The owner of an upscale downtown Chicago hotel sued a competing hotel elsewhere in the city for trademark infringement. After more than a year, the plaintiff company eventually voluntarily dismissed its suit. The defendants then moved for attorney fees. The district court initially denied the motion, finding that the plaintiffs had not brought the type of exceptional case that warranted fee-shifting after dismissing the claims. The defendants appealed, and the appellate panel determined that the district court applied the wrong standard in evaluating the motion for fee-shifting. The panel reversed the decision of the district court and remanded the case with instructions for the court to reanalyze the request for fees under the correct standard.

LHO Chicago River, LLC, owns an upscale downtown Chicago hotel that underwent a branding change in February 2014 when it became “Hotel Chicago,” a signature Marriott venue. Around May 2016, Joseph Perillo and his three associated entities opened their own “Hotel Chicago” only three miles from LHO’s site. LHO then sued the defendants for trademark infringement and unfair competition under the Lanham Act, as well as for trademark infringement and deceptive practices under Illinois state law. Continue reading ›

When companies decide where to establish a headquarters or where to expand, they must weigh several factors such as access to qualified candidates and tax laws. One factor businesses are considering more and more is the litigation climate of a state or local jurisdiction. According to a recent study, that does not bode well for Illinois, which ranked last among states for the quality of its litigation climate among businesses. Additionally, the City of Chicago and Cook County ranked as the worst local jurisdiction in the nation according to the same study.

Since 2002, the U.S. Chamber Institute for Legal Reform has conducted a survey to explore how fair and reasonable the states’ liability systems are perceived to be by U.S. businesses. Last year’s survey was performed by The Harris Poll and consisted of more than 1,300 respondents consisting of in-house general counsel, senior litigators, and other senior executives at companies with at least $100 million in annual revenues.

The survey broadly focuses on perceptions of a state’s liability system by asking participants to assign a state a grade of A, B, C, D, or F in each of the following areas:

  • Overall treatment of tort and contract litigation
  • Enforcing meaningful venue requirements
  • Treatment of class action suits and mass consolidation suits
  • Damages
  • Proportional discovery
  • Scientific and technical evidence
  • Trial judges’ impartiality
  • Trial judges’ competence
  • Juries’ fairness
  • The quality of the appellate review

These grades were then used to develop the ranking of each state. The study also sought to identify specific cities or counties that might impact a state’s ranking. Accordingly, participants were given a list of cities or counties with reputations for having a poor litigation climate and asked to select two that have the least fair and reasonable litigation environments.

The results of the study were published in a report titled The 2019 Lawsuit Climate Survey: Ranking the States. Overall, Illinois ranked 50 out of 50. Illinois beat out Louisiana (49th), California (48th), Mississippi (47th), and Florida (46th) for the dubious distinction as the state with the worst litigation climate. Illinois has ranked in the bottom five states every year since 2005. Its highest ranking came in 2002, the first year the study was conducted when Illinois was ranked 34th. Continue reading ›

On December 4, 2019, Illinois Governor JB Pritzker signed into law Senate Bill 1557. This new law contains various amendments to the Illinois Cannabis Regulation and Tax Act (“Cannabis Act”), 410 ILCS 705/1 et seq., and provides clarity regarding the interplay between the Cannabis Act and the Illinois’ Right to Privacy in the Workplace Act (“Right to Privacy Act”), 820 ILCS 55/1 et seq.

The Cannabis Act legalized (under state law) the adult-use of cannabis recreationally and goes into effect January 1, 2020. The Cannabis Act does not interfere with employers’ drug-free policies but instead expressly provides that employers are free to adopt reasonable zero-tolerance or drug-free workplace policies, provided that the policies are applied in a nondiscriminatory manner. In addition, the law provides that employers have the right to discipline or terminate an employee for violating a workplace drug policy.

As originally written, uncertainty remained concerning whether employers could discipline or terminate an employee pursuant to post-offer, pre-employment positive drug test, or even pursuant to a post-accident or random positive drug test. Much of the confusion was due to recent amendments to the Right to Privacy Act, which prohibit an employer from disciplining an employee for use of “lawful products” while off duty.

