Chicago Business Litigation Lawyer Blog
Video On Various Well Worn Frauds, Scams and Tricks Used By Automobile Dealers
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.
https://www.youtube.com/watch?v=0n3-U35G7Tg
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.
NPR Reports: “Thinly Veiled: Lawsuit Over Steamy Rihanna Video Sparks Debate On Copycat Culture”
NPR reports on a very interesting recently filed law suit regarding allegations that the pop singer Rhianna’s latest video crosses the line an plagiarizes the photo images of David LaChapelle and thus violates copyright law. The story states:
Fashion photographer David LaChapelle is known for staging photo shoots with lots of bright colors, outrageous costumes, and sexy, surreal images. …
When compared side-by-side, the video does bear striking similarities to the photos LaChapelle claims were plagiarized. In once scene, Rihanna lies semi-nude on a table, surrounded by reporters in clown wigs. The corresponding LaChapelle photo depicts a woman lying in a hospital bed, also half-naked and also surrounded by clowns in business attire.
In his complaint against Rihanna, LaChapelle alleges, “Defendants are wrongly implying to the public that plaintiff was involved in the creation of the Music Video or that plaintiff has endorsed, approved or otherwise consented to its creation.”
You can read or listen to the entire story by clicking here.
Northern District of Illinois Rules that State Law Overtime Claims Not Precluded by Prior Dismissal of FLSA Class-Action
When dealing with class-action wage and hour disputes, defendants will try to get the court to dismiss claims by any means that they can, and there are a variety of legal defenses that allow them to do so. At DiTommaso Lubin, our overtime lawyers are familiar with all of the tricks of the trade, so to speak, so they were interested to discover a case that illuminates just one of these many tools that is utilized by defendants to escape liability.
In Anyere v. Wells Fargo Co. Inc, Plaintiffs were current and former employees of Defendant and worked as credit managers who provided customers primarily with loan consolidation services. Plaintiffs filed a lawsuit alleging overtime violations under Fair Labor Standards Act (FLSA) because they were required to work during lunch, on weekends, and late into the night on a regular basis. Plaintiffs also alleged that Defendant “verbally disciplined employees for logging more than forty hours per week” and would adjust employees’ time records to stay under the overtime threshold. In response to these allegations, Defendant moved to dismiss the action on the basis of collateral estoppel due to a previous lawsuit filed against Defendant in California for the same overtime violations.
The Court dismissed the FLSA claims for nationwide relief based upon issue preclusion — the California-filed class-action was dismissed because the members of the proposed class were not similarly situated. However, the Court maintained the statewide action because the prior case did not contemplate an Illinois-only class-action and therefore could not have been litigated previously.
Northern District of Illinois Denies FRCP 12(b)(6) Motion to Dismiss Brought Against Dialysis Technicians
Because we focus on large-scale overtime class-action lawsuits, the attorneys here at DiTommaso Lubin have helped clients from many different fields recover their unpaid wages. We think it is important for all of our potential clients out there to understand what kinds of issues arise in wage and hour cases, so our Evanston overtime attorneys are always on the look-out for new decisions. In fact, our lawyers discovered a federal case in the Northern District of Illinois that involves workers in the medical industry.
In Howard v. Renal Life Link Inc., Plaintiffs worked for Defendant as dialysis technicians and routinely worked over forty hours each week, but Defendant allegedly deducted any overtime worked and paid Plaintiffs for only forty hours. The named Plaintiff complained to Defendant that she was not being paid properly for all of the time that she had worked, but Defendant allegedly ignored these complaints and continued to deduct any time worked over forty hours each week. Plaintiffs then filed suit alleging that these working hour deductions constituted violations of both the Illinois Minimum Wage Law (IMWL) and the Fair Labor Standards Act (FLSA). In response, Defendants filed a motion to dismiss the action under Federal Rule of Civil Procedure (FRCP) 12(b)(6) alleging that Plaintiff failed to supply sufficient factual evidence in the complaint in order to meet the requirements of FRCP 23.
