Wednesday, January 25, 2012

NIU Networking Party: Feb 1st 5:30 to 7:30

The DuPage County Bar Association is hosting a networking event with NIU-COL Students at Pizza Villa in DeKalb! Please come out and share your professional experiences and help these students see the possibilities. Contact Sue Makovec of the DCBA to register., or by phone at 630-653-7779.

Submitted by Brian D. Moore, Class of '92

Saturday, January 21, 2012

Defining Fraud in Litigation

I have been working on several cases involving fraud over the last couple of months. Fraud takes many shapes.  There are an endless number of ways to cheat someone out of money.  The facts of two cases are never really the same.  But they all end in the same way -- someone loses money.

There are also an endless number of ways to sue for fraud, or so it seems.  The first question is what type of relief does the plaintiff want.  Of course, the plaintiff wants money.  Lots of it and punitive damages.  But will money be enough to compensate for the fraud?  And is there enough money available, or are you dealing with a judgment proof defendant?  

Depending on the specific facts of the case, there are dozens of remedies other than money damages that are available to victims of fraud.  Contracts can be rescinded or reformed.  Fraudulent transfers of property can be set aside.  The court can grant preliminary or permanent injunctions.  The court can prevent a bankruptcy discharge.  The court can impose a constructive trust on assets in the hands of third parties.  

No matter what relief you seek, you will then have to prove that fraud occurred.  For that, you need a definition of fraud.  The case law interpreting fraud takes many different paths because of all of the remedies available, so there are dozens of definitions and elements in the case law.  The defendant will want to define fraud as strictly as possible.  But don't let the defendant frame the case in terms of the five-part test for a preliminary injunction or the four-part test for a constructive trust, for example.  

It is best to keep it simple.  Defining fraud as broadly as possible allows you to keep your options open regarding your damages.  I came across two good definitions recently.  Here they are:
Fraud is a generic term, which embraces all the multifarious means which human ingenuity can devise and which are resorted to by one individual to gain an advantage over another by false suggestions or by the suppression of truth. No definite and invariable rule can be laid down as a general proposition defining fraud, and it includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated.  McClellan v. Cantrell, 217 F.3d 890, 894 (7th Cir. 2000);
There is no general rule for determining what constitutes fraud.  The existence of fraud depends on the particular facts of each case.  Generally, fraud has been held to mean "anything calculated to deceive, including all acts, omissions, and concealments involving a breach of legal or equitable duty, trust or confidence resulting in damage to another."  Carey Electric Contracting, Inc. v. First National Bank of Elgin, 74 Ill.App.3d 233 (2d Dist. 1979).
If you have a fraud case, I would try working one of these into either your response to defendant's motion to dismiss, or your motion for summary judgment.  Most cases would be easy to prove if either of those were the standards.

Thursday, January 19, 2012

The Village of Plainfield v. Michael W. Huseman

A couple of days ago, I was pulled over for speeding while I was on my way to court. As soon as the officer asked me for my license and registration, I politely informed him that I was an attorney and that I was on my way to the courthouse.  He was not impressed.  Nor was he aware, apparently, of my privilege from arrest in these situations.  

I knew, however, that I had just invoked my privilege so I did not argue any further with the officer.  I just waited patiently in my car while he walked back to his car.  I was actually hoping that he would write me a ticket, which he did.  He then came back to my car and explained my options regarding paying the ticket by mail or appearing in court.  I didn't mention it to him, but I knew at that time that I would choose the later.

When I got back to the office, I dusted off the old Illinois Criminal Code of 1961.  Just as I remembered, there is a statute titled "Persons Exempt from Arrest."  This law applies to electors during their attendance at election, senators and representatives during the session of the General Assembly, members of the militia during their attendance at musters (wtf?), and judges, attorneys, clerks, sheriffs, and other court officers while attending court and while going to and returning from court.  725 ILCS 5/107-7.  

Normally, an officer faced with an attorney's or judicial officer's timely assertion of the privilege from arrest should obtain the requisite information from the one asserting the privilege, make arrangements for the complaint to be issued later against the accused, and promptly permit the accused to go on his way.  People v, Lynch, 266 Ill.App.3d 294, 297 (2nd Dist. 1994).

