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Dancel-ing on Her Own

The Illinois Right of Privacy Act ("IRPA") is one of those laws that gets a little hard to apply in the context of the social media age. Amongst other measures intended to protect privacy, it states in relevant part that "A person may not use an individual's identity for commercial purposes during the individual's lifetime without having obtained previous written consent." 765 ILCS 1075/30. When Christine Dancel saw a picture of herself from Instagram used on the Groupon website to promote their services, it struck her as a violation of the IRPA. The website automatically pulled photographs from Instagram where the subject of the phot was one of the restaurants that had a deal available-in this case Dancel had posted a photo of herself and her boyfriend at a restaurant in Vernon Hills to Instagram, and Groupon's program had pulled that for their site. She filed a class action suit on behalf of all Illinois residents whose Instagram photos had been similarly used.

On December 18th, the Federal Seventh Circuit upheld a lower court decision denying class action status to Dancel's suit. Dancel v. Groupon, Inc., 940 F. 3d 381 (2019). Class certification can be a tricky thing, but in this case the deciding factor was actually the law itself, and the court's decision may have implications for similar actions going forward, whether or not they have a class action component. The IRPA defines a person's identity, the key component of the law itself, as "any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener, including but not limited to (i) name, (ii) signature, (iii) photograph, (iv) image, (v) likeness, or (vi) voice." The quirk here is that an Instagram profile, which is actually the basis for inclusion in a class action, is just a username, not an individual person.

That is, if "meowchristine" (which was Dancel's Instagram profile name) posts a photograph, there's no categorical way to know if the individual behind "meowchristine" was Dancel, or her boyfriend who also featured prominently in the picture, a freind of theirs who took the picture and posted it, or even an absolute stranger who took a photo of anther stranger and posted it. It is the structure of the proposed class that proved fatal to the certification: fundamentally, she had attempted to create a class consisting not of individuals as defined by the law, but of Instagram accounts. As the court pointed out, it might be the case that most, or even almost all, accounts had individuals behind them whose rights under the IRPA were violated. As the court put it most simply, the IRPA requires not just that some individual's identity be used for commercial purposes: it requires a particular individual's identity is used for commercial purposes. Dancel makes a number of arguments, but fundamentally failed to show that her class can proceed without looking at particular usernames to match with particular individuals and particular photographs on the Groupon website.

Now, this is not to say that Dancel, or any other user, can't successfully litigate Groupon's use of their image under the IRPA. But class certification exists for a reason, and the damages associated with the use of just one person's image may not justify litigation in the same way that the use of hundreds or thousands of images would. It could even be argued that by disassociating online identities from the type of identity that can create a class action suit under this particular law could have unfortunate implications for other laws beyond the bounds of the IRPA, since this case will almost certainly be used to fight class actions of online accounts generally. But those implications will have to be addressed in other cases. For now, Dancel has a decision to make: drop the case as ill-advised if she is the only plaintiff or, as my horrible pun in the title of this blog implies, move forward alone.

-Attorney Travis Dunn

What To Do When There Are Conflicting Treatment Recommendations

In the Illinois Workers’ Compensation Law Bulletin, there was a recent article regarding a worker’s compensation case that had an interesting set of facts. In the case discussed, Mojica v. Labor Network, 27 ILWCLB 140 (Ill. W.C. Comm. 2019), the claimant had injured her back while pushing a heavy cart at work. See Conflicting medical opinion regarding recommended treatment requires remand. Illinois Workers’ Compensation Law Bulletin, Volume 27, Issue 13, September 27, 2019, p. 6.[1] The claimant first underwent conservative treatment (physical therapy, various injections of pain medication, etc.), but this did not effectively resolve her pain. Her treating physician then recommended that the claimant undergo a two-level discectomy, while another one of the claimant’s treaters, an orthopedic surgeon, recommended something more extensive, a three-level fusion.[2] While the arbitrator awarded the claimant temporary total disability benefits and reimbursement of medical billing, the arbitrator denied future medical treatment for the claimant, since there was no agreement among the claimant’s treating physicians regarding what her necessary prospective treatment should be.[3]

The Commission, in reviewing the decision, sought to grant to the claimant the right to seek future medical treatment for her recurring back pain, but could not authorize anything treatment-wise without first obtaining some type of agreement or definite recommendation regarding what the claimant’s prospective treatment should consist of.[4] The Commission then took the interesting approach of encouraging cooperation between the parties, by remanding the case to the arbitrator with directions to persuade the parties to consent to having an independent medical provider examine the claimant and make a recommendation regarding the preferred treatment options for the claimant. The arbitrator could then decide what benefits for future treatment would be awarded.[5] It would be interesting to see how well this cooperative approach worked in this case.

[1]See Conflicting medical opinion regarding recommended treatment requires remand. Illinois Worker’s Compensation Law Bulletin (also cited as ILWCLB), Volume 27, Issue 13, September 27, 2019, p. 6.

[1]See Id.

[1]See Id.

[1]See Id.

[1]See Id.


[1] See Conflicting medical opinion regarding recommended treatment requires remand. Illinois Worker’s Compensation Law Bulletin (also cited as ILWCLB), Volume 27, Issue 13, September 27, 2019, p. 6.

[2] See Id.

[3]See Id.

[4]See Id.

[5]See Id.

-Attorney Matthew Ludwinski

Fresh Beef, Blind Pedestrians, and Late-Night Discrimination


Under Title III of the Americans with Disabilities Act, places of public accommodation may not discriminate on the basis of disability by denying full and equal enjoyment to those who are disabled. 42 U.S. Code § 12182. The law itself and the regulations stemming from it are detailed in their application, but frequently there are disputes over the contours of the rights and responsibilities that the law creates for different classes of disabled individuals and the businesses which serve them.

One recent example is Davis, et al. v. Wendy's International LLC, Case No. 1:19-cv-04003, a case involving a proposed class action on behalf of visually-impaired individuals whose desire for late-night cheeseburgers was thwarted by a practice of keeping the drive-throughs open later than the inside counters. This would not be a problem for those with vehicular transportation, but for the main Plaintiff in the case it was an insurmountable obstacle since her visual impairment prevented her from driving-but not from walking to the Wendy's near her home in Chicago.

While this may seem like a small issue, the whole point of the ADA is to allow for reasonable accommodations on the part of businesses in order to encourage those with disabilities to fully participate in society. The ability to buy food from Wendy's may be a small thing for most people, but the law applies just as equally to things such as transportation, housing, and shopping for perhaps more vital goods.

That said, in this case the federal District Court found that Wendy's operations were not violating the ADA as alleged. The Plaintiff did have standing, so that wasn't the issue (that is, she actually was damaged by Wendy's behavior-she really did periodically walk to the Wendy's and the hours really were preventing her from getting food from the drive-through when the inside store was closed). However, the court found a more serious flaw in the Plaintiff's argument was that, as a basic requirement for an ADA violation, it must be the disability which is preventing the Plaintiff from getting enjoyment of the business. In this case, the court found that the class of people who were prevented from using the Wendy's was not defined by their ability to see, but rather by their ability to drive a vehicle through the drive-through. Essentially the policy was not directed at visually-impaired people, but any pedestrian.

The Court pointed out that there are many reasons that would stop one from using the drive-through, including an ability to afford a car, an ability to pass the written or practical portion of the driver's license test, or simply being intoxicated at the time that one wanted some French fries, that would have nothing to do with being visually impaired. Because of this, the Court found that the Plaintiff did not meet the element of the law which states that the discrimination must be "on the basis of disability" and dismissed the suit. The case may still be appealed, but it illustrates the fine distinctions that are relevant when complicated law are applied to specific sets of facts.

-Attorney Travis Dunn

Epilepsy in the Workplace

The workplace has always had issue with various forms or discrimination including discrimination on race, age, sexual orientation and various other areas. Discrimination based on disability is one of the many forms of workplace discrimination. Many people have several cognitive and physical disability that make the performance of some task more difficult than others. Epilepsy is one of those disabilities. Even though many individuals take medications and other alternative techniques to gain control of the disorder they may still worry about a seizure occurring when they least expect.

Epilepsy is a common neurological disorder caused by unusual nerve activity in the brain.[1] In the United States approximately 1 in every 26 people has epilepsy and each year 150,000 more people are diagnosed with the disorder. [2] Epilepsy is known for causing seizures in individuals that have the disorder. Seizures symptoms can be characterized by anything such as briefly staring blankly, loss of awareness and uncontainable twitching.[3] The severity of these symptoms vary however, even the most mild symptoms are dangerous if they occur while an individual is conducting activities such as running, swimming or driving.[4]

Epilepsy often interferes with an individual's ability to perform everyday task including one of the most important task, work. What happens when you get fired from your job due to an incident related to an epileptic seizure. According to the American Disabilities Amendment Act of 2008 anyone with epilepsy is considered to have a disability protected under the ADA, and will be protected from employment discrimination pursuant to the act. It protects against discrimination in job application process, hiring, dismissal/firing, promotions, wages, training, and other terms, conditions, and privileges of employment.[5] New laws are aimed at preventing discrimination against individuals with disabilities and creating safety precautions.

Illinois Governor J.B Pritzker, just signed the seizure smart school act which requires all Illinois school staff to be trained in seizure first aid.[6] This law is aimed at ensuring safety for those with epilepsy in an educational environment. Evident by the new legislation , legislature are continuing to emplace laws that will help prevent discrimination and ensure safety for individuals with disabilities and disorders such as epilepsy.

- Julie Guillebeaux

More from the Illinois Workers' Compensation Law Bulletin

I read another article in the Illinois Workers' Compensation Law Bulletin regarding a recent worker's compensation case, but unlike some of the other cases that I have discussed in previous blog entries, there was no happy ending for the claimant in this instance. See Hospital employee fails to prove compensability of lunchtime injury. Illinois Workers' Compensation Law Bulletin, Volume 27, Issue 13, September 27, 2019, pp. 3-4. The case discussed, Abrusci v. University of Illinois, 27 ILWCLB 136 (Ill. W.C. Comm. 2019), dealt with a claimant who fell and injured herself during her lunch break.[1] The claimant, an employee and clinical nurse consultant at the University of Illinois Hospital, was bringing something to eat to her son, a patient at the Hospital, while the claimant was on her lunch break.[2] The claimant was walking towards her son's room when the claimant slipped and fell on water that was on the hallway floor, severely injuring her hamstring in the process.[3] The claimant brought an action for benefits, but was denied compensation by the arbitrator, with the Commission affirming the decision.[4]

The claimant asserted that her actions in bringing her son food while the claimant was on her lunch break fell under the personal comfort doctrine, in which employees that are injured while at lunch or using the restroom could receive benefits, if it was determined that their activities took place within the course of employment.[5] However, the claimant's actions and the circumstances of her case were found to be outside the doctrine, since where the claimant fell was not solely due to her decision to take her lunchbreak, but also due to her decision to visit her son at the Hospital as well.[6] Thus, the claimant was acting as a visitor, and not as an employee, when she fell and injured herself while bring her son some food, and the fact that her son happened to be a patient at the Hospital where she worked was only coincidental.[7] The main point of this case seems to be that if employees are injured while doing something that is determined to be outside the course of their employment, even if it is something as innocuous as visiting relatives that are lawfully upon the premises of the employees' workplace during the employees' lunch breaks (like the claimant did with her son in the above-mentioned Abrusci case), the employees therefore might not receive compensation for their injuries, even if they were still at work at the time they were injured.[8]


[1]See Hospital employee fails to prove compensability of lunchtime injury. Illinois Worker's Compensation Law Bulletin (also cited as ILWCLB), Volume 27, Issue 13, September 27, 2019, pp. 3-4.

[1]See Id.

[1]See Id.

[1]See Id.

[1]See Id.

[1]See Id.

[1]See Id.

[1]See Id.

-Attorney Matthew Ludwinski

Unusual Excitement in the Jury Room fails to result in Mistrial

It's not exactly rare for courts to weigh in on behavior that could result in improper information or behavior creating bias in a trial's jurors. It is a little odd for them to be evaluating a scene that seems like it could come straight out of a television courtroom drama. That's really the only way to describe the recent decision by the Illinois Court of Appeals in the case of Tirado v. Slavin, a medical malpractice case where a juror "became ill" in the middle of closing arguments, was helped to the jury room by a couple other jurors, passed out, and awoke as an attorney for the defendant doctor (who happened to also be a registered nurse) tried to take the juror's pulse. Tirado v. Slavin, 2019 IL App (1st) 181705-U. The sick juror (after being evaluated by paramedics) was excused from their service, the interrupted closing arguments resumed, and after deliberations the jury eventually found in favor of the Doctor and Lawyer who had rushed to the aid of the ill juror, over a motion for a mistrial that the Plaintiff filed the morning after the excitement. The Plaintiff appealed on the grounds that a number of decisions made by the trial judge had prejudiced their case, amongst them the handling of the commotion with the ill juror. The appellate court issued a ruling at the end of November, finding that nothing that had occurred was severe enough to merit an entirely new trial.

Lest one think that courtrooms holding medical malpractice trials are singularly immune from medical emergencies, there is prior caselaw on a situation somewhat similar to this story where the Illinois Supreme Court did overturn the verdict and order a new trial. Campbell v. Fox, 113 Ill. 2d 354 (1986) concerned a trial where, this time during opening arguments, a juror lost consciousness and the Defendant doctor dragged her from the jury box, laid her on his attorney's table in the courtroom, and provided medical attention until an ambulance arrived.

The appellate court here draws several distinctions with Campbell. First, the difference between the whole courtroom seeing the defendant directly providing medical aid, and a defense attorney more or less walking into the jury room as the ill juror woke up. The whole jury watching a vigorous display of medical commitment is obviously going to be more prejudicial than just seeing the defendant and his attorney follow the ill juror to the jury room. Second, the fact that in Campbell everything happened before the jury had a chance to hear all of the testimony and form opinions about the witnesses, opinions that would inevitably then be colored by the events of the start of the trial. At least in Tirado the jury presumably had a chance to form their opinions about the meat of the evidence in the trial, and to assess the credibility of the defendant before seeing him involved in a medical emergency. Finally, based on testimony of the events during the trial in Tirado, no one seemed to be especially bothered by the sudden illness. The other jurors reacted calmly and the Plaintiff's attorney didn't even move for a mistrial until the next day, when he could have immediately insisted on a questioning of the jurors about the events as occurred in Campbell. Fine distinctions such as this are made all the time in the law, and it's never good when one party has reason to believe that they have been unfairly prejudiced in a civil trial. The circumstances are usually a lot less dramatic than this, though.

-Attorney Travis Dunn

Equal Pay for Equal Work

Everyone loves pay day. What happens when you look at your paycheck and notice that you are being paid significantly less than your coworkers. These are the same coworkers who perform the same work and have the same level of experience as you. Historically, the United States has had issues with discrimination in wages and employment. Illinois has passed several laws to address these issues but some issues have remained. [1]Illinois passed an amendment to the Illinois Equal Pay Act (IEPA) to resolve pay discrimination between African-Americans and non-African-Americans and even between women and men.

One of the more recent issues that has been discussed is employer inquiries into salary history. [2]On July 31, 2019 Illinois Governor J.B Pritzker signed a new law that bans employers from screening job applicants based on their salary history. [3]The policy considerations behind the passage of this new law is that if a person is improperly given low pay at her previous place of employment, that salary can carry over to her new employer because the new employer is using the past salary as a starting point to determine the employee's current salary. [4]Additionally, the new law safeguards employees' rights to talk about wages and benefits with other employees.

[5]However, the new law does not completely ban salary negotiations during the recruitment or application process.[6]Employers are authorized to inform applicants about the wages, benefits, and salary offered for the position which they are seeking to fill. [7]Employers can also talk about an applicant's expectations concerning salary, benefits and other compensation. [8]No violation occurs where an applicant voluntarily discloses her salary history, as long as the employer does not use that information when making employment or compensation decision. [9]This new law was effective as of September 29, 2019.


- [1] Chropowicz, Michael K., Sara R. Whaley, Sarah E. Flotte, and Brian P. Paul. 2019. Illinois Mid-Year Employment Law Update: Navigating Your Organization through the Sea of Employment Law Changes in Illinois. Lexology. Law Business Research. September 24

- [2] https://www.shrm.org/hr-today/news/hr-magazine/0318/pages/salary-history-bans-could-reshape-pay-negotiations.aspx

- [3] https://www.washingtonpost.com/business/2019/08/15/more-states-are-banning-questions-about-salary-history-job-interviews-what-say-if-youre-asked-about-it-anyways/

- Julie Guillebeaux

Interesting articles in the Illinois Workers’ Compensation Law Bulletin

I read yet more interesting articles in the Illinois Workers’ Compensation Law Bulletin regarding recent cases brought for work-related accidents. In one article, a claim involving a logistics worker at a state corrections facility was discussed. See Prison Employee wins benefits for injuries from fall on stairway. Illinois Workers’ Compensation Law Bulletin, Volume 27, Issue 12, September 13, 2019. The case, Tindall vs. Illinois, State of/Menard Correctional Center, 27 ILWCLB 124 (Ill. W.C. Comm. 2019), dealt with a claimant who fell and injured himself while walking down a set of stairs at the installation.[1] The claimant, a supervisor at the facility, brought an action for benefits, and ultimately received an award for compensation. In rendering a decision for the claimant, the Commission found that, since the stairs were unavailable for public use, and the claimant was forced to use the staircase to reach his office (which was locked up and had no drinking fountain nearby, thus forcing the claimant to carry liquid refreshment with him), the accident arose or occurred because of his employment (with the risk of being hurt greater than that faced by the public).[2] The claimant could therefore receive benefits.[3]

In another article dealing with a case involving corrections personnel, the claimant, an officer at a state prison, had one of her fingers crushed by a large, weighted door at the facility. See Correctional officer wins award for finger injury caused by heavy door. Illinois Workers’ Compensation Law Bulletin, Volume 27, Issue 13, September 27, 2019. In the case, Dunham vs. Illinois, State of/Vienna Correctional Center, 27 ILWCLB 134 (Ill. W.C. Comm. 2019), the Commission found that, as the door was the only way in and out of the claimant’s work area, and the door had to be used continually by her every workday, the risk of being injured was considerably increased, and thus the trauma or injuries to the claimant’s finger could be said to have arisen out of her employment.[4] The claimant could thus receive benefits.[5]

The primary significance of these two decisions is that they set forth how claimants can receive compensation for being injured while engaging in otherwise mundane activities at work: if the activities involve a risk of injury greater than faced by the public at large,[6] (and by their intrinsic nature also create a greater risk of injury – like using a bulky door as the only way to access a work station)[7], then workers that injured in these situations can receive workers’ compensation benefits.[8]


[1] See Prison employee wins benefits for injuries from fall on stairway. Illinois Worker’s Compensation Law Bulletin (also cited as ILWCLB), Volume 27, Issue 12, September 13, 2019, p.3.

[2] See Id.

[3] See Id.

[4] See Correctional officer wins award for finger injury caused by heavy door. Illinois Workers’ Compensation Law Bulletin (also cited as ILWCLB), Volume 27, Issue 13, September 27, 2019, pp.2-3.

[5] See Id.

[6] See Prison employee wins benefits for injuries from fall on stairway. ILWCLB, September 13, 2019, p.3.

[7] See Correctional officer wins award for finger injury caused by heavy door. ILWCLB, September 27, 2019, pp.2-3.

[8] See Prison employee wins benefits for injuries from fall on stairway. ILWCLB, p.3, and Correctional officer wins award for finger injury caused by heavy door. ILWCLB, pp.2-3.

- Attorney Matthew Ludwinski

Absence of Evidence and Evidence of Absence in the Family and Medical Leave Act

In employment situations where unlawful discrimination or retaliation is alleged, there is often a smoking gun-an incriminating email or comment that makes it clear that the action is coming from an unlawful motivation. However, that is not the only way to demonstrate such things. A good example of this is Alton v. SmithGroup, Inc., a case in the federal Northern District of Illinois. In a recent ruling, the judge in this case found that, even though there was no explicit intent to violate the Family and Medical Leave Act, the plaintiff (who passed away in the course of the litigation) could move past SmithGroup's Motion for Summary Judgement and proceed to attempt to prove her case based on the circumstances surrounding her termination. Alton v. SmithGroup, Inc., Case No. 18-cv-4229, Memorandum Opinion entered October 3, 2019.

The relevant facts, according to the court, are straightforward enough. Julie Alton was suffering from Stage IV breast cancer, and requested intermittent (that is, as needed) leave under the Family Medical Leave Act ("FMLA") in order to start a new treatment regimen. Importantly, the Human Resources Manager admitted that, in her understanding, Julie did qualify for intermittent leave-she had a documented serious health condition and a legitimate reason for requesting the leave. On May 22, 2018, Julie met with the HR Manager about the FMLA request. On June 1, 2018 she was terminated. SmithGroup, in defending itself, claimed that they had decided in April of 2018 to implement a Reduction in Force, and that the decision had nothing to do with the FMLA request. However, Alton was able to show that SmithGroup had at some point been considering a pool of five possible employees to terminate out of the 103 employees in the office, that the SmithGroup employees who made the termination decision knew about the FMLA request when they met about the terminations, and that timing of the terminations were incongruous in the first place since the SmithGroup financial forecast for 2018 actually recommended adding people to the staff rather than a force reduction.

The court found that Alton could make a reasonable argument that SmithGroup should have been prevented from terminating her in accordance with the protections offered by FMLA. All of that also lent weight to Alton's separate claim that not only should they have been affirmatively stopped from ending her employment, but that there was something else motivating her termination-her FMLA request. That is, not only did her employer breach the FMLA by interfering with her rights by terminating, her, but they committed a further wrong by actually retaliating against her for requesting the FMLA leave at all. This is where the timing comes in. Courts can make reasonable assumptions about suspicious circumstances, even when there is not direct evidence of retaliation. The fact that Alton was terminated ten days after requesting FMLA leave, which even the company admitted she qualified for, is simply too glaring to ignore.

Now, this does not guarantee that a jury is going to ultimately going to find in favor of Alton. They could have a different interpretation of the circumstantial evidence. What this ruling means is that Alton's family will have the opportunity to make their case that the weight of the facts point towards that conclusion of interference and retaliation.

-Attorney Travis Dunn

Let’s Talk about Mary Jane

Whether you're watching tv, listening to the radio, or just having a conversation with friends, one of the most recent hot topics in the law is the legalization of marijuana. Illinois will be the 11th state to legalize marijuana for recreational use.[1] On May 31,2019, the Illinois General Assembly passed HB1438 legalizing marijuana for recreational use in the state of Illinois.[2] This bill was signed by governor J.B Pritzker on June 25,2019.[3] It will go into effect January 1, 2020.[4]

Proponents of marijuana legalization claim that legalizing marijuana will reduce harm, create jobs, save money, and promote consumer safety.[5] However, whether it is good or bad is immaterial. It will be legal in 2020. The question is what does that mean for you as a potential consumer or non-consumer?

Well firstly, we need to define who will be permitted to consume marijuana for recreational use. Only individuals over the age of 21 will be authorized to use marijuana for recreational use.[6] Residents will be able to purchase up to 30 grams of marijuana, edibles that contain no more than 500mg of THC, and five grams of concentrated cannabis products.[7] However, consumers will not be permitted to grow their own marijuana at home and doing so will cause those individuals to procure a civil fine for up to $200 for growing up to five plants.[8] Consumers may wonder where can I smoke? Smoking marijuana will be permitted within the privacy of the consumer's home and possibly on site at cannabis businesses. Smoking marijuana will be prohibited in public places such as streets, parks, school grounds and even in motor vehicles.[9]

What about driving while under the influence of marijuana? Driving under the influence of marijuana more than 5 nanograms or more may still be criminally punishable.[10] Law enforcement plans to implement a device that will measure the THC in your blood from your saliva. This could be an area where some potential issue may arise since THC tends to stay in system longer than alcohol it will be difficult to determine if someone has recently used marijuana or if they used it days ago. There are definitely many aspects of this new law that will be a learning experience for those involved in policing its enforcement.

