claim that Dura-Wood’s creosote-treated railroad tie operation contaminated soil, sediments, groundwater and buildings in the surrounding area, damaging the plaintiffs’ property. Following a flurry of motions, the trial court granted certification of the plaintiffs’ class action, allowing representative parties to sue on behalf of roughly 4,700 landowners in the allegedly contaminated area. The appeals court upheld the decision, finding that “[t]he trial court applied the correct legal standard in deciding to certify this class.”
The court quoted the state Supreme Court’s decision in Dukes v. Union Pacific R.R. Co. in describing the nature of class action lawsuits in Louisiana:

A class action is a nontraditional litigation procedure which permits a representative with typical claims to sue or defend on behalf of, and stand in judgment for, a class of similarly situated persons when the question is one of common interest to persons so numerous as to make it impracticable to bring them all before the court. Ford v. Murphy Oil U.S.A., Inc., 96-2913 (La. 9/9/97), 703 So.2d 542, 544. The purpose and intent of class action procedure is to adjudicate and obtain res judicata effect on all common issues applicable not only to persons who bring the action, but to all others who are “similarly situated.” Id.

The court further determined that the plaintiffs satisfied Louisiana’s numerosity, commonality, typicality, adequacy and class definition requirements for certification. Although the facility at issue had three owners who engaged in varying operations using different chemicals over the 66-year period during which the contamination allegedly took place, the court held that “one factual issue is common to the potential class—whether defendants’ off-site emissions caused property damage to the residences in the area surrounding the plant. This issue will not be resolved by examining individual residences in the area. Rather, the elevated toxin levels must be shown on an area-wide basis as emanating from the defendants’ facility.”

Class Certification Order Affirmed By Appellate Court

October 7, 2011 | Peter S. Lubin and James V. DiTommaso

We recently had a win in the Illinois Appellate Court in S37 v. Advanced Refrigeration. The Appellate Court affirmed the trial court’s decision to certifiy a class action regarding the claims in that. Advanced sells appliances to various businesses and added a charge on its invoices called government processing requirment. This fee was not required to be paid by the government and was not a government mandated fee. Advanced created the fee to recover costs it allegedly incurrs in complying with government requirements. The Class-Action Complaint alleged that the fee was deceptive in that it allegedly made a profit generating fee appear as if it were a government required fee. Advanced denied these allegations and opposed class-certification. The trial court denied Advanced’s motion to dismiss and then certified the case as a class-action.

The Appellate Court granted leave for an appeal of the class-certification decision. Advanced argued that it disclosed the true nature of the fee to all customers and that such alleged disclosure gave rise to individual issues blocking class certification. The Class argued that this defense did not create invididual issues barring class-certification as the defense of full disclosure was common the entire class given Advanced’s claim that it told all customers that the fee wasn’t a government mandated fee or tax as the fee’s name allegedly suggested it was.

The Appellate Court rejected Advanced’s arguments and found that the trial court properly exercised its discretion in certifying the class-action.

The Appellate Court held:

We agree with the plaintiff that this case fits the pattern of cases routinely certified as
class actions by Illinois courts. See Martin v. Heinold Commodities, Inc., 163 Ill. 2d 33, 643
N.E.2d 734 (1994) (resolved as a class action, the court held the commodity option contracts
broker’s disclosure statement was misleading, in violation of the Illinois Consumer Fraud Act,
because the “foreign service fee” to be charged investors was a commission from which it would receive compensation); Harrison Sheet Steel Co. v. Lyons, 15 Ill. 2d 532, 155 N.E.2d 595 (1959)(class action was proper where the defendant refused to refund illegal occupation taxes collected from its customers); P.J.’s Concrete Pumping Service, Inc. v. Nextel West Corp., 345 Ill. App. 3d 992, 1003, 803 N.E.2d 1020 (2004) (“The primary factual issue in this case is a uniform billing practice that allegedly violated the Consumer Fraud Act in the same manner as to all class members. The propriety of such a uniform practice is amendable to being resolved in a class action.”).

The Appelalte Court also noted that the brief of the National Association of Consumer Advocates (which filed a friend of the court submission) stated that class-actions provided a way for small claims like this to proceed to court and to obtain justice when small alleged wrongs in the aggregate allegedly harm many consumers:

“ ‘The policy at the very core of the class action mechanism
is to overcome the problem that small recoveries do not provide the
incentive for any individual to bring a solo action prosecuting his or
her rights. A class action solves this problem by aggregating the
relatively paltry potential recoveries into something worth
someone’s (usually an attorney’s) labor.’ ” Amchem Products, Inc. v. Windsor, 521
U.S. 591, 617 (1997), quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997).