A further review of the case law interpreting the statute shows that if the privilege is violated, a motion to dismiss is the proper way to invoke the privilege.  So, if anyone wants to see a copy of my motion, HERE it is.  Just don't ask me how much billable time I have into this already.  I'm pretty sure just paying the ticket would have cost thousands less.  

I will keep you apprised of any developments.

UPDATE: Ticket dismissed. It only took about six months.

Wednesday, January 18, 2012

"Your Papers, Please!" - The Second District Appellate Court holds refusing to identify oneself not a violation of the Resisting/Obstructing statute.

In People v. Fernandez, 2011 Il App (2d) 100473, the Second District Appellate Court tackled the question of whether refusing to identify oneself would run a-foul of the Resisting/Obstructing statute. The Court held that refusing to identify oneself was not a violation of Section 31-1 and reversed the defendant's conviction. In so holding, the Court followed in the footsteps of other court opinions reaching similar conclusions.

In Fernandez, Carpentersville Police responded to a complaint about a movie theater patron. When the officer arrived, the defendant was outside the theater and "visibly intoxicated." The officer requested the defendant's name, and the defendant refused to identify himself. The officer then placed him under arrest and charged him with obstructing under section 31-1 for "refus[ing] to identify himself (name and date of birth) and failed to provide any kind of identification to Officer Acevedo."

Section 31-1 of the Criminal Code makes resisting or obstructing an authorized act of a police officer a class A misdemeanor. 720 ILCS 5/31-1. Since 1968, Resisting or Obstructing required a physical act (e.g., "going limp, forcefully resisting arrest or physically aiding a third party to avoid arrest). People v. Raby, 40 Ill.2d 392, 399 (1968). Since Raby, Illinois courts have grappled with the term physical act.

When issuing its ruling, the Court noted several prior cases which dealt with refusing to provide police with information or refusing to comply with officers. In People v. Weathington, the Illinois Supreme Court held it was not a violation of section 31-1 to refuse to answer booking questions after being arrested. 82 Ill.2d 183, 187 (1980). In People v. Ramirez, the Fifth District Appellate Court held giving a false name was not a crime under section 31-1. 151 Ill.App.3d 731, 735 (5th Dist. 1986) (Since Ramirez, the Illinois legislature created a new crime called Obstructing ID, which makes giving a false name a class A misdemeanor. 720 ILCS 5/31-4.5.)

Finally, the Court noted that the Illinois Code of Criminal Procedure does allow an officer to ask for a name and address during a Terry stop. 725 ILCS 5/107-14. However, the court noted that the Illinois Criminal Code provided no corresponding duty of a suspect to respond to an officer.

The whole opinion can be read here.

Friday, January 13, 2012

Can an Employer make hiring decisions based on an applicant's credit history?

Illinois' Employee Credit Privacy Act, 820 ILCS 70/1, et seq., became effective on January 1, 2011.  That Act makes it illegal for employers to:
  • Refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment because of the individual's credit history or credit report;
  • Inquire about an applicant's or employee's credit history; or 
  • Order or obtain an applicant's or employee's credit report from a consumer reporting agency.
So, in other words, an applicant's or employee's credit history is completely off limits for employment purposes, under most circumstances.  The statute provides for a private right of action for anyone injured by a violation of this act.  Injured parties can also recover attorneys' fees pursuant to the Act.

It is also worth noting that certain industries are specifically excluded from the definition of "employer," including banks, insurance companies, and law enforcement officials.  Also, the statute does not apply if a satisfactory credit history is an established bona fide occupational requirement.  In order to determine whether an established bona fide occupational requirement exists, the statute gives a seven-part test, only one element of which must apply.  

HERE is a link to the statute.

Tuesday, January 10, 2012

Cost to take Illinois Bar Exam jumps to $400

Sorry law students!  The Illinois Supreme Court has amended Rule 706 to raise the cost of the bar exam to $400, from $250.  (Wait... there's a supreme court rule for that?!?!?!)

The cost of late applications is now $600, up from $500, but they did push back the deadline to apply for the July bar exam to February 15th, from February 1st.

So, now you have two more weeks to work to scrape up some money to take the bar. Good luck!!