Another interesting point is that those convicted for non-violent crimes involving the possession of less than 30 grams of marijuana, their record will be taken to the state's Prisoner Review Board and then to Governor Pritzker for a pardon.[11] If a person is granted a pardon then the Illinois Attorney General will seek expungement.[12] Individuals convicted for possession of between 30 to 500 grams they will have the opportunity to petition for expungement.[13] As far as the workplace is concerned, it is strongly advised that consumers use their best judgment. If you cannot show up to work under the influence of alcohol then you probably would not be able to show up under the influence of any other drug. This new law will be a learning curve for everyone. However, currently marijuana is still illegal because does not go into effect next year. Until then be safe and be smart.


[1] https://abc7chicago.com/politics/weed-legalization-guide/5337346/

[2] Id.

[3] Id.

[4] Id.

[5] http://www.drugpolicy.org/issues/marijuana-legalization-and-regulation

[6] https://abc7chicago.com/politics/weed-legalization-guide/5337346/

[7] Id.

[8] http://www.drugpolicy.org/issues/marijuana-legalization-and-regulation

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

- Attorney Julie Guillebeaux


Recent article in the Illinois Workers’ Compensation Law Bulletin

I read an article from one of last month’s editions of the Illinois Workers’ Compensation Law Bulletin regarding coverage under the Illinois Worker’s Compensation Act for a certain work-related accident. See WCA covers claimant’s wipeout on grass while walking to car. Illinois Workers’ Compensation Law Bulletin, Volume 27, Issue 12, September 13, 2019. In the article, the case discussed is Stadelbacher vs. Choate Mental Health, 27 ILWCLB 123 (Ill. W.C. Comm. 2018), and the article regarding the case is listed under the subject headings "Arising Out of Employment" and "Employment-Related Risks."[1] In the Stadelbacher case, an employee worked at a mental hospital, and would often leave work at the end of the day by way of an exit in the employee lounge area.[2] She would then walk up a few steps onto a concrete platform, and then move through a field to the parking lot.[3] The door that she used was only an exit, and was the shortest way to the parking area (using the main exit would take longer).[4] One day, while taking the shorter route, the employee stepped in a hole, injuring her left knee.[5]

In rendering a decision in the employee’s favor, the arbitrator found that the path was not made dangerous by precipitation, and the door leading to the path was clearly labelled as an exit.[6] Also, other employees used the shorter pathway, and there was a definite defect (a hole) in the path.[7] Finally, the employer apparently did not tell the employees to avoid or not make use of the alternate exit.[8] As a result of the foregoing, the employee’s accident was said to arise out of her employment, and she could therefore receive worker’s compensation benefits.[9] The Illinois Worker’s Compensation Commission upheld the arbitrator’s decision.[10]

Thus, the significance of this decision is that if an employer has not restricted its employees from making use of an alternate pathway to the workplace parking lot, and the path has not been made hazardous by any rain, or ice and snow, then if an employee is injured while making use of the alternative pathway, her injury can be said to arise out of her employment, despite the fact that there is an additional exits leading to the parking lot.[11]


[1] See WCA covers claimant’s wipeout on grass while walking to car. Illinois Worker’s Compensation Law Bulletin, Volume 27, Issue 12, September 13, 2019, p.2.

[2] See Id at 3.

[3] See Id at 3.

[4] See Id at 3.

[5] See Id at 3.

[6] See Id at 3.

[7] See Id at 3.

[8] See Id at 3.

[9] See Id at 3.

[10] See Id at 3.

[11] See Id at 3.

- Attorney Matthew Ludwinski

Distinctions in Defamation

Tuesday, October 15, 2019

A recent September decision from the Federal Seventh Circuit Court of Appeals is an good example of the very strict requirements for a claim of Defamation.

The factual background of the case was apparently rather extensive (the court actually alludes to the volume of evidence presented in it’s decision, although it scoots though the background itself pretty quickly), but it involves the defendant, Zimmer Biomet Holdings, releasing a "Restricted Parties List" which was intended to restrict the company’s having further dealings with a list of parties due to their involvement in a complicated criminal bribery case under the Foreign Corrupt Practices Act. Among those listed was the Plaintiff, Alejandro Yeatts, which Biomet claimed was suspended from his job in connection with a corruption investigation, and that the Biomet’s list stated that "poses a risk to Biomet’s efforts to comply with anti-bribery laws because of improper activity supposedly uncovered by the company’s anticorruption investigation in Brazil" and that he posed a significant and unacceptable compliance risk. Yeatts filed suit in federal court in Indiana for defamation, but the court ruled that there could be no defamation because part of the statement was actually true and the other part was not provably false in a court of law.

This result may seem odd. Yeatts didn’t even get the chance to prove the truth or falsity of the corruption and criminal charges before the court dismissed the defamation claim. Shouldn’t he have the opportunity to prove the defamation? Well, not exactly: the court notes that Biomet never said whether Yeatts was guilty of crime or not when they suspended him. What they said was that he was suspended in connection to a corruption investigation. This is true—both parties admit that Yeatts was suspended, and the reason why. Yeatts argued that the argument implied that he was guilty of criminal activity, but Biomet never actually said that. What they actually said was true, and therefore the statement about the suspension can’t be actionable defamation.

As to the reasoning for putting him on the list and describing him as posing a risk due to improper activity supposedly uncovered during an investigation, the court found that this was essentially a statement of opinion, not something that was provably true or false, and therefore could not be the basis for defamation. While seeming specific, Biomet actually was just pointing out that due to his involvement in the investigation, he posed a risk to the company. Whether or not Yeatts was actually guilty of criminal activity didn’t really impact the company’s subjective assessment about its compliance risks. Even if Yeatts was acquitted of any criminal conduct, no court of law could ever prove that Biomet’s feelings about the risk were factually false. Maybe Biomet’s opinion about Yeatts wasn’t based on good information, but it was just there opinion.

Again, the key distinction here is that Biomet never actually accused Yeatts of criminal conduct, or indeed any specific conduct at all. They never even discussed how exactly he was involved in the criminal probe. All they stated was that they suspended him for his connection to the probe (which was factually true, since the investigation is why they suspended him), and that they thought he posed a compliance risk (which is Biomet’s opinion about the situation, not a statement of disprovable fact). This is an unfortunate outcome for Mr. Yeatts since he’s probably correct that the publication of the material damaged his reputation, but it is also an interesting case study of why exact wording matters so much in Defamation claims.

Attorney Travis Dunn

Community

Monday, October 7, 2019

First I want to start this blog by wishing my first supporter a happy birthday. My dear mother turns an unknown amount of years today - not to exceed the age of 30. October is always a month that makes me reflect on the year behind me and think about the blessings that I have in my life or that I've had in my past. With that being said, October is a real busy month full of mediations, trials, pre-trials and oral arguments for our firm.

Secretly, as sometimes cranky as it can make me, I love the constant busyness of October. This weekend is our staff's Christmas party (don't ask, you don't want to know the back story) and next weekend is the event I prepare for 10 months out of the year.

The LaSalle County Out of the Darkness Walk means a significant amount to me. I became the chairperson in 2015 and have since run the LaSalle County walk which is held in Ottawa each year and is the chance for our community to raise funds and awareness for mental health and wellness within our community and across the state. The first year we held the Out of the Darkness Walk we were able to raise approximately $20,000 in funds which go towards our State's effort to provide more private programming in individual counties that don't have major healthcare access like our own.

You may not know this, but it is incredibly difficult for most people to get mental health treatment. It used to be that people couldn't get their insurance to pay for mental health treatment, but since I've started working for AFSP they have been able to help pass the Mental Health Parity Act which basically insures that your healthcare provider has to pay for your mental health treatment the same way they do physical health treatment. The second largest problem, at least here, is access to mental health care because most of our facilities, even privately, are overwhelmed and don't have enough people to help treat patient needs. Wait times at facilities like these are often increasing which puts a strain on the person in need and can increase thoughts of suicidal ideations and despair.

At last year's Out of the Darkness Walk in LaSalle County, we set a new record. We were able to raise $50,000 which is being returned in our community in programs like Talk Saves Lives and It's Real. My hope is that at this year's walk we'll again exceed $50,000 and that we will have more walkers than ever before. This walk isn't just about raising funds or even about spreading our messages political advocacy for mental health and wellness throughout the State. This walk is about community. It's about knowing that you are never alone and creating an environment within our own county of love and acceptance. It's about eradicating the idea that mental illness is something to be ashamed of or something to hide from even those that love you and care about you in their life. This walk is about creating family beyond what we have as blood and creating bonds that last a lifetime.

I have been honored to be the walk chair for the LaSalle County since 2015 and every year I remain somewhat emotional about what an honor it is for me to hold that position. I invite you to join us on October 12th at the Jordan Block Park to learn about our community and about the amount of love that we have to show one another. There will be events, mental health trainings, food, fun and a lot of community businesses there showing their support. Come out and help us spread the message of hope and let this walk do for you what October does for me every year. Let this walk remind you that family and community is the most important thing.

-Attorney Alexis Ferracuti.

Distractions, Distractions, Distractions!

Friday, September 27, 2019

Distractions can easily take your mind away from performing even the most important tasks. You are working on a big project and your phone rings or vibrates. Is it a text, email, social media message, or important phone call? No matter how focused you are your mind will begin to wonder. Most people will even stop their task and check their phone. Well what happens when you are driving and answering that message from your phone can lead to a car accident ending in an injury or worse, death? Ideally, most people would like to think that when you receive a message while driving you would ignore it until you reach your destination, but this is not the case. According to the Center for Disease Control and Prevention, almost 9 people die, and 1,000 people are injured daily in car accidents due to distracted driving.[1]

Recently, Illinois has passed laws creating more stringent punishments for anyone caught using a cell phone while operating a motor vehicle. As of July 1, 2019, Illinois drivers caught using or even holding an electronic device while operating a motor vehicle will be issued a moving violation.[2] This is not limited to just cell phones. Using any electronic device will be considered a violation of the statute. If a person commits more than 3 offenses in a given year their license will be suspended.[3] In the previous years the first offense was a warning and the later offenses were not moving violations.[4] Now, the first offense is a $75 fine with a maximum penalty of $150.[5] If you are ever injured in a motor vehicle accident involving a distracted driver please contact an attorney.

- Julie Guillebeaux

Harassment in the Workplace

As many people may know sexual harassment in the workplace has been an ongoing battle that has taken the forefront of American Mass Media. Amidst the "Me Too" movement there have been numerous allegations and charges of sexual and workplace harassment against many of Hollywood's notable stars and executives. Sexual harassment is not just an issue that exist among the Hollywood elites. Unfortunately, this type of harassment takes place on a daily basis. For some individuals it takes place in the very place where everyone is required to be, the workplace.

On August 9, 2019, Illinois Governor J.B Pritzker signed Senate Bill 75, the Workplace Transparency Act, which implements a significant change in the way employers manage harassment and discrimination in the workplace.[i] The Workplace Transparency Act is set to go into effect on January 1, 2020. [2] The act limits the use of agreements and policies that act as a barrier to employees reporting incidents of harassment or discrimination. The Workplace Transparency limits the use of arbitration agreements, non-disclosure agreements, and non- disparagement agreements, mandates sexual harassment training, expands protection to non-employees, and requires annual disclosure in the workplace.[3]

Specifically, the act prohibits mandatory arbitration clauses that are compulsory to accepting or continuing employment within an organization.[4] Under the act such clauses will be deemed void. The requirement of strict confidentiality in severance or settlement agreements will be invalid unless strict confidentiality is expressly preferred by the complaining individual.[5] The act states that the complainant may have the document reviewed by an attorney of their choosing and valid consideration is provided. There will be no waiver of claims following the effective date and the act gives the complainant 21 days to consider the agreement before deciding to execute it.[6] Each complainant is thereafter allotted 7 days to revoke their signature after signing the agreement.[7] This act will require employers to closely review arbitration agreements to ensure compliance with the act and to adequately inform employees of their rights. For employees, mandatory arbitration agreements for harassment cases are no longer valid if they are a condition to beginning or continuing employment with an organization. If you are an employee that is considering severance or settlement agreement, you now have a 21-day grace period to consider the agreement before signing, during which time you may seek legal advice regarding the agreement. Even after signing the agreement you have 7 days to revoke your signature.

In addition to the contracting provisions, the act also amends the Illinois Human Rights Act to provide protection to non- employees to include contractors, sub-contractors, consultants, and vendors.[8] Employers will now be liable for harassment that interferes with the performance of non-employees. However, the employer will only be liable for harassment by employees that are not in a supervisory or managerial position if the employer knew of the behavior and failed to take reasonable corrective measures.[9] For non- employees that fall within the group of individuals to which the act extends , you may now assert a claim for harassment against an employer if certain provisions apply.

Additionally, the Workplace Transparency Act, requires employers to provide mandatory sexual harassment prevention training that meets or exceeds the standards that will be published the Illinois Department of Human Rights.[10] This is being implemented with the hopes that further training will decrease the number of sexual harassment incidents within the workplace. Beginning July 1, 2020, the act will also require employers, labor organizations, and parties to a public contract to report settlements, adverse judgments, or administrative rulings involving harassment or discrimination which are against them on an annual basis.[11] The Illinois Department of Human Rights will use the information to publish an annual report of the number of settlements or judgments, but these reports will not contain any employer information.[12] Monetary penalties will be imposed on parties that do not comply with this requirement.[13] This type of disclosure will provide perspective as to just how much of an issue sexual and other workplace harassment and discrimination has become and how the efforts provided by the act will impact the issue. The legislation also produces the Sexual Harassment Victims Representation Act which requires unions to designate a different representative for the victim and the accused in sexual harassment cases as opposed to previous incidences where unions designated the same representative to represent the interest of the accused and the victim.[14] This will hopefully provide further assurance to victims that their interest is being protected and fairly represented.

Although this has not been an exhaustive list of all of the changes and protections provided by the Workplace Transparency Act, it does give an idea of the goals that the legislation intends to accomplish. I strongly suggest that any individual entering or already active in the workforce closely examine the new legislation. With compliance, due diligence, and consistency, it is my hope that workplace harassment and discrimination become an issue of the past.


[1] See Jessica Chang & Johner Wilson III, New Illinois Anti-Sexual Harassment Legislation Heavily Impacts Employer Procedures, The National Law Review (2019).

[2] Id.

[3] Id.

[4] Workplace Transparency Act of 2020, S.75, (2020).

[5] Id.

[6] Id.

[7] Id.

[8] See Chang& Wilson, New Illinois Anti-Sexual Harassment Legislation Heavily Impacts Employer Procedures.

[9] Id.

[10] Senate Bill 75.

[11] See Chang& Wilson, New Illinois Anti-Sexual Harassment Legislation Heavily Impacts Employer Procedures.

[12] Id.

[13] Id.

[14] Senate Bill 75.

- Julie Guillebeaux

Recent ABA article on federal lawsuit brought by prisoners at the Lake County Jail

I read a shocking article regarding terrible conditions at the Lake County Jail during a shutoff of the building's water supply for three days in 2017. See Debra Cassens Weiss, 7th Circuit allows suit over clogged toilets, unsanitary conditions in 3-day water shutdown at jail. ABA Journal, August 13, 2019 (online version, found at ABAJournal.com). The county jailhouse authorities wanted to put in place a new water pump, and so shut off the water for three days while working on it.[1] While the water system was unavailable, the guards were supposed to supply prisoners with enough drinking water during the three day period, but it seems that they did not. Prisoners only received five bottles of water each day, to be used for things like drinking, washing hands and brushing teeth.[2] They also were provided with water barrels to be used and shared by prisoners for bathing and flushing toilets. These were not adequate either, as human waste accumulated in toilets everywhere in the jail.[3] The feces attracted flies and other pests, and the smell became unbearable. Prisoners were sickened by the odors, and became dehydrated and weak from the lack of water.[4] If they complained or asked for more water, prisoners could be punished by being locked in their cells. The shutdown ended, but the prisoners brought a federal lawsuit for violation of their 14th Amendment rights.[5] The Lake County Sheriff and Chief of Corrections denied the allegations, and claimed qualified immunity as a defense. The federal circuit court rejected this, and the 7th Circuit Court of Appeals affirmed, stating that having adequate access to water and a clean living environment is a basic right.[6] The case discussed is Hardeman vs. Curran, (No. 18-2672, 17 C 8729).[7]

Others have commented on this case, such as one of the attorneys for the prisoners, who stated that this was one of the worst incidents that he has seen in Lake County, and that if it was not challenged, things could get even worse. See Matt Reynolds, Inmates Say Jailers Deprived Them of Drinking Water. Courthouse News Service, December 5, 2017.[8] In fact, jail guards told prisoners that they could not lodge a grievance about what happened with the water, and the attorney for the prisoners stated that they would attempt to enjoin officials at the jail from ever restricting their water again.[9]

[1] See Debra Cassens Weiss, 7th Circuit allows suit over clogged toilets, ABA Journal, August 13, 2019.

[2] See Id.

[3] See Id.

[4] See Id.

[5] See Id.

[6] See Id.

[7] See Id.

[8] See Matt Reynolds, Inmates Say Jailers Deprived Them of Drinking Water, December 5, 2017

[9] See Id.

-Attorney Matthew Ludwinski

Recent Illinois Bar Journal Articles on Women's Rights

I read an interesting article in the August 2019 Edition of the Illinois Bar Journal (I.B.J.) regarding Abraham Lincoln's legal representation of a battered woman accused of the murder of her abusive husband. See Ronald Spears, When Goings Got Rough: The time when Lincoln allegedly told a thirsty client, on trial for murdering her husband, about the tasty water in Tennessee. Illinois Bar Journal, August 2019, pp. 48-49. Apparently, in April 1857, a 70 year old woman named Melissa Goings had killed her drunken 77 year old husband Roswell Goings by striking him repeatedly with a chunk of firewood for brutally abusing her.[1] Roswell was known for being physically abusive to his wife (and many were supportive of Melissa). In fact, Melissa asserted that she was defending herself against an attempt by Roswell to choke her, but the court was unmoved and charged Melissa with murder.[2] Lincoln represented Melissa in her pending criminal case, and on the eve of trial, Melissa had disappeared. It was not known at the time where she had gone, but Lincoln jokingly stated to the court that when Melissa said she was thirsty, he advised her that "there was mighty good water in Tennessee."[3] Previously, when asked by Melissa as to what her chances would be at trial, Lincoln could see that Melissa would probably be found guilty and face capital punishment.[4] Fearing execution by hanging, it is believed that Melissa chose to leave the area instead (it was later learned that she went to California, where she passed away in 1867).[5] Lincoln could see that Melissa was in an unfair situation, and under the law at that time, there were strict limitations placed on the rights of women, and what they could do to help themselves.[6] Women were at the mercy of their husbands, and men could almost freely abuse their spouses (including engaging in marital rape). Even people who tried to assist women in abusive situations could face criminal liability as well.[7] It would take over 100 years or more for women to slowly gain the rights that they have today, such as the right to vote, to serve on juries, and to work in certain professions, as well as the legal recognition of problems like spousal abuse. Prior to the passage of these laws, women had to resort to alternative methods to find relief from spousal abuse (and still sometimes do).

In another I.B.J. article, the ratifying of the Equal Rights Amendment (ERA) last year by the Illinois General Assembly was discussed. See Matthew Hector, The fight goes on. July 2018 LawPulse, Page 10 - Illinois passed the Equal Rights Amendment on May 30, becoming the 37th state to ratify (in the July 2018 Edition of the I.B.J.). The Illinois Assembly's action is seen by some as only a symbol of support for women's rights, but to others it could have, along with actions by other states, the practical effect of forcing the U.S. Congress to revisit the ERA issue nearly forty years after the attempt to pass the ERA into law failed. With recent, related developments in women's issues and rights, this could get things started, even with other legal obstacles ahead.[8]

[1] See Ronald Spears, When Goings Got Rough, Illinois Bar Journal, August 2019, p.48

[2] See Id.

[3] See Id

[4] See Id at 48-49.

[5] See Id at 48-49.

[6] See Id at 49.

[7] See Id.

[8] See Matthew Hector, The fight goes on. July 2018 LawPulse, p.10 (Illinois Bar Journal, July 2018)

- Attorney Matthew Ludwinski

On the Distinction between "Workers' Compensation" and Laws which provide Compensation for Workers.

Most employees in the state of Illinois are covered by the Illinois Workers' Compensation Act. This law (and its amendments over the years) set up a system whereby those injured in the course of their employment may seek compensation- in most cases, regardless of whether their employer was responsible for the injury. However, it goes without saying that this system is not the only way in which worker's may receive compensation for their injuries. Many of these statutes apply to particular classes of workers, and have different standards than that set under Illinois Workers' Compensation. A recent case, RITA GUERRERO v. BNSF RAILWAY COMPANY, out of the federal Appellate Court for the Seventh Circuit in Illinois, regarding a railroad machine operator who was killed in a car accident while on his way to an special job assignment working for BNSF Railway, illustrates how key this distinction can sometimes be. The case was brought under the Federal Employer's Liability Act (FELA), a law which provides for compensation for railroad workers, so long as they can prove that the railroad itself was at least partially negligent or responsible for the injury.

The facts of the case are straightforward, if tragic. Celso Guerrero was called on January 31, 2015 at his home in Kewanee, Illinois and offered overtime work clearing tracks in Galesburg in the forecasted snowstorm the next morning. He agreed to the special assignment, but on his way to the rail site the next morning he skidded into a median, struck a snowplow and was killed. His widow sued under FELA and alleged that Mr. Guerrero was on-duty at the time of his accident and that the negligent actions of the Railroad had led to his death. In a Motion for Summary Judgement before trial, BNSF argued both that he was not yet on duty when he was killed and that their conduct was not negligent. The district court for Northern Illinois found that Mr. Guerrero was not on the job at the time of the accident, and dismissed the claim without even addressing the negligence argument.

The Appellate Court disagreed, but not in a way that benefitted the worker. They found that the issue of whether Mr. Guerrero was working the course of his employment was not quite as settled as the District court had found, but still upheld the dismissal because it found that it would be impossible for Mr. Guerrero's estate to prove that the railroad's negligence led to the accident.

The question of whether an employee traveling to work creates liability on the part of the employer is as well-trodden ground in FELA, as it is in Worker's Compensation generally. The key issue here that created an open question of FELA coverage for the Court in this case was that Mr. Guerreros' contract stated that "the time of an employee who is called after release from duty to report for work will begin at the time called and will end at the time he returns to designated point at headquarters." Given that Mr. Guerrero was working outside of his normal Monday-Friday schedule when the accident happened, he seemed to have a credible argument that he was under the control of BNSF from the phone call the night before until the crash.

Where the Appellate Court denied FELA compensation, then, was on the issue of negligence. Whereas FELA had previously been applied to railroad employee accidents that occurred in discrete areas such as unplowed parking lots used by employees or training facility stairwells, the Court in this found that BNSF could not reasonably held responsible for the condition of the roadways throughout the state. Even though they would have to have been aware, at some level, that Mr. Guerrero would be driving in dangerous conditions to reach the job site, the court pointed out that he was in control of when he left his house, what route he took to drive, and ultimately whether or not to take that particular special job or not.

