221 New Laws Take Effect on January 1st

HERE is a link to a chart that lists all 221 new laws that will take effect in Illinois on January 1st.  These are some of my favorites:

• HB 3038 - Parents/guardians cannot be sued for eavesdropping on electronic communications of minors in their care. (Seriously? Minors could sue for that before?)
• HB 2517 - Allows Veterinarians to dispense drugs in emergency situations. (Sweet! Horse pain-killers!)
• HB 2754 - Creates National Wild Turkey Federation license plates, with licensing fees to be paid into the National Wild Turkey Federation Fund. (The bird or the bourbon?)

Track Down Your Unclaimed Money

Although I did not win the Mega Millions, I'm still a big winner this week. I just came across a website that links to every state's unclaimed property departments. Every state has a process by which "abandoned" property (usually money) is turned over to the government after a set period of time. The government then holds the funds until the rightful owner files a claim. If they can verify your identity, they will release your money. 

I decided to search for my own name just out of curiosity. It turns out that I have "<$10" (less than ten bucks) being held by the Illinois Treasurer. It was apparently from an old PayPal account that I had. I must have started a second PayPal account and forgot about the first one, or something...I'm still not sure.  

Anyway, here is the website: www.unclaimed.org. You should probably search for your name under every state in which you have ever lived. You might hit the big one. And if you do, just remember that my fee is one-third. We're on the honor system here. Good luck!!

Illinois Business Owners: The "Good" Employee and Non-Compete Agreements

A Will County, Illinois business owner has built a profitable business that provides recycling services and data protection services for over 800 businesses in Cook County, Will County, Kane County, Kendall County and DuPage County.  This Illinois business has built its excellent  reputation on quality and timely customer service provided by its sale representatives who are encouraged to build strong business relationships with its customers.  During the early years of the business, the Illinois business owner decided to require all of his employees to sign non-compete agreements to avoid competing with an employee leaving the company and starting a similar business.

The Illinois business owner has developed and trained personally all of its sale representatives and technicians. As with all companies, there are always a few employees that go above and beyond to ensure that the business runs smoothly and efficiently. One such employee has been with the Illinois business from the beginning  and has complete access to all of the confidential customer records and pricing models. This employee is always the first to arrive at work and the last to leave.  The employee provide services to customers on weekends, holidays, and on vacation. This employee has very strong relationships with over half of the customers of the Illinois business.

The "good" employee abruptly decides to resign.  The Illinois business owner is surprised by the employee's action and even more surprised when several customers decide not to renew their contracts with the Illinois business.  Curiously, all of the businesses that did not renew their contracts were serviced by the employee who resigned.

The Illinois business owner finally realizes that the departing employee has started a competing business. The Illinois business owner contacts his former employee and reminds him about the signed non-compete agreement. The non-compete agreement does not allow the employee to compete with the Illinois business owner for five years and within 50 miles of its Will County business location.

Finally, the Illinois business owner is forced to file a motion for a temporary restraining order and preliminary injunction. The employee's attorney files a declaratory judgment action claiming that the  non-compete agreement is not enforceable.   The Illinois business owner is surprised that the court finds that the non-compete agreement is unenforceable because the geographical and time restraints were unreasonable despite the fact that the Illinois business owner had a legitimate business interest in the confidential customer lists and pricing models.

The takeaway is that whether a non-compete agreement is enforceable in Illinois primarily depends upon the "totality of the circumstances" of each individual case. Illinois business owners may wish to obtain carefully drafted non-compete agreements to avoid unnecessary uncertainty as to whether the agreement will be enforced.

Removing Your Mugshot From the Internet

Mugshots on the internet have become a big business over the past few years. Two websites in particular seem to dominate the industry, mugshots.com and justmugshots.com. These websites legally acquire mugshots, probably through FOIA requests or other means, and then post them on the internet. Then they request substantial fees, sometimes several hundred dollars, to remove the mugshots from their website. Most people think these guys are the scum of the earth and I agree (although I do wish I would have thought of that idea first).

