How much is one Twitter follower worth?

If the rightful owner of a Twitter account is found to have been damaged by an adverse party, how much should the account owner be compensated?  

There is a lawsuit pending in California Federal Court that might shed some light on the subject.  In that case, an employee of a popular mobile phone site, PhoneDog.com, quit his job after nearly four years.  While at the company, the employee had amassed 17,000 Twitter followers under the name @Phonedog_Noah.

After leaving the company, the man changed his Twitter handle to remove any reference to his former employer, but he kept all 17,000 followers.  Eight months later, PhoneDog sued, saying that the list of Twitter followers was their property because it was actually a customer list.  PhoneDog seeks damages of $2.50 a month per follower for eight months, for a total of $340,000. 

How in the heck did they come up with $2.50 per month?  I guess for negotiation purposes you could start with the total settlement demand and then calculate that down to a monthly amount.    But this lawsuit was filed last week, so it appears that they are finished negotiating.  Now PhoneDog better be preparing for trial.  They’re going to have to put forth some evidence as to damages.  It will be interesting to see how their expert explains the damages.  

I have put this California lawsuit on the list of cases that I am going to try to follow.  If I hear anything else about the value of this case, I will let you know.  It's an interesting question.  I wish my Twitter followers were worth $2.50 per month. 

By the way, if you aren't already following @husemanlaw on Twitter, you really need to click HERE now.   

Unusual Seventh Circuit opinion gets the point across

If a picture speaks a thousand words then Judge Posner certainly makes his point clear in a recently published opinion. Published November 23, 2011, the opinion consolidates appeals in two product liability cases for grants of forum non conveniens in multidistrict litigation. In the first sentence, he begins by indicating the court’s concerns about appellate advocacy in the two cases.

The appellant’s attorney (a practitioner from Houston, TX) was criticized for ignoring precedent and it was done quite creatively. Posner wrote, “The ostrich is a noble animal, but not a proper model for an appellate advocate”. He then includes a picture of an ostrich with its head in the sand followed by another one of a man in a suit (presumably a lawyer) with his head in the sand. The lesson (other than that ostriches don't really bury their heads in the sand)? It is right there in the opinion: “When there is apparently dispositive precedent, an appellant may urge its overruling or distinguishing or reserve a challenge to it for a petition for certiorari but may not simply ignore it.”

Read the whole opinion here

Heather Weir Vaught named Chief Legal Counsel to Speaker Michael Madigan

I picked up the December 7th edition of the Chicago Daily Law Bulletin and was surprised to see a smiling face that I recognized from law school.  

The article was about the current Chief Legal Counsel to Michael Madigan moving on to a different position with the Republican Party.  The article also indicated that Heather, who is currently Madigan's deputy counsel, would be promoted to Chief Legal Counsel by the end of the year.

Congratulations Heather!!!!

Does a seller have a duty to disclose that someone has died in a car or house that he is trying to sell?

I've been reading a lot about dead people recently.  Last week I read an article about a woman in Detroit who is suing an auto dealership for selling her a car that smells like a dead body.  She claims that the car did not stink last winter when she bought it, but when the weather warmed up in the spring, the odor of death became apparent.  She claims that she had the odor tested and it came back positive for human remains.  She has sued the dealership for failure to disclose the fact that someone had died in her car.  HERE is an article about that lawsuit.

Then, yesterday I read about a guy in Sauk Village, Illinois who was showing a property that he owns to a prospective buyer.  When they walked into the basement, they found two dead bodies. HERE is the article from the Chicago Tribune.  The real estate agent for that house was quoted in the Tribune as saying that the seller is now required by law to disclose those deaths to new prospective buyers.

I'm not so sure about that.  The Illinois Residential Real Property Disclosure Act requires certain sellers of residential property to deliver to the prospective buyer a written disclosure statement as required by the Act.  HERE is a link to the written disclosure statement.    The form contains 22 questions that must be answered by the seller relating to potential material defects in the property.  I don't see anything on that form about dead bodies.  Unless the body rotted through the floor, somehow infected the water supply, or otherwise caused some material defect, I don't think that the existence of a dead body in the house is a material defect all by itself.  

There is further evidence against a duty to disclose a dead body in the Illinois Real Estate Licensing Act of 2000.  That Act says that "no cause of action arises against a licensee for failing to disclose...ii) that the property was the site of an act or occurrence that had no effect on the physical condition of the property or its environment or the structures located thereon." (i.e., a murder or a suicide)  225 ILCS 454/15-20.  This statute only limits the liability of the realtor, but if the realtor did not have duty to disclose, it can be argued that the seller does not either.

So, with respect to real estate in Illinois, I don't think that there is any duty for a seller to go beyond the requirements of the Disclosure Act, which does not require the disclosure of a dead body.  

And regarding vehicles in Illinois, there do not appear to be any laws on the subject.  I think it will come down to the language of the warranty, if any.  If you bought the car "as is," I think you're out of luck.  This does remind me of a Seinfeld episode however.  But I think Jerry's car was just in the shop when it came back stinky.  I don't think it was a purchased vehicle that stank.  And I don't recall Jerry ever suing anybody because of the odor.  So, I guess I'm right.  No duty to disclose exists.   Have a nice weekend.

The Rich Get Richer. (Sarcasm)

You will recall that I have been alerting my loyal readers for years about class action lawsuits in which you may be able to file claims.  I have written about some of my greatest settlements HERE and HERE.  

Well, today I received another check.  This case involved the use of credit cards overseas.  I heard about it just after I returned from the Philippines last summer.  Luckily I used my credit card when I was down there because HERE is copy of my latest settlement check.  That's right.  Read it and weep.

You will also see at the very bottom, I have been alerted that I may be a member of another class in a second lawsuit involving foreign transaction fees.  How much good luck can one guy have?!?!?!  

I haven't looked into it yet, but it appears that I may be entitled to another settlement check.  Three or four more of these and I'll be able to buy a nice steak dinner!!