The important point here is that FELA operates differently from Illinois Workers' Compensation which operates differently from the Federal Employees Compensation Act. Whether or not BNSF was negligent would have had no effect in a similarly situated non-railroad Illinois Workers' Compensation claim-the important question there would have been whether Mr. Guerrero was in the course of his employment at the time. The ability to explore all possible avenues for recovery, and the pitfalls that may appear, is vital to any personal injury or workers' compensation claim. If you've been injured, please call our office toll free at 1-888-488-4LAW or via email at [email protected] We look forward to hearing from you.

-Attorney Travis Dunn

Discussion of a recent ABA article regarding law school closings

I recently read a rather depressing American Bar Association (ABA) article regarding the closing of certain law schools across the country, written by ABA writer Stephanie Francis Ward and titled Urge to Merge: Difficult Times for Law Schools Have Prompted Several To Attempt To Be Acquired By Other Schools," ABA Journal, July 1, 2019 (which can be found on ABAJournal.com). It appears that those law schools facing closure are attempting (often without success), to find another university or college willing to buy them, receive them as gifts, or have a merger of schools. See Urge to Merge at Id. Many of these law schools are unable to make these transactions work, for several reasons, such as the fact that they have poor accreditation, suffer from financial strain and/or have low admission standards. See Id. Another problem for some law schools facing closure (and a contributing factor to closure itself), is financial irresponsibility by the school's administration. See Ken Otterbourg, After a law school shuttered, aspiring lawyers find real lawyers to sue it, Washington Post (Lifestyle Magazine), June 13, 2018.

Closings are a problem for students attending a law school facing the kind of challenges mentioned above, because while many students can finish their degree programs at a school before it closes, or transfer to another school, some are not as fortunate, and are unable to eventually transfer elsewhere, or finish up where they began their studies. See After a law school shuttered at Id. The students in these situations can have difficulty finding employment and are often stuck with considerable student loan debt. See After a law school shuttered at Id. It seems that one way for a law school to avoid closure is to be financially strong and academically sound on its own. See Urge to Merge at Id. Another means of survival is to become part of a larger university, so that the law school can have access to additional funds. See Id. Finally, prospective students should investigate a law school before they apply to it, to make sure that the school can assist in enabling the students to have eventual success in a legal career. See After a law school shuttered at Id.

-Attorney Matthew Ludwinski

Essential Job Functions: An Important Aspect of ADA Claims

When an employee claims that their job has failed to accommodate their disability, the courts are faced with a number of difficult factual questions. Among these are the type and severity of the disability, the process for evaluating accommodations, and whether any accommodations present an undue hardship to the employer. In order to reach these questions, however, the employee must first be able to establish that, despite their disability, they are able to perform the "essential functions" of their job. Even more complicated are situations where there is no formal job description of the position, or where the duties of the position have changed over time. All of these were at issue in a recent decision out of the federal Court of Appeals for the Seventh Circuit in Bilinsky v. American Airlines, Inc.

Kimberly Bilinsky suffers from multiple sclerosis which makes her very sensitive to excessive heat. While American Airlines is based out of Dallas, for many years they allowed Bilinsky to work primarily from her home in Chicago, managing and publishing articles for internal distribution in the company and preparing other communications materials for employees. All parties agreed this represented an appropriate accommodation for her disability. However, in 2013 American Airlines merged with US Airways, and as part of the integration Bilinsky's department expanded its workload, including shifting to more live events versus written communications. The next year, the Department Vice President changed the policy which governed Bilinisky and other "work-from-home" employees, mandating that they be present at the Dallas headquarters to be better prepared to assist with local meetings and events. Bilinsky maintained that she was unable to live in Dallas year-round, and after repeated demands that she do so, was terminated in 2015. She filed suit, alleging that American had failed to accommodate her disability.

This is where the importance of "Essential Functions" comes into play. The Appellate Court ruled that, while Bilinsky was capable of fulfilling those functions prior to the merger, as evidenced by her successful work from home for nearly two decades, the Essential Functions of her job had effectively changed in the years following 2013. In the Court's view Bilinsky, not being capable of these new functions, was no longer afforded the previous protections that she had enjoyed-there was no accommodation that would get around the fact that the job now required her to live in Dallas. The Court drew parallels to situations where a position is eliminated entirely, leaving a disabled individual incapable of fulfilling any of the remaining jobs at a company. An employer, while they must make reasonable accommodations in existing positions, is not required to retain a job position that they would otherwise (legitimately) eliminate simply because it is held by a disabled person. Bilinsky was able to present significant evidence that she was extremely successful in her position, but the Court's found that, based on the testimony of other employees, that the duties of the department were slowly drifting in a direction which simply required presence in Dallas as an essential function of the job.

The facts of this case add up to an extremely unfortunate court decision from the perspective of disabled employees. It would be one thing if Bilinsky's position had been entirely eliminated, but the sort of Essential Function drift portrayed in this case could be argued by employers in almost any circumstance where there is no written job description. It is very common for jobs to have slighting shifting responsibilities over time. Hopefully, this does not represent an ominously moving target for similar claims in the future.

-Attorney Travis Dunn

Agency Liability: Not Only for Employees

In a personal injury like a car accident, especially a fairly straightforward accident like a rear-end collision, it might seem obvious who to bring suit against. The proper defendant is the one who hit you, right? That's probably one of them, but it might not be the only one. There's a number of situations where third parties might also be responsible for you injury. Probably the most common of these are agency or employment relationships, where the primary defendant is acting on behalf of someone else when they injure you. This can create liability for the companies or entities that they are working for and open another avenue of recovery for the injury.

A recent example of this, with some complicating factors, is the decision out of the First Appellate District, where the court upheld a judgement in Blockmon v. McClellan (2019 IL App (1st) 180420). In this case, the defendant driver was driving on I-80 and looking at the GPS application on his phone. Distracted, he rear-ended the vehicle of Walter Blockmon III at a high rate of speed, causing injuries which led to Walter's death.

Where this diverges from a straightforward, albeit particularly tragic, vehicle collision claim is the reason why McClellan was looking at his phone: in fact, he was running late to an appointment with a possible customer for the Cutco knives that he had purchased through Cutco Corporation and it's parent, Vector Marketing. The victim's Estate, in bringing suit, claimed that McClellan's relationship with the corporations in selling their products, even though explicitly characterized as being that of an independent contractor, created liability for the corporations for the death due to the degree of control that they had over the activities of the driver as well as their lack of guidance in handling things like driving to customer appointments. A jury agreed with the estate, entering a large judgment against Vector, Cutco, and the driver. The corporations appealed.

The appellate court, in this case, was essentially reviewing whether or not the companies were entitled to a directed verdict in the trial. They brought up several procedural arguments along with the argument that there had been no evidence presented at trial which would allow a finding of vicarious liability or control of the driver. Ultimately, the appellate court found that the estate had presented enough evidence of an agency relationship that the jury could have found for them, including the fact that the companies had control over the use of their names, prices of their products, and expected regular contact between the "independent" salespeople and the company. So regardless of the tax or employment status of the parties involved, it was reasonable for the jury to have concluded that the driver was acting under the control and for the benefit of the companies at the time of the accident.

It's important that you have an attorney who will explore every avenue of recovery. If you've been injured, please call our office toll free at 1-888-488-4LAW or via email at [email protected]. We look forward to hearing from you.

-Attorney Travis Dunn

What's in a name?

The law can be a strict, formalistic, unforgiving beast. It is with a certain amount of self-awareness that I note that much of what we do as attorneys is helping people to navigate the tricky seas of a legal claim. Given that degree of occasional harshness, I'll take any opportunity to note decisions where a wronged worker is allowed to pursue their case despite the hurdles in their way.

In many cases, the identity of the party that you are trying to file a complaint against is not a mystery. This wasn't exactly the case in Humberto Trujillo v. Rockledge Furniture LLC, a case which was recently decided in the Federal Seventh Circuit Court of Appeals. The details of Mr. Trujillo's claim was, at its core, an employment discrimination claim which he sought to file first with the Equal Employment Opportunity Commission ("EEOC") and then in civil court. However, the store where he was employed was not called "Rockledge Furniture LLC." It was an Ashley Furniture HomeStore. Which, as it turns out, was owned by "Rockledge Furniture LLC." Which is a company based out of Wisconsin associated with a corporation named "Ashley Furniture Industries, Inc." And which was doing business in Illinois registered under the name "Ashley Furniture HomeStore - Rockledge."

You can probably guess where this is going. In 2016, Mr. Trujillo filed an age discrimination and retaliation charge with the EEOC against his employer, giving the address and phone number of the store where he worked and naming them as Ashley Furniture HomeStore. Though a computer system glitch that would be somewhat comical if the consequences were not so serious, the EEOC ended up sending his complaint to "Hill County Holdings, LLC" which happens to be the Ashley Furniture HomeStore affiliate operating in Texas, of all places. Hill County Holdings, understandably, told the EEOC that they had no idea who Humberto Trujillo was. At this point Mr. Trujillo's attorneys pointed out that the EEOC had contacted the wrong Ashley Furniture, and noted that Mr. Trujillo had provided the EEOC with the address of the store where Mr. Trujillo worked. His attorneys also gave the EEOC a copy of a paystub which clearly listed Rockledge Furniture LLC and even had the company's Headquarter's contact information on it. The EEOC, for reasons that the seventh circuit decision describes as a "mystery," at this point promptly closed the claim and issued Mr. Trujillo a right to sue his employer-all without actually ever actually contacting Rockledge or Mr. Trujillo's store.

When Mr. Trujillo filed his claim in court, then, Rockledge filed a motion to dismiss his claim because, they argued, Mr. Trujillo had not actually ever filed an underlying EEOC charge against them, nor were they ever made aware of the underlying EEOC charge. The district court granted their motion, effectively ending Mr. Trujillo's claim.

Luckily, the appellate court was more sympathetic to Mr. Trujillo's situation and reversed the dismissal. They point out in their decision that Mr. Trujillo gave a correct address for his place of employment in his original EEOC charge, and in fact got most of registered name correct: "Ashley Furniture HomeStore" vs. "Ashley Furniture HomeStore - Rockledge." Further, regarding the problem of Rockledge genuinely not knowing about the claim prior to the lawsuit, the court points out that it was the job of the EEOC to contact the employer, and Mr. Trujillo gave them more than enough information to do so. It would make little sense to hold Mr. Trujillo responsible for the EEOC's failure to act on that information. Better, the court rightly found, to give the parties a chance to work out their dispute rather than strangling the claim over a slightly mistaken name and a bit of mishandling on the part of the EEOC.

An eminently sensible decision, and good news both for MR. Trujillo and for workers generally.

-Attorney Travis Dunn

The Transition

The transition periods in our life help define us. They help mold us into who we are and help shape the type of person we hope to become. For me, the first transition period was from high school to college. I left my safe home town and went to Bloomington, which looking back was a piece of cake- but I digress, where I would move on to a floor of 15 wonderful women. These women would show me what a strong group of female friends looked like. Then, four short years later, I would leave that town that grew to become my second home and I would venture half way across the country to the city that I now love more than any other. That was the real transition period for me. Those three years. Those people. Tough schooling, the strongest friendships, love, pain, laughter, and a lot of strength and independence I did not know I had in me up until that move. Boston, though it took me away from my family, taught me who I really was. It gave me a chance to live for me- and solely for me. To do the things I loved and to venture outside of my comfort zone. To find total strangers who would turn into family. People that I will literally love the rest of my life. Transition periods are funny. They break you down so you can pick up the pieces that truly define you.

I've been lucky enough for a lot of years now to volunteer for the American Foundation for Suicide Prevention. I run the LaSalle County walk. It has become a part of who I am to help others through times of crisis. Transition periods can be just that- crisis. Sometimes you end up in a foreign place by yourself and truly feel alone. I can remember the first week of college literally crying in the hallway of my dorm because I missed my parents, but I was lucky because I could call them. Some kids, and some adults, don't have that. Under the auspices of AFSP, I have been lucky enough to receive training and materials to help kids through these transition periods- especially kids who feel alone. The program is called "Its Real". It's the most simple, and best validation of the feelings of a time of transition. For a lot of kids, it's the first time they're living on their own and having to navigate life's decisions without adult supervision and guidance. That causes anxiety, depression, and suicidal ideations in many students, and this program helps show students that what they're feeling isn't uncommon. It's not weird to feel alone. It isn't weird to feel that anxiety, or to feel sad that you are so far away from home and comfort. Early detection and the treatment of mental health conditions is vital to the way we can encourage students to seek support and to cope with times of mental stress or mental illness whether they be permanent or temporary. Identifying your feelings and the causes of those feelings is the first step.

A lot of times we're encouraged by society to sweep mental illness under a rug. To "tough it out". That isn't how this works. Being mentally ill and needing treatment is the same as having a physical injury. You have to identify the problem, figure out the cause of the problem, and find out how to treat or deal with the problem at hand. That's what this program aims to help students do. If you or anyone you know is interested in hearing this program in person, please feel free to call me at 815-434-3535 or email me at [email protected]. My passion in life is to help other people through the tough times- to help them triumph over the things in life that are meant to bring them down. Help me build a stronger tomorrow by reaching out to those around you, having more patience, and being kind to strangers. Everyone deserves to be loved. We need you. If you are having suicidal thoughts or feel like you want to talk to someone, please call the suicide hotline at 800-273-8255 or text 741741 to the Crisis Text line at any time.

-Attorney Alexis Ferracuti

Damages, but the Wrong Kind

Negotiating on behalf of an injured party is never a simple process, and it becomes even complicated when there are disputes regarding the types and amounts of compensation that the various parties are legally responsible for. It is especially admirable when Plaintiffs work to expand those categories, even if they are not always successful. Unfortunately, it looks like Nathan Sigler falls into this latter category in his claim against his insurance company, where the Federal Central District in Illinois dismissed his claim on Wednesday in Sigler v. GEICO Casualty Co.Sigler's vehicle was totaled in an accident in 2013, and he naturally assumed that his insurance would cover it's replacement. After all, his policy said that they would pay "the actual cash value of the property at the time of the loss." Sigler was dismayed when, on top of the value of the vehicle, his insurance did also pay the sales tax for a new car and the title and tag transfer fees. He sued his insurance company alleging that they breached their contract by not paying out these additional costs.

Here's the problem: Sigler never said in his complaint that he actually paid these fees and costs. He argued that the insurance should pay such associated costs upfront, just like they do with the actual value of the lost vehicle. Geico stated in their Motion to Dismiss that they would have been happy to pay those expenses if he actually incurred them, but that they did not factor such costs into their standard insurance payouts. They claimed that they would only be responsible for replacement costs if the vehicle is actually replaced; otherwise the insured is entitled to the value of the car itself. The court agreed.

The important fact here is that Sigler was arguing damages for a breach of contract, and the court ruled that his claim for monetary damages in the form of fees and costs, which may or may not have already been incurred, was too uncertain and speculative to make it past the early stages of litigation.

Rather charitably, the court points out that if Sigler actually has lost out on the money, he is welcome to amend his complaint to reflect this and continue on with the litigation. One does suspect, however, that if Sigler had the receipts for the taxes and fees, Geico would just pay the few hundred dollars that they owe him. In that eventuality, Sigler's loss wouldn't even be uncertain-it would just provably not exist.

-Attorney Travis Dunn


Better Generation


Each year for the past three years, our firm has given out a total of four scholarships to LaSalle Peru High School and Ottawa Township High School. There are two categories of scholarships available. The first scholarship, The Peter F. Ferracuti Trades Scholarship, focuses on creating opportunities for young adults who wish to pursue careers in the trades which are desperately needed in our communities.

In a world focused on pushing kids in large groups into colleges across the nation, we have lost the common sense foundation that my Dad based his whole life on. My dad once told me that if someone had told him that he had to be a plumber, he would have been totally useless. Not because plumbing isn't a necessary and valuable trade, but because my dad's brain wasn't wired that way. Spoiler alert- neither is mine. Ask my significant other how I do when I attempt to paint or fix things around our home. He will probably direct you to a grid on our ceiling that I painted a totally different color after I marked it so many times trying to paint the wall. We aren't all wired to do the same thing.

Our office, as a part of that scholarship, awards $500 to a student from both Ottawa and LaSalle Peru High Schools who wishes to pursue a career in the trades. Our hope is that it will encourage kids who don't fit the standardized mold our education system increasingly tries to push kids into. We hope that it will enable young adults to see their worth isn't defined by their college education, and debt, and that they can make a difference in this world in anything they put their soul and mind into. Success takes hard work, and that's what required regardless of the path you travel.

Our second scholarship is in honor of my dad. Dad knew from a young age that he wanted to be either a doctor or a lawyer. He loved medicine, but a shaky left hand kept him from pursuing the career he always had followed and admired. As a result, he found his true calling. My dad's true love, other than his family, was the law. I mean- really- he loved it. He loved to read it, he loved to argue, and he loved to change the law (or the rules of whatever board game we were playing at the time). And he was good at it. Actually, my grandmother often told him that if he wasn't a lawyer he would be a total loss because he really was only good at deciphering the law. A joke obviously, because if you asked him he could pretend he could fix things around the house too, but the joke had some truth to it. He founded our law firm to help his community. To put people in a better position than when he met them despite horrible events which affected them along the way. He contributed resources to our community which he never asked for credit for, and always looked for ways to take care of others. The second scholarship is meant to honor just that- two students who understand the importance of community action and who want to become advocates for those in need. It is also a $500 scholarship given to a single student per school from both Ottawa and LaSalle Peru High Schools which helps students who intend to pursue a degree in law.

This year's candidates were absolutely incredible. All four students receiving scholarships represent absolutely everything that both scholarships are meant to award. We are pleased to award this year's scholarships to the following students: For the Peter F. Ferracuti Trades Scholarship, we are please to award Courtney Baxter and Noah Taylor with $500 scholarships toward their advancement in building trades and auto mechanics. For the Peter F. Ferracuti Future Advocate Scholarship, we are pleased to award Alexandra Wren and Cassandra Claus $500 each to aid in their pursuit of joining the legal profession. The essays blew me away this year. It's always a little bitter sweet to give an award in memoriam of someone I loved, respected, and honored as much as my father, but this year's applicants made that easy. Our future is bright. I've read their essays. I've seen their community service and their grade point average. I can see the hard work and dedication they all have. I can't wait to watch them blossom and change this world for the better. We're just glad to be a part of that journey.

- Attorney Alexis P. Ferracuti

School Zone Speeding Tickets

Friday, May 3, 2019

Speeding in a school zone is a petty offense under the Illinois Vehicle Code. A petty offense is punishable by a fine only. For most petty offenses, the maximum fine in traffic court is $1,000.

A ticket for speeding in a school zone is a serious traffic offense because it can result in the Secretary of State suspending your driver's license.

The law provides that the speed limit in a school zone is 20 miles per hour (20 m.p.h.) on school days when children are present. See 625 ILCS 5/11-605.

According to the law, a school day begins at 7:00 a.m. and lasts until 4:00 p.m. The speed limit must be posted (there must be a sign present). The children must be near enough that a hazard exists.

The first offense results in a fine of $150. However, a second offense carries a mandatory fine of $300. In addition to these fines, the driver must also pay $50 towards the school district.

The biggest issue with speeding in a school zone is that the offense does not allow for court supervision. That means that any ticket you receive for speeding in a school zone is an automatic conviction to your driving record, which cannot be removed from your record and results in points on your license.

Three convictions for moving violations in 12 months will cause the Secretary of State to suspend your license. Drivers under the age of 21, 2 convictions in 24 months will cause a suspension.

A ticket for speeding in a school zone is a serious matter and an attorney should be retained.

- Attorney Kendall Hodges

Scott's Law

Friday, April 19, 2019

If you live in Illinois, you have heard of the recent Illinois State Police officers being struck and killed on the side of the road while conducting stops. Already in 2019, 16 Illinois State Police troopers have been struck by vehicles or died on state roads, doubling the total from all of last year in just four months. In response, state officials are hoping to better educate young drivers about Illinois' "move over" law that aims to protect emergency responders.

Illinois' "move over" law is called Scott's Law. The law is named after Lt. Scott Gillen, a 14-year veteran of the Chicago Fire Department who was struck and killed by an intoxicated driver while assisting at a crash on the Dan Ryan Expressway in December 2000. He was 37 years old. After his death, Gillen's family pushed for the passage of Scott's Law to help protect emergency responders on accident scenes. Scott's Law mandates that drivers, upon approaching any stationary vehicle with flashing emergency lights, must reduce their speed, proceed with caution and change lanes if possible.

State officials along with the State Police and Illinois State Board of Education are making attempts to educate drivers about the "move over" law. Last week, the Illinois Senate unanimously agreed to add two reminders about Scott's Law to the state's drive pool. State Sen. Chapin Rose wants to send drivers a reminder about the law to move over for police officers with their lice plate renewal postcard. He also wants the Illinois Secretary of State to include a question about the law on the state's driver's test.

In addition, the State Police and Illinois State Board of Education have collaborated on a new flyer that is being distributed to driver education programs in Illinois to help spread awareness of Scott's Law.

Sources: WTTW, Illinois News Network

- Attorney Kendall Hodges

Charting a Course for Open Discourse

An Alderman in Evanston was recently found to have violated the Illinois Open Meetings Act (5 ILCS 120/1) when she restricted the 19 attendees at a public meeting last year to 1 minute of speaking time each. Following the meeting, a resident of Evanston who had attended filed a request for review with the Illinois Attorney General's office. In her request, she claimed that "[r]esidents were taken by surprise with such a short time allotment and most were not able to deliver [their] full messages." In its investigation, the attorney general assigned significance to the fact that the city's rules provided for 45 minutes of public comment at such a meeting and there seemed to be no compelling reason why such rule was not followed given that there were only 19 residents who had signed up to speak. The attorney general's determination hinged on its finding that the alderman's actions "unreasonably restricted public comment."

The attorney general's finding that a violation occurred in the above instance shines a light on the Illinois Open Meetings Act and its intended purpose. If you've never attended a local or state government meeting, or even if you have, you may be unaware of the law and what rights it's meant to protect. The Illinois Attorney General describes the Illinois Open Meetings Act as "designed to ensure that the public has access to information about government and its decision-making process." In publications available online, the attorney general further explains that the Act "requires that meetings of public bodies be open to the public except in certain specific, limited situations ... where the law authorizes the public body to close a meeting." Additionally, "the public must be given advance notice of the time, place and subject matter of the meetings of public bodies.

To fully understand the Act and its implications, it's necessary to unpack some of the terms above. For example, a "public body" subject to the Act includes "all legislative, executive, administrative or advisory bodies of ... the State, counties, townships, cities, villages, or incorporated towns, school districts and all municipal corporations." But what kind of "meeting" does the Act cover? The attorney general defines such "meeting" as "a gathering of a majority of a quorum of the members of a public body for the purpose of discussing public business." The attorney general elaborates that "[f]or example, for a 7-member board with a quorum of 4, a majority of the quorum would be 3." As far as "notice" of such meeting, "[n]otice shall be given by posting a copy of the notice at the principal office of the body holding the meeting or, if no such office exists, at the building in which the meeting is to be held."

Other notable provisions in the Act include the right of members of the public to "record the meeting by tape, film, or other means, subject to some reasonable restrictions" and the requirement that the public body take minutes of its meetings. In light of recent violations and a growing trend toward transparency in government, it's more important than ever that members of the public and government officials alike are aware of such legislation as the Illinois Open Meetings Act and its practical implementation.