Some of the websites have courtesy removal services. Basically, if the charges that lead to the mugshot were dismissed or expunged, they will remove the photo for free. The process is pretty straightforward and I have had clients' pictures removed in as little as three or four days. But for those people who were not fortunate enough to have their charges dismissed or expunged, they find themselves with a dilemma. Of course, they can pay $300 or $400 to have the picture removed, but the risk is that a "new" website pops up next week under a different name and reposts the picture. It seems to me that paying the extortion fee is risky proposition, but there is not really an adequate alternative.

Several state legislatures have begun to consider this issue. Illinois recently passed a law dealing with online mugshots, but I think they may have made the situation worse, not better. Illinois has amended the Consumer Fraud and Deceptive Business Practices Act, effective January 1, 2014, to make it unlawful for those who publish criminal records information, including mugshots, to accept payment or other consideration for the removal or modification of such information. 

The Illinois legislature probably thought that these websites would just quit posting pictures if they no longer could accept money to remove them. However, it seems that the more likely scenario is that the websites will continue to post the pictures, but the subjects of the pictures will no longer have any way to remove them. I guess I'd rather have the option of paying the extortionists fee than not. If anyone has any questions about the removal of your mugshot from the internet, or the expungement process in general, feel free to give me a call. 

Public Act 098-0555 (eff. Jan. 1, 2014) (adding 815 ILCS 505/2QQQ new).

Chronic Oversleeper is Entitled to Unemployment Benefits

Philip Wrobel was a pressman for the Chicago Tribune for 17 years. His shift started at 6:00 a.m. The Tribune had a policy that required him to phone in by 5:00 a.m. if he was going to be late or absent from work. There was also an attendance policy that provided for various levels of discipline for being late or failing to call. Mr. Wrobel was eventually terminated for repeatedly coming late to work and not calling ahead.

He applied for unemployment benefits, which the Tribune contested. At the hearing, Mr. Wrobel testified that on several occasions his alarm clock failed to sound because the power had gone off during the night. He also testified that on all of those occasions he had failed to set his wind-up alarm clock which was supposed to be used as a back up. He also admitted that his electric alarm clock did have a battery back up, but he had failed to insert any batteries. The hearing officer found that "the circumstances that caused his final attendance violation were within his ability or control to avoid," that he was properly terminated for misconduct, and that his unemployment benefits were denied.

Mr. Wrobel appealed. The appellate court noted that in order to be guilty of misconduct that would preclude benefits, the employee must deliberately and willfully violate a reasonable rule or policy of the employer. After reviewing the record and the testimony, the appellate court could not conclude that Mr. Wrobel deliberately and willfully violated the Tribune's rules. The court noted that the true problems arose when Mr. Wrobel forgot to set his wind-up alarm clock or put a battery in his electric alarm clock.

The court brilliantly observed that "One does not typically forget to do something intentionally; forgetting is a matter of carelessness." The court further observed that this case did not even involve a conscious act by Mr. Wrobel; but rather an "unconscious act: he overslept." The court ruled that Mr. Wrobel did not deliberately and willfully oversleep, but was rather only negligent, so he was entitled to his unemployment benefits.

What do you think Law Blog readers? Is chronic oversleeping grounds denial of unemployment, or was this guy just an unlucky man who did not deliberately violate company policy?  HERE is a link to the opinion if you are interested. 

Should animals have "human rights"?

Two lawsuits were filed this week that seek findings of "legal personhood" for chimpanzees, akin to a corporation's status as a "person" in the eyes of the law. An organization called The Nonhuman Rights Project has been working for several years towards obtaining actual legal rights for non-humans. The group has been analyzing the common law of all fifty states for trends that recognize animals as legal persons; for instance, several states allow an animal to be a beneficiary of a testamentary trust. 

The group determined that New York had the legal precedent that gave them the best chance of obtaining legal rights for animals. The group plans three separate lawsuits on behalf of chimpanzees, the first two of which were filed on Monday. The lawsuits seek writs of habeas corpus, which are court proceedings brought on behalf of someone who is being held captive, most likely in prison. If the writ is issued, the captors must appear in court and show cause why they believe they have the legal rights to continue to hold the prisoner in custody. These lawsuits are being filed on behalf chimps that are privately owned. The lawsuits ask the courts to remove the chimps from their owners, where they are being held "captive," and place them in animal sanctuaries.  