When is an Employee's Covenant Not to Compete Enforceable

The Illinois Supreme Court has clarified when an employee’s promise not to compete with his/her employer is enforceable.

Reliable Fire Equipment Company sued two of its salesmen for violating employment agreements which included covenants not to compete. The salesmen had started their own company which provided services to some of Reliable’s customers. The circuit court found the covenants unenforceable and the appellate court agreed. Reliable appealed.

The Supreme Court begins its analysis by explaining that an employment contract that totally restrains trade is void because it “deprives the public of the industry of the promisor, and deprives the promisor of the opportunity to pursue an occupation and thereby support his or her family” but that a covenant not to compete “will be upheld if it contains a reasonable restraint and the agreement is supported by consideration.”

Recognizing that Illinois courts have failed to consistently apply a three-prong analysis that the Court traces back to 1896, the Court explains that a restraint is reasonable if it 1) is no greater than is required to protect a legitimate business interest of the employer, 2) does not impose undue hardship on the employee, and 3) does not injure the public.

Because lower courts have had the most trouble with the first prong - whether the employer has a legitimate business interest needing protection - the Court examines the many factors on which jurists have relied before holding that such factors are “only nonconclusive aids in determining the promisee’s legitimate business interest” and that the proper test is to consider “the totality of the facts and circumstances of the individual case.” The Court then identifies several important factors to consider including “the near-permanence of the customer relationships, the employee’s acquisition of confidential information through his employment, and time and place restrictions” and explains that no factor is determinative; its importance depends on the facts and circumstances in a given case.

Because the case “was tried under an incorrect theory of law” the Court reversed the judgment and remanded the case for a new trial.

Reliable Fire Equipment Company vs. Arnold Arredondo, 2011 IL 111871

Submitted by Brian D. Moore, Class of ’92.
brian@moorelawpc.com
www.moorelawpc.com

Blue-Rhino Propane Tank Class Action

Did you purchase or exchange one or more pre-filled Blue Rhino propane gas cylinders in the U.S. between June 15, 2005 and October 11, 2011?  


If so, you better sit down.  You may be entitled to damages totaling dozens of dollars.  To claim your riches, you must submit a claim on or before May 23, 2012.  


Details here: www.propanesettlement.com

The NBA hired an expensive lawyer.

The NBA hired Paul D. Clement to represent it in litigation with its locked-out players.  Mr. Clement has argued more Supreme Court cases since 2000 than any other lawyer.  He made his 54th appearance before the Supreme Court in October and has another argument scheduled for December. 

Mr. Clement typically bills his time in the range of $1,000 per hour, but he has also been known to charge flat fees or limit his fees. For instance, a group of 26 attorneys general hired Clement to represent them in their challenge to Obama's Health Care Reform.  It is reported that he has taken their cases at a reduced hourly rate and capped his fees at $250,000 for each State.  That's $6.75 million for you folks scoring at home.  

Clement also represented the U. S. House of Representatives in defending the controversial Defense of Marriage Act.  Mr. Clement spent a relatively small amount of time on that case because his law firm elected to withdraw shortly after getting into the case following an outpouring of criticism by gay rights advocates.  I can't tell how long he was in the case, but multiple sources online state that he withdrew "almost immediately" after undertaking representation.  Oh ya, and the House of Representatives approved his fee request of $1.5 million.

I wish I could find if he has a cap on his NBA fees, or if he's charging a flat fee.  But as well as he is doing, he's still not making Kobe money.   

Robo-Signers

I alerted you foreclosure defense lawyers to the name Linda Green last summer.  There was a segment on 60 Minutes back in July that uncovered thousands of foreclosure documents all signed by someone named "Linda Green."  They even interviewed former employees of several mortgage servicing firms that said they had signed the name Linda Green to hundreds of documents per day over a long period of time.  

Well, today there is an article in the Rockford Register Star that quotes the Winnebago County Recorder as saying that she still sees frequent evidence of robo-signing.  She says that Linda Green is appearing less frequently on recorded documents, but there are new names that make her suspicious.  The names "Pat Kingston" and "Brian Blaine" are two of those names.  The same names appear written in different handwriting and also as employees of different companies.  For instance, Brian Blaine has signed affidavits as a Vice President of Chase Mortgage Bank, Washington Mutual Bank, Nations Credit Financial Services Corp., and Indymac Federal Bank.  

Keep an eye out for those names!  The Register Star article can be accessed HERE.

Sandusky's lawyer has it all wrong.

The Jerry Sandusky tragedy is fascinating and I have strong feelings on several aspects of the case.  I rarely state my opinions as to the strength of high profile cases in the news, even in private conversations with friends and family.  I make arguments all of the time, but I never really state my true opinion.  My profession requires me to argue positions with which I do not always agree, so in private I try to hone those skills by taking the unpopular or opposing view, just for the sake of argument.  Oftentimes I don't even have a personal opinion.  I just make the arguments based on the facts presented, or based on who is paying the retainer.  If you asked me whether Casey Anthony should be sued in civil court for the wrongful death of her daughter, I would say "I don't know, who do I represent?"

But for this case, I am going to make an exception.  I think he's guilty.  The reason I feel so comfortable making that proclamation seven days into a two year process is that Sandusky's attorney, Joe Amendola, went on national television last night and let everyone know that his theory of the case is completely wrong.  They're already focusing on the children.  Supposedly, they have several alleged victims who will say that the abuse never occurred.  He's way off base with his theory of the case however.  

This case, ultimately, will not be about children.  Children can be manipulated.  Their memories can be impeached or even recreated, especially by veteran defense attorneys under the hot lights of cross-examination.  This case, however, will be about adults.  Independent, third-party, adult witnesses who have already testified under oath in front of a grand jury!!  For Sandusky and Amendola to appear on live television last night to proclaim their innocence is completely absurd.  If the only witness was a ten year old child with a history of behavioral problems, maybe you proclaim your innocence and beat the kid up on cross to raise reasonable doubt.  