The recent amendments to the Right to Privacy Act deemed “lawful products” to include products that are lawful under state law, which effective January 1, 2020, would include cannabis used recreationally. This led to a possible interpretation that would create a cause of action for applicants who tested positive for cannabis at the post-offer, pre-employment stage because any such use would have been off-duty, in direct violation of the Right to Privacy Act. Continue reading ›

Settling most cases is a difficult process, particularly when the parties dispute what exactly happened or when the underlying claim turns out to be smaller than anticipated. In Fair Labor Standards Act (“FLSA”) cases, the process can be even more difficult depending on the court’s interpretation of the FLSA’s enforcement provision, section 16, which permits the Department of Labor to supervise settlements.

Courts have reached differing interpretations regarding this statutory language and whether it requires DOL or judicial approval of all FLSA settlements. The parties to an FLSA case may wish to avoid having to submit a settlement agreement to the court to obtain approval before a case can be settled. Such reasons include a desire to keep the settlement terms confidential, the cost of obtaining judicial approval, and the time delay inherent in having to obtain judicial or DOL approval. The question that has long plagued litigants and attorneys alike is whether the parties can find a means of settling their matters without having to seek review, as they do with virtually every other kind of employment case. Continue reading ›

An Illinois appellate court recently affirmed grant of summary judgment in favor of Commonwealth Edison (ComEd) in a class-action lawsuit alleging that ComEd violated the Illinois Employee Credit Privacy Act (“Act”), 820 ILCS 70/1 et seq., by investigating the plaintiff’s credit history in connection with a conditional offer of employment and ultimately refusing to hire her as a result of that investigation.

Many Illinois residents are familiar with ComEd, the public utility company that provides electrical services to nearly four million customers in Illinois. In 2017, ComEd offered the plaintiff a conditional offer for a part-time position. The offer was contingent upon the plaintiff’s successfully passing a background check, credit check, and drug test. ComEd subsequently withdrew its offer and notified the plaintiff by email that “due, in part, to information received from the consumer report previously provided to you, we are not able to offer you employment at this time.”

The plaintiff responded to the news by filing a class-action lawsuit alleging that, by inquiring into her credit history and obtaining her credit report in connection with her application for a position and by ultimately refusing to hire her because of information contained in the report, ComEd violated her rights under the Act. Continue reading ›

Sex traffickers are as capable as the rest of us of using technology for their businesses, including social media. But what if we could prevent them from using social media for their sex trafficking?

Annie McAdams is a personal injury attorney based out of Houston, TX who has sued insurance companies, drunk drivers, restaurants, and real estate developers. Now she’s taking on Facebook and other major tech companies.

Section 230 of the Communications Decency Act of 1996 says internet companies are not responsible for what their users post, but according to McAdams, separate laws should exist that require Facebook and other tech companies to warn users about pimps using Facebook and Instagram to lure minors into sex work and that they should do more to foil the pimps in those attempts.

The logic McAdams uses is that if someone sells a lawnmower to someone else, and in the course of using that lawnmower a blade flies off and injures someone, the law requires the seller to take responsibility for the accident, to warn users, and to take action to prevent it from happening again. But those same, basic protections don’t apply to sex trafficking over the internet. Continue reading ›

A recent decision by the Eleventh Circuit federal court of appeals adds another arrow to class action defendants’ quiver by making it more difficult for plaintiffs to establish standing to sue under the Telephone Consumer Protection Act (“TCPA”). The appellate court ruled that a single text message did not cause sufficient harm to sue in federal court.

In Salcedo v. Hanna, 936 F.3d 1162 (11th Cir. 2019), the plaintiff, John Salcedo, received a single form text message from his former attorney offering a discount on the attorney’s services. After receiving the message, Salcedo filed suit in the district court alleging that the text message violated the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii). Salcedo sought to prosecute the suit on behalf of a putative class of the attorney’s former clients who also received unsolicited text messages from the attorney in the past four years. He alleged that the text message caused him to “waste his time answering or otherwise addressing the message” and infringed upon his “right to enjoy the full utility of his cellular device” and sought statutory penalties of $500 to $1,500 for each text message as damages.