Whether these particular chimps should be removed from their present owners is insignificant. The true importance of this case is that, if successful, it would be one more instance of animals being recognized as more than chattel, or personal property. I've already mentioned the animal trusts. I have also written before on this Blog about people being awarded pain and suffering damages for the deaths of the pets (For instance, here and here.) If the current trend continues, what will be next? Is it discrimination when the fancy restaurant won't allow dogs to sit at the dinner table? 

I don't like this current trend of affording animals more "rights." I agree that animals should be protected, but there are already laws that protect animals. There are very stiff penalties for people who abuse, mistreat, or neglect animals. What more do the animals need? I don't think animals should be given free speech, the right to peaceably assemble, or the right to bear arms. If anyone disagrees, I'd love to hear some comments on this one.

Klein, Stoddard, Buck & Lewis, LLC is Hiring

Klein, Stoddard, Buck & Lewis, LLC, a general practice law firm in DeKalb County, Illinois is seeking an attorney to handle primarily bankruptcy. Additional duties may include family law and general civil litigation work. We are looking for an individual who desires to establish a long term career in our area. Some travel to surrounding counties may be required. Compensation will be based on experience, productivity, and client base (if any).

Apple in the metals business?

Announced back in August of 2010, Liquidmetal Technologies licensed its future patent rights for consumer electronics to Apple (see, e.g. http://www.mobilemag.com/2010/08/09/apple-to-make-liquid-metal-iphones/).  Fast forward to July 16, 2013, and U.S. Patent No. 8,485,245 (‘245 patent) issues to an assignee named Crucible Intellectual Property (CIP), LLC., titled “Bulk Amorphous Alloy Sheet Forming Process.”  The link?  You guessed it.  CIP is a subsidiary of Liquidmetal Technologies and “liquidmetal” is another name for amorphous alloy.

First, a “liquidmetal” is not “liquid” at room temperature, but the material does have an amorphous atomic structure (like water) at room temperature.  Also, liquidmetal alloys can have increased strength, excellent corrosion resistance, very high coefficient of restitution (things bounce off it really well) and excellent anti-wearing characteristics.  Naturally, such properties would be useful for components such as cell phone casings, computer casings, covers, etc.

Review of the ‘245 patent shows that Liquidmetal has developed, and now patented, a method for producing thin liquidmetal sheet in a manner similar to how glass sheet, window panes, etc., are produced.  Glass windows are typically produced by pouring molten glass onto a liquid bath of tin.  Tin is liquid at temperatures above 232^oC, while typical glass used for window panes, containers, etc., is liquid at temperatures above 550^oC.  Therefore, liquid glass can solidify while floating on a bath of liquid tin.  In addition, the liquid tin provides a nice smooth and level surface for a piece of glass floating on it.

Using the same concept, Liquidmetal has developed technology to produce thin sheets of iron- and zirconium-base alloys that will be used by Apple.  Furthermore, and via the ‘245 patent, Liquidmetal (and Apple) has a monopoly on the process until May 14, 2032.  So stay tuned for an upcoming Apple advertising campaign on liquidmetal iPhone covers, iPad covers, etc.  What exact term, work, or phrase they will use to market the covers is not known, but you can bet it will be trademarked and protected as well.

Jordache Jeans v. "Lardashe" Jeans

It's been a while since I reposted one here, but I still receive the Westlaw Headnote of the Day every morning. This one was too good to pass up.

"Jordache" trademark for blue jeans was not infringed by manufacturer that identified its blue jeans for larger women with smiling pig and word "Lardashe" on seat of pants; striking dissimilarities in designs used in marks greatly outweighed any similarities, manufacturer intended to parody but that intent was not to confuse the public, and survey given by trademark owner did not demonstrate actual confusion.

Jordache Enterprises, Inc. v. Hogg Wyld, Ltd., 828 F.2d 1482 (10th Cir. 1987)

What was the target market for these jeans anyway? For some reason I'm not surprised that I have not heard about Lardashe jeans until now.