But that's not what's going on here.  Here we have an independent witness who is a 36 year old assistant college football coach.  We also have two detectives who surreptitiously listened to Sandusky spill his guts to the mother of one of his victims.  Of course, the defense strategy will be to try to exclude that recorded telephone admission from the trial.  Then they'll impeach McQueary's credibility ("You then immediately called the police, didn't you Mr. McQueary?"  "WHAT?!?!?!  YOU WAITED 10 YEARS TO CALL THE POLICE?!?!!?).  So, based on the knowledge publicly available at this point, it may not seem like too much of a stretch for Amendola to think that he can win this case if he has strong doubts about the admissibility of the telephone recording and if he thinks that McQueary is not a credible witness.  

But it's way too early for a lawyer who was hired only five days ago to declare that anyone is innocent.  Again, we are seven days into a two year process.  35 more victims may come forward next week....with pictures.  The police might uncover surveillance video from some random parking lot on campus which shows Sandusky having illicit relations with a poodle.  We don't know at this point.  Anything is possible. Not even I, a rouge blogger intent on inflaming the masses, can argue for Sandusky on this one.  All we do know is that they just committed to a defense that they're going to have to stick with for the next two years.  And it's going to take a lot more than one kid recanting his accusations for Sandusky to prevail in this case.  

Social Security Numbers on Pleadings Prohibited by new Supreme Court Rule

A new Supreme Court Rule is effective January 1, 2012. Rule 138 prohibits including a social security number on a pleading or other document filed with the court. If a social security number is required – by law or court order – only the last four digits are to appear on the filing and the filing is to be accompanied by a separate document that includes the full social security number. The rule provides a form for this document which is titled “Notice of Confidential Information within Court Filing.” The court clerk is required to keep the “Notice” separate from the court file and confidential from everyone except the parties to the action.

The comment to the rule explains that it was adopted pursuant to section 40 of the Identify Protection Act (5 ILCS 179/40) which required the Supreme Court to adopt rules to regulate disclosure of social security numbers. The Identity Protection Act was effective June 10, 2010.

Submitted by Brian D. Moore, Class of ‘92
brian@moorelawpc.com
www.moorelawpc.com

Are your insurance rates based on accurate information?

The Fair and Accurate Credit Transactions Act (FACT Act) was enacted in 2003 and amends the Fair Credit Reporting Act (FCRA), a federal law that regulates who is permitted to access your consumer report information and how it can be used. 

The FACT Act entitles consumers to obtain one free copy of their file from certain consumer reporting agencies during each 12-month period.  One of the consumer reporting agencies that must give you a free report is C.L.U.E. Inc., which maintains information on all of your insurance claims.  If your claims history is inaccurate, this will certainly lead to higher premiums, and may lead to other consequences as well, including cancellation of your policy.   

In order to view a seven year history of all of your auto and personal property insurance claims, visit this website:  https://personalreports.lexisnexis.com/

You will then click on "Insurance Report."  Order both your personal property and auto reports and then set up a free username and password. Within minutes you'll be able to tell if your claims history is accurate.  If it is not, there are instructions on the website for disputing the inaccuracies.

Please note that you can also obtain free copies of your employment history and resident history by calling 1-866-312-8075.  

Illinois Testamentary Capacity and Will Execution: The Bulletproof Will

Judge Dudgeon recently spoke to the DuPage County Bar Association Civil Practice Committee on testamentary capacity, undue influence and executing estate planning documents in a talk he titled “Keeping the Vultures Away.” This blog entry contains my notes from that session and any inaccuracies are mine.

Testamentary Capacity: Judge Dudgeon began by reminding attendees of the three requirements for testamentary capacity as found in Estate of Wrigley, 104 Ill App 3rd 1008 (1st Dist., 1982): that the testator have sufficient mental ability to i) know and remember the natural objects of her bounty, ii) comprehend the kind and character of her property, and iii) make disposition of her property according to some plan formed in her mind.

To confirm that these three requirements are met Judge Dudgeon recommended:
• interviewing the testator without family members or friends in the room
• bringing in another attorney to help assess the testator’s mental ability
• developing a list of questions aimed at each of the three requirements
• asking the questions out of any order and repeating some questions
• having a conversation that reveals how aware the testator is of the world around her
• asking what medications the testator takes, why, and when she started taking each
• taking detailed notes that include testator’s answers, appearance, and behavior

Judge Dudgeon then pointed out some warning signs that should cause you to take a closer look at the testator’s capacity:
• family member or third party makes the appointment
• family member or third party wants to sit in on appointment
• testator’s attention wanders
• testator wants big changes to an existing plan
• testator uses charm and/or story-telling to hide her inability to answer

Judge Dudgeon recommended taking confirmation a step further if you have any doubts by getting a medical release from the testator and talking to her doctor(s), and/or having the testator professionally evaluated.

Undue Influence: Judge Dudgeon recommended referring to the relevant Illinois Pattern Jury Instructions on this topic (IPI 200.00 et seq.) The IPI defines undue influence as “influence exerted at any time upon the decedent which causes him [her] to make a disposition of his [her] property that is not his [her] free and voluntary act.” (IPI200.09)

Undue Influence can arise from
• A specific act or conduct evidencing undue influence, or
• The existence of a fiduciary relationship between the testator and her beneficiary where i) the testator reposed trust and confidence in the beneficiary, ii) the beneficiary prepared the relevant document or caused it to be prepared, and iii) the beneficiary gets a benefit from the document greater than others with an equal claim. (see also IPI 200.04)

Judge Dudgeon then pointed out some signs that should cause you to take a closer look at the influence issue:
• Did a family member or third party make the appointment?
• Does this person want to sit in on appointment?
• Does this person hold a POA and/or pay the testator’s bills for her?
• Does this person make the medical decisions for the testator?
• Does this person or his family/children substantially benefit from the new document?