Sources: Illinois Attorney General; Patch.com

- Attorney Ryan Zaborowski

Arbitration: Correct Arbiters or Contractual Arbitrariness?

Friday, April 12, 2019

Since it's passage in 2008, the Biometric Information Privacy Act has regulated the collection, use, safeguarding handling, storage, retention and destruction of biometric data in the state of Illinois; "Biometric data" for the purpose of the act including things such as retina and iris scans, fingerprints, voiceprints and face scans. The Act has some fairly high potential penalties for violators, as the law sets out penalties of $1,000.00-5,000.00 per violation. It's somewhat of an open question as to what, exactly, constitutes separate violations, and as a result, business facing suits based on the law can get pretty desperate to get rid of them.

Which brings us to Liu v. Four Seasons Hotel, Ltd, which is a class action filed by former employees of the hotel chain alleging that the companies' management of their fingerprint-based time clock system failed to comply with the law in several respects, including failing to fully inform the employees of the purpose and length of tie of storage of the data, failing to inform them that the data was shared with third-party vendors, and failed to actually properly destroy the data. Four Seasons tried to get the case thrown out of court and into arbitration, but the Federal First District Appellate in Illinois affirmed a stop to that on Tuesday, ruling that the case could proceed in civil court.

The dispute stemmed from the employment agreement that the employees signed with Four Seasons at the beginning of their employment, an agreement which included an agreement that employment disputes would be ultimately resolved in binding arbitration rather than civil court in a variety of circumstances, most pertinently for this case in situation here the disputes arising out of "wage or hour violation." While it is true that courts favor the enforceability of arbitration clauses, and in fact recent decisions even tends allow arbitration over the scope of arbitration clauses, courts also favor enforcing the clear language of contracts. Four Seasons argued that, since the fingerprinting was solely used for tracking wages and time, then the dispute falls under the arbitration clause concerning wages and time.

The court made short work of this argument, pointing out that the employees weren't claiming that there was an issue with their wages or timekeeping, but rather that Four Seasons had violated a widely-applicable privacy rights statute. Succinctly, it stated that: "Simply because an employer opts to use biometric data, like fingerprints, for timekeeping purposes does not transform a complaint into a wages or hours claim." Liu v. Four Seasons Hotel Ltd., 2019 IL App (1st) 182645. This decision correctly affirms that even if an employee signs an arbitration agreement, such agreements cannot be used to completely cut off plaintiffs from seeking relief in the courts.

- Attorney Travis Dunn

Rejected students sue for return of application fees against universities linked to admissions scandal

Friday, March 15th, 2019

A group of students and parents have filed a federal lawsuit seeking class-action status against the University of Southern California, UCLA, Georgetown, Stanford, University of San Diego, University of Texas at Austin, Wake Forest and Yale - colleges named in this week's admissions scandal, stating their admissions process was "warped and rigged by fraud."

Prosecutors revealed Tuesday that 50 people, including 33 parents and number of a college coaches, face charges in carrying out a scheme in which wealthy people used their money to fraud the admissions system at some of the nation's most elite universities. As a result, the Plaintiffs allege in part negligence, unfair competition and violations of consumer law, according to an amended lawsuit that was filed on Thursday in US District Court for the North District of California.

The lawsuit names Stanford University, USC, UCLA, University of San Diego, the University of Texas at Austin and Wake Forest, Yale and Georgetown universities as defendants. The students and parents in the lawsuit said they spent money to apply to schools named in the college admissions scandal and attorneys say they wouldn't have applied had they known about the alleged scheme. The lawsuit states "had Plaintiffs known that the system was warped and rigged by fraud, they would not have spent the money to apply to the school, they also did not receive what they paid for - a fair admissions consideration process." The lawsuit asks for compensatory and punitive damages, restitution and other relief deemed proper by court.

"The students who filed the complaint didn't receive what they paid for - to participate in an application process free of fraud," said David Cialkowski, an attorney for the students. "It's a straightforward claim and a simple remedy. The students want their money back. They request that anyone who paid an application fee to any of the eight named universities but was denied admission gets their application fee returned."

One of the plaintiffs, Lauren Fiedlak, got a 34 on her ACT and a 4.0 grade point average, yet she was denied admission at the University of California at Los Angeles and the University of Southern California, according to the suit. She had an emotional breakdown requiring hospitalization because of the rejections, the suit said.

This case - the college admissions scandal or as it was named in the FBI investigation Operation Varsity Blues - has been a hot topic all week. It will be interesting to see how it all unfolds.

Sources: CNN; ABA Journal

-Attorney Kendall Hodges

Defining Disability

Monday, March 4th, 2019

From the "How is this still an open question" file comes the case of Richardson v. Chicago Transit Authority, 17-3058 and 18-2199 (7th Circuit). This case, currently awaiting decision from the appeal court, asks whether or not obesity can qualify as a disability under the Americans with Disabilities Act and its amendments.

The plaintiff, a bus driver for the CTA, alleges that he was terminated as a result of his obesity after coming back to work from a medical absence and being subjected to a "safety assessment" that non-obese employees were not required to pass. The facts, while not entirely agreed upon, are straightforward in that the CTA doesn't really deny that he was referred to the assessment as a result of his weight, and that his weight was a factor in their failing him, leading to his inability to continue driving.

The cause of Richardson's current legal dispute is that the current accepted standard (where it has been addressed by circuit courts, anyway) for an obesity-connected disability requires an underlying condition causing the disability. That is, if you have an underlying physiological disorder causing the obesity itself, then it qualifies as a disability. If the obesity cannot be connected to a preexisting disorder, then the employee is not protected. The district court in this case agreed with that precedent. Richardson, appealing that decision, is arguing that obesity in and of itself qualifies as a possible grounds for discrimination on the basis of physical impairment.

On the other hand, Richardson has the federal Equal Employment Opportunity Commission, the agency body which actually enforces the ADA, on his side, as well as a number of lower district court decisions around the country. In addition, a number of entities, including the AARP and various medical advocacy organizations, have filed "friend of the court" briefs with the 7th circuit in this case urging the court to consider new medical evidence in making their decision.

Obviously, this is an important clarification for the court to make. If it finds for Richardson it would make the seventh circuit the first court to rule that weight itself can qualify as a disability entitled to ADA protections, and would effectively expand those protections to a great number of workers. It would also set up a rather significant disagreement over the interpretation of the law between the seventh circuit and several other circuits, potentially setting up a Supreme Court challenge down the line.

Attorney Travis Dunn

Are you liable for injuries caused by snow and ice on your property?

Saturday, February 9th, 2019

The Midwest winter has really stepped it up a notch this January and now going in to February. We have had all types of weather this past month- ice, snow, -52 degrees, 50-degree days and now rain. It is hard to keep up with what kind of weather we will have next, but it is important to keep up with shoveling and salting your sidewalk to make sure you don't fall into a lawsuit. Depending on the circumstances, you could be held liable if someone slips and falls on snow or ice in front of your home or business.

You could be held liable is if ice developed as a result of the diversion of water (e.g., a downspout that sends water onto the sidewalk), then you could be held liable because you created a hazard. However, natural accumulations of snow and ice generally do not create a liability for a home or business owner. Local ordinances may create duties on property owners to shovel and treat icy conditions. These local ordinances, if not followed, can result in liability for injuries from slip and falls.

After a storm, home and business owners are allowed a reasonable time to remove ice. Therefore, if someone falls on ice during the storm or in the hours immediately following the storm (especially if the hours were overnight or when you would not normally maintain the property), it is less likely that the property owner (or tenant) will be held liable. However, if sidewalks and parking lots are left untouched for an unreasonable period of time after the storm, the likelihood of liability increases, even if the ice and snow occurred naturally.

Since ice is very transient, if someone has fallen on your property, it is a good idea to photograph or video the condition of the property - especially if there was no ice or if the ice was open and obvious. This includes both the area of the fall and the overall condition of the property. If the sidewalk is clearly covered in ice and someone decides to walk across it anyways, the injured party is likely responsible for any injury sustained. This is especially true is alternate ways of walking were available. Everyone has a duty to avoid open and obvious hazards and property owners are not liable for injuries occurring as a result of assuming risks.

Whether a property owner is liable depends on the circumstances surrounding the icy/snow conditions. However, it is always a good idea to shovel and salt your property as soon as it is possible for your own safety and the safety of those around you.

If you find yourself in a position where someone has fallen on your property or you have fallen on someone's property, please call our office toll free at 1-888-488-4LAW or via email at [email protected]. We look forward to hearing from you.

- Attorney Kendall Hodges

"The hidden hazards of a simple claim"

Friday, February 1st, 2019

Even in situations where there is a clear injury and there is an identifiable wrongdoing by a third party, the proper route for enforcing your rights isn't always clear. This was reinforced this month in the federal U.S. District court Northern Illinois, where parties purporting to represent a class of horse owners alleged that their animals were injured and, in some cases, killed by contaminated horse feed manufactured by Archers-Daniels-Midland Company (ADM). Berarov et al v. Archer-Daniels-Midland Company et al, case number 16C7355. The suit scraped past and attempt by ADM to get it dismissed, but not without a good amount of trimming by the judge.

The facts alleged are simple: ADM manufactures feed for cattle and horses at its plant in Illinois. The cattle feed is fortified with monensin, which increases weight gain by cows. Unfortunately, monensin is also toxic to horses. ADM advertised its horse feed on its website using a number of statements touting its quality and consistency. In 2014 and 2015, the plaintiff's fed their horses feed from the plant and they were sickened and died of symptoms that looked very much like monensin poisoning, and the feed tested positive for monensin. ADM issued a press release stating that the amount of monensin in their feed was negligible and safe, but the owners, located in South Carolina and Michigan, brought suit in Illinois claiming that the cattle feed had cross-contaminated the horse feed with dangerous amounts of the chemical, and filed suit.

So what's the problem? Shouldn't they just got to court and argue over the facts? Not so fast. The owners alleged claims under the Illinois Food, Drugs, and Cosmetics Act, the Illinois Consumer Fraud and Deceptive Trade Practices Act, negligent misrepresentation, strict product liability, unjust enrichment, and breach of express warranty. ADM argued in its Motion to Dismiss the complaint that the whole thing should be tossed out on a number of procedural grounds.

First, ADM argued that the whole suit should be thrown out because the Federal Food, Drug, and Cosmetic Act effectively preempts the state law that the owners were attempting to use in the suit, and that since the owners didn't plead any claims under the Federal Act the whole complaint must be dismissed. The court moves past this argument pretty quickly, noting that, just as for things like minimum wage, discrimination law, gambling or highway safety, nothing in the Federal Act suggests states can't have higher standards than the federal laws.

The other arguments by ADM are more problematic for the horse owners. The Judge dismissed the count brought under the Illinois Food, Drugs, and Cosmetics Act because the Act doesn't actually give individuals a right to sue-it only sets up the state of Illinois itself to have actions against violators, like a criminal penalty. The unjust enrichment claim was deemed to be incoherent because it alleged the existence of a contract, whereas unjust enrichment is about implied contracts. For the Illinois Consumer Fraud and Deceptive Trade Practices Act, the court dismissed the claim because the complaint did not allege enough information to show that the court had jurisdiction, given that the horses injured were in other states (granted, if the feed was actually bought in Illinois the owns might get this claim reinstated.) Similarly, for the negligent misrepresentation and breach of express warranty claims, the court ruled that, while ADM's claims about its feed could be deemed actionably false, the owners had not alleged that they actually saw the claims on the website; they will need to plead more information to sustain those claims. The strict product liability claim was complicate by the fact that Michigan has somewhat unusual requirements for pleading product liability, but the court did leave open the possibility of changing the complaint to meet them.

So the suit itself survives, but the horse owners are going to do some serious editing to their complaint itself. This is a perfect example of a tragic fact pattern that seems like it ought to make for a straightforward case of poisoned horse food, but where finding the proper form and content of the legal complaint itself has proved far more complicated for the injured party.

-Attorney Travis Dunn

Government Shutdown and Court Proceedings

Friday, January 11th, 2019

The federal government shutdown on December 21st after congressional Democrats clashed with President Donald Trump over whether to allot money to build a wall on the southern border of the United States. The shutdown reaches the three-week mark today, tying with the 1995 closure for the record as the longest government shutdown in U.S. history.

On December 26th, Chief Judge Ruben Castillo of the Northern District of Illinois has halted all civil litigation where the United States is a party. Criminal cases remain unaffected, although jurors won't be paid until the shutdown ends. As of January 9th, 983 cases were on hold. Castillo's order will lift when Congress appropriates money for the courts. Deadlines for attorneys will be extended by the number of days of the shutdown, plus one week.

The U.S. government shutdown has delayed proceedings in at least two high-profile lawsuits in Chicago's federal court, as well as hundreds of others. Lawsuits related to Aurora Chicago Lakeshore Hospital and the city of Chicago's sanctuary city status are both suspended. The shutdown has lengthened the reprieve for Aurora Chicago Lakeshore Hospital, which sued in December for an emergency judicial order to keep Medicare dollars flowing to the psychiatric hospital. State and federal authorities are investigating allegations that patients at the hospital were sexually and physically assaulted, inappropriately dosed with strong medication and poorly supervised. Officials attempted to take federal funds in November, which would have shut down the hospital, but the court sided with the hospital. Medicare payment program is still being financed during the partial government shut down and the Illinois Department of Public Health continues to monitor compliance at Aurora facility. Also, on stalled is a Chicago lawsuit against the U.S. Department of Justice for withholding a $1.5 million law enforcement grant because the city refuses to let federal immigration agents access undocumented immigrants in police lock-ups.

Other cases on the Northern District's docket that have ground to a halt comprise a mix of immigrants fighting deportation, prisoners trying for their freedom, employees alleging discrimination, and disabled people and retirees claiming Social Security benefits. For these people, litigation takes an emotional toll. It is a lot of individual persons that are hurting in one way or another, and they can't get the redress their entitled to.

Regardless of whether you are a Democrat or Republican, the government shutdown affects everyone especially those with cases pending in the Northern District of Illinois.

-Attorney Kendall Hodges


Disability, Workers' Compensation, and the Difference between an Elbow and a Wrist

Friday, January 4th, 2019

The "standard" answer for benefits available in the Illinois Workers' compensation system is that, if a worker is injured in the course of their employment, they are entitled to three things: the cost of their medical treatment; payment for the time that they are unable to return to work; and some type of permanency payment for their future disability.

The last of these is often the most complex, in part because of factual disagreements about actual level of disability, but in part because there are several forms that the payments can take. An injured worker may receive a flat amount, representing the "permanent partial disability" or "PPD" of a specific body part or of their whole body. A worker whose injury is so disabling that they are unable to return to steady work at all may be entitled to permanent and total disability payments for the rest of their life (or, more frequently, a lump sum settlement approximating the same). Somewhere in between, perhaps, are wage-differential awards which compensate a worker who cannot return to a job as lucrative as the one they had before their injury, but who may still work in some lesser paying occupation.

Things get exponentially more complex when you bring in cases of workers with multiple injuries, as is the case in the recently decided case of William Pisano in the Illinois First District Appellate Court out of Chicago (Pisano v. Illinois Workers' Compensation Comm'n, 2018 IL App (1st) 172712WC. The history of Mr. Pisano's injuries is lengthy, but suffice it to say that the initial arbitration of the case found that he had, in his employment with the City of Chicago, injured his right elbow when he slipped and fell on grease while operating a machine in 2005, injured his right wrist when he was hit by a car while directing traffic in 2007, and then injured both shoulder, his right arm, and his back when he slipped and fell while he was attending an employment rehabilitation appointment for the wrist injury in 2010. The arbitrator awarded a lump-sum PPD award for the elbow injury, as well as a wage differential for the wrist injury, which after the second accident resulted in permanent restrictions which prevented Mr. Pisano from returning to his job. The Workers' Compensation Commission itself more or less upheld the decision on review, only adjusting the numbers a bit.

Things got complicated when Chicago appealed that decision, and the circuit court ruled that Mr. Pisano should have received only one award for his right arm, rather the separate awards for his elbow and wrist. This decision was based on previous caselaw which stated that (generally) where a worker has sustained two separate and distinct injuries to the same body part and the claims are consolidated, only one type award is appropriate, to be set at the time of hearing.

The Appellate court disagreed with this application, reinstating Mr. Pisano's original awards for both PPD and the wage differential. Even though both injuries were to his right arm, the first accident was distinct in that it was to Mr. Pisano's elbow, and it mostly healed successfully as one might expect for a PPD award. The right wrist was not injured at all until the second accident, and was the injury which prevented him from working and which entitled him to the wage differential.

All things considered, the Appellate Court's decision is a good one for workers. When the mechanism, location, and debilitating effect of the injuries are different, it makes sense to evaluate them separately when awarding permanency, even if they happen to be the same arm. In this case, the injuries were not really to the same body part, and so the caselaw restricting awards to same body part should not apply.

-Attorney Travis Dunn

Is Your Christmas Tree a Liability?

Monday, December 17th, 2018

Happy Holidays! It is that time of year again where we all join in on the Christmas spirit and traditions. My favorite Christmas tradition is going to Holocker's tree farm to cut down our own Christmas tree. When I was little, my parents would take us out there and we would each take turns cutting it down. I knew this was a tradition I planned on keeping alive once I had my own family. This year we went the Saturday after Thanksgiving and cut down our tree! I honestly don't think you can beat the smell of a real tree. However, with a real tree, there are plenty of precautions one needs to take specifically with fire.

According to the National Fire Protection Association, U.S. fire departments responded to an estimated average of 200 home structure fires per year that began with Christmas trees in 2011-2015. These fires caused an annual average of 6 civilian deaths, 16 civilian injuries, and $14.8 million in direct property damage.

Although Christmas tree fires are not relatively common, they are completely preventable, meaning that even one tragedy is too many. With that said, there are legal ramifications to a Christmas-tree induced fire including financial liability and injury liability.

A financial legal liability due to a preventable Christmas tree fire can arise when a fire causes damage to property other than the homeowner's. This is especially a concern in multi-unit residences such as condos or townhouses or duplexes. A Christmas tree fire in one unit could easily spread to other units resulting in the homeowner not only having to be financially responsible for their own units, but their neighbors' as well. Many homeowner's insurance cover fires resulting from Christmas trees.

Legal liability could result from injury from any fire. If, for example, you have guests over and your guests are injured, that guest may soon be a Plaintiff. The same goes for neighbors in the event that the fire spread to their property.

So, let's discuss some ways we can prevent a Christmas tree from starting a fire. If you have a real tree, you should do the following:

  1. Start with a fresh tree - make sure it is not dry.
  2. Keep the tree hydrated - put water in it as needed - some trees once cut need more water in the first week.
  3. Keep your tree away from heat sources that can dry it out.
  4. Throw the tree away when it reaches old age - trees last a maximum of four weeks.

It is fairly easy to ensure that your home and loved ones are safe from Christmas tree mishaps. With these easy steps, you can enjoy your holidays and be worry free from potential fires.

From everyone at the Law Offices of Peter F. Ferracuti, we hope you have a wonderful and safe holiday season!

-Attorney Kendall Hodges

The saving grace of a case lacking haste

Friday, December 7th, 2018

Contract disputes, especially contract disputes regarding supply chain issues, can seem a little dry in comparison to other areas of law. Circuit courts can generally resolve such things due to their heavy reliance on the facts and understandings of the parties involved, or at the very least the plausibility of the lower court's decisions regarding such things. All of which is to say that it is notable when one hears about a decision where things went a little differently.

This is precisely the case in the federal case of Newspin Sports LLC v. Arrow Electronics, however. The Seventh Circuit Court of Appeals, in a ruling issued on December 3, 2018, did not entirely salvage the claims of Newspin, but it did save at least part of its case against Arrow.

As might be expected, the issues presented by the case have a relatively straightforward factual background if you boil it down: Illinois based Newspin Sports LLC, a company that sells electronic motion-sensors for helping athletes with things like golf swings, entered into a contract with New York based Arrow Electronics to manufacture and deliver components of the products. Unfortunately, the components delivered in mid 2012 were defective, and defective in such a way that Newspin didn't catch the problem until the sensors were shipped on to customers, a situation which allegedly cost Newspin quite a significant sum of money and reputation. Ultimately Newspin filed suit for breach of contract, breach of implied good faith and fair dealing, fraud, fraudulent misrepresentation, unjust enrichment and negligent misrepresentation.

Where the case gets complex, and why it got to the appellate level in the first place is that, for whatever reason, Newspin didn't file suit over this behavior until January of 2017. The circuit court ruled that this was too late for every single one of Newspin's claims, and completely dismissed the lawsuit. The appellate court, however, disagreed as to some of Newspin's claims. As to the claims actually based on the contract, Illinois has a very generous ten year statute of limitations for most contract disputes, but there is a major exception for contracts for "transactions in goods." Newspin tried to argue that because Arrow also was assembling and shipping the components that they were engaged in work rather than a transaction of goods, but the appellate court did not buy this and upheld the dismissal as to the contract claims.

It gets more interesting when the other claims get involved. The appellate court found that the unjust enrichment claim was basically based on the contract claims, and similarly upheld its dismissal. The negligent misrepresentation claim's dismissal was actually upheld on entirely different grounds from everything else, invoking a bar in the state of New York against pure economic losses in negligent misrepresentation claims. Unlike the statute of limitation, which procedurally was governed by Illinois law, the contract itself at issue here stated that substantive law would be that of Arrow's home state of New York. Luckily for Arrow, they lucked out a bit in that regard.

Finally, the decisions that allow the case to actually move forward: the claims that Arrow engaged in fraud. The district court found that these, like the unjust enrichment claim, was so tied to the contract itself that the four year statute of limitation blocked Newspin's claims. However, the Seventh Circuit disagreed. They found that, during the negotiation of the contract, Arrow's claims that they would produce components to Newspin's specification constituted possible fraud, sperate from the terms of the contract itself. Since the statute for fraud is five years instead of four, Newspin was able to squeak by with their claims for fraud and fraudulent misrepresentation, despite having the actual contract part of their contract dispute dismissed.

It's amazing how complicated a simple contract dispute can get. Especially when it turns out to not be a contract dispute at all.

-Attorney Travis Dunn

What to Know About Passing an Illinois School Bus

Monday, November 19th, 2018

If you have been following the news this fall, you most likely have heard of the deadly school bus crashes that have been happening across the country. In a recent one-week period, five children were killed and six were injured in five separate incidents across the country. This seems like a good time to discuss the rules of the road when it comes to buses and school zones.

When it comes to buses, school zones and safety, some of the biggest concerns happen when cars and buses aren't moving. Kids run the greatest risk of being hurt when they are standing at the bus stop, according to the Illinois State Board of Education. In fact, most children between the ages of 5 to 7 are injured or killed while they're getting on and off the bus, and they enter an area labeled the "death zone."

Here is what you need to know - and what you should do - when you see a bus stopped with its flashing lights and extended stop-sign arm, or you are driving by a school.

Passing a Stopped School Bus:

The Law: In Illinois, all lanes of traffic in both directions must stop when a school bus is stopped to pick up or drop off kids while traveling along a two-lane road. This also applies to one-way streets no matter how many lanes of traffic. On a four-lane road with at least two lanes of traveling moving in the opposite direction - only motorists going in the same direction as the bus are required to stop.

Drivers should also stop at least 20 feet from the bus when they see the bus's flashing lights and stop sign extended in order to let students cross the road safely.