20% of businesses in Illinois are owned by immigrants

Here in Illinois, fully 14% of people living here were born outside of the U.S. This large portion of the population contributes significantly to business in Illinois, as the headline suggests.  For some added perspective on the impact of immigrants on business in Illinois, check out this infographic:

For even more information, click here.

NIU Law Class Reunions

Don't forget about the class reunions on November 15, 2013 for the classes of 1978, 1983, 1988, 1993, 1998, 2003, and 2008. Click HERE to register.

The Landlord-Tenant Relationship Following a Foreclosure Sale

The Illinois Mortgage Foreclosure Act and the Forcible Entry and Detainer (Eviction) Act have both been amended, effective November 19, 2013, to provide stronger protections to tenants following foreclosures.  

The new foreclosure section is 735 ILCS 5/15-1508.5. This section imposes an affirmative duty on a foreclosure purchaser to make a good faith effort to ascertain the identities of the occupants of the property within 21 days of confirmation of the sale. All known occupants must then be served with a written notice that must inform the occupant of the contact information for the new owner of the property. The notice must also inform the occupant of their right to contact an attorney to discuss their rights, among other requirements. You should review section 1508.5(a)(2) to see all of the required language. That notice can be served by regular mail.

There is also another notice that must be served following all foreclosure sales, not only when the identities of the occupants can be confirmed. This notice must be posted within 21 days of the confirmation of sale. The requirements for this notice can be found in 1508.5(e). These two notices allow the purchaser to collect rent from the occupants and to terminate their tenancy for the non-payment of rent.

The new eviction statute is contained in 735 ILCS 5/9-207.5. This section applies when the purchaser simply wants to terminate the tenancy and is not concerned about recovering rent. The section allows bona fide residential tenants to remain in the property until the end of their lease term. Even then, the foreclosure purchaser must provide 90 days' written notice. Month-to-month tenancies can also be terminated using the new 90 day notice. Subsection (b) allows for termination of a bona fide lease mid-term upon 90 days' notice if the purchaser intends to occupy the property as his or her primary residence. 

There are many additional requirements in both of these new statutes that I did not address. If you have recently purchased a property at a foreclosure sale, or if you live in a property that is in foreclosure, please feel free to contact me with any questions.

Immigration Reform Basics - Registered Provisional Status

It took a while for me to get on here, but I'm glad I finally was able to! My name is Nicole Cudiamat, and I hope that I can provide some knowledge about immigration happenings in the United States.  Many of you have probably heard a few things about immigration reform this past year.  Now that the Federal government has resumed operations, more attention can be paid to changing the U.S. immigration landscape.  This is the first in a series of posts designed to help readers understand the basics of comprehensive immigration reform (CIR). Here, I’ll do a quick overview of the bill itself and then delve into one of more hotly debated aspects of CIR – a pathway to citizenship.

On April 17, 2013, the “Gang of Eight”—a bipartisan Senate group-- released its first attempt at immigration reform.  Democratic Senator Charles Schumer announced the proposed “Border Security, Economic Opportunity, and Immigration Modernization Act,” (also known as S.774) highlighting his hopes for the bill:  “We are undergirded by the fact that Americans will be fair, balanced, and filled with common sense for legal immigrants and the 11 million here living in the shadows, as long as they believe we will not have future waves of illegal immigration.  I believe our bill meets that test.”

Senator Schumer originally had a goal of passing CIR by July of last summer; of course, this did not happen. The Gang of 8 (now disbanded) successfully passed S.774 through the Senate, with a few amendments, but the bill came to a predicable halt in the House.  The bill was never introduced, and instead was broken down into piecemeal bills to be introduced in the House.  None of these subsequent bills have been brought to the floor for a vote to date.

Interestingly, a group of House Democrats introduced a new CIR bill during the government shutdown.  H.R. 15, however, is not a profound piece of new legislation, but rather an almost identical copy of S.774.  President Obama has since called upon Congress to renew the effort for immigration reform.

The introduction of the bill brought about a polarized reaction to the inclusion of a path to citizenship for the 11 million undocumented immigrants in the United States.  Such a path has been criticized as tantamount to amnesty for people who have broken the law by being present in the U.S. unlawfully. By contrast, polls have indicated that the majority of the American people support a path to citizenship. These people say that undocumented people who obey the law, pay their taxes, pay a penalty, and learn English should be given an opportunity to become legalized.  Currently, there is no way an undocumented immigrant can conceivably become a citizen. 