Executing the Will: Judge Dudgeon recommended that when it is time to execute the will you remember what it is the witnesses are witnessing and attesting to: that “1) he was present and saw the testator or some person in his presence and by his direction sign the will in the presence of the witness or the testator acknowledged it to the witness as his act, (2) the will was attested by the witness in the presence of the testator and (3) he believed the testator to be of sound mind and memory at the time of signing or acknowledging the will...” 755 ILCS 5/6-4(a).

Judge Dudgeon recommended explaining these requirements to each witness and asking them to make notes describing why each thought the testator was “of sound mind and memory” and that they saw her sign the document. To give the witnesses information to make their determination Judge Dudgeon recommended having a conversation with the testator in front of the witnesses.

Finally, Judge Dudgeon recommended dictating notes to your file explaining what you did to assure the testator had the requisite capacity and was not subject to undue influence, and which contain forwarding addresses and contact information for the witnesses.

Submitted by Brian D. Moore
brian@moorelawpc.com
www.moorelawpc.com

iTunes Class Action

I just received the following email:

LEGAL NOTICE

If you purchased an Apple iTunes gift card, you could get benefits under a class action settlement.

A proposed settlement of a class action lawsuit could affect you if you purchased an Apple iTunes gift card and the card or packaging to which it was attached contained language that “songs are 99¢” or other language indicating that songs are priced at 99¢ (referred to as a “99¢ iTunes gift card” in the rest of this Notice).

The settlement will provide you a $3.25 iTunes Store credit if you purchased or received a 99¢ iTunes gift card and used it to purchase one or more $1.29 songs from the iTunes Store on or before May 10, 2010.

If you qualify, you may submit an online Claim Form to ask for the credit.

The Superior Court of the State of California, County of Santa Clara authorized this Notice. The Court will have a hearing to consider whether to approve the settlement.

Who’s Affected?

You’re a “Class Member” if you purchased in the United States a 99¢ iTunes gift card and used the card to purchase one or more $1.29 songs from the iTunes Store on or before May 10, 2010.

What’s this About?

The lawsuit claimed that Apple advertised, distributed, and sold 99¢ iTunes gift cards. It further alleged that in April 2009, Apple raised the price of certain songs at the iTunes Store from 99¢ to $1.29 and that 99¢ iTunes gift card holders who purchased $1.29 songs were overcharged. Apple denies all allegations and has asserted many defenses. The parties are entering into this settlement to avoid burdensome and costly litigation. The settlement is not an admission of wrong-doing or an indication that any law was violated.

What can you Get from the Settlement?

The settlement provides for an iTunes Store credit in the amount of $3.25.

How do you Get an iTunes Store Credit?

You must submit a completed online Claim Form by September 24, 2012: A detailed Notice, online Claim Form, and instructions are available at www.JohnsoniTunesSettlement.com. You can also receive a detailed Notice, sample Claim Form, and instructions by calling 1-888-332-0275.

Important Deadlines

You must submit the completed online Claim Form on or before September 24, 2012.

What are your Options?

(1) If you want to participate in the settlement, submit an online Claim Form by September 24, 2012. The Claim Form is available at www.JohnsoniTunesSettlement.com/FileAClaim.

(2) If you don’t want a payment and you don’t want to be legally bound by the settlement, you must postmark your request to exclude yourself by December 29, 2011, or you won’t be able to sue, or continue to sue, Apple about the legal claims in this case. If you exclude yourself, you can’t get a payment from this settlement.

(3) You may also object to the settlement. Objections must be received by December 29, 2011.

The detailed Notice describes how to exclude yourself or object. Apple retains the right to withdraw from the settlement in the event an excessive number of requests for exclusion are received.

The Court will hold a hearing in this case (Johnson v. Apple Inc., Case No. 1-09-CV-146501) on February 10, 2012 at 9:00 a.m. to consider whether to approve the settlement and the attorneys’ fees and expenses requested by Class Counsel. Class Counsel will request from the Court, and Apple has agreed not to oppose, an award of attorneys’ fees and expenses of up to $2,117,500. The attorneys’ fees and expenses were negotiated separately from the amount to be paid to the Class and do not reduce the amount of the award to the Class. The Court will determine the amount of fees and expenses that will be paid to Class Counsel. You may appear at the hearing, but you don’t have to. For more details, go towww.JohnsoniTunesSettlement.com or call 1-888-332-0275.

Top 5 Reasons that Student Loans should be Dischargeable in Bankruptcy.

I am simply linking to an excellent post written by James Michel of the San Francisco Bankruptcy Blog.  He makes very strong arguments that Congress and President Obama should amend the Code to make student loans easier to discharge.  HERE is the post.

Elgin Community College Mock Trial Judges Needed

For all those lawyers out there, volunteer your time for a good cause. The Elgin Community College Mock Trial Team is seeking judges and attorneys to volunteer to act as judges at its First Annual Golden Gavel Invitational Mock Trial Tournament, to be held on the college campus in Elgin, Illinois, on Saturday, November 12th and Sunday, November 13th.
On Saturday, November 12, 2011 - Judges are needed from 8:00 a.m. - 12:30 p.m. and 1:30 p.m. - 6:00 p.m.
On Sunday, November 13, 2011 - Judges are needed from 8:00 a.m. - 12:30 p.m. and 1:30 p.m. - 5:00 p.m.

Volunteers may sign up for full day shifts or half day shifts on one or both days. Refreshments will be provided to our volunteer judges throughout the tournament, including lunch on Saturday and Sunday and dinner on Saturday.

No experience in judging a mock trial tournament is necessary. Students will be trying a criminal murder problem supplied by the American Mock Trial Association, and will be judged on their ability to present the facts of their case through opening statements, direct and cross examination of witnesses, arguing objections and closing arguments. General courtroom decorum and presentation will also be scored. Training will be provided to tournament judges on the morning of the competition. This is a great way to volunteer and provide feedback to undergraduate students seeking a career in law.

The ECC Mock Trial Team earned national acclaim two years ago for defeating the Yale University Mock Trial Team in a competition sponsored by Harvard University. It is one of the only community colleges to compete against 4-year universities across the country.