Penalty: First-time offenders can look forward to having their driver's license suspended for three months, and recidivists who are convicted a second time within 5 years could have their license suspended for a year. Offenders can face fines of $150 for the first conviction and $500 for subsequent offenses.

Speeding in a School Zone:

The Law: Under Illinois law, the speed limit for all school zones is 20 mph, regardless of what the speed is for the road the school is on. But that limit is only in effect from 7 a.m. to 4 p.m. on school days.

Speeding isn't the only thing prohibited in a school zone. Motorists are not allowed to pass while in a school zone, and pedestrians have the right-of-way in a school zone crosswalk.

Penalty: In most cases, speeding in a school zone is a petty offense. That means it is punishable by a minimum fine of $150 for the first offense and $300 for future offenses. Motorists must also pay $50 to the school district where the speeding violation happened.

Illinois also has "Jeff's Law" which was passed in 2007, a driver is considered to have been driving recklessly if he or she was speeding in a school zone and someone was hurt or killed. Another law that is also a decade old stipulates that a driver in any school zone crash that causes great bodily harm to a child or a crossing guard can be fined up to $25,000 and face possible jail time.

With all the incidents occurring across the country, it is a good time to be reminded to stop for school buses, slow down in school zones and pay attention to your surroundings.

-Attorney Kendall Hodges

The Hidden Legal Hazards of the Winter "Slip and Fall"

Friday, November 9th, 2018

While the first real snowfall of the year can give a lovely patina to the landscape, the ice and snow that is left behind by winter winds can also provide an unfortunate layer of legal complications to slip and fall injuries. As if a "slip and fall" injury was not difficult enough, the legislature and courts of Illinois have made it particularly complicated and difficult to be compensated based on injuries sustained from snow and ice.

Perhaps concerned about liability for what is a fairly common form of precipitation during the long winter months, it has long been the case in Illinois that, in many circumstances, property-owners in Illinois are not liable for injuries resulting from "natural" accumulation of snow and ice. If someone is injured on an otherwise normal walkway because they slipped on some freshly fallen snow, establishing liability can become extremely complicated. Even worse, there is no general legal duty (that is without some sort of maintenance contract or other arrangement) to actually clean up this natural accumulation, even when it could result in injury. The courts really have shifted the liability to the pedestrians at risk for injury.

Luckily, the manner in which courts interpret "unnatural accumulation" can be more broad than one would think. The classic example is snow that has been shoveled into a large pile, which then melts and refreezes, causing ice to present a hazard in a manner that it would not have naturally been the case. The actual layout of a property can also result in a sort of passive unnatural accumulation. If there is design flaw in a building such that water from a downspout runs across a walkway and freezes, someone who is injured on that ice may have a valid claim against the property owner for being negligent in the construction of their . Even neglecting to repair flaws in a parking lot which then result in unusual snow and ice distributions and hazards can be deemed to be unnatural accumulation.

The above applies to public spaces, primary. Homeowners have even more protections from liability, because the Illinois Snow and Ice Removal Act actually exempts them from liability even if their good-faith (but negligent) efforts to clean up the snow result in the conditions which lead to injury. The purported reasoning behind this is that the legislature wanted people to at least try to keep their homes cleared of snow and ice. Unfortunately, though, it can also result in situations where people are gravely injured without clear remedy.

The complex nature of these cases makes it even more important that you are assisted by qualified legal counsel. For inquiries related to any type of personal injury, please call our office toll free at 1-888-488-4LAW or via email at [email protected]. We look forward to hearing from you.

-Attorney Travis Dunn

Agency Liability: Not Only for Employees

In a personal injury like a car accident, especially a fairly straightforward accident like a rear-end collision, it might seem obvious who to bring suit against. The proper defendant is the one who hit you, right? That's probably one of them, but it might not be the only one. There's a number of situations where third parties might also be responsible for you injury. Probably the most common of these are agency or employment relationships, where the primary defendant is acting on behalf of someone else when they injure you. This can create liability for the companies or entities that they are working for and open another avenue of recovery for the injury.

A recent example of this, with some complicating factors, is the decision out of the First Appellate District, where the court upheld a judgement in Blockmon v. McClellan (2019 IL App (1st) 180420). In this case, the defendant driver was driving on I-80 and looking at the GPS application on his phone. Distracted, he rear-ended the vehicle of Walter Blockmon III at a high rate of speed, causing injuries which led to Walter's death.

Where this diverges from a straightforward, albeit particularly tragic, vehicle collision claim is the reason why McClellan was looking at his phone: in fact, he was running late to an appointment with a possible customer for the Cutco knives that he had purchased through Cutco Corporation and it's parent, Vector Marketing. The victim's Estate, in bringing suit, claimed that McClellan's relationship with the corporations in selling their products, even though explicitly characterized as being that of an independent contractor, created liability for the corporations for the death due to the degree of control that they had over the activities of the driver as well as their lack of guidance in handling things like driving to customer appointments. A jury agreed with the estate, entering a large judgment against Vector, Cutco, and the driver. The corporations appealed.

The appellate court, in this case, was essentially reviewing whether or not the companies were entitled to a directed verdict in the trial. They brought up several procedural arguments along with the argument that there had been no evidence presented at trial which would allow a finding of vicarious liability or control of the driver. Ultimately, the appellate court found that the estate had presented enough evidence of an agency relationship that the jury could have found for them, including the fact that the companies had control over the use of their names, prices of their products, and expected regular contact between the "independent" salespeople and the company. So regardless of the tax or employment status of the parties involved, it was reasonable for the jury to have concluded that the driver was acting under the control and for the benefit of the companies at the time of the accident.

It's important that you have an attorney who will explore every avenue of recovery. If you've been injured, please call our office toll free at 1-888-488-4LAW or via email at [email protected]. We look forward to hearing from you.

-Attorney Travis Dunn

What's in a name?

The law can be a strict, formalistic, unforgiving beast. It is with a certain amount of self-awareness that I note that much of what we do as attorneys is helping people to navigate the tricky seas of a legal claim. Given that degree of occasional harshness, I'll take any opportunity to note decisions where a wronged worker is allowed to pursue their case despite the hurdles in their way.

In many cases, the identity of the party that you are trying to file a complaint against is not a mystery. This wasn't exactly the case in Humberto Trujillo v. Rockledge Furniture LLC, a case which was recently decided in the Federal Seventh Circuit Court of Appeals. The details of Mr. Trujillo's claim was, at its core, an employment discrimination claim which he sought to file first with the Equal Employment Opportunity Commission ("EEOC") and then in civil court. However, the store where he was employed was not called "Rockledge Furniture LLC." It was an Ashley Furniture HomeStore. Which, as it turns out, was owned by "Rockledge Furniture LLC." Which is a company based out of Wisconsin associated with a corporation named "Ashley Furniture Industries, Inc." And which was doing business in Illinois registered under the name "Ashley Furniture HomeStore - Rockledge."

You can probably guess where this is going. In 2016, Mr. Trujillo filed an age discrimination and retaliation charge with the EEOC against his employer, giving the address and phone number of the store where he worked and naming them as Ashley Furniture HomeStore. Though a computer system glitch that would be somewhat comical if the consequences were not so serious, the EEOC ended up sending his complaint to "Hill County Holdings, LLC" which happens to be the Ashley Furniture HomeStore affiliate operating in Texas, of all places. Hill County Holdings, understandably, told the EEOC that they had no idea who Humberto Trujillo was. At this point Mr. Trujillo's attorneys pointed out that the EEOC had contacted the wrong Ashley Furniture, and noted that Mr. Trujillo had provided the EEOC with the address of the store where Mr. Trujillo worked. His attorneys also gave the EEOC a copy of a paystub which clearly listed Rockledge Furniture LLC and even had the company's Headquarter's contact information on it. The EEOC, for reasons that the seventh circuit decision describes as a "mystery," at this point promptly closed the claim and issued Mr. Trujillo a right to sue his employer-all without actually ever actually contacting Rockledge or Mr. Trujillo's store.

When Mr. Trujillo filed his claim in court, then, Rockledge filed a motion to dismiss his claim because, they argued, Mr. Trujillo had not actually ever filed an underlying EEOC charge against them, nor were they ever made aware of the underlying EEOC charge. The district court granted their motion, effectively ending Mr. Trujillo's claim.

Luckily, the appellate court was more sympathetic to Mr. Trujillo's situation and reversed the dismissal. They point out in their decision that Mr. Trujillo gave a correct address for his place of employment in his original EEOC charge, and in fact got most of registered name correct: "Ashley Furniture HomeStore" vs. "Ashley Furniture HomeStore - Rockledge." Further, regarding the problem of Rockledge genuinely not knowing about the claim prior to the lawsuit, the court points out that it was the job of the EEOC to contact the employer, and Mr. Trujillo gave them more than enough information to do so. It would make little sense to hold Mr. Trujillo responsible for the EEOC's failure to act on that information. Better, the court rightly found, to give the parties a chance to work out their dispute rather than strangling the claim over a slightly mistaken name and a bit of mishandling on the part of the EEOC.

An eminently sensible decision, and good news both for MR. Trujillo and for workers generally.

-Attorney Travis Dunn

The Transition

The transition periods in our life help define us. They help mold us into who we are and help shape the type of person we hope to become. For me, the first transition period was from high school to college. I left my safe home town and went to Bloomington, which looking back was a piece of cake- but I digress, where I would move on to a floor of 15 wonderful women. These women would show me what a strong group of female friends looked like. Then, four short years later, I would leave that town that grew to become my second home and I would venture half way across the country to the city that I now love more than any other. That was the real transition period for me. Those three years. Those people. Tough schooling, the strongest friendships, love, pain, laughter, and a lot of strength and independence I did not know I had in me up until that move. Boston, though it took me away from my family, taught me who I really was. It gave me a chance to live for me- and solely for me. To do the things I loved and to venture outside of my comfort zone. To find total strangers who would turn into family. People that I will literally love the rest of my life. Transition periods are funny. They break you down so you can pick up the pieces that truly define you.

I've been lucky enough for a lot of years now to volunteer for the American Foundation for Suicide Prevention. I run the LaSalle County walk. It has become a part of who I am to help others through times of crisis. Transition periods can be just that- crisis. Sometimes you end up in a foreign place by yourself and truly feel alone. I can remember the first week of college literally crying in the hallway of my dorm because I missed my parents, but I was lucky because I could call them. Some kids, and some adults, don't have that. Under the auspices of AFSP, I have been lucky enough to receive training and materials to help kids through these transition periods- especially kids who feel alone. The program is called "Its Real". It's the most simple, and best validation of the feelings of a time of transition. For a lot of kids, it's the first time they're living on their own and having to navigate life's decisions without adult supervision and guidance. That causes anxiety, depression, and suicidal ideations in many students, and this program helps show students that what they're feeling isn't uncommon. It's not weird to feel alone. It isn't weird to feel that anxiety, or to feel sad that you are so far away from home and comfort. Early detection and the treatment of mental health conditions is vital to the way we can encourage students to seek support and to cope with times of mental stress or mental illness whether they be permanent or temporary. Identifying your feelings and the causes of those feelings is the first step.

A lot of times we're encouraged by society to sweep mental illness under a rug. To "tough it out". That isn't how this works. Being mentally ill and needing treatment is the same as having a physical injury. You have to identify the problem, figure out the cause of the problem, and find out how to treat or deal with the problem at hand. That's what this program aims to help students do. If you or anyone you know is interested in hearing this program in person, please feel free to call me at 815-434-3535 or email me at [email protected]. My passion in life is to help other people through the tough times- to help them triumph over the things in life that are meant to bring them down. Help me build a stronger tomorrow by reaching out to those around you, having more patience, and being kind to strangers. Everyone deserves to be loved. We need you. If you are having suicidal thoughts or feel like you want to talk to someone, please call the suicide hotline at 800-273-8255 or text 741741 to the Crisis Text line at any time.

-Attorney Alexis Ferracuti

Damages, but the Wrong Kind

Negotiating on behalf of an injured party is never a simple process, and it becomes even complicated when there are disputes regarding the types and amounts of compensation that the various parties are legally responsible for. It is especially admirable when Plaintiffs work to expand those categories, even if they are not always successful. Unfortunately, it looks like Nathan Sigler falls into this latter category in his claim against his insurance company, where the Federal Central District in Illinois dismissed his claim on Wednesday in Sigler v. GEICO Casualty Co.Sigler's vehicle was totaled in an accident in 2013, and he naturally assumed that his insurance would cover it's replacement. After all, his policy said that they would pay "the actual cash value of the property at the time of the loss." Sigler was dismayed when, on top of the value of the vehicle, his insurance did also pay the sales tax for a new car and the title and tag transfer fees. He sued his insurance company alleging that they breached their contract by not paying out these additional costs.

Here's the problem: Sigler never said in his complaint that he actually paid these fees and costs. He argued that the insurance should pay such associated costs upfront, just like they do with the actual value of the lost vehicle. Geico stated in their Motion to Dismiss that they would have been happy to pay those expenses if he actually incurred them, but that they did not factor such costs into their standard insurance payouts. They claimed that they would only be responsible for replacement costs if the vehicle is actually replaced; otherwise the insured is entitled to the value of the car itself. The court agreed.

The important fact here is that Sigler was arguing damages for a breach of contract, and the court ruled that his claim for monetary damages in the form of fees and costs, which may or may not have already been incurred, was too uncertain and speculative to make it past the early stages of litigation.

Rather charitably, the court points out that if Sigler actually has lost out on the money, he is welcome to amend his complaint to reflect this and continue on with the litigation. One does suspect, however, that if Sigler had the receipts for the taxes and fees, Geico would just pay the few hundred dollars that they owe him. In that eventuality, Sigler's loss wouldn't even be uncertain-it would just provably not exist.

-Attorney Travis Dunn


Better Generation


Each year for the past three years, our firm has given out a total of four scholarships to LaSalle Peru High School and Ottawa Township High School. There are two categories of scholarships available. The first scholarship, The Peter F. Ferracuti Trades Scholarship, focuses on creating opportunities for young adults who wish to pursue careers in the trades which are desperately needed in our communities.

In a world focused on pushing kids in large groups into colleges across the nation, we have lost the common sense foundation that my Dad based his whole life on. My dad once told me that if someone had told him that he had to be a plumber, he would have been totally useless. Not because plumbing isn't a necessary and valuable trade, but because my dad's brain wasn't wired that way. Spoiler alert- neither is mine. Ask my significant other how I do when I attempt to paint or fix things around our home. He will probably direct you to a grid on our ceiling that I painted a totally different color after I marked it so many times trying to paint the wall. We aren't all wired to do the same thing.

Our office, as a part of that scholarship, awards $500 to a student from both Ottawa and LaSalle Peru High Schools who wishes to pursue a career in the trades. Our hope is that it will encourage kids who don't fit the standardized mold our education system increasingly tries to push kids into. We hope that it will enable young adults to see their worth isn't defined by their college education, and debt, and that they can make a difference in this world in anything they put their soul and mind into. Success takes hard work, and that's what required regardless of the path you travel.

Our second scholarship is in honor of my dad. Dad knew from a young age that he wanted to be either a doctor or a lawyer. He loved medicine, but a shaky left hand kept him from pursuing the career he always had followed and admired. As a result, he found his true calling. My dad's true love, other than his family, was the law. I mean- really- he loved it. He loved to read it, he loved to argue, and he loved to change the law (or the rules of whatever board game we were playing at the time). And he was good at it. Actually, my grandmother often told him that if he wasn't a lawyer he would be a total loss because he really was only good at deciphering the law. A joke obviously, because if you asked him he could pretend he could fix things around the house too, but the joke had some truth to it. He founded our law firm to help his community. To put people in a better position than when he met them despite horrible events which affected them along the way. He contributed resources to our community which he never asked for credit for, and always looked for ways to take care of others. The second scholarship is meant to honor just that- two students who understand the importance of community action and who want to become advocates for those in need. It is also a $500 scholarship given to a single student per school from both Ottawa and LaSalle Peru High Schools which helps students who intend to pursue a degree in law.

This year's candidates were absolutely incredible. All four students receiving scholarships represent absolutely everything that both scholarships are meant to award. We are pleased to award this year's scholarships to the following students: For the Peter F. Ferracuti Trades Scholarship, we are please to award Courtney Baxter and Noah Taylor with $500 scholarships toward their advancement in building trades and auto mechanics. For the Peter F. Ferracuti Future Advocate Scholarship, we are pleased to award Alexandra Wren and Cassandra Claus $500 each to aid in their pursuit of joining the legal profession. The essays blew me away this year. It's always a little bitter sweet to give an award in memoriam of someone I loved, respected, and honored as much as my father, but this year's applicants made that easy. Our future is bright. I've read their essays. I've seen their community service and their grade point average. I can see the hard work and dedication they all have. I can't wait to watch them blossom and change this world for the better. We're just glad to be a part of that journey.

- Attorney Alexis P. Ferracuti

School Zone Speeding Tickets

Friday, May 3, 2019

Speeding in a school zone is a petty offense under the Illinois Vehicle Code. A petty offense is punishable by a fine only. For most petty offenses, the maximum fine in traffic court is $1,000.

A ticket for speeding in a school zone is a serious traffic offense because it can result in the Secretary of State suspending your driver's license.

The law provides that the speed limit in a school zone is 20 miles per hour (20 m.p.h.) on school days when children are present. See 625 ILCS 5/11-605.

According to the law, a school day begins at 7:00 a.m. and lasts until 4:00 p.m. The speed limit must be posted (there must be a sign present). The children must be near enough that a hazard exists.

The first offense results in a fine of $150. However, a second offense carries a mandatory fine of $300. In addition to these fines, the driver must also pay $50 towards the school district.

The biggest issue with speeding in a school zone is that the offense does not allow for court supervision. That means that any ticket you receive for speeding in a school zone is an automatic conviction to your driving record, which cannot be removed from your record and results in points on your license.

Three convictions for moving violations in 12 months will cause the Secretary of State to suspend your license. Drivers under the age of 21, 2 convictions in 24 months will cause a suspension.

A ticket for speeding in a school zone is a serious matter and an attorney should be retained.

- Attorney Kendall Hodges

Scott's Law

Friday, April 19, 2019

If you live in Illinois, you have heard of the recent Illinois State Police officers being struck and killed on the side of the road while conducting stops. Already in 2019, 16 Illinois State Police troopers have been struck by vehicles or died on state roads, doubling the total from all of last year in just four months. In response, state officials are hoping to better educate young drivers about Illinois' "move over" law that aims to protect emergency responders.

Illinois' "move over" law is called Scott's Law. The law is named after Lt. Scott Gillen, a 14-year veteran of the Chicago Fire Department who was struck and killed by an intoxicated driver while assisting at a crash on the Dan Ryan Expressway in December 2000. He was 37 years old. After his death, Gillen's family pushed for the passage of Scott's Law to help protect emergency responders on accident scenes. Scott's Law mandates that drivers, upon approaching any stationary vehicle with flashing emergency lights, must reduce their speed, proceed with caution and change lanes if possible.

State officials along with the State Police and Illinois State Board of Education are making attempts to educate drivers about the "move over" law. Last week, the Illinois Senate unanimously agreed to add two reminders about Scott's Law to the state's drive pool. State Sen. Chapin Rose wants to send drivers a reminder about the law to move over for police officers with their lice plate renewal postcard. He also wants the Illinois Secretary of State to include a question about the law on the state's driver's test.

In addition, the State Police and Illinois State Board of Education have collaborated on a new flyer that is being distributed to driver education programs in Illinois to help spread awareness of Scott's Law.

Sources: WTTW, Illinois News Network

- Attorney Kendall Hodges

Charting a Course for Open Discourse

An Alderman in Evanston was recently found to have violated the Illinois Open Meetings Act (5 ILCS 120/1) when she restricted the 19 attendees at a public meeting last year to 1 minute of speaking time each. Following the meeting, a resident of Evanston who had attended filed a request for review with the Illinois Attorney General's office. In her request, she claimed that "[r]esidents were taken by surprise with such a short time allotment and most were not able to deliver [their] full messages." In its investigation, the attorney general assigned significance to the fact that the city's rules provided for 45 minutes of public comment at such a meeting and there seemed to be no compelling reason why such rule was not followed given that there were only 19 residents who had signed up to speak. The attorney general's determination hinged on its finding that the alderman's actions "unreasonably restricted public comment."

The attorney general's finding that a violation occurred in the above instance shines a light on the Illinois Open Meetings Act and its intended purpose. If you've never attended a local or state government meeting, or even if you have, you may be unaware of the law and what rights it's meant to protect. The Illinois Attorney General describes the Illinois Open Meetings Act as "designed to ensure that the public has access to information about government and its decision-making process." In publications available online, the attorney general further explains that the Act "requires that meetings of public bodies be open to the public except in certain specific, limited situations ... where the law authorizes the public body to close a meeting." Additionally, "the public must be given advance notice of the time, place and subject matter of the meetings of public bodies.

To fully understand the Act and its implications, it's necessary to unpack some of the terms above. For example, a "public body" subject to the Act includes "all legislative, executive, administrative or advisory bodies of ... the State, counties, townships, cities, villages, or incorporated towns, school districts and all municipal corporations." But what kind of "meeting" does the Act cover? The attorney general defines such "meeting" as "a gathering of a majority of a quorum of the members of a public body for the purpose of discussing public business." The attorney general elaborates that "[f]or example, for a 7-member board with a quorum of 4, a majority of the quorum would be 3." As far as "notice" of such meeting, "[n]otice shall be given by posting a copy of the notice at the principal office of the body holding the meeting or, if no such office exists, at the building in which the meeting is to be held."

Other notable provisions in the Act include the right of members of the public to "record the meeting by tape, film, or other means, subject to some reasonable restrictions" and the requirement that the public body take minutes of its meetings. In light of recent violations and a growing trend toward transparency in government, it's more important than ever that members of the public and government officials alike are aware of such legislation as the Illinois Open Meetings Act and its practical implementation.

Sources: Illinois Attorney General; Patch.com

- Attorney Ryan Zaborowski

Arbitration: Correct Arbiters or Contractual Arbitrariness?

Friday, April 12, 2019

Since it's passage in 2008, the Biometric Information Privacy Act has regulated the collection, use, safeguarding handling, storage, retention and destruction of biometric data in the state of Illinois; "Biometric data" for the purpose of the act including things such as retina and iris scans, fingerprints, voiceprints and face scans. The Act has some fairly high potential penalties for violators, as the law sets out penalties of $1,000.00-5,000.00 per violation. It's somewhat of an open question as to what, exactly, constitutes separate violations, and as a result, business facing suits based on the law can get pretty desperate to get rid of them.

Which brings us to Liu v. Four Seasons Hotel, Ltd, which is a class action filed by former employees of the hotel chain alleging that the companies' management of their fingerprint-based time clock system failed to comply with the law in several respects, including failing to fully inform the employees of the purpose and length of tie of storage of the data, failing to inform them that the data was shared with third-party vendors, and failed to actually properly destroy the data. Four Seasons tried to get the case thrown out of court and into arbitration, but the Federal First District Appellate in Illinois affirmed a stop to that on Tuesday, ruling that the case could proceed in civil court.

The dispute stemmed from the employment agreement that the employees signed with Four Seasons at the beginning of their employment, an agreement which included an agreement that employment disputes would be ultimately resolved in binding arbitration rather than civil court in a variety of circumstances, most pertinently for this case in situation here the disputes arising out of "wage or hour violation." While it is true that courts favor the enforceability of arbitration clauses, and in fact recent decisions even tends allow arbitration over the scope of arbitration clauses, courts also favor enforcing the clear language of contracts. Four Seasons argued that, since the fingerprinting was solely used for tracking wages and time, then the dispute falls under the arbitration clause concerning wages and time.