Defendant’s based their argument that Plaintiff failed to allege enough facts because the complaint contained allegations based “upon information and belief” instead of hard evidence. The Court found this argument unpersuasive, however, because FRCP 8 allows such allegations as long as there is sufficient detail in the complaint to make the claims facially plausible. In denying Defendant’s motion to dismiss, the Court held that the issues brought up by Defendant were properly analyzed at the class certification phase of the case, and were not properly brought in a 12(b)(6) motion to dismiss.
Southern District of Illinois Federal Court Dismisses Minimum Wage Claim for Failure to Plead Sufficient Facts
A motions to dismiss is a weapon that is frequently used in large scale wage claim litigation, as it is an easy and expedient way for defendants to eliminate many lawsuits. DiTommaso Lubin is an experienced class-action law firm whose Chicago wage and hour attorneys frequently handle overtime disputes, and we deal with such motions on a regular basis, which is why our lawyers were interested in a case out of the Southern District of Illinois that discusses the federal standard for dismissals under Federal Rule of Civil Procedure (FRCP) 12(b)(6).
FRCP 12(b)(6) allows litigants to dismiss an action for a failure to state a claim upon which relief can be granted by a federal court. Nicholson v. UTI Worldwide, Inc. is an action brought by forklift operators who worked for Defendant Uti in its warehouses in Illinois. Plaintiffs claimed that they were forced to work without pay prior to the start of their shifts performing inspections, logging into computer systems, “donning special clothing and protective gear,” and other activities. Because they were not paid for this work, Plaintiffs claimed that Defendant had violated the Fairl Labor Standards Act (FLSA), and the Illinois Minimum Wage Law (IMWL). In their complaint, Plaintiffs failed to plead how frequently the pre-shift activities occurred and also included no estimates of the applicable wage rates that applied during the times that Plaintiff’s performed such work. Defendant filed a motion to dismiss for the lack of pleading specificity in response to Plaintiff’s complaint.
In making its decision, the Court held that Defendants had been sufficiently notified of the overtime claims because Plaintiffs plead enough facts to show that their employment was covered by FLSA and the IMWL. Despite the fact that the complaint did not include allegations that Plaintiffs worked over forty hours a week, Plaintiffs did allege that they worked “overtime,” which was enough to give Defendant notice of the claim. However, the Court dismissed the minimum wage claims because Plaintiffs failed to plead facts suggesting that their actual wages fell beneath the applicable minimum wage. Thus, the Court allowed the overtime claims to proceed, but dismissed the minimum wage claim under the IMWL.
Five-Year Statute of Limitations Applies to Enforcement of Arbitration Award, First District Finds
As Illinois arbitration lawyers, we were interested to see a ruling on the statute of limitations for enforcing an award won in private arbitration. Peregrine Financial Group Inc. v. Futronix Trading, Ltd. No. 1-09-2293 (Ill. 1st May 21, 210) pits Peregrine, a commodities brokerage firm, against Futronix, a client that became delinquent in its accounts with Peregrine. The plaintiff took the defendant to arbitration and won an award of the delinquent amount plus interest. However, that was in August of 2003, and the plaintiff waited until November of 2008 to file in court to enforce the award. The defendant successfully moved to dismiss on the grounds that the statute of limitations had passed, under Illinois Code of Civil Procedure sec. 13-205. The plaintiff moved to reconsider but was denied, and appealed both decisions to the First District Court of Appeal.
Defendants hired plaintiffs to act as their agent in commodities futures purchasing. However, the defendants did not maintain enough money in its account to cover its losses, causing it to go delinquent in the amount of $115,512.64. The plaintiff filed an arbitration action with the National Futures Association and won that amount plus costs. The defendants then moved and did not pay the award. Five years and three months later, the plaintiffs filed in Cook County court to confirm the award. Defendants moved to dismiss on several grounds, including the statute of limitations. The plaintiff argued that there is no statute of limitation on an arbitration award, but the trial court was unmoved. Plaintiff appealed.