Please consider volunteering for this exciting event.

For more information please contact the ECC Mock Trial Team at
847.214.7466 or elginmocktrial@gmail.com.

Thank you in advance for your consideration!

New Proof of Claim forms in Bankruptcy Court

Proof of claim forms in bankruptcy court have been revised.  The new forms will become effective December 1, 2011.

HERE is a link to the new form.  HERE is a link to the Committee Notes explaining the changes on the new form.  I have updated the link in the Forms Archive so you can still come to the Northern Law Blog every time you need a POC form.

You will also recall that the Northern District of Illinois no longer mails out claim forms.  I discussed that issue several weeks ago in THIS post.

Illinois College Expenses: Child who is Third-Party Beneficiary of Marital Settlement Agreement can Sue for Breach of Contract

Last month the Illinois Supreme Court ruled that a Petition to Allocate College Expenses is a modification request which only applies to expenses accruing post-filing. (IRMO Petersen, 2011 IL 110984) This month the First District held that the bar to retroactive awards does not apply to the third party beneficiary of a Marital Settlement Agreement suing for breach of contract.

The Spircoffs entered a Marital Settlement Agreement (MSA) on January 28, 1988 in which the parties agreed that each “shall contribute” to their child’s college expenses. The MSA became part of the divorce judgment. In 2009, after he finished his college education, the Spircoffs’ son filed a breach of contract action as a third party beneficiary of the MSA. The court agreed that the son was a third party beneficiary and had standing to enforce the MSA.

The court then distinguished the Spircoff situation from Petersen because in Spircoff i) the issue of college expenses was not expressly reserved, and ii) “the obligations of the parties for educational expenses was clearly and affirmatively stated” in the MSA. The lack of an expense allocation or allocation methodology in the MSA – for example, by dollar amount or percentage – did not bother the court. It reasoned that because college expenses are in the nature of child support they are always modifiable and the trial court retained jurisdiction to “make specific allocations” to resolve any dispute that later developed between the parties.

The court also said Petersen was “inapplicable” because Spircoff was not an action to modify a support obligation: it was a breach of contract action by a third party beneficiary.

See IRMO Spircoff, 2011 IL App (1st) 1103189

Submitted by
Brian D. Moore
www.napervilledivorcelaw.com
brian@napervilledivorcelaw.com

Inside Job

Some of you may have heard about the theft of nearly 4 kilograms of heroin from outside a Will County sheriff's substation last week.  According to the Chicago Tribune, heroin retails on the street for more than $500,000 per kilo when broken down and sold in smaller amounts.  

Not only was the heroin worth about $2 million, but it was probably worth more than that to the people responsible for transporting it through Will County.  A guy named Jose A. Zamago-Mena was arrested with the heroin in February.  Mr. Zamago-Mena's former employers probably have a pretty strong interest in preventing him from testifying against them in exchange for a reduction of his own charges.  

There is no need for Mr. Zamago-Mena to testify against anybody, however, if the charges against him are dismissed.  Will County can't make a case against anybody without the drugs.  No evidence, no case.  I'm completely speculating here, but it is entirely possible whoever stole the heroin was paid off by the bad guys.  Either way, whether it was bribery or only theft of evidence, several serious crimes were committed, and it sure looks like an inside job.  

The heroin was apparently stored in a shipping container that was placed in an outdoor parking lot ordinarily used to store seized vehicles.  I don't know exactly where the theft occurred, or how secure that lot was, but I have been to a storage lot used by the Aurora Police Department for the same purpose.  The lot that I visited was simply surrounded by chain link fence.  Not too secure.  Also, the storage container was apparently just locked with a standard padlock.  If someone can cut through a chain link fence, they can also cut open a padlock.  Why was $2 million worth of drugs that could probably fit inside a suitcase stored outside at a "substation" out in the middle of nowhere?  Why wasn't it stored inside the police department in a secured area where all visitors would have to show credentials and sign a visitor's log?  

Another article in the Chicago Tribune stated that the FBI has taken over the investigation into the stolen heroin.  I bet there were several Will County employees with butterflies in their stomachs when that news was announced.  I'm glad the FBI got involved though.  I wasn't too surprised to read that in the Tribune.  This was obviously an inside job and Will Count can't be trusted to investigate. The Tribune article stated that a "buffet" of various other narcotics from closed cases were left untouched during the theft.  All that was stolen was the heroin from the open prosecution of Mr. Zamago-Mena.  There is no other explanation.  A cop did this.  

There were some statements in that article that did surprise me, however.  First, Will County Sheriff Paul Kaupas said that it was his daughter, Jana Schaeffer, a coordinator who works in the evidence section of the department, who moved the heroin outside into the shipping container.  Then, Sheriff Kaupus acknowledged that it was his son-in-law, and Jana's husband, Brett Schaeffer, who leads the gang suppression unit that arrested Mr. Zamago-Mena with the heroin.  Then, Deputy Chief Ken Kaupas, another relative of the Sheriff, said in a statement that "a mistake was made but we've already taken steps so this will never happen again."

But, apparently neither Paul Kaupas, Ken Kaupas, Jana Schaeffer, nor Brett Schaeffer have lost their jobs.  That is what surprised me, although I am certainly not accusing any one of them of doing anything illegal.  What also surprised me was that Will County is such a family-friendly place to work.  I neither live nor work in Will County, so it just took me by surprise to see the Sheriff's whole family in leadership positions in the department. 

Anyway, hopefully it won't be too much longer before the FBI announces big time arrests at the Sheriff's department.  I'll keep you posted if I learn anything new.      

College Expenses are Child Support and subject to Modification Rule

College Expenses are Child Support and subject to Modification Rule

The Illinois Supreme Court has ruled that college expenses are a form of child support and a petition to allocate them is a modification request subject to Section 510 of the Illinois Marriage and Dissolution of Marriage Act.