The bill creates a new type of status called Registered Provisional Immigrant status (“RPI”). This type of status allows for an undocumented person, who meets certain criteria and does certain things, to obtain work and travel permits, eventually apply for a green card and subsequently, for U.S. citizenship.  There are several requirements that must be met in order to qualify for RPI status:

1.                    The applicant must have been physically present in the U.S. before December 31, 2011 and on the date the application is submitted.

2.                    The applicant must not have any serious criminal convictions on his or her record.  Such convictions include any felony (except for status based or immigration offenses), an aggravated felony under the INA[i], three or more misdemeanors other than traffic offenses, crimes committed in a foreign country that would make a person inadmissible or deportable if committed in the U.S., and unlawful voting.

3.                    The applicant must pay any back taxes owed (if any).

4.                    The applicant must pay certain fines: a $500 fine in addition to the filing fees. If RPI status is granted, it lasts for only six years, at which time the RPI must again apply to renew his or her status.  At this time, the RPI must pay another $500 file on top of filing fees, and be subject to more background checks to see if he or she has been acting lawfully.  After ten years of RPI status, then one can apply for a green card at a cost of a $1000 fine plus filing fees.  Once he or she attains Legal Permanent Resident status (“LPR”), then he or she may be eligible for naturalization as soon as three year after attaining LPR status.

The entire RPI process from initial application to application for citizenship will take over thirteen years for most, and will cost $2000 in penalty fines in addition to the normal filing fees for the application process.

There is a special provision for certain RPIs who were are “DREAMers”.  This portion contemplates the passage of the Development, Relief, and Education for Alien Minors Act of 2013 (DREAM), which has been in the works since 2000.  DREAMers are undocumented people who meet certain criteria under the Act—essentially having been brought to the U.S. as a child.  Though the DREAM Act has not been passed, in June 2012, President Obama announced that he would not deport people who would be classified as DREAMers. This created a new processed called Deferred Action for Childhood Arrivals, or DACA as it is popularly referred to as.  DACA does not confer legal status on the applicant, but rather makes a formal acknowledgement of the applicant’s lack of status, and allows to applicant to remain and work lawfully in the U.S. for a two year period.

But I digress... these “DREAMers” would be eligible to apply for RPI status.  If it is granted, they would be aable to participate in an expedited process that allows them to be eligible for a green card after only five years in RPI status.  The inclusion of DREAMers into this measure, according to Senator McCain, was a compromise by Republicans in exchange for more effective border control measures.

If this provision were to pass, it is expected that many of the 11 million undocumented immigrants will come out of the shadow to be counted, which is an important goal of immigration reform.  It would result in the payment of potentially billions of dollars in back taxes and some additional revenue for the government from the penalties that would be paid.  Whether you are for or against including RPI status in CIR, that factor alone might be enough to keep RPI on the books.  Stay tuned for the next look at the comprehensive immigration reform movement: changes to family-based immigration.

---

[i] The term “aggravated felony” is exclusive to immigration law.  The INA states that an aggravated felony includes crimes such as, but not limited to, murder, rape, or sexual abuse of a minor, illicit trafficking of a controlled substance or firearms, a crime of violence for which the term of imprisonment is at least one year, a theft offense for which the term of imprisonment is at least one year.  INA, 8 U.S.C. at § 1101(a)(43). 

FALL ON ICE THIS WINTER? DON’T GET LEFT OUT IN THE COLD

As we get set for another Illinois winter, hope springs eternal that we will enjoy yet another mild visit from old man winter.  The law regarding slip and falls on ice/snow in Illinois is about as certain as its weather.  If you are at the shopping mall or grocery and slip and fall on ice or snow, do you have a case?  You very well may.   

A lot of people have the impression that it is almost impossible to win a case involving injury due to ice or snow in a parking or on someone’s premises.  To be sure, snow and ice cases represent a very tricky area of the law and a lot of claims are defeated because of the so-called natural accumulation rule.  However, there are often ways to prove your case even if it appears that the rule might apply. 