You can view the full opinion of the Appellate Court by clicking here.

Retraction Regarding a Misunderstanding as to Blog Post on Janowiak v. Tiesi

October 7, 2011 | Peter S. Lubin and James V. DiTommaso

Our Blog contained a post regarding the Illinois Appellate case Janowiak v. Tiesi. The post described the allegations in the pleadings recited in the Appellate Court opinion. Our blog writer at Justía did not intend and the post did not describe the facts of that case as anything other than allegations. However, we received a letter from counsel for the Janowiak parties stating that they believe the post states that the allegations are presented as facts. We have therefore deleted that post from the blog. Per the request of the Janowiak parties, we state that the allegations in that case are allegations not facts as stated in the Appellate Court opinion and as the blog post previously stated. To the extent the blog post can be misinterpreted as stating that the claims in Janowiak v. Tiesi are facts, we retract those statements and apologize to the Janowiak parties for the misunderstanding. We regret this misunderstanding. Our blog writer at Justía simply intended to report allegations in a case and had no intent to report those allegations as facts.

Illinois Court Rules that Class Certification in Toxic Dumping Cases is Not an “All or Nothing” Decision – Leib v. Rex Energy Operating Corp.

October 6, 2011 | Peter S. Lubin and James V. DiTommaso

It doesn’t take a genius to understand that every person is different. Our daily routines; our likes and dislikes; our physical, spiritual, family and money situations; each of these differences make individuals individual. In the toxic dumping class action context, the Southern District of Illinois has made clear that while personal differences mean that some questions are not suitable for class action proceedings, it should not prevent the court from certifying a class on other common questions central to the action.

In Leib v. Rex Energy Operating Corp., Plaintiffs – residents of Bridgeport, Illinois – filed suit alleging that their properties were contaminated with unsafe levels of hydrogen sulfide (H2S), a poisonous gas, released into the air from the more than 100 nearby oil wells owned by defendant PennTex Resources Illinois, Inc. (“PennTex”) and managed by defendant Rex Energy Operating Corporation (“Rex Energy”). Plaintiffs sought damages for injury to property, injunctive relief restraining Defendants from allowing further contamination and forcing them to abate the existing contamination, the establishment of a Court-administered fund for medical monitoring of class members, punitive damages, costs and fees.

Plaintiffs also filed a motion for class certification, seeking to certify a class of all persons and entities owning property or residing in the area surrounding the wells and including most of the towns of Bridgeport and Petrolia. The court determined that Plaintiffs satisfied the requirements for class certification on the question of whether and to what extent Defendants contaminated the Class Area with H2S, but not as to the question of individual property damage amounts.

The court found that the contamination question involves issues common to the entire class:

Plaintiffs’ claims arise out of the same core of operative facts, that is, the allegation that [Defendants] allowed dangerous levels of H2S to contaminate the air in the Class Area. Such alleged behavior constitutes standardized conduct toward all prospective class members. Resolution of this question — whether and, if so, to what extent [Defendants] caused contamination in the Class Area — will certainly advance the litigation.

The court further found that Plaintiffs’ claims were sufficiently common to those of the proposed class, noting “[P]laintiffs need not allege the same exact injury or be free of factual distinctions so long as their claims are based on the same legal theory.”

Employers Can Require Exempt Employees to Take Mandatory Leave and Still Meet the IMWL Salary Basis Test

September 29, 2011 | Peter S. Lubin and James V. DiTommaso

At DiTommaso Lubin, we are accustomed to litigating wage claims brought under the Fair Labor Standards Act, and most of our clients have FLSA claims. However, our firm also is well versed in Illinois wage laws, and our Tinley Park wage and hour attorneys discovered an interesting overtime class-action in the Appellate Court of Illinois.

Robinson v. Tellabs, Inc. is wage dispute over a policy instituted by Defendant Tellabs requiring employees to take mandatory unpaid days off. Defendant is a manufacturer of telecommunications components that saw a significant boom in its business during the 1990’s, but saw its profits dwindle after the turn of the millennium. As a result of the downturn in revenue, Defendant laid off a significant portion of its work force and instituted many other cost cutting measures. One of the measures implemented by the company was to institute mandatory unpaid leave several days each year around existing paid holidays. Even after the mandatory unpaid leave policy was instituted, Defendant’s had to lay off additional employees to keep the company afloat.