Janet and Kevin Petersen had three sons, then divorced. The divorce decree reserved the issue of college expenses. Eight years later Janet filed a Petition to Allocate College Expenses. At that time the oldest boy had finished college, the middle boy was in college, and the youngest was still in high school. The trial court allocated 75% of all college expenses to Kevin, including expenses incurred before Janet filed her Petition. Kevin appealed.

The Supreme Court held that college expenses are a form of child support and are subject to the section addressing modification. Reserving the issue in the divorce decree made no difference because the word modify plainly includes any post-decree change to the parties’ obligations. Because the original decree did not require either parent to pay college expenses the Petition “sought to change the status quo” which made it a request to modify child support.

Because the Petition was a request to modify support, and by rule such requests were not retroactive, Kevin could not be required to pay amounts incurred before the Petition was filed.

BUT the Court’s instructions on remand said that when determining how to allocate the college expenses, the trial court needed to analyze each parent’s financial resources including “the fact that Janet’s financial resources may have been depleted” by paying for the earlier college expenses.

IRMO Petersen, 2011 IL 110984

Submitted by
Brian D. Moore
http://www.napervilledivorcelaw.com/
brian@napervilledivorcelaw.com

Indiana lawyers have more fun.

We need to sign up this guy as a contributor to the Northern Law Blog.

Welcome Midwest IEC!

I had the opportunity to speak to the Midwest Independent Electrical Contractors Association late last week.  I want to thank Kevin McNulty and the rest of the Board for the hospitality and the pizza.

Some of the members in attendance that evening had questions about the mechanics lien process.  I directed people to this blog, but there is a lot of information on this site so I wanted to make it easier to find the stuff that you guys were looking for.

HERE is a link to all of the mechanics lien articles I have written on this blog.

HERE is a link to the mechanics lien cheat sheet that I told the members about last week.

HERE is a link to the subcontractor's notice to homeowners that must be sent out within 60 days of your first performing work or delivering materials to the job site.  Again, this notice only applies to subcontractor jobs involving owner occupied, single-family residences.  And remember that I do not practice law in Indiana.  On the form, remember to fill in the date that you first provided services into the middle of the document.

Lastly, always remember that it is generally advisable to speak to a lawyer about your specific situation.  Mechanics liens are very technical and even a minor mistake can defeat the whole process.  

The Northern District of Illinois will no longer mail Proof of Claim forms.

Effective Wednesday, September 21, 2011, the U.S. Bankruptcy Court for the Northern District of Illinois, will no longer include a Proof of Claim form with 341 notices or Chapter 7 notices establishing a claims deadline. This is a cost-savings measure following a study that showed less than 5% of the Proof of Claims included with the Court's notices were returned. 

This makes sense to me.  I haven't used the mailed forms the past couple of times that I have filed claims.  As soon as I receive notice of a Chapter 13 filing, I usually print the form myself from the Northern Law Blog's forms archive and have it filed long before the official form arrives in the mail 7-10 days later.  

Visit the Forms Archive on the right for the latest version of the POC form.

Condo/Homeowners Assessments in Bankruptcy

Section 523(a)(16) of the BAPCPA provides for an exception to discharge for assessments that come due after the bankruptcy petition is filed.  Associations can, therefore, pursue their members for assessments that accrue after the date of filing, but not those that accrue before the date of filing.

A new opinion issued this week by Judge Squires deals with an interesting situation where the debtors' unit flooded just two days before their bankruptcy filing.  Then, several months after the bankruptcy filing, the association levied a special assessment against all unit owners to cover the cost of the flooding.

The association sent several letters and notices to the debtors without obtaining relief from the stay or otherwise seeking the guidance of the bankruptcy court.  When those notices went unanswered, the association filed suit in state court.  The debtors then moved for sanctions against the association in bankruptcy court for a willful violation of the discharge order.

The issue for the bankruptcy court was whether this special assessment was a pre-petition or post-petition debt.  The court looked to the language of Section 523(a)(16), which excepts from discharge any assessments that "come due and payable" after the petition is filed.  The court did not give much weight to debtors' argument that the special assessment was related to a pre-petition obligation that arose on the date of the flooding.  Rather, the court looked to the date on which the special assessment came due and payable, which was after the petition date. 

HERE is a link to the opinion.

Protecting Client Confidentiality When Using Work Email Accounts

A recent ABA Ethics Opinion states that lawyers have a duty to warn clients about using an employer’s device, such as a work computer or work email account, to correspond with their lawyers. Clients may not be afforded a ‘reasonable expectation of privacy’ when they use an employer’s computer to send e-mails to their attorneys or receive e-mails from their attorneys. As you know, the attorney-client privilege will be destroyed if the communication is viewed by a third party.

ABA Model Rule of Professional Conduct 1.6 (a) explains that a lawyer must not reveal any information relating to representation of the client without consent, and must competently protect the confidentiality of the client. Considering that employers often have policies reserving a right of access to employees’ communications via the employer’s e-mail account, computers or other devices, such as smart phones and tablet devices, it is essential to warn the client to be careful of what he or she says, especially in an employment case involving the employer.

Motions to Dismiss Chapter 13 Bankruptcies

When you get the bankruptcy notice in the mail, the case might not be over.  It may just be getting started.  If the bankruptcy is a Chapter 13, it is subject to dismissal for bad faith.  A finding of bad faith does not require fraudulent intent by the debtor. The bankruptcy judge is not required to have evidence of debtor ill-will directed at creditors, or that the debtor was affirmatively attempting to violate the law.  Inconsistencies and misrepresentations are usually enough to get the case dismissed, even if they are not intentional, if the sloppiness rises to the level of bad faith.  

You will want to analyze the petition for errors, omissions, or inconsistencies based on what you already know about the debtor and what appears on the face of the petition.  For instance, I recently had a case where the debtor only disclosed one checking account, but he had bounced a check to my client from a different account just several days before filing bankruptcy.  That was a major omission, but the smaller things can add up too.  Debtors frequently fail to disclose life insurance polices, but you'll see them deducting the premiums from their gross wages.  Or they will try to affirm debts that have monthly payments higher than their stated income.  