On appeal, the First noted that sec. 13-205 of the Code of Civil Procedure explicitly includes “awards of arbitration” among the types of actions to which it applies. Nonetheless, the plaintiff cited a federal case, United Steelworkers of America v. Danly Machine Corp., 658 F. Supp. 736 (N.D. Ill. 1987), in support of its argument. In that case, the district court for northern Illinois specifically said Illinois law does not impose a statute of limitations on arbitration awards. However, the First said, the district court gave no support or reasoning for its statement, and federal law is not binding on state courts.
The First also rejected an argument that if a statute of limitations applies, it should be sec. 13-206 of the Code, which gives a 10-year statute of limitations for actions arising from “written evidence of indebtedness” such as written contracts and promissory notes. In support, the plaintiff cited Blacke v. Industrial Comm’n, 268 Ill. App. 3d 26, 644 N.E.2d 23 (1994), a case about whether sec. 13-205 applied to collection actions under the Workers’ Compensation Act. That court decided that 13-205 applies to all statutory rights of action unless the legislature specifically intended otherwise, and rejected the argument that sec. 13-206 applied to the Workers’ Compensation Act or any other statute. The plaintiff argued the inverse: that the 10-year statute of limitations applies because its cause of action was based on a contract. However, the First said, that’s not quite true — the arbitration was based on a contract, but the suit seeking to enforce the arbitration award was not.
Finally, the court rejected three more arguments. One was based on public policy — that applying the five-year statute of limitations would run counter to Illinois public policy of enforcing arbitration awards. While it’s true that Illinois has such a public policy, the court said, it also has a public policy to enforce statutes of limitations. The plaintiff then argued that the statute of limitations should have been tolled when the defendants moved without paying. But this did not prevent the plaintiff from filing, the court noted, although it would have required the plaintiff to serve notice of the claim by publication. The last argument plaintiff made was that fundamental fairness should require the court to allow the case to go forward. The First rejected this, saying the plaintiff hadn’t shown any good reason for its five-year delay in filing. Thus, it upheld both the original judgment of the trial court and its denial of plaintiff’s motion to reconsider.
Central District of Illinois Rules that Filing Opt-in Consent Forms is not Enough to Establish a Class-action Under FLSA
Across the nation, there are employees who go to work each day and earn overtime wages, but are unaware that they should be getting paid time and a half for the time they work over forty hours each week. DiTommaso Lubin focuses on wage and hour law, and our attorneys frequently meet clients who have years worth of unpaid overtime, and we help them get the wages they are owed. Our Chicago unpaid overtime class action attorneys discovered a case from the federal court for the Central District of Illinois that we wanted to share with our readers due to the unique nature of the issues tackled by the Court in its opinion.
Murray v. Tyson Foods is a case to determine whether Tyson should have paid overtime wages for the time that Plaintiffs spent putting on and taking off protective clothing worn in Tyson’s beef and pork processing plants. The case is one of many similar actions filed in five different states regarding this same issue. Plaintiffs filed a class-action suit alleging that Defendant’s failure to compensate Plaintiffs for that time constituted violations of the Illinois Wage Payment and Collection Act (IWPCA) and the Illinois Minimum Wage Law (IMWL), and filed individual claims for violations of the Fair Labor Standards Act (FLSA),
After the start of the litigation, Defendant filed a motion for partial summary judgment on the basis that the state law claims were preempted by the Labor Management Relations Act and the parties’ collective bargaining agreement. This motion was was granted, eliminating the class action issues and leaving only the FLSA claim for the six named Plaintiffs. The parties went on to discovery, and three days before the close of discovery, Plaintiffs noticed a 30(b)(6) deposition. Defendant opposed the deposition and filed for a protective order on the grounds that Plaintiffs sought the deposition to gather information on the previously dismissed class action claims. Plaintiffs responded by asserting that the filing of 1,474 opt-in consent forms from other putative class-members had created a collective action under FLSA.