After the defendant unsuccessfully moved to have the case dismissed for lack of standing and failure to state a claim, the district court permitted the defendant to file an interlocutory appeal recognizing that the question of standing “involves a controlling question of law as to which there is a substantial ground for difference of opinion.” The three-judge panel of the Eleventh Circuit did not buy the plaintiff’s standing arguments.

In a detailed opinion, the panel examined its own precedent, the legislative history of the TCPA, and the history of Article III’s standing requirement. Any discussion of standing would not be complete without an examination of the Supreme Court’s 2016 decision in Spokeo v. Robins. At the conclusion of this examination, the appellate court concluded that the plaintiff’s allegations about a single text message failed to state a “concrete injury-in-fact” necessary for federal jurisdiction.

Continue reading ›

In a putative class action recently filed in a Florida federal district court against fast-food chain Burger King, the tagline for the Impossible Whopper of “100% Whopper, 0% Beef” is misleading. According to the plaintiff, Philip Williams, although Burger King advertises the Impossible Whopper as being a meat-free option, it is contaminated by meat by-product because it gets cooked on the same grill as other meat products.

The lawsuit accuses Burger King of “false and misleading business practices” and benefiting monetarily from claiming to offer customers a vegan option that in reality is not actually vegan. The plaintiff seeks to represent himself and a class of other vegans who ordered the Impossible Whopper from Burger King. The lawsuit seeks to recover damages for all class members who bought the Impossible Whopper, as well as the imposition of an injunction requiring Burger King to “plainly disclose” that it uses the same grill to cook both the Impossible Whopper and meat burgers.

According to the complaint, the Burger King that the plaintiff visited did not have signage at the drive-thru indicating that the plant-based burger would be cooked on the same grill as meat. The Burger King website notes that “a non-broiler method of preparation is available upon request,” for customers ordering the Impossible Whopper. Despite noting this on its website, the plaintiff alleges that no one told him that the Impossible Whopper was cooked on the same grill as the meat burgers and that if he had known this fact, he would not have ordered it. The suit further claims that other vegans would not have purchased the Impossible Whopper either if they had known. The lawsuit cites similar complaints made by several other consumers online about the burger chain’s preparation of the Impossible Whopper. The complaint requests an order requiring Burger King to return all the profits it made from selling the meat-free alternative, including the money that Mr. Williams paid. Continue reading ›

Labor unions are supposed to negotiate with employers on behalf of the workers, but according to a recent lawsuit against Fiat Chrysler, the officials of the United Auto Workers union (UAW) allegedly exploited their position to line their own pockets, rather than negotiate better terms for their workers. According to the lawsuit, filed by General Motors, Fiat Chrysler allegedly bribed UAW officials in order to get more favorable rates than their competitors.

Gary Jones, the former president of the UAW, has not been charged by the Justice Department, but he came under scrutiny when federal prosecutors found that union officers from a regional office Jones used to lead had charged more than $1 million in personal spending, including luxury travel. Jones took a leave of absence in November after the FBI raided his home in August and has since resigned as president of the UAW while the union was working to force him out of that position.

Several officers of the UAW and three people who used to work as executives for Fiat Chrysler have all pleaded guilty in cases that revealed that both the auto company and the union siphoned off millions of dollars (some of which was intended for a training center) for personal luxuries, including extravagant travel and meals. Continue reading ›

A federal judge for the Northern District of Illinois has given final approval to three major cruise lines and a travel agency of a $12.5 million class-action settlement. The defendants were accused of bombarding consumers nationwide with prerecorded telemarketing calls promoting cruise trips without their consent.

Defendants Carnival Corporation, Royal Caribbean Cruises Limited, Norwegian Cruise Lines Limited, and Resort Marketing Group, the travel agency that allegedly operated the auto-dialing system, contributed to the settlement fund together. The plaintiffs alleged that the defendants’ use of unsolicited robocalls violated the Telephone Consumer Protection Act.

More than 270,000 valid claims were filed following the initial approval of the settlement in July 2017. According to documents filed in support of the settlement, a total 274,851 valid claims were filed. According to Judge Andrea R. Wood, the judge overseeing the case, this works out to roughly $22 per claim. Continue reading ›

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