The court made short work of this argument, pointing out that the employees weren't claiming that there was an issue with their wages or timekeeping, but rather that Four Seasons had violated a widely-applicable privacy rights statute. Succinctly, it stated that: "Simply because an employer opts to use biometric data, like fingerprints, for timekeeping purposes does not transform a complaint into a wages or hours claim." Liu v. Four Seasons Hotel Ltd., 2019 IL App (1st) 182645. This decision correctly affirms that even if an employee signs an arbitration agreement, such agreements cannot be used to completely cut off plaintiffs from seeking relief in the courts.

- Attorney Travis Dunn

Rejected students sue for return of application fees against universities linked to admissions scandal

Friday, March 15th, 2019

A group of students and parents have filed a federal lawsuit seeking class-action status against the University of Southern California, UCLA, Georgetown, Stanford, University of San Diego, University of Texas at Austin, Wake Forest and Yale - colleges named in this week's admissions scandal, stating their admissions process was "warped and rigged by fraud."

Prosecutors revealed Tuesday that 50 people, including 33 parents and number of a college coaches, face charges in carrying out a scheme in which wealthy people used their money to fraud the admissions system at some of the nation's most elite universities. As a result, the Plaintiffs allege in part negligence, unfair competition and violations of consumer law, according to an amended lawsuit that was filed on Thursday in US District Court for the North District of California.

The lawsuit names Stanford University, USC, UCLA, University of San Diego, the University of Texas at Austin and Wake Forest, Yale and Georgetown universities as defendants. The students and parents in the lawsuit said they spent money to apply to schools named in the college admissions scandal and attorneys say they wouldn't have applied had they known about the alleged scheme. The lawsuit states "had Plaintiffs known that the system was warped and rigged by fraud, they would not have spent the money to apply to the school, they also did not receive what they paid for - a fair admissions consideration process." The lawsuit asks for compensatory and punitive damages, restitution and other relief deemed proper by court.

"The students who filed the complaint didn't receive what they paid for - to participate in an application process free of fraud," said David Cialkowski, an attorney for the students. "It's a straightforward claim and a simple remedy. The students want their money back. They request that anyone who paid an application fee to any of the eight named universities but was denied admission gets their application fee returned."

One of the plaintiffs, Lauren Fiedlak, got a 34 on her ACT and a 4.0 grade point average, yet she was denied admission at the University of California at Los Angeles and the University of Southern California, according to the suit. She had an emotional breakdown requiring hospitalization because of the rejections, the suit said.

This case - the college admissions scandal or as it was named in the FBI investigation Operation Varsity Blues - has been a hot topic all week. It will be interesting to see how it all unfolds.

Sources: CNN; ABA Journal

-Attorney Kendall Hodges

Defining Disability

Monday, March 4th, 2019

From the "How is this still an open question" file comes the case of Richardson v. Chicago Transit Authority, 17-3058 and 18-2199 (7th Circuit). This case, currently awaiting decision from the appeal court, asks whether or not obesity can qualify as a disability under the Americans with Disabilities Act and its amendments.

The plaintiff, a bus driver for the CTA, alleges that he was terminated as a result of his obesity after coming back to work from a medical absence and being subjected to a "safety assessment" that non-obese employees were not required to pass. The facts, while not entirely agreed upon, are straightforward in that the CTA doesn't really deny that he was referred to the assessment as a result of his weight, and that his weight was a factor in their failing him, leading to his inability to continue driving.

The cause of Richardson's current legal dispute is that the current accepted standard (where it has been addressed by circuit courts, anyway) for an obesity-connected disability requires an underlying condition causing the disability. That is, if you have an underlying physiological disorder causing the obesity itself, then it qualifies as a disability. If the obesity cannot be connected to a preexisting disorder, then the employee is not protected. The district court in this case agreed with that precedent. Richardson, appealing that decision, is arguing that obesity in and of itself qualifies as a possible grounds for discrimination on the basis of physical impairment.

On the other hand, Richardson has the federal Equal Employment Opportunity Commission, the agency body which actually enforces the ADA, on his side, as well as a number of lower district court decisions around the country. In addition, a number of entities, including the AARP and various medical advocacy organizations, have filed "friend of the court" briefs with the 7th circuit in this case urging the court to consider new medical evidence in making their decision.

Obviously, this is an important clarification for the court to make. If it finds for Richardson it would make the seventh circuit the first court to rule that weight itself can qualify as a disability entitled to ADA protections, and would effectively expand those protections to a great number of workers. It would also set up a rather significant disagreement over the interpretation of the law between the seventh circuit and several other circuits, potentially setting up a Supreme Court challenge down the line.

Attorney Travis Dunn

Are you liable for injuries caused by snow and ice on your property?

Saturday, February 9th, 2019

The Midwest winter has really stepped it up a notch this January and now going in to February. We have had all types of weather this past month- ice, snow, -52 degrees, 50-degree days and now rain. It is hard to keep up with what kind of weather we will have next, but it is important to keep up with shoveling and salting your sidewalk to make sure you don't fall into a lawsuit. Depending on the circumstances, you could be held liable if someone slips and falls on snow or ice in front of your home or business.

You could be held liable is if ice developed as a result of the diversion of water (e.g., a downspout that sends water onto the sidewalk), then you could be held liable because you created a hazard. However, natural accumulations of snow and ice generally do not create a liability for a home or business owner. Local ordinances may create duties on property owners to shovel and treat icy conditions. These local ordinances, if not followed, can result in liability for injuries from slip and falls.

After a storm, home and business owners are allowed a reasonable time to remove ice. Therefore, if someone falls on ice during the storm or in the hours immediately following the storm (especially if the hours were overnight or when you would not normally maintain the property), it is less likely that the property owner (or tenant) will be held liable. However, if sidewalks and parking lots are left untouched for an unreasonable period of time after the storm, the likelihood of liability increases, even if the ice and snow occurred naturally.

Since ice is very transient, if someone has fallen on your property, it is a good idea to photograph or video the condition of the property - especially if there was no ice or if the ice was open and obvious. This includes both the area of the fall and the overall condition of the property. If the sidewalk is clearly covered in ice and someone decides to walk across it anyways, the injured party is likely responsible for any injury sustained. This is especially true is alternate ways of walking were available. Everyone has a duty to avoid open and obvious hazards and property owners are not liable for injuries occurring as a result of assuming risks.

Whether a property owner is liable depends on the circumstances surrounding the icy/snow conditions. However, it is always a good idea to shovel and salt your property as soon as it is possible for your own safety and the safety of those around you.

If you find yourself in a position where someone has fallen on your property or you have fallen on someone's property, please call our office toll free at 1-888-488-4LAW or via email at [email protected]. We look forward to hearing from you.

- Attorney Kendall Hodges

"The hidden hazards of a simple claim"

Friday, February 1st, 2019

Even in situations where there is a clear injury and there is an identifiable wrongdoing by a third party, the proper route for enforcing your rights isn't always clear. This was reinforced this month in the federal U.S. District court Northern Illinois, where parties purporting to represent a class of horse owners alleged that their animals were injured and, in some cases, killed by contaminated horse feed manufactured by Archers-Daniels-Midland Company (ADM). Berarov et al v. Archer-Daniels-Midland Company et al, case number 16C7355. The suit scraped past and attempt by ADM to get it dismissed, but not without a good amount of trimming by the judge.

The facts alleged are simple: ADM manufactures feed for cattle and horses at its plant in Illinois. The cattle feed is fortified with monensin, which increases weight gain by cows. Unfortunately, monensin is also toxic to horses. ADM advertised its horse feed on its website using a number of statements touting its quality and consistency. In 2014 and 2015, the plaintiff's fed their horses feed from the plant and they were sickened and died of symptoms that looked very much like monensin poisoning, and the feed tested positive for monensin. ADM issued a press release stating that the amount of monensin in their feed was negligible and safe, but the owners, located in South Carolina and Michigan, brought suit in Illinois claiming that the cattle feed had cross-contaminated the horse feed with dangerous amounts of the chemical, and filed suit.

So what's the problem? Shouldn't they just got to court and argue over the facts? Not so fast. The owners alleged claims under the Illinois Food, Drugs, and Cosmetics Act, the Illinois Consumer Fraud and Deceptive Trade Practices Act, negligent misrepresentation, strict product liability, unjust enrichment, and breach of express warranty. ADM argued in its Motion to Dismiss the complaint that the whole thing should be tossed out on a number of procedural grounds.

First, ADM argued that the whole suit should be thrown out because the Federal Food, Drug, and Cosmetic Act effectively preempts the state law that the owners were attempting to use in the suit, and that since the owners didn't plead any claims under the Federal Act the whole complaint must be dismissed. The court moves past this argument pretty quickly, noting that, just as for things like minimum wage, discrimination law, gambling or highway safety, nothing in the Federal Act suggests states can't have higher standards than the federal laws.

The other arguments by ADM are more problematic for the horse owners. The Judge dismissed the count brought under the Illinois Food, Drugs, and Cosmetics Act because the Act doesn't actually give individuals a right to sue-it only sets up the state of Illinois itself to have actions against violators, like a criminal penalty. The unjust enrichment claim was deemed to be incoherent because it alleged the existence of a contract, whereas unjust enrichment is about implied contracts. For the Illinois Consumer Fraud and Deceptive Trade Practices Act, the court dismissed the claim because the complaint did not allege enough information to show that the court had jurisdiction, given that the horses injured were in other states (granted, if the feed was actually bought in Illinois the owns might get this claim reinstated.) Similarly, for the negligent misrepresentation and breach of express warranty claims, the court ruled that, while ADM's claims about its feed could be deemed actionably false, the owners had not alleged that they actually saw the claims on the website; they will need to plead more information to sustain those claims. The strict product liability claim was complicate by the fact that Michigan has somewhat unusual requirements for pleading product liability, but the court did leave open the possibility of changing the complaint to meet them.

So the suit itself survives, but the horse owners are going to do some serious editing to their complaint itself. This is a perfect example of a tragic fact pattern that seems like it ought to make for a straightforward case of poisoned horse food, but where finding the proper form and content of the legal complaint itself has proved far more complicated for the injured party.

-Attorney Travis Dunn

Government Shutdown and Court Proceedings

Friday, January 11th, 2019

The federal government shutdown on December 21st after congressional Democrats clashed with President Donald Trump over whether to allot money to build a wall on the southern border of the United States. The shutdown reaches the three-week mark today, tying with the 1995 closure for the record as the longest government shutdown in U.S. history.

On December 26th, Chief Judge Ruben Castillo of the Northern District of Illinois has halted all civil litigation where the United States is a party. Criminal cases remain unaffected, although jurors won't be paid until the shutdown ends. As of January 9th, 983 cases were on hold. Castillo's order will lift when Congress appropriates money for the courts. Deadlines for attorneys will be extended by the number of days of the shutdown, plus one week.

The U.S. government shutdown has delayed proceedings in at least two high-profile lawsuits in Chicago's federal court, as well as hundreds of others. Lawsuits related to Aurora Chicago Lakeshore Hospital and the city of Chicago's sanctuary city status are both suspended. The shutdown has lengthened the reprieve for Aurora Chicago Lakeshore Hospital, which sued in December for an emergency judicial order to keep Medicare dollars flowing to the psychiatric hospital. State and federal authorities are investigating allegations that patients at the hospital were sexually and physically assaulted, inappropriately dosed with strong medication and poorly supervised. Officials attempted to take federal funds in November, which would have shut down the hospital, but the court sided with the hospital. Medicare payment program is still being financed during the partial government shut down and the Illinois Department of Public Health continues to monitor compliance at Aurora facility. Also, on stalled is a Chicago lawsuit against the U.S. Department of Justice for withholding a $1.5 million law enforcement grant because the city refuses to let federal immigration agents access undocumented immigrants in police lock-ups.

Other cases on the Northern District's docket that have ground to a halt comprise a mix of immigrants fighting deportation, prisoners trying for their freedom, employees alleging discrimination, and disabled people and retirees claiming Social Security benefits. For these people, litigation takes an emotional toll. It is a lot of individual persons that are hurting in one way or another, and they can't get the redress their entitled to.

Regardless of whether you are a Democrat or Republican, the government shutdown affects everyone especially those with cases pending in the Northern District of Illinois.

-Attorney Kendall Hodges


Disability, Workers' Compensation, and the Difference between an Elbow and a Wrist

Friday, January 4th, 2019

The "standard" answer for benefits available in the Illinois Workers' compensation system is that, if a worker is injured in the course of their employment, they are entitled to three things: the cost of their medical treatment; payment for the time that they are unable to return to work; and some type of permanency payment for their future disability.

The last of these is often the most complex, in part because of factual disagreements about actual level of disability, but in part because there are several forms that the payments can take. An injured worker may receive a flat amount, representing the "permanent partial disability" or "PPD" of a specific body part or of their whole body. A worker whose injury is so disabling that they are unable to return to steady work at all may be entitled to permanent and total disability payments for the rest of their life (or, more frequently, a lump sum settlement approximating the same). Somewhere in between, perhaps, are wage-differential awards which compensate a worker who cannot return to a job as lucrative as the one they had before their injury, but who may still work in some lesser paying occupation.

Things get exponentially more complex when you bring in cases of workers with multiple injuries, as is the case in the recently decided case of William Pisano in the Illinois First District Appellate Court out of Chicago (Pisano v. Illinois Workers' Compensation Comm'n, 2018 IL App (1st) 172712WC. The history of Mr. Pisano's injuries is lengthy, but suffice it to say that the initial arbitration of the case found that he had, in his employment with the City of Chicago, injured his right elbow when he slipped and fell on grease while operating a machine in 2005, injured his right wrist when he was hit by a car while directing traffic in 2007, and then injured both shoulder, his right arm, and his back when he slipped and fell while he was attending an employment rehabilitation appointment for the wrist injury in 2010. The arbitrator awarded a lump-sum PPD award for the elbow injury, as well as a wage differential for the wrist injury, which after the second accident resulted in permanent restrictions which prevented Mr. Pisano from returning to his job. The Workers' Compensation Commission itself more or less upheld the decision on review, only adjusting the numbers a bit.

Things got complicated when Chicago appealed that decision, and the circuit court ruled that Mr. Pisano should have received only one award for his right arm, rather the separate awards for his elbow and wrist. This decision was based on previous caselaw which stated that (generally) where a worker has sustained two separate and distinct injuries to the same body part and the claims are consolidated, only one type award is appropriate, to be set at the time of hearing.

The Appellate court disagreed with this application, reinstating Mr. Pisano's original awards for both PPD and the wage differential. Even though both injuries were to his right arm, the first accident was distinct in that it was to Mr. Pisano's elbow, and it mostly healed successfully as one might expect for a PPD award. The right wrist was not injured at all until the second accident, and was the injury which prevented him from working and which entitled him to the wage differential.

All things considered, the Appellate Court's decision is a good one for workers. When the mechanism, location, and debilitating effect of the injuries are different, it makes sense to evaluate them separately when awarding permanency, even if they happen to be the same arm. In this case, the injuries were not really to the same body part, and so the caselaw restricting awards to same body part should not apply.

-Attorney Travis Dunn

Is Your Christmas Tree a Liability?

Monday, December 17th, 2018

Happy Holidays! It is that time of year again where we all join in on the Christmas spirit and traditions. My favorite Christmas tradition is going to Holocker's tree farm to cut down our own Christmas tree. When I was little, my parents would take us out there and we would each take turns cutting it down. I knew this was a tradition I planned on keeping alive once I had my own family. This year we went the Saturday after Thanksgiving and cut down our tree! I honestly don't think you can beat the smell of a real tree. However, with a real tree, there are plenty of precautions one needs to take specifically with fire.

According to the National Fire Protection Association, U.S. fire departments responded to an estimated average of 200 home structure fires per year that began with Christmas trees in 2011-2015. These fires caused an annual average of 6 civilian deaths, 16 civilian injuries, and $14.8 million in direct property damage.

Although Christmas tree fires are not relatively common, they are completely preventable, meaning that even one tragedy is too many. With that said, there are legal ramifications to a Christmas-tree induced fire including financial liability and injury liability.

A financial legal liability due to a preventable Christmas tree fire can arise when a fire causes damage to property other than the homeowner's. This is especially a concern in multi-unit residences such as condos or townhouses or duplexes. A Christmas tree fire in one unit could easily spread to other units resulting in the homeowner not only having to be financially responsible for their own units, but their neighbors' as well. Many homeowner's insurance cover fires resulting from Christmas trees.

Legal liability could result from injury from any fire. If, for example, you have guests over and your guests are injured, that guest may soon be a Plaintiff. The same goes for neighbors in the event that the fire spread to their property.

So, let's discuss some ways we can prevent a Christmas tree from starting a fire. If you have a real tree, you should do the following:

  1. Start with a fresh tree - make sure it is not dry.
  2. Keep the tree hydrated - put water in it as needed - some trees once cut need more water in the first week.
  3. Keep your tree away from heat sources that can dry it out.
  4. Throw the tree away when it reaches old age - trees last a maximum of four weeks.

It is fairly easy to ensure that your home and loved ones are safe from Christmas tree mishaps. With these easy steps, you can enjoy your holidays and be worry free from potential fires.

From everyone at the Law Offices of Peter F. Ferracuti, we hope you have a wonderful and safe holiday season!

-Attorney Kendall Hodges

The saving grace of a case lacking haste

Friday, December 7th, 2018

Contract disputes, especially contract disputes regarding supply chain issues, can seem a little dry in comparison to other areas of law. Circuit courts can generally resolve such things due to their heavy reliance on the facts and understandings of the parties involved, or at the very least the plausibility of the lower court's decisions regarding such things. All of which is to say that it is notable when one hears about a decision where things went a little differently.

This is precisely the case in the federal case of Newspin Sports LLC v. Arrow Electronics, however. The Seventh Circuit Court of Appeals, in a ruling issued on December 3, 2018, did not entirely salvage the claims of Newspin, but it did save at least part of its case against Arrow.

As might be expected, the issues presented by the case have a relatively straightforward factual background if you boil it down: Illinois based Newspin Sports LLC, a company that sells electronic motion-sensors for helping athletes with things like golf swings, entered into a contract with New York based Arrow Electronics to manufacture and deliver components of the products. Unfortunately, the components delivered in mid 2012 were defective, and defective in such a way that Newspin didn't catch the problem until the sensors were shipped on to customers, a situation which allegedly cost Newspin quite a significant sum of money and reputation. Ultimately Newspin filed suit for breach of contract, breach of implied good faith and fair dealing, fraud, fraudulent misrepresentation, unjust enrichment and negligent misrepresentation.

Where the case gets complex, and why it got to the appellate level in the first place is that, for whatever reason, Newspin didn't file suit over this behavior until January of 2017. The circuit court ruled that this was too late for every single one of Newspin's claims, and completely dismissed the lawsuit. The appellate court, however, disagreed as to some of Newspin's claims. As to the claims actually based on the contract, Illinois has a very generous ten year statute of limitations for most contract disputes, but there is a major exception for contracts for "transactions in goods." Newspin tried to argue that because Arrow also was assembling and shipping the components that they were engaged in work rather than a transaction of goods, but the appellate court did not buy this and upheld the dismissal as to the contract claims.

It gets more interesting when the other claims get involved. The appellate court found that the unjust enrichment claim was basically based on the contract claims, and similarly upheld its dismissal. The negligent misrepresentation claim's dismissal was actually upheld on entirely different grounds from everything else, invoking a bar in the state of New York against pure economic losses in negligent misrepresentation claims. Unlike the statute of limitation, which procedurally was governed by Illinois law, the contract itself at issue here stated that substantive law would be that of Arrow's home state of New York. Luckily for Arrow, they lucked out a bit in that regard.

Finally, the decisions that allow the case to actually move forward: the claims that Arrow engaged in fraud. The district court found that these, like the unjust enrichment claim, was so tied to the contract itself that the four year statute of limitation blocked Newspin's claims. However, the Seventh Circuit disagreed. They found that, during the negotiation of the contract, Arrow's claims that they would produce components to Newspin's specification constituted possible fraud, sperate from the terms of the contract itself. Since the statute for fraud is five years instead of four, Newspin was able to squeak by with their claims for fraud and fraudulent misrepresentation, despite having the actual contract part of their contract dispute dismissed.

It's amazing how complicated a simple contract dispute can get. Especially when it turns out to not be a contract dispute at all.

-Attorney Travis Dunn

What to Know About Passing an Illinois School Bus

Monday, November 19th, 2018

If you have been following the news this fall, you most likely have heard of the deadly school bus crashes that have been happening across the country. In a recent one-week period, five children were killed and six were injured in five separate incidents across the country. This seems like a good time to discuss the rules of the road when it comes to buses and school zones.

When it comes to buses, school zones and safety, some of the biggest concerns happen when cars and buses aren't moving. Kids run the greatest risk of being hurt when they are standing at the bus stop, according to the Illinois State Board of Education. In fact, most children between the ages of 5 to 7 are injured or killed while they're getting on and off the bus, and they enter an area labeled the "death zone."

Here is what you need to know - and what you should do - when you see a bus stopped with its flashing lights and extended stop-sign arm, or you are driving by a school.

Passing a Stopped School Bus:

The Law: In Illinois, all lanes of traffic in both directions must stop when a school bus is stopped to pick up or drop off kids while traveling along a two-lane road. This also applies to one-way streets no matter how many lanes of traffic. On a four-lane road with at least two lanes of traveling moving in the opposite direction - only motorists going in the same direction as the bus are required to stop.

Drivers should also stop at least 20 feet from the bus when they see the bus's flashing lights and stop sign extended in order to let students cross the road safely.

Penalty: First-time offenders can look forward to having their driver's license suspended for three months, and recidivists who are convicted a second time within 5 years could have their license suspended for a year. Offenders can face fines of $150 for the first conviction and $500 for subsequent offenses.

Speeding in a School Zone:

The Law: Under Illinois law, the speed limit for all school zones is 20 mph, regardless of what the speed is for the road the school is on. But that limit is only in effect from 7 a.m. to 4 p.m. on school days.

Speeding isn't the only thing prohibited in a school zone. Motorists are not allowed to pass while in a school zone, and pedestrians have the right-of-way in a school zone crosswalk.

Penalty: In most cases, speeding in a school zone is a petty offense. That means it is punishable by a minimum fine of $150 for the first offense and $300 for future offenses. Motorists must also pay $50 to the school district where the speeding violation happened.

Illinois also has "Jeff's Law" which was passed in 2007, a driver is considered to have been driving recklessly if he or she was speeding in a school zone and someone was hurt or killed. Another law that is also a decade old stipulates that a driver in any school zone crash that causes great bodily harm to a child or a crossing guard can be fined up to $25,000 and face possible jail time.

With all the incidents occurring across the country, it is a good time to be reminded to stop for school buses, slow down in school zones and pay attention to your surroundings.

-Attorney Kendall Hodges

The Hidden Legal Hazards of the Winter "Slip and Fall"

Friday, November 9th, 2018

While the first real snowfall of the year can give a lovely patina to the landscape, the ice and snow that is left behind by winter winds can also provide an unfortunate layer of legal complications to slip and fall injuries. As if a "slip and fall" injury was not difficult enough, the legislature and courts of Illinois have made it particularly complicated and difficult to be compensated based on injuries sustained from snow and ice.