A motion to dismiss a Chapter 13 bankruptcy is filed under Section 1307(c) of the Code.  That section allows the trustee or any creditor to move for dismissal for 11 separate reasons, including failure to make any payment required by the plan, failure to make any domestic support obligation, etc.  Also, pursuant to the case law, bad faith is also a cause for dismissal under Section 1307(c). The bankruptcy court will apply the “totality of the circumstances” test when ruling on a motion to dismiss for bad faith. The test involves the following factors:

• Whether the debtor misrepresented facts in his petition or plan, unfairly manipulated the Bankruptcy Code, or otherwise filed his Chapter 13 petition or plan in an inequitable manner;
• The debtor’s history of filings and dismissals;
• Whether the debtor only intended to defeat state court litigation; and
• Whether egregious behavior is present.

If fraudulent intent can be inferred from the totality of the circumstances, the debtor’s petition can be dismissed with prejudice pursuant to Section 349(a) of the Code.  Even if the case is not dismissed with prejudice, it is still possible to obtain an order that the case can not be refiled for six months.  That means the automatic stay is not in effect and you can proceed to state court.  You will want to move quickly to accomplish your specific purpose, and the state court may help you do so once it learns the circumstances of the Ch. 13 dismissal.  

Call me with any questions.

Help Wanted: Assistant City Attorney

Press Release:

The City of Champaign Legal Department seeks an experienced candidate for the position of Assistant City Attorney. In this position, you will join an in-house legal team that works closely with the City Council, the City Manager and all City Departments in a wide variety of legal areas. The City has a Council-Manager form of government. Desirable experience and possible assignments include, but are not limited to: advising City Council, staff and boards and commissions on legal procedures and ramifications of decisions; evaluating, advocating, preparing and trying cases in defense of or on behalf of the City; evaluating and preparing written legal opinions; preparing and reviewing legislation, and other legal documents; prosecuting for violations of City Ordinances; contract development, review and negotiation, including labor negotiation; real estate transactional work. Supervising and directing department staff.

The successful candidate must be licensed to practice law in the State of Illinois. Superior interpersonal, oral and written communication skills are required. Recent comprehensive experience specializing in or with emphasis on municipal law or closely related governmental, civil legal experience or any equivalent combination of experience and training which provides the required knowledge, skills, and abilities is required. Pre-employment drug screening is required.

The starting annual salary range is $72,781-$82,805, depending on qualifications. Applications and supplemental questions must be received online no later than Sunday, September 18, 2011.

The City’s mission is to provide responsive, caring, cost-effective service in partnership with our community. The following values guide our work: Personal Integrity, Responsibility, Respect, Teamwork, Results.

To apply, visit the City’s Online Hiring Center at www.ci.champaign.il.us.

The following locations offer free Internet access and assistance: Champaign Public Library, the Illinois Employment and Training Center and the City of Champaign City Building. 

very interesting family case!

Check this bad boy out! Only in Barrington Hills!

http://www.sltrib.com/sltrib/world/52469658-68/garrity-card-court-lawsuit.html.csp

Adam R. Wirtz joins Dreyer, Foote, Streit, Furgason & Slocum, P.A.

My office is pleased to announce the hiring of Adam R. Wirtz, formerly of the Wirtz Law Offices, LLC in Naperville, as an associate at the firm.  Adam concentrates his practice in criminal defense, family law, and general civil litigation.  Adam will be integrating his current cases into our office, while also assisting with our existing practice.  Adam can now be reached at 630-897-8764 and awirtz@dreyerfoote.com.

Will Devin Hester testify regarding improper benefits received while at Miami?

Some of you may have heard about Nevin Shapiro, a University of Miami football booster and convicted Ponzi schemer.  He claims that he provided hundreds of thousands of dollars of impermissible benefits to UM football players over a 9 or 10 year period.  Then his $930 million Ponzi scheme blew up and his investment firm filed bankruptcy.

I have heard members of the national sports media speculate whether any NFL players will be sued by the bankruptcy trustee to recover any of this money.   It's always good to see bankruptcy litigation mentioned on ESPN, but it's not going to happen.   It may be possible for some football players to be sued, but it won't be Devin Hester or any other professional players.  The only football players at risk are those who received payments in the 90 days preceding the investment firm's bankruptcy filing last summer.  

These are interesting lawsuits.  A bankruptcy trustee can avoid a transfer made by the debtor if it is preferential to one creditor over the others.  The preference period is 90 days before the filing, unless the payment was made to an insider (family, business partner, etc.), then it is a one year look back.  In order to avoid the transfer, the trustee has to file an adversary proceeding against the creditor.  

There are several defenses to a preference action, none of which will apply to football players.  Valid defenses include when the payment was made in the normal course of business between the debtor and creditor and where the creditor provides "new value" to the debtor in the form of goods, services, or new credit.  

Depending on which side of the game you're on, the preference period seems either really long or really short.  This time, it seems extremely short considering all of the big time players that have come from Miami in the past 10 years.  The depositions in that case would be fantastic. I would love to examine Michael Irvin, Ray Lewis, Warren Sapp, etc. under oath concerning the night life and party scene in Miami while they were on the payroll.

There ain't no money in lawyerin'

The real money is in business.  Wheeling and dealing.  Don't get me wrong - plenty of lawyers make tons of money, but lawyering takes work.   Working day and night to beat deadlines and satisfy client demands.  Plus, there's only so many hours in the day to bill to your clients. Now that I think about it, billing by the hour is for fools.  

Take South Florida lawyer Bill Scherer for example.  He's got it figured out.  He's a businessman, and a shrewd one at that.  In 1992 Scherer signed a long term lease with Broward County for 200 parking spaces in a county garage next to the courthouse.  He pays $107,500 per year to lease the parking spaces.  