The named Plaintiff worked as a lead engineer for Defendant while the unpaid leave policy was in effect, and was laid off eleven months after his hiring having never been paid any overtime. Plaintiff then filed a class-action lawsuit alleging that Defendant’s implementation of their mandatory unpaid leave policy made he and similarly situated employees non-exempt for the purposes of the Illinois Minimum Wage Law (IMWL). Therefore, Plaintiffs were entitled to overtime pay for any week in which they worked more than forty hours. The trial court ruled in favor of Defendant and found that the mandatory days off was essentially a prospective salary reduction that served the company’s bona fide business needs.

Plaintiffs appealed the trial court’s decision and claimed that the trial court incorrectly applied the salary basis test in making its ruling. The Appellate Court did not find Plaintiffs’ arguments persuasive and agreed with the trial courts decision. The Court discussed that the rule relied upon by the trial court and set forth by Department of Labor opinion letters, which states “the salary-basis test permits employers to prospectively reduce employees’ salaries for a legitimate business need unless done so frequently that the purported salary becomes a sham attempt to pay an hourly wage.” The Court went on to hold that the rule “refers only to deductions during the current pay period…not reductions in future salary.”
Because Defendant’s policy caused reductions in future salary and the policy was a result of Defendant’s bona fide economic difficulties, the Court found that Defendant satisfied the salary-basis test. Additionally, the Court found the test to be met because the policy was applied uniformly among all employees and was not instituted on an ad hoc basis.

Illinois Noncompete Agreements 101 – Nortek Products Ltd v. FNA Group, Inc.

September 22, 2011 | Peter S. Lubin and James V. DiTommaso

The District Court for the Northern District of Illinois’ recent opinion in Nortek Products Ltd v. FNA Group, Inc. provides a basic overview of how courts consider whether to enforce the terms of a noncompete agreement.

Plaintiffs began manufacturing pressure water products for Defendants in 2003. Five years later, the parties entered into a “License Contract” under which Plaintiffs would manufacture pressure washers that included specific hoses that Defendants held a patent on and/or involved specific technology for which Defendants had applied for a patent.

They also entered into a “Nondisclosure, Noncompetition and Non-solicitation Agreement” (NDA) prohibiting Plaintiffs from the “manufacture, assembly, use, sale, marketing, after-sale service or other disposition of any Licensed Product, any related ancillary activities and any other business [Defendants] may license (or co-operate with) [Plaintiffs] or consider licensing (or co-operating with) [Plaintiffs],” for three years after the expiration of the License Contract. The NDA also included a non-solicitation provision, barring Plaintiffs from soliciting Defendants’ customers for 10 years after the Licensing Contract’s expiration. Finally, the NDA’s nondisclosure provision stated that Plaintiffs would not disclose Defendants’ trade secrets or confidential information. The NDA did not include a geographic limitation.

Plaintiffs filed suit against Defendants for breach of contract. Defendants, in turn, filed a counterclaim alleging that Plaintiffs breached the NDA by soliciting business from Defendants’ customers and engaging in unauthorized business activities using Defendants’ confidential and proprietary business information.

In denying Plaintiffs’ motion to dismiss the counter claim, the court first determined that the NDA should be considered under an employee-employer framework, rather than in the context of a sale of business. “[B]ecause the covenants in the License Contract serve to protect confidential customer information and customer relationships, they are more akin to covenants ancillary to an employment contract than to a sale of a business,” the court ruled.

The Illinois Securities Act of 1953 Does not Apply to Common Law Damages Claims for Breach of Fiduciary Duty by Sellers of Securities

September 8, 2011 | Peter S. Lubin and James V. DiTommaso

As a Chicago law firm that focuses on business litigation, DiTommaso Lubin pays close attention to shareholder lawsuits filed in Illinois’ courts. Our Elmhurst business attorneys discovered a case filed in the Appellate Court of Illinois, First District, Fourth Division that answers questions regarding the appropriate statute of limitations to apply in a shareholder action for common law damages.