The natural accumulation rule essentially stands for the proposition that a landowner is not liable for injuries on their property due to naturally falling/accumulating ice and/or snow.  Some people interpret this as meaning that, if God put it there, there is no liability.  But just because God put the snow and/or ice there initially does not mean you do not have a claim.  Of course, it could be said that every snow and/or ice condition was created by God and nature.  The key question is this:  did the property owner, property manager, or snow and ice removal company do something to make the snow and/or ice more dangerous for persons walking on their premises?  In other words, did someone make the natural condition become unnatural (i.e. man-made)?

The easiest way to establish an unnatural accumulation case is in “freeze-back” cases.  Freeze-back (or freeze-thaw cycle) refers to when snow is piled up and melts as temperatures warm.  That melting water has to go somewhere.  Think of a scoop of ice cream left on a table.  Left in the room, the ice cream will melt and runoff, spreading out from the initial place.  That is what happens in freeze-back cases, snow melts and water runs off the pile.  When temperatures go below freezing again, the melted water becomes ice.  If you slip and fall on ice that occurs because of a snow pile created by someone, you could have a case.

There are other ways in which to establish an unnatural accumulation.  For example, if the slope or pitch of the parking lot is unreasonably dangerous and causes water or melting snow to create ice in other portions of the lot, that might be enough to show an unnatural accumulation.  Likewise, if melting snow water drips onto a sidewalk from a store’s roof, any ice that forms is likely unnatural.  Cases for slip and falls on ice and/snow in a parking lot, although challenging, are far from impossible to win.  I recently settled a case against a supermarket chain for a slip and fall on ice in which the pre-lawsuit offer was $1,000.  Through depositions of store employees and the snow removal company, I was able to establish that the ice formed from snow piled by the removal company next to the client’s vehicle.  The case went on to settle for far more than the initial offer. 

        

Falls on residential property present even more of a slippery slope.  There is a law in Illinois which prohibits liability against a residential owner even for removing snow negligently!  As with commercial cases, there are similar exceptions with respect to residential fall cases and a lot of work and investigation can go a long way in proving your case.  If you or someone you know slips and fall on a property this winter, don’t take on the insurance company blizzard alone.  Speak with a personalinjury attorney with knowledge of these types of cases so that you don’t get left out in the cold.  

KCBA Commercial Banking and Bankruptcy Committee Meeting

I am a co-chair of the Kane County Bar Association's Commercial Banking and Bankruptcy Committee. We are holding a committee meeting on November 13, 2013 at noon at the Kane County Bar Association's office in on Randall Road in Geneva.  We will be discussing topics for our spring CLE seminar as well as other future committee activities.

Oh ya, we're also providing a free lunch.  If you are a member of the KCBA and would like to join our committee, or if you are interested in joining the KCBA, please consider coming to our meeting on November 13th. Please RSVP to me at mhuseman@dreyerfoote.com.  

Failure to Deny Authenticity of Commercial Documents Under Oath

I recently wrote about the Parkway Bank and Trust case, which contains dozens of civil litigation practice tips. Keep in mind that these pointers not only relate to mortgage foreclosure cases, but all breach of contract and civil cases in general. Here's another good tip:

Failure to Deny Authenticity of Commercial Documents under Oath

¶ 40 Modern banking practices, along with the inventions of the photocopier, fax machine, word processor, and computer, have made disputes regarding the authenticity of written contracts and business documents extraordinarily rare. This is particularly true in foreclosure cases. Mortgages are closed at title insurance company offices. Borrowers leave the closings with photocopies of their mortgage documents in large file folders, and they are admonished to securely keep the files with their most important papers and possessions. The title company immediately records a copy of the mortgage with the recorder of deeds, whose records forever memorialize the image of the mortgage as it existed on the day of the closing. See 55 ILCS 5/3-5010 (West 2010) (duties of recorder); 55 ILCS 5/3-5013 (West 2010) (transcription or reproduction of written instruments to be recorded); Solomon Gutstein, Illinois Practice, § 12:77 (2d ed. 2000).