This week, due to a severe shortage of parking spaces for jurors and courthouse employees, Broward County officials voted to lease the parking spaces back from Mr. Scherer.  They are going to pay him $277,536 per year to use the parking spaces.  That's what I'm talking about!!  $170,000+ per year profit for spotting a deal and capitalizing on it.  I need to get out of the courthouse and into the business world.  

HERE's an article about the deal from the Florida Sun Sentinel.

KCBA launches Lawyer in the Lobby program.

The Kane County Bar Association, with the assistance of the judiciary of the 16th Judicial Circuit, launched a new pro bono program called “Lawyer in the Lobby” in May. The program is designed to inform civil pro se litigants regarding their questions on the law and procedure. 

The program covers matters pending in the Kane County Courthouse (3rd Street, Geneva). KCBA attorney volunteers who have legal experience in small claims and eviction will provide this free service on Friday mornings between the hours of 9 a.m. and noon. Appointments are not necessary, but inquiries are limited to 15 minutes per person. 

Any lawyers who wish to volunteer are asked to contact Jan Wade, the Kane County Bar Association Executive Director, at director@kanecountybar.org or 630-762-1915.

FDCPA Update

Yesterday, I gave a very brief overview of the FDCPA.  I glossed over the prohibitions contained in the Act as I said they were common sense prohibitions that I didn't have time to analyze.  We'll it doesn't get any more common sense than this:  Don't kill people when trying to collect a debt.  First, dead people can't pay their bills.  Second, it may be an FDCPA violation.    

A story in today's Washington Post indicates that a man in Indonesia died after a "harsh interrogation" by a Citibank debt collector regarding an alleged $5,700 debt.  Indonesia is not covered by U.S. federal law, but if this would have happened in America, I'm pretty sure that there were probably a couple of FDCPA violations that occurred in that room before the guy keeled over.

This also reminds me of an old story from the Northern Law Blog vault.  Click HERE for the classic post about a wrongful death case filed by a widow against her late husband's mortgage lender for allegedly killing him with their harassing phone calls.

Westlaw's Headnote of the Day

We've come a long way, baby:

223 Intoxicating Liquors

223II Constitutionality of Acts and Ordinances

223k15 k. Licensing and Regulation.

A state statute forbidding the employment of women in any saloon, beer hall, barroom, theater, or other place of amusement where intoxicating liquors are sold as a beverage is a valid exercise of the police power of the state.  In re Considine, 83 F. 157 (C.C.D. Wash. 1897)

The Fair Debt Collection Practices Act

With statutory damages set at $1,000 per violation, plus actual damages and attorneys' fees, the Fair Debt Collection Practices Act ("FDCPA") should be required reading for all general practitioners.  The Act applies to anyone attempting to collect a consumer debt on behalf of another party.  The Act impacts mortgage foreclosures, residential evictions, repossessions, medical debt, and probably about 99% of the cases filed in small claims court.

The Act prohibits several dozen different abusive or deceptive tactics.  They are common sense prohibitions that I don't have time to get into.  Basically don't lie, don't harrass people, don't threaten something that you can't legally follow through on, and don't communicate details of the debt to third parties. But you should still read  the statute because there's a lot of other things that you probably would not have considered.

The more interesting aspects are what the Act requires you to do, not what it prohibits you from doing.  There are several requirements for debt collectors pursuing consumer debts, but I am just going to focus on the very first thing.  Within five days of the initial communication with a debtor, whether it be by phone, in writing, in person, or through a judicial pleading, you must send a written notice to the debtor containing the following information:

(1) the amount of the debt; 

(2) the name of the creditor to whom the debt is owed; 

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;   

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and   

(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

Thorough practitioners should have a form letter containing these warnings that will be the initial communication to the debtor.  I have a form letter that I am willing to share.  Let me know if you want a copy.  Although the warnings can be given up to 5 days after the initial communication, it is advisable to make this letter the first communication.  That way you don't run in to timing problems and the debtor can't "misremember" or misconstrue the contents of a telephone conversation as a threat.

I have linked to the entire statute HERE in a pdf.  It is worth printing out and glancing at occasionally.  It is about 20 pages, but the sections are concise and easy to follow.  Like I said earlier, it applies to any consumer debt and the consequences for violation are severe.

Will County court records are online

The Will County Circuit Clerk is now offering basic access to its court files through its website.

Here is the link: http://66.158.72.242/pa/cms/SearchPrompt.php

I just heard about this new feature, and have only done limited searching.  The website will give you only basic info, such as the next court date, etc.  But you still don't have access to the pleadings or past court orders.

At least it's not a Northern grad this time...

Although he's presumed innocent at this point, Attorney Jason Smiekel may be in a little bit of trouble.  He's been accused in a murder for hire plot.  Click HERE for full details from the McHenry County Blog, including a probable cause affidavit signed by an ATF agent and several pictures.

MERS changes its rules.

MERS, the electronic mortgage registry that was supposed to simplify the foreclosure process for lenders, is facing multiple investigations for their role in tens of thousands of problematic foreclosures, Reuters reports.  The attorneys general of Delaware and Massachusetts have launched investigations.  County recorders and clerks in several different states have raised concerns that MERS does not record the proper paperwork as required by state laws.  MERS services 32 million, or 60%, of the country's mortgages.

In response to the increased scrutiny, MERS has changed its rules.  Its members are no longer allowed to file suit in MERS's name.  They must also now obtain and record mortgage assignments before filing suit.  The current robo-signing controversy involves the mass production of mortgage assignments, oftentimes long after the suit is filed, by MERS's members.  That will change, but only slightly.  MERS is still going to prepare the assignments, but they now just require the assignment as a prerequisite to filing suit.  So the robo-signing will now just take place at a different stage in the game.  

Plus, the legitimacy of the assignment will still be at issue.  They just won't be in the court file. You'll have to go to the recorder's website to get a copy.  But the homeowner can then challenge the assignment as part of the case.  I don't have any specific pointers for attacking the assignments off the top of my head, but I can tell you that the first thing you should look for is the name Linda Green anywhere on the document.  Anyone who doesn't know that name should click HERE, or google it.