Carpenter v. Exelon Enterprises Co. is a case filed by multiple minority shareholders against the majority shareholder, Exelon, for breach of fiduciary duty and civil conspiracy. Defendant Exelon owned 97% of InfraSource, and Plaintiffs owned a portion of the remaining 3% of the company. Defendant then allegedly decided to divest its interest in the company through a series of complex merger transactions. The alleged end result of these transactions was to grant all shareholders in InfraSource would receive a pro rata share of the net proceeds. Using its majority stake in InfraSource, Defendant allegedly voted its shares in favor of the merger transactions, which was subsequently executed according to Defendant’s plan. After the merger, Plaintiffs filed suit against Exelon alleging breach of fiduciary duty and civil conspiracy that caused the minority shareholders to be inadequately compensated for their shares in InfraSource. Defendant then moved to dismiss the action because Plaintiffs’ claims were barred under the three year statute of limitations in the Illinois Securities Law of 1953. The trial court denied Defendant’s motion, stated that the applicable statute of limitations was the five year period contained in section 13-205 of the Illinois Code of Civil Procedure. The trial court then stayed the matter and certified the statute of limitations issue for an interlocutory appeal to the Appellate Court.

On appeal, the Court examined Defendant’s argument that, despite the fact that Plaintiffs did not allege specific statutory violations, Plaintiffs’ claims fell within the scope of the Illinois Securities Law and its three year statute of limitations. Plaintiffs argued that, because of the similarities between Illinois and federal securities law, federal case law should be utilized by the Court. Plaintiffs’ cited federal cases holding that securities fraud does not include the oppression of minority shareholders nor does it include oppressive corporate reorganizations, and thus the case did not fall within the purview of the Illinois statute. The Court performed a statutory analysis and determined that subsection 13(A) of the Law did not apply to Plaintiffs because their claims did not arise out of Plaintiffs’ role as purchasers of securities. The Court went on to explain that Defendant’s argument based upon subsection 13(G), which provides a remedy to any party in interest in the unlawful sale of securities, was unpersuasive. Instead, the Court held that subsection 13 of the Illinois Securities Law of 1953 does not “concern retroactive common law damages claims for breach of fiduciary duty brought by sellers of securities in general, or minority shareholders in particular.” By so holding, the Court declared that the three year statute of limitations did not apply and remanded the case back to the trial court.

Carpenter v. Exelon Enterprises Co. provides potential shareholder litigants with a ruling that gives them an additional two years to bring their claims. Conversely, those facing liability in a common law action surrounding a securities transaction should be aware that such claims are viable for a longer period of time than they may have previously thought.

Michigan Toxic Pollution Class Action Stalls in Circuit Court – Dow Chemical v. Henry

August 25, 2011 | Peter S. Lubin and James V. DiTommaso

A Michigan court recently pumped the breaks on a class action toxic pollution suit against Dow Chemical, finding that while property owners may be able to prove that the chemical giant contaminated local rivers and surrounding property with toxins, the plaintiffs did not meet the standards for bringing the suit as a class action.

The Michigan Messenger’s Eartha Jane Melzer reports that “[o]perations at Dow’s Midland plant have spread dioxin — a highly toxic and cancer-causing byproduct of the chemical manufacturing process — and other chemicals, through the Tittabawassee and Saginaw Rivers and into Lake Huron. Flooding of the rivers downstream from Dow has deposited dioxin-laden sediments on properties in the floodplain.”
Dow Chemcial v. Henry concerns a suit by roughly 150 Tittabawassee property owners filed against Dow on behalf of the more than 2,000 people with property in the floodplain in 2003 and claiming that their property had lost value due to contamination. Two years later, Saginaw County Judge Leopold Borello certified the class of property owners, a ruling that Dow appealed to the Michigan Supreme Court.

In order to be certified as a class, Michigan law requires that a group of plaintiffs meet the following criteria:

(a) the class is so numerous that joinder of all members is impracticable;
(b) there are questions of law or fact common to the members of the class that predominate over questions affecting only
individual members;
(c) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(d) the representative parties will fairly and adequately assert and protect the interests of the class; and
(e) the maintenance of the action as a class action will be superior to other available methods of adjudication in promoting the convenient administration of justice.

MCR 3.501(A)(1). On appeal, the state supreme court remanded the case to Judge Borello, requiring that he analyze the action under criteria (c) and (d) above.

Upon further consideration, Borello reversed his earlier approval of class status for the group. In so doing, he relied on the recent U.S. Supreme Court decision in Wal-Mart Stores v. Dukes, a 5-4 ruling in which the court reversed a lower court’s decision to certify a class of women employees alleging bias in pay and promotions, noting that the company’s decentralized structure meant that the case involved millions of employment decisions and that the women failed to show “some glue holding the alleged reasons for all those decisions together.”