¶ 41 Our legislature has enacted a special rule which discourages debtors from unduly prolonging collection lawsuits with obdurate denials. If a defendant truly wishes to deny the authenticity of a mortgage or note, he must do so under oath so as to subject himself to a criminal perjury charge if his denial is knowingly false. Defendants merely stated lack of knowledge regarding the mortgage and note. By doing so, they automatically admitted these allegations. See 735 ILCS 5/2-605(b) (West 2010) (providing that the “allegation of the execution or assignment of any written instrument is admitted unless denied in a pleading verified by oath”).

NIU Law Class Reunions

The following classes are having reunions at Harry Caray's Restaurant in Lombard on November 15th: 1978, 1983, 1988, 1993, 1998, 2003, and 2008. 

Harry Caray's is located on the ground floor of the Westin Hotel. I haven't looked into rooms yet, but we'll probably be staying there that night. I hope to see a lot of people there. Give me a quick comment to this post if you're planning on attending. 

I thought jury duty was supposed to be boring.

Jury duty has a bad reputation. People always complain about being called for jury duty. They say it's a waste of time and they have more important things to do. They say that jury duty is boring. Well, that was not the experience of Daniel Hardy. He served on a federal jury in Florida. Defendants William Conover and Anthony Tanner were charged with conspiring to defraud the United States government and of mail fraud. There was a six-week trial involving lots of dry financial testimony.  

But jury duty was certainly not boring for Daniel Hardy. Following the trial, Mr. Hardy wanted to "clear his conscience" about what took place during the trial.  Mr. Hardy gave sworn testimony in which he stated that he "felt like the jury was on one big party." Hardy indicated that seven of the jurors, including himself, regularly drank alcohol during noon recess. Four of the jurors, including Hardy, regularly drank between "one to three pitchers" of beer during lunch. The other jurors who drank at lunch regularly consumed mixed drinks. The jury foreman would regularly consume an entire liter of wine.

Mr. Hardy also testified that he and three other jurors smoked marijuana quite regularly during the trial. Mr. Hardy also stated that he observed one juror ingest cocaine at least five times during the course of the trial and he also observed another juror ingest cocaine two or three times during the trial. Several of the jurors took marijuana, cocaine, and drug paraphernalia into the courthouse. One juror sold a quarter pound of marijuana to another juror during the trial.  

The jury eventually convicted both defendants of multiple charges. Mr. Hardy came forward with this information prior to sentencing and the defendants appealed. The issue of juror intoxication went all the way to the United States Supreme Court. The Supreme Court looked at the issue in terms of internal versus external influences on juries. External influences are strictly prohibited. Jurors cannot monitor news reports of the trial or seek input from any other source not admitted into evidence. If that would have happened, the defendants' convictions would have been reversed. But the Supreme Court held that juror intoxication was an internal issue. To summarize 32 page opinion in a nutshell, what happens behind the closed doors of a jury is sacrosanct, and the defendants' convictions were affirmed.

So, if you're ever on trial for your life, you might want to monitor the jury to make sure they are all awake and sober because juror intoxication is not enough to get your conviction overturned. But today's actual lesson is to not let anyone tell you that jury duty is boring ever again!!

Tanner, et al. v. United States, 483 U.S. 107 (1987).

Welcome Nicole Angeline Cudiamat!

The Northern Law Blog is pleased to announce that Nicole Angeline Cudiamat has been added to the site as a guest contributor, with a special emphasis on immigration law. Nicole maintains a solo practice in Oakbrook Terrace that focuses on immigration and nationality law. Welcome Nicole!!

I want my nickel. (Fed. R. Bankr. P. 3010)

I represent a client who was owed a significant amount of money, about $150,000.  We filed suit and shortly thereafter the defendant filed Ch. 7 bankruptcy.  The trustee discovered that the defendant owed a piece of property without a mortgage. The trustee hired a realtor, sold the property, and distributed nearly $200,000 pro rata among all of the creditors.  My client got a nice chunk of that money.