The Court declined to agree with Plaintiffs’ argument because the complaint did not contain a representative FLSA claim and no motion was ever filed to certify a class-action on the claim. Thus, the opt-in consent forms had no legal meaning and did not create a class-action under FLSA. Additionally, the Court found that Plaintiffs’ 30(b)(6) notice was too broad, and granted Defendant’s protective order, but gave Plaintiffs time to issue a more tailored 30(b)(6) notice.
Southern District of Illinois Federal Court Conditionally Certifies FLSA Overtime Class-Action
Whether intentional or not, many companies implement policies and procedures that create violations of both federal and state wage laws. In our years of practicing law, DiTommaso Lubin has seen many such policies, and our Crystal Lake overtime attorneys have helped many previous clients victimized by them. Our lawyers recently discovered a wage and hour class-action case regarding one such policy and wanted to share it with our readers.
In Marshall v. Amsted Industries, Inc., the two named Plaintiffs worked at Defendants’ steel foundry as an hourly leadman and hourly chipper, respectively. Plaintiffs filed a class-action suit for unpaid overtime and a failure to keep accurate payroll records pursuant to the Fair Labor Standards Act (FLSA). They sought conditional certification of a class comprised of all current and former hourly employees who worked at Defendants’ facility in the last three years. Plaintiffs alleged that Defendants implemented a company policy that all hourly workers had to perform maintenance and service tasks as well as don protective clothing prior to the beginning of their work shifts. Additionally, Plaintiffs had to carry out shut-down and clean-up procedures after the end of their shifts, but were never compensated for the work performed during these times. In response to Plaintiff’s motion for conditional certification, Defendants’ moved to de-certify the action.
The Court found that they met the requirements of certification under FLSA and conditionally certified a class, despite the presence of four different collective bargaining agreements and varied job titles of the potential plaintiffs. The Court based their conditional approval on the fact that all of the hourly workers were similarly situated enough to allow Plaintiffs to send out opt-in notices. In so holding, the Court decided that Defendans’ company policies of requiring workers to complete pre- and post-shift tasks applied equally to all of the hourly workers and deprived them of their overtime pay.
Amicus Brief Filed by Illinois Trial Lawyers Association and National Association of Consumer Advocates in Illinois Class Action Appeal Regarding Government Required Processing Fee That is Not in Fact a Government Charge
The Illinois Trial Lawyers Association and the National Association of Consumer Advocates filed an amicus or friend of the Court brief before Illinois’s First District Appellate Court in an appeal in a consumer fraud and breach of contract class action DiTommaso Lubin is prosecuting. The brief explains why the right to pursue class actions is so important to consumers who cannot afford an attorney to correct small frauds or unfair practices which can result in Defendants reaping large gains. The brief states:
Another significant statement that appears in the defendant’s brief is the following:
“If the Circuit Court ruling is reversed, it is highly likely this case will be settled, given the low dollar value of Plaintiff’s individual claim for damages and the fact that the Plaintiff has no evidence that any other Advance customer allegedly also misunderstood the Governement Required Processing Fee. …As to the statement that if the class certification decision is reversed, it is highly likely the case will be settled, given the low dollar value of the plaintiff’s individual claim. This is precisely why this claim needs to proceed as a class action.
As pointed out by Judge Posner, a defendant who resists a class action by stating that there are a multitude of class members makes no argument at all. “The more claimants there are, the more likely a class action is to yield substantial economies in litigation. It would hardly be an improvement to have in lieu of this single class action, 17 million suits, each seeking damages of $15 to $30 . . . The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30. But a class action has to be unwieldy indeed before it can be pronounced an inferior alternative – no matter how massive the fraud or other wrongdoing that will go unpunished if class treatment is denied – to no litigation at all.” Carnegie v. Household International Inc., 376 F.3d 656, 661 (7th Cir. 2004) (emphasis in original).
The courts developed the class action device to handle cases like this one. “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).
The Defendant has tipped its hand in its statement that the case will settle if the court reverses class certification. This is because if the court reverses class certification the defendant will pay off the Plaintiff by refunding the small sum of money it managed to take from it …
To review the full brief click here