Perhaps concerned about liability for what is a fairly common form of precipitation during the long winter months, it has long been the case in Illinois that, in many circumstances, property-owners in Illinois are not liable for injuries resulting from "natural" accumulation of snow and ice. If someone is injured on an otherwise normal walkway because they slipped on some freshly fallen snow, establishing liability can become extremely complicated. Even worse, there is no general legal duty (that is without some sort of maintenance contract or other arrangement) to actually clean up this natural accumulation, even when it could result in injury. The courts really have shifted the liability to the pedestrians at risk for injury.

Luckily, the manner in which courts interpret "unnatural accumulation" can be more broad than one would think. The classic example is snow that has been shoveled into a large pile, which then melts and refreezes, causing ice to present a hazard in a manner that it would not have naturally been the case. The actual layout of a property can also result in a sort of passive unnatural accumulation. If there is design flaw in a building such that water from a downspout runs across a walkway and freezes, someone who is injured on that ice may have a valid claim against the property owner for being negligent in the construction of their . Even neglecting to repair flaws in a parking lot which then result in unusual snow and ice distributions and hazards can be deemed to be unnatural accumulation.

The above applies to public spaces, primary. Homeowners have even more protections from liability, because the Illinois Snow and Ice Removal Act actually exempts them from liability even if their good-faith (but negligent) efforts to clean up the snow result in the conditions which lead to injury. The purported reasoning behind this is that the legislature wanted people to at least try to keep their homes cleared of snow and ice. Unfortunately, though, it can also result in situations where people are gravely injured without clear remedy.

The complex nature of these cases makes it even more important that you are assisted by qualified legal counsel. For inquiries related to any type of personal injury, please call our office toll free at 1-888-488-4LAW or via email at [email protected]. We look forward to hearing from you.

-Attorney Travis Dunn

Agency Liability: Not Only for Employees

In a personal injury like a car accident, especially a fairly straightforward accident like a rear-end collision, it might seem obvious who to bring suit against. The proper defendant is the one who hit you, right? That's probably one of them, but it might not be the only one. There's a number of situations where third parties might also be responsible for you injury. Probably the most common of these are agency or employment relationships, where the primary defendant is acting on behalf of someone else when they injure you. This can create liability for the companies or entities that they are working for and open another avenue of recovery for the injury.

A recent example of this, with some complicating factors, is the decision out of the First Appellate District, where the court upheld a judgement in Blockmon v. McClellan (2019 IL App (1st) 180420). In this case, the defendant driver was driving on I-80 and looking at the GPS application on his phone. Distracted, he rear-ended the vehicle of Walter Blockmon III at a high rate of speed, causing injuries which led to Walter's death.

Where this diverges from a straightforward, albeit particularly tragic, vehicle collision claim is the reason why McClellan was looking at his phone: in fact, he was running late to an appointment with a possible customer for the Cutco knives that he had purchased through Cutco Corporation and it's parent, Vector Marketing. The victim's Estate, in bringing suit, claimed that McClellan's relationship with the corporations in selling their products, even though explicitly characterized as being that of an independent contractor, created liability for the corporations for the death due to the degree of control that they had over the activities of the driver as well as their lack of guidance in handling things like driving to customer appointments. A jury agreed with the estate, entering a large judgment against Vector, Cutco, and the driver. The corporations appealed.

The appellate court, in this case, was essentially reviewing whether or not the companies were entitled to a directed verdict in the trial. They brought up several procedural arguments along with the argument that there had been no evidence presented at trial which would allow a finding of vicarious liability or control of the driver. Ultimately, the appellate court found that the estate had presented enough evidence of an agency relationship that the jury could have found for them, including the fact that the companies had control over the use of their names, prices of their products, and expected regular contact between the "independent" salespeople and the company. So regardless of the tax or employment status of the parties involved, it was reasonable for the jury to have concluded that the driver was acting under the control and for the benefit of the companies at the time of the accident.

It's important that you have an attorney who will explore every avenue of recovery. If you've been injured, please call our office toll free at 1-888-488-4LAW or via email at [email protected]. We look forward to hearing from you.

-Attorney Travis Dunn

What's in a name?

The law can be a strict, formalistic, unforgiving beast. It is with a certain amount of self-awareness that I note that much of what we do as attorneys is helping people to navigate the tricky seas of a legal claim. Given that degree of occasional harshness, I'll take any opportunity to note decisions where a wronged worker is allowed to pursue their case despite the hurdles in their way.

In many cases, the identity of the party that you are trying to file a complaint against is not a mystery. This wasn't exactly the case in Humberto Trujillo v. Rockledge Furniture LLC, a case which was recently decided in the Federal Seventh Circuit Court of Appeals. The details of Mr. Trujillo's claim was, at its core, an employment discrimination claim which he sought to file first with the Equal Employment Opportunity Commission ("EEOC") and then in civil court. However, the store where he was employed was not called "Rockledge Furniture LLC." It was an Ashley Furniture HomeStore. Which, as it turns out, was owned by "Rockledge Furniture LLC." Which is a company based out of Wisconsin associated with a corporation named "Ashley Furniture Industries, Inc." And which was doing business in Illinois registered under the name "Ashley Furniture HomeStore - Rockledge."

You can probably guess where this is going. In 2016, Mr. Trujillo filed an age discrimination and retaliation charge with the EEOC against his employer, giving the address and phone number of the store where he worked and naming them as Ashley Furniture HomeStore. Though a computer system glitch that would be somewhat comical if the consequences were not so serious, the EEOC ended up sending his complaint to "Hill County Holdings, LLC" which happens to be the Ashley Furniture HomeStore affiliate operating in Texas, of all places. Hill County Holdings, understandably, told the EEOC that they had no idea who Humberto Trujillo was. At this point Mr. Trujillo's attorneys pointed out that the EEOC had contacted the wrong Ashley Furniture, and noted that Mr. Trujillo had provided the EEOC with the address of the store where Mr. Trujillo worked. His attorneys also gave the EEOC a copy of a paystub which clearly listed Rockledge Furniture LLC and even had the company's Headquarter's contact information on it. The EEOC, for reasons that the seventh circuit decision describes as a "mystery," at this point promptly closed the claim and issued Mr. Trujillo a right to sue his employer-all without actually ever actually contacting Rockledge or Mr. Trujillo's store.

When Mr. Trujillo filed his claim in court, then, Rockledge filed a motion to dismiss his claim because, they argued, Mr. Trujillo had not actually ever filed an underlying EEOC charge against them, nor were they ever made aware of the underlying EEOC charge. The district court granted their motion, effectively ending Mr. Trujillo's claim.

Luckily, the appellate court was more sympathetic to Mr. Trujillo's situation and reversed the dismissal. They point out in their decision that Mr. Trujillo gave a correct address for his place of employment in his original EEOC charge, and in fact got most of registered name correct: "Ashley Furniture HomeStore" vs. "Ashley Furniture HomeStore - Rockledge." Further, regarding the problem of Rockledge genuinely not knowing about the claim prior to the lawsuit, the court points out that it was the job of the EEOC to contact the employer, and Mr. Trujillo gave them more than enough information to do so. It would make little sense to hold Mr. Trujillo responsible for the EEOC's failure to act on that information. Better, the court rightly found, to give the parties a chance to work out their dispute rather than strangling the claim over a slightly mistaken name and a bit of mishandling on the part of the EEOC.

An eminently sensible decision, and good news both for MR. Trujillo and for workers generally.

-Attorney Travis Dunn

The Transition

The transition periods in our life help define us. They help mold us into who we are and help shape the type of person we hope to become. For me, the first transition period was from high school to college. I left my safe home town and went to Bloomington, which looking back was a piece of cake- but I digress, where I would move on to a floor of 15 wonderful women. These women would show me what a strong group of female friends looked like. Then, four short years later, I would leave that town that grew to become my second home and I would venture half way across the country to the city that I now love more than any other. That was the real transition period for me. Those three years. Those people. Tough schooling, the strongest friendships, love, pain, laughter, and a lot of strength and independence I did not know I had in me up until that move. Boston, though it took me away from my family, taught me who I really was. It gave me a chance to live for me- and solely for me. To do the things I loved and to venture outside of my comfort zone. To find total strangers who would turn into family. People that I will literally love the rest of my life. Transition periods are funny. They break you down so you can pick up the pieces that truly define you.

I've been lucky enough for a lot of years now to volunteer for the American Foundation for Suicide Prevention. I run the LaSalle County walk. It has become a part of who I am to help others through times of crisis. Transition periods can be just that- crisis. Sometimes you end up in a foreign place by yourself and truly feel alone. I can remember the first week of college literally crying in the hallway of my dorm because I missed my parents, but I was lucky because I could call them. Some kids, and some adults, don't have that. Under the auspices of AFSP, I have been lucky enough to receive training and materials to help kids through these transition periods- especially kids who feel alone. The program is called "Its Real". It's the most simple, and best validation of the feelings of a time of transition. For a lot of kids, it's the first time they're living on their own and having to navigate life's decisions without adult supervision and guidance. That causes anxiety, depression, and suicidal ideations in many students, and this program helps show students that what they're feeling isn't uncommon. It's not weird to feel alone. It isn't weird to feel that anxiety, or to feel sad that you are so far away from home and comfort. Early detection and the treatment of mental health conditions is vital to the way we can encourage students to seek support and to cope with times of mental stress or mental illness whether they be permanent or temporary. Identifying your feelings and the causes of those feelings is the first step.

A lot of times we're encouraged by society to sweep mental illness under a rug. To "tough it out". That isn't how this works. Being mentally ill and needing treatment is the same as having a physical injury. You have to identify the problem, figure out the cause of the problem, and find out how to treat or deal with the problem at hand. That's what this program aims to help students do. If you or anyone you know is interested in hearing this program in person, please feel free to call me at 815-434-3535 or email me at [email protected]. My passion in life is to help other people through the tough times- to help them triumph over the things in life that are meant to bring them down. Help me build a stronger tomorrow by reaching out to those around you, having more patience, and being kind to strangers. Everyone deserves to be loved. We need you. If you are having suicidal thoughts or feel like you want to talk to someone, please call the suicide hotline at 800-273-8255 or text 741741 to the Crisis Text line at any time.

-Attorney Alexis Ferracuti

Damages, but the Wrong Kind

Negotiating on behalf of an injured party is never a simple process, and it becomes even complicated when there are disputes regarding the types and amounts of compensation that the various parties are legally responsible for. It is especially admirable when Plaintiffs work to expand those categories, even if they are not always successful. Unfortunately, it looks like Nathan Sigler falls into this latter category in his claim against his insurance company, where the Federal Central District in Illinois dismissed his claim on Wednesday in Sigler v. GEICO Casualty Co.Sigler's vehicle was totaled in an accident in 2013, and he naturally assumed that his insurance would cover it's replacement. After all, his policy said that they would pay "the actual cash value of the property at the time of the loss." Sigler was dismayed when, on top of the value of the vehicle, his insurance did also pay the sales tax for a new car and the title and tag transfer fees. He sued his insurance company alleging that they breached their contract by not paying out these additional costs.

Here's the problem: Sigler never said in his complaint that he actually paid these fees and costs. He argued that the insurance should pay such associated costs upfront, just like they do with the actual value of the lost vehicle. Geico stated in their Motion to Dismiss that they would have been happy to pay those expenses if he actually incurred them, but that they did not factor such costs into their standard insurance payouts. They claimed that they would only be responsible for replacement costs if the vehicle is actually replaced; otherwise the insured is entitled to the value of the car itself. The court agreed.

The important fact here is that Sigler was arguing damages for a breach of contract, and the court ruled that his claim for monetary damages in the form of fees and costs, which may or may not have already been incurred, was too uncertain and speculative to make it past the early stages of litigation.

Rather charitably, the court points out that if Sigler actually has lost out on the money, he is welcome to amend his complaint to reflect this and continue on with the litigation. One does suspect, however, that if Sigler had the receipts for the taxes and fees, Geico would just pay the few hundred dollars that they owe him. In that eventuality, Sigler's loss wouldn't even be uncertain-it would just provably not exist.

-Attorney Travis Dunn


Better Generation


Each year for the past three years, our firm has given out a total of four scholarships to LaSalle Peru High School and Ottawa Township High School. There are two categories of scholarships available. The first scholarship, The Peter F. Ferracuti Trades Scholarship, focuses on creating opportunities for young adults who wish to pursue careers in the trades which are desperately needed in our communities.

In a world focused on pushing kids in large groups into colleges across the nation, we have lost the common sense foundation that my Dad based his whole life on. My dad once told me that if someone had told him that he had to be a plumber, he would have been totally useless. Not because plumbing isn't a necessary and valuable trade, but because my dad's brain wasn't wired that way. Spoiler alert- neither is mine. Ask my significant other how I do when I attempt to paint or fix things around our home. He will probably direct you to a grid on our ceiling that I painted a totally different color after I marked it so many times trying to paint the wall. We aren't all wired to do the same thing.

Our office, as a part of that scholarship, awards $500 to a student from both Ottawa and LaSalle Peru High Schools who wishes to pursue a career in the trades. Our hope is that it will encourage kids who don't fit the standardized mold our education system increasingly tries to push kids into. We hope that it will enable young adults to see their worth isn't defined by their college education, and debt, and that they can make a difference in this world in anything they put their soul and mind into. Success takes hard work, and that's what required regardless of the path you travel.

Our second scholarship is in honor of my dad. Dad knew from a young age that he wanted to be either a doctor or a lawyer. He loved medicine, but a shaky left hand kept him from pursuing the career he always had followed and admired. As a result, he found his true calling. My dad's true love, other than his family, was the law. I mean- really- he loved it. He loved to read it, he loved to argue, and he loved to change the law (or the rules of whatever board game we were playing at the time). And he was good at it. Actually, my grandmother often told him that if he wasn't a lawyer he would be a total loss because he really was only good at deciphering the law. A joke obviously, because if you asked him he could pretend he could fix things around the house too, but the joke had some truth to it. He founded our law firm to help his community. To put people in a better position than when he met them despite horrible events which affected them along the way. He contributed resources to our community which he never asked for credit for, and always looked for ways to take care of others. The second scholarship is meant to honor just that- two students who understand the importance of community action and who want to become advocates for those in need. It is also a $500 scholarship given to a single student per school from both Ottawa and LaSalle Peru High Schools which helps students who intend to pursue a degree in law.

This year's candidates were absolutely incredible. All four students receiving scholarships represent absolutely everything that both scholarships are meant to award. We are pleased to award this year's scholarships to the following students: For the Peter F. Ferracuti Trades Scholarship, we are please to award Courtney Baxter and Noah Taylor with $500 scholarships toward their advancement in building trades and auto mechanics. For the Peter F. Ferracuti Future Advocate Scholarship, we are pleased to award Alexandra Wren and Cassandra Claus $500 each to aid in their pursuit of joining the legal profession. The essays blew me away this year. It's always a little bitter sweet to give an award in memoriam of someone I loved, respected, and honored as much as my father, but this year's applicants made that easy. Our future is bright. I've read their essays. I've seen their community service and their grade point average. I can see the hard work and dedication they all have. I can't wait to watch them blossom and change this world for the better. We're just glad to be a part of that journey.

- Attorney Alexis P. Ferracuti

School Zone Speeding Tickets

Friday, May 3, 2019

Speeding in a school zone is a petty offense under the Illinois Vehicle Code. A petty offense is punishable by a fine only. For most petty offenses, the maximum fine in traffic court is $1,000.

A ticket for speeding in a school zone is a serious traffic offense because it can result in the Secretary of State suspending your driver's license.

The law provides that the speed limit in a school zone is 20 miles per hour (20 m.p.h.) on school days when children are present. See 625 ILCS 5/11-605.

According to the law, a school day begins at 7:00 a.m. and lasts until 4:00 p.m. The speed limit must be posted (there must be a sign present). The children must be near enough that a hazard exists.

The first offense results in a fine of $150. However, a second offense carries a mandatory fine of $300. In addition to these fines, the driver must also pay $50 towards the school district.

The biggest issue with speeding in a school zone is that the offense does not allow for court supervision. That means that any ticket you receive for speeding in a school zone is an automatic conviction to your driving record, which cannot be removed from your record and results in points on your license.

Three convictions for moving violations in 12 months will cause the Secretary of State to suspend your license. Drivers under the age of 21, 2 convictions in 24 months will cause a suspension.

A ticket for speeding in a school zone is a serious matter and an attorney should be retained.

- Attorney Kendall Hodges

Scott's Law

Friday, April 19, 2019

If you live in Illinois, you have heard of the recent Illinois State Police officers being struck and killed on the side of the road while conducting stops. Already in 2019, 16 Illinois State Police troopers have been struck by vehicles or died on state roads, doubling the total from all of last year in just four months. In response, state officials are hoping to better educate young drivers about Illinois' "move over" law that aims to protect emergency responders.

Illinois' "move over" law is called Scott's Law. The law is named after Lt. Scott Gillen, a 14-year veteran of the Chicago Fire Department who was struck and killed by an intoxicated driver while assisting at a crash on the Dan Ryan Expressway in December 2000. He was 37 years old. After his death, Gillen's family pushed for the passage of Scott's Law to help protect emergency responders on accident scenes. Scott's Law mandates that drivers, upon approaching any stationary vehicle with flashing emergency lights, must reduce their speed, proceed with caution and change lanes if possible.

State officials along with the State Police and Illinois State Board of Education are making attempts to educate drivers about the "move over" law. Last week, the Illinois Senate unanimously agreed to add two reminders about Scott's Law to the state's drive pool. State Sen. Chapin Rose wants to send drivers a reminder about the law to move over for police officers with their lice plate renewal postcard. He also wants the Illinois Secretary of State to include a question about the law on the state's driver's test.

In addition, the State Police and Illinois State Board of Education have collaborated on a new flyer that is being distributed to driver education programs in Illinois to help spread awareness of Scott's Law.

Sources: WTTW, Illinois News Network

- Attorney Kendall Hodges

Charting a Course for Open Discourse

An Alderman in Evanston was recently found to have violated the Illinois Open Meetings Act (5 ILCS 120/1) when she restricted the 19 attendees at a public meeting last year to 1 minute of speaking time each. Following the meeting, a resident of Evanston who had attended filed a request for review with the Illinois Attorney General’s office. In her request, she claimed that "[r]esidents were taken by surprise with such a short time allotment and most were not able to deliver [their] full messages." In its investigation, the attorney general assigned significance to the fact that the city’s rules provided for 45 minutes of public comment at such a meeting and there seemed to be no compelling reason why such rule was not followed given that there were only 19 residents who had signed up to speak. The attorney general’s determination hinged on its finding that the alderman’s actions "unreasonably restricted public comment."

The attorney general’s finding that a violation occurred in the above instance shines a light on the Illinois Open Meetings Act and its intended purpose. If you’ve never attended a local or state government meeting, or even if you have, you may be unaware of the law and what rights it’s meant to protect. The Illinois Attorney General describes the Illinois Open Meetings Act as "designed to ensure that the public has access to information about government and its decision-making process." In publications available online, the attorney general further explains that the Act "requires that meetings of public bodies be open to the public except in certain specific, limited situations … where the law authorizes the public body to close a meeting." Additionally, "the public must be given advance notice of the time, place and subject matter of the meetings of public bodies.

To fully understand the Act and its implications, it’s necessary to unpack some of the terms above. For example, a "public body" subject to the Act includes "all legislative, executive, administrative or advisory bodies of … the State, counties, townships, cities, villages, or incorporated towns, school districts and all municipal corporations." But what kind of "meeting" does the Act cover? The attorney general defines such "meeting" as "a gathering of a majority of a quorum of the members of a public body for the purpose of discussing public business." The attorney general elaborates that "[f]or example, for a 7-member board with a quorum of 4, a majority of the quorum would be 3." As far as "notice" of such meeting, "[n]otice shall be given by posting a copy of the notice at the principal office of the body holding the meeting or, if no such office exists, at the building in which the meeting is to be held."

Other notable provisions in the Act include the right of members of the public to "record the meeting by tape, film, or other means, subject to some reasonable restrictions" and the requirement that the public body take minutes of its meetings. In light of recent violations and a growing trend toward transparency in government, it’s more important than ever that members of the public and government officials alike are aware of such legislation as the Illinois Open Meetings Act and its practical implementation.

Sources: Illinois Attorney General; Patch.com

- Attorney Ryan Zaborowski

Arbitration: Correct Arbiters or Contractual Arbitrariness?

Friday, April 12, 2019

Since it's passage in 2008, the Biometric Information Privacy Act has regulated the collection, use, safeguarding handling, storage, retention and destruction of biometric data in the state of Illinois; "Biometric data" for the purpose of the act including things such as retina and iris scans, fingerprints, voiceprints and face scans. The Act has some fairly high potential penalties for violators, as the law sets out penalties of $1,000.00-5,000.00 per violation. It's somewhat of an open question as to what, exactly, constitutes separate violations, and as a result, business facing suits based on the law can get pretty desperate to get rid of them.

Which brings us to Liu v. Four Seasons Hotel, Ltd, which is a class action filed by former employees of the hotel chain alleging that the companies' management of their fingerprint-based time clock system failed to comply with the law in several respects, including failing to fully inform the employees of the purpose and length of tie of storage of the data, failing to inform them that the data was shared with third-party vendors, and failed to actually properly destroy the data. Four Seasons tried to get the case thrown out of court and into arbitration, but the Federal First District Appellate in Illinois affirmed a stop to that on Tuesday, ruling that the case could proceed in civil court.

The dispute stemmed from the employment agreement that the employees signed with Four Seasons at the beginning of their employment, an agreement which included an agreement that employment disputes would be ultimately resolved in binding arbitration rather than civil court in a variety of circumstances, most pertinently for this case in situation here the disputes arising out of "wage or hour violation." While it is true that courts favor the enforceability of arbitration clauses, and in fact recent decisions even tends allow arbitration over the scope of arbitration clauses, courts also favor enforcing the clear language of contracts. Four Seasons argued that, since the fingerprinting was solely used for tracking wages and time, then the dispute falls under the arbitration clause concerning wages and time.

The court made short work of this argument, pointing out that the employees weren't claiming that there was an issue with their wages or timekeeping, but rather that Four Seasons had violated a widely-applicable privacy rights statute. Succinctly, it stated that: "Simply because an employer opts to use biometric data, like fingerprints, for timekeeping purposes does not transform a complaint into a wages or hours claim." Liu v. Four Seasons Hotel Ltd., 2019 IL App (1st) 182645. This decision correctly affirms that even if an employee signs an arbitration agreement, such agreements cannot be used to completely cut off plaintiffs from seeking relief in the courts.

- Attorney Travis Dunn

Rejected students sue for return of application fees against universities linked to admissions scandal

Friday, March 15th, 2019

A group of students and parents have filed a federal lawsuit seeking class-action status against the University of Southern California, UCLA, Georgetown, Stanford, University of San Diego, University of Texas at Austin, Wake Forest and Yale – colleges named in this week’s admissions scandal, stating their admissions process was "warped and rigged by fraud."

Prosecutors revealed Tuesday that 50 people, including 33 parents and number of a college coaches, face charges in carrying out a scheme in which wealthy people used their money to fraud the admissions system at some of the nation’s most elite universities. As a result, the Plaintiffs allege in part negligence, unfair competition and violations of consumer law, according to an amended lawsuit that was filed on Thursday in US District Court for the North District of California.

The lawsuit names Stanford University, USC, UCLA, University of San Diego, the University of Texas at Austin and Wake Forest, Yale and Georgetown universities as defendants. The students and parents in the lawsuit said they spent money to apply to schools named in the college admissions scandal and attorneys say they wouldn’t have applied had they known about the alleged scheme. The lawsuit states "had Plaintiffs known that the system was warped and rigged by fraud, they would not have spent the money to apply to the school, they also did not receive what they paid for – a fair admissions consideration process." The lawsuit asks for compensatory and punitive damages, restitution and other relief deemed proper by court.

"The students who filed the complaint didn’t receive what they paid for – to participate in an application process free of fraud," said David Cialkowski, an attorney for the students. "It’s a straightforward claim and a simple remedy. The students want their money back. They request that anyone who paid an application fee to any of the eight named universities but was denied admission gets their application fee returned."

One of the plaintiffs, Lauren Fiedlak, got a 34 on her ACT and a 4.0 grade point average, yet she was denied admission at the University of California at Los Angeles and the University of Southern California, according to the suit. She had an emotional breakdown requiring hospitalization because of the rejections, the suit said.

This case – the college admissions scandal or as it was named in the FBI investigation Operation Varsity Blues – has been a hot topic all week. It will be interesting to see how it all unfolds.

Sources: CNN; ABA Journal

-Attorney Kendall Hodges

Defining Disability

Monday, March 4th, 2019

From the "How is this still an open question" file comes the case of Richardson v. Chicago Transit Authority, 17-3058 and 18-2199 (7th Circuit). This case, currently awaiting decision from the appeal court, asks whether or not obesity can qualify as a disability under the Americans with Disabilities Act and its amendments.

The plaintiff, a bus driver for the CTA, alleges that he was terminated as a result of his obesity after coming back to work from a medical absence and being subjected to a "safety assessment" that non-obese employees were not required to pass. The facts, while not entirely agreed upon, are straightforward in that the CTA doesn’t really deny that he was referred to the assessment as a result of his weight, and that his weight was a factor in their failing him, leading to his inability to continue driving.

The cause of Richardson’s current legal dispute is that the current accepted standard (where it has been addressed by circuit courts, anyway) for an obesity-connected disability requires an underlying condition causing the disability. That is, if you have an underlying physiological disorder causing the obesity itself, then it qualifies as a disability. If the obesity cannot be connected to a preexisting disorder, then the employee is not protected. The district court in this case agreed with that precedent. Richardson, appealing that decision, is arguing that obesity in and of itself qualifies as a possible grounds for discrimination on the basis of physical impairment.

On the other hand, Richardson has the federal Equal Employment Opportunity Commission, the agency body which actually enforces the ADA, on his side, as well as a number of lower district court decisions around the country. In addition, a number of entities, including the AARP and various medical advocacy organizations, have filed "friend of the court" briefs with the 7th circuit in this case urging the court to consider new medical evidence in making their decision.

Obviously, this is an important clarification for the court to make. If it finds for Richardson it would make the seventh circuit the first court to rule that weight itself can qualify as a disability entitled to ADA protections, and would effectively expand those protections to a great number of workers. It would also set up a rather significant disagreement over the interpretation of the law between the seventh circuit and several other circuits, potentially setting up a Supreme Court challenge down the line.

Attorney Travis Dunn

Are you liable for injuries caused by snow and ice on your property?

Saturday, February 9th, 2019

The Midwest winter has really stepped it up a notch this January and now going in to February. We have had all types of weather this past month– ice, snow, -52 degrees, 50-degree days and now rain. It is hard to keep up with what kind of weather we will have next, but it is important to keep up with shoveling and salting your sidewalk to make sure you don’t fall into a lawsuit. Depending on the circumstances, you could be held liable if someone slips and falls on snow or ice in front of your home or business.

You could be held liable is if ice developed as a result of the diversion of water (e.g., a downspout that sends water onto the sidewalk), then you could be held liable because you created a hazard. However, natural accumulations of snow and ice generally do not create a liability for a home or business owner. Local ordinances may create duties on property owners to shovel and treat icy conditions. These local ordinances, if not followed, can result in liability for injuries from slip and falls.

After a storm, home and business owners are allowed a reasonable time to remove ice. Therefore, if someone falls on ice during the storm or in the hours immediately following the storm (especially if the hours were overnight or when you would not normally maintain the property), it is less likely that the property owner (or tenant) will be held liable. However, if sidewalks and parking lots are left untouched for an unreasonable period of time after the storm, the likelihood of liability increases, even if the ice and snow occurred naturally.

Since ice is very transient, if someone has fallen on your property, it is a good idea to photograph or video the condition of the property – especially if there was no ice or if the ice was open and obvious. This includes both the area of the fall and the overall condition of the property. If the sidewalk is clearly covered in ice and someone decides to walk across it anyways, the injured party is likely responsible for any injury sustained. This is especially true is alternate ways of walking were available. Everyone has a duty to avoid open and obvious hazards and property owners are not liable for injuries occurring as a result of assuming risks.

Whether a property owner is liable depends on the circumstances surrounding the icy/snow conditions. However, it is always a good idea to shovel and salt your property as soon as it is possible for your own safety and the safety of those around you.

If you find yourself in a position where someone has fallen on your property or you have fallen on someone’s property, please call our office toll free at 1-888-488-4LAW or via email at [email protected]. We look forward to hearing from you.

- Attorney Kendall Hodges

"The hidden hazards of a simple claim"

Friday, February 1st, 2019

Even in situations where there is a clear injury and there is an identifiable wrongdoing by a third party, the proper route for enforcing your rights isn't always clear. This was reinforced this month in the federal U.S. District court Northern Illinois, where parties purporting to represent a class of horse owners alleged that their animals were injured and, in some cases, killed by contaminated horse feed manufactured by Archers-Daniels-Midland Company (ADM). Berarov et al v. Archer-Daniels-Midland Company et al, case number 16C7355. The suit scraped past and attempt by ADM to get it dismissed, but not without a good amount of trimming by the judge.

The facts alleged are simple: ADM manufactures feed for cattle and horses at its plant in Illinois. The cattle feed is fortified with monensin, which increases weight gain by cows. Unfortunately, monensin is also toxic to horses. ADM advertised its horse feed on its website using a number of statements touting its quality and consistency. In 2014 and 2015, the plaintiff's fed their horses feed from the plant and they were sickened and died of symptoms that looked very much like monensin poisoning, and the feed tested positive for monensin. ADM issued a press release stating that the amount of monensin in their feed was negligible and safe, but the owners, located in South Carolina and Michigan, brought suit in Illinois claiming that the cattle feed had cross-contaminated the horse feed with dangerous amounts of the chemical, and filed suit.

So what's the problem? Shouldn't they just got to court and argue over the facts? Not so fast. The owners alleged claims under the Illinois Food, Drugs, and Cosmetics Act, the Illinois Consumer Fraud and Deceptive Trade Practices Act, negligent misrepresentation, strict product liability, unjust enrichment, and breach of express warranty. ADM argued in its Motion to Dismiss the complaint that the whole thing should be tossed out on a number of procedural grounds.

First, ADM argued that the whole suit should be thrown out because the Federal Food, Drug, and Cosmetic Act effectively preempts the state law that the owners were attempting to use in the suit, and that since the owners didn't plead any claims under the Federal Act the whole complaint must be dismissed. The court moves past this argument pretty quickly, noting that, just as for things like minimum wage, discrimination law, gambling or highway safety, nothing in the Federal Act suggests states can't have higher standards than the federal laws.

The other arguments by ADM are more problematic for the horse owners. The Judge dismissed the count brought under the Illinois Food, Drugs, and Cosmetics Act because the Act doesn't actually give individuals a right to sue-it only sets up the state of Illinois itself to have actions against violators, like a criminal penalty. The unjust enrichment claim was deemed to be incoherent because it alleged the existence of a contract, whereas unjust enrichment is about implied contracts. For the Illinois Consumer Fraud and Deceptive Trade Practices Act, the court dismissed the claim because the complaint did not allege enough information to show that the court had jurisdiction, given that the horses injured were in other states (granted, if the feed was actually bought in Illinois the owns might get this claim reinstated.) Similarly, for the negligent misrepresentation and breach of express warranty claims, the court ruled that, while ADM's claims about its feed could be deemed actionably false, the owners had not alleged that they actually saw the claims on the website; they will need to plead more information to sustain those claims. The strict product liability claim was complicate by the fact that Michigan has somewhat unusual requirements for pleading product liability, but the court did leave open the possibility of changing the complaint to meet them.

So the suit itself survives, but the horse owners are going to do some serious editing to their complaint itself. This is a perfect example of a tragic fact pattern that seems like it ought to make for a straightforward case of poisoned horse food, but where finding the proper form and content of the legal complaint itself has proved far more complicated for the injured party.

-Attorney Travis Dunn

Government Shutdown and Court Proceedings

Friday, January 11th, 2019

The federal government shutdown on December 21st after congressional Democrats clashed with President Donald Trump over whether to allot money to build a wall on the southern border of the United States. The shutdown reaches the three-week mark today, tying with the 1995 closure for the record as the longest government shutdown in U.S. history.

On December 26th, Chief Judge Ruben Castillo of the Northern District of Illinois has halted all civil litigation where the United States is a party. Criminal cases remain unaffected, although jurors won't be paid until the shutdown ends. As of January 9th, 983 cases were on hold. Castillo's order will lift when Congress appropriates money for the courts. Deadlines for attorneys will be extended by the number of days of the shutdown, plus one week.

The U.S. government shutdown has delayed proceedings in at least two high-profile lawsuits in Chicago's federal court, as well as hundreds of others. Lawsuits related to Aurora Chicago Lakeshore Hospital and the city of Chicago's sanctuary city status are both suspended. The shutdown has lengthened the reprieve for Aurora Chicago Lakeshore Hospital, which sued in December for an emergency judicial order to keep Medicare dollars flowing to the psychiatric hospital. State and federal authorities are investigating allegations that patients at the hospital were sexually and physically assaulted, inappropriately dosed with strong medication and poorly supervised. Officials attempted to take federal funds in November, which would have shut down the hospital, but the court sided with the hospital. Medicare payment program is still being financed during the partial government shut down and the Illinois Department of Public Health continues to monitor compliance at Aurora facility. Also, on stalled is a Chicago lawsuit against the U.S. Department of Justice for withholding a $1.5 million law enforcement grant because the city refuses to let federal immigration agents access undocumented immigrants in police lock-ups.

Other cases on the Northern District's docket that have ground to a halt comprise a mix of immigrants fighting deportation, prisoners trying for their freedom, employees alleging discrimination, and disabled people and retirees claiming Social Security benefits. For these people, litigation takes an emotional toll. It is a lot of individual persons that are hurting in one way or another, and they can't get the redress their entitled to.

Regardless of whether you are a Democrat or Republican, the government shutdown affects everyone especially those with cases pending in the Northern District of Illinois.

-Attorney Kendall Hodges


Disability, Workers' Compensation, and the Difference between an Elbow and a Wrist

Friday, January 4th, 2019

The "standard" answer for benefits available in the Illinois Workers' compensation system is that, if a worker is injured in the course of their employment, they are entitled to three things: the cost of their medical treatment; payment for the time that they are unable to return to work; and some type of permanency payment for their future disability.

The last of these is often the most complex, in part because of factual disagreements about actual level of disability, but in part because there are several forms that the payments can take. An injured worker may receive a flat amount, representing the "permanent partial disability" or "PPD" of a specific body part or of their whole body. A worker whose injury is so disabling that they are unable to return to steady work at all may be entitled to permanent and total disability payments for the rest of their life (or, more frequently, a lump sum settlement approximating the same). Somewhere in between, perhaps, are wage-differential awards which compensate a worker who cannot return to a job as lucrative as the one they had before their injury, but who may still work in some lesser paying occupation.

Things get exponentially more complex when you bring in cases of workers with multiple injuries, as is the case in the recently decided case of William Pisano in the Illinois First District Appellate Court out of Chicago (Pisano v. Illinois Workers' Compensation Comm'n, 2018 IL App (1st) 172712WC. The history of Mr. Pisano's injuries is lengthy, but suffice it to say that the initial arbitration of the case found that he had, in his employment with the City of Chicago, injured his right elbow when he slipped and fell on grease while operating a machine in 2005, injured his right wrist when he was hit by a car while directing traffic in 2007, and then injured both shoulder, his right arm, and his back when he slipped and fell while he was attending an employment rehabilitation appointment for the wrist injury in 2010. The arbitrator awarded a lump-sum PPD award for the elbow injury, as well as a wage differential for the wrist injury, which after the second accident resulted in permanent restrictions which prevented Mr. Pisano from returning to his job. The Workers' Compensation Commission itself more or less upheld the decision on review, only adjusting the numbers a bit.

Things got complicated when Chicago appealed that decision, and the circuit court ruled that Mr. Pisano should have received only one award for his right arm, rather the separate awards for his elbow and wrist. This decision was based on previous caselaw which stated that (generally) where a worker has sustained two separate and distinct injuries to the same body part and the claims are consolidated, only one type award is appropriate, to be set at the time of hearing.

The Appellate court disagreed with this application, reinstating Mr. Pisano's original awards for both PPD and the wage differential. Even though both injuries were to his right arm, the first accident was distinct in that it was to Mr. Pisano's elbow, and it mostly healed successfully as one might expect for a PPD award. The right wrist was not injured at all until the second accident, and was the injury which prevented him from working and which entitled him to the wage differential.

All things considered, the Appellate Court's decision is a good one for workers. When the mechanism, location, and debilitating effect of the injuries are different, it makes sense to evaluate them separately when awarding permanency, even if they happen to be the same arm. In this case, the injuries were not really to the same body part, and so the caselaw restricting awards to same body part should not apply.

-Attorney Travis Dunn

Is Your Christmas Tree a Liability?

Monday, December 17th, 2018

Happy Holidays! It is that time of year again where we all join in on the Christmas spirit and traditions. My favorite Christmas tradition is going to Holocker's tree farm to cut down our own Christmas tree. When I was little, my parents would take us out there and we would each take turns cutting it down. I knew this was a tradition I planned on keeping alive once I had my own family. This year we went the Saturday after Thanksgiving and cut down our tree! I honestly don't think you can beat the smell of a real tree. However, with a real tree, there are plenty of precautions one needs to take specifically with fire.

According to the National Fire Protection Association, U.S. fire departments responded to an estimated average of 200 home structure fires per year that began with Christmas trees in 2011-2015. These fires caused an annual average of 6 civilian deaths, 16 civilian injuries, and $14.8 million in direct property damage.

Although Christmas tree fires are not relatively common, they are completely preventable, meaning that even one tragedy is too many. With that said, there are legal ramifications to a Christmas-tree induced fire including financial liability and injury liability.

A financial legal liability due to a preventable Christmas tree fire can arise when a fire causes damage to property other than the homeowner's. This is especially a concern in multi-unit residences such as condos or townhouses or duplexes. A Christmas tree fire in one unit could easily spread to other units resulting in the homeowner not only having to be financially responsible for their own units, but their neighbors' as well. Many homeowner's insurance cover fires resulting from Christmas trees.

Legal liability could result from injury from any fire. If, for example, you have guests over and your guests are injured, that guest may soon be a Plaintiff. The same goes for neighbors in the event that the fire spread to their property.

So, let's discuss some ways we can prevent a Christmas tree from starting a fire. If you have a real tree, you should do the following:

  1. Start with a fresh tree - make sure it is not dry.
  2. Keep the tree hydrated - put water in it as needed - some trees once cut need more water in the first week.
  3. Keep your tree away from heat sources that can dry it out.
  4. Throw the tree away when it reaches old age - trees last a maximum of four weeks.

It is fairly easy to ensure that your home and loved ones are safe from Christmas tree mishaps. With these easy steps, you can enjoy your holidays and be worry free from potential fires.

From everyone at the Law Offices of Peter F. Ferracuti, we hope you have a wonderful and safe holiday season!

-Attorney Kendall Hodges

The saving grace of a case lacking haste

Friday, December 7th, 2018

Contract disputes, especially contract disputes regarding supply chain issues, can seem a little dry in comparison to other areas of law. Circuit courts can generally resolve such things due to their heavy reliance on the facts and understandings of the parties involved, or at the very least the plausibility of the lower court's decisions regarding such things. All of which is to say that it is notable when one hears about a decision where things went a little differently.

This is precisely the case in the federal case of Newspin Sports LLC v. Arrow Electronics, however. The Seventh Circuit Court of Appeals, in a ruling issued on December 3, 2018, did not entirely salvage the claims of Newspin, but it did save at least part of its case against Arrow.

As might be expected, the issues presented by the case have a relatively straightforward factual background if you boil it down: Illinois based Newspin Sports LLC, a company that sells electronic motion-sensors for helping athletes with things like golf swings, entered into a contract with New York based Arrow Electronics to manufacture and deliver components of the products. Unfortunately, the components delivered in mid 2012 were defective, and defective in such a way that Newspin didn't catch the problem until the sensors were shipped on to customers, a situation which allegedly cost Newspin quite a significant sum of money and reputation. Ultimately Newspin filed suit for breach of contract, breach of implied good faith and fair dealing, fraud, fraudulent misrepresentation, unjust enrichment and negligent misrepresentation.

Where the case gets complex, and why it got to the appellate level in the first place is that, for whatever reason, Newspin didn't file suit over this behavior until January of 2017. The circuit court ruled that this was too late for every single one of Newspin's claims, and completely dismissed the lawsuit. The appellate court, however, disagreed as to some of Newspin's claims. As to the claims actually based on the contract, Illinois has a very generous ten year statute of limitations for most contract disputes, but there is a major exception for contracts for "transactions in goods." Newspin tried to argue that because Arrow also was assembling and shipping the components that they were engaged in work rather than a transaction of goods, but the appellate court did not buy this and upheld the dismissal as to the contract claims.

It gets more interesting when the other claims get involved. The appellate court found that the unjust enrichment claim was basically based on the contract claims, and similarly upheld its dismissal. The negligent misrepresentation claim's dismissal was actually upheld on entirely different grounds from everything else, invoking a bar in the state of New York against pure economic losses in negligent misrepresentation claims. Unlike the statute of limitation, which procedurally was governed by Illinois law, the contract itself at issue here stated that substantive law would be that of Arrow's home state of New York. Luckily for Arrow, they lucked out a bit in that regard.

Finally, the decisions that allow the case to actually move forward: the claims that Arrow engaged in fraud. The district court found that these, like the unjust enrichment claim, was so tied to the contract itself that the four year statute of limitation blocked Newspin's claims. However, the Seventh Circuit disagreed. They found that, during the negotiation of the contract, Arrow's claims that they would produce components to Newspin's specification constituted possible fraud, sperate from the terms of the contract itself. Since the statute for fraud is five years instead of four, Newspin was able to squeak by with their claims for fraud and fraudulent misrepresentation, despite having the actual contract part of their contract dispute dismissed.

It's amazing how complicated a simple contract dispute can get. Especially when it turns out to not be a contract dispute at all.

-Attorney Travis Dunn

What to Know About Passing an Illinois School Bus

Monday, November 19th, 2018

If you have been following the news this fall, you most likely have heard of the deadly school bus crashes that have been happening across the country. In a recent one-week period, five children were killed and six were injured in five separate incidents across the country. This seems like a good time to discuss the rules of the road when it comes to buses and school zones.

When it comes to buses, school zones and safety, some of the biggest concerns happen when cars and buses aren't moving. Kids run the greatest risk of being hurt when they are standing at the bus stop, according to the Illinois State Board of Education. In fact, most children between the ages of 5 to 7 are injured or killed while they're getting on and off the bus, and they enter an area labeled the "death zone."

Here is what you need to know - and what you should do - when you see a bus stopped with its flashing lights and extended stop-sign arm, or you are driving by a school.

Passing a Stopped School Bus:

The Law: In Illinois, all lanes of traffic in both directions must stop when a school bus is stopped to pick up or drop off kids while traveling along a two-lane road. This also applies to one-way streets no matter how many lanes of traffic. On a four-lane road with at least two lanes of traveling moving in the opposite direction - only motorists going in the same direction as the bus are required to stop.

Drivers should also stop at least 20 feet from the bus when they see the bus's flashing lights and stop sign extended in order to let students cross the road safely.

Penalty: First-time offenders can look forward to having their driver's license suspended for three months, and recidivists who are convicted a second time within 5 years could have their license suspended for a year. Offenders can face fines of $150 for the first conviction and $500 for subsequent offenses.

Speeding in a School Zone:

The Law: Under Illinois law, the speed limit for all school zones is 20 mph, regardless of what the speed is for the road the school is on. But that limit is only in effect from 7 a.m. to 4 p.m. on school days.

Speeding isn't the only thing prohibited in a school zone. Motorists are not allowed to pass while in a school zone, and pedestrians have the right-of-way in a school zone crosswalk.

Penalty: In most cases, speeding in a school zone is a petty offense. That means it is punishable by a minimum fine of $150 for the first offense and $300 for future offenses. Motorists must also pay $50 to the school district where the speeding violation happened.

Illinois also has "Jeff's Law" which was passed in 2007, a driver is considered to have been driving recklessly if he or she was speeding in a school zone and someone was hurt or killed. Another law that is also a decade old stipulates that a driver in any school zone crash that causes great bodily harm to a child or a crossing guard can be fined up to $25,000 and face possible jail time.

With all the incidents occurring across the country, it is a good time to be reminded to stop for school buses, slow down in school zones and pay attention to your surroundings.

-Attorney Kendall Hodges

The Hidden Legal Hazards of the Winter "Slip and Fall"

Friday, November 9th, 2018

While the first real snowfall of the year can give a lovely patina to the landscape, the ice and snow that is left behind by winter winds can also provide an unfortunate layer of legal complications to slip and fall injuries. As if a "slip and fall" injury was not difficult enough, the legislature and courts of Illinois have made it particularly complicated and difficult to be compensated based on injuries sustained from snow and ice.

Perhaps concerned about liability for what is a fairly common form of precipitation during the long winter months, it has long been the case in Illinois that, in many circumstances, property-owners in Illinois are not liable for injuries resulting from "natural" accumulation of snow and ice. If someone is injured on an otherwise normal walkway because they slipped on some freshly fallen snow, establishing liability can become extremely complicated. Even worse, there is no general legal duty (that is without some sort of maintenance contract or other arrangement) to actually clean up this natural accumulation, even when it could result in injury. The courts really have shifted the liability to the pedestrians at risk for injury.

Luckily, the manner in which courts interpret "unnatural accumulation" can be more broad than one would think. The classic example is snow that has been shoveled into a large pile, which then melts and refreezes, causing ice to present a hazard in a manner that it would not have naturally been the case. The actual layout of a property can also result in a sort of passive unnatural accumulation. If there is design flaw in a building such that water from a downspout runs across a walkway and freezes, someone who is injured on that ice may have a valid claim against the property owner for being negligent in the construction of their . Even neglecting to repair flaws in a parking lot which then result in unusual snow and ice distributions and hazards can be deemed to be unnatural accumulation.

The above applies to public spaces, primary. Homeowners have even more protections from liability, because the Illinois Snow and Ice Removal Act actually exempts them from liability even if their good-faith (but negligent) efforts to clean up the snow result in the conditions which lead to injury. The purported reasoning behind this is that the legislature wanted people to at least try to keep their homes cleared of snow and ice. Unfortunately, though, it can also result in situations where people are gravely injured without clear remedy.

The complex nature of these cases makes it even more important that you are assisted by qualified legal counsel. For inquiries related to any type of personal injury, please call our office toll free at 1-888-488-4LAW or via email at [email protected]. We look forward to hearing from you.

-Attorney Travis Dunn