Then, after that money was distributed, the trustee filed additional paperwork with the bankruptcy court indicating that an additional $0.49 remained in his bank account due to an accounting error.  That money should have been distributed to the creditors.  The final paragraph of the trustee's report indicated that supplemental distribution checks were printed for the creditors but were made payable to the U.S. Bankruptcy Court pursuant to FRBP 3010.  The attachment listed my client as being owed $0.15 of that money.  

I had to look up Rule 3010, which provides as follows:

"(a) Chapter 7 Cases. In a chapter 7 case no dividend in an amount less than $5 shall be distributed by the trustee to any creditor unless authorized by local rule or order of the court. Any such dividend not distributed to a creditor shall be treated in the same manner as unclaimed funds as provided in § 347 of the Code."

Section 347 talks about unclaimed property.  That section sets forth certain timelines, after which any unclaimed money is "paid into the court."  That makes sense.  It also makes sense that trustees should not have to spend their own time and money dealing with amounts less than $5.00.

But, I was unaware of the rule.  So, I looked it up, did some reading, reviewed the trustee's supplemental report, emailed my client, spent about $200.00 in billable time, and eventually determined that my client wasn't going to get its $0.15; and, therefore, I wasn't going to get my nickel. 

SmithAmundsen LLC is Hiring.

SmithAmundsen LLC seeks an associate attorney to join its busy Labor and Employment team in the St. Charles office. Must have 4-6 years of experience. A background in HR is preferred, but not required. Must have experience in at least one of the following areas: Labor (negotiations and arbitrations), wage & hour claims, or discrimination. Ideal candidate will be highly-motivated and can hit the ground running. Excellent writing skills are required. 

Please send resume, writing sample, and salary requirements to:

attorneyresumes@salawus.com

Dave's not here, man.

The federal court for the Northern District of Illinois recently held that the smell of marijuana does not justify a warrantless search of someone's home.  The case involved a woman who was wanted for questioning by the police.  They went to her house but her husband would not let them in without a warrant.  But the police smelled marijuana so they barged in without a warrant and arrested the man and his wife for resisting arrest and possession of marijuana.

The couple filed a federal civil rights lawsuit against the two arresting officers alleging that they falsely arrested and beat the couple in violation of the Fourth Amendment.  The police officers moved for summary judgment under the theory that the odor of marijuana created exigent circumstances that allowed them to proceed without a warrant.  

The court applied an objective test that asks whether a reasonable police officer in the defendants' position would have believed that an emergency existed which justified entering the residence without getting a warrant.  The court explained that exigent circumstances only arise in true emergencies where there is a "compelling need for official action and no time to secure a warrant."  

In this case, all the officers had was the odor of marijuana.  The court acknowledged that possession of marijuana is a crime in Illinois, but stated that the mere smell of marijuana did not suggest a significant crime was occurring.  The court found that the smell of burnt marijuana provides probable cause that a crime had been committed, but is insufficient to rise to the emergency level justify a warrantless entry into somebody's house.  The court found that possession of marijuana was a misdemeanor and that the exigent circumstances doctrine should be restricted to cases involving "serious crimes."  

So, the police officers' motion for summary judgment was denied.  The case will proceed to trial on the false arrest claims, or they'll settle.  Two pot-smoking, cop-fighting ne'er-do-wells do not exactly make the most sympathetic plaintiffs ever, but it's definitely an interesting case.  I wonder how much it's worth?  Any guesses?

Supreme Court Revisits the Illinois "Mailbox Rule"

You may have heard of the “mailbox rule” at some point in your life. Defined by Illinois common law, the mailbox rule simply refers to when a document or pleading is considered “filed” in civil actions.  Under certain circumstances, such as when filing discovery pleadings, notices of appeal, and appellate briefs, a document is considered filed as of the day on which it was put in the mail.       

Grusceczka v. Commission, 2013 IL 114212 involved analysis of the mailbox rule in connection with the filing of an appeal of a worker’s compensation decision to the circuit court.  In Grusceczka, Petitioner’s attorney received the adverse decision from the Commission on April 20, 2009.  Under the Worker’s Compensation Act, a party has 20 days from the date of receipt of the Commission’s decision to file an action for circuit court review.  820 ILCS 305/19(f)(1).  Petitioner’s attorney mailed his petition for circuit court review and accompanying documents on May 4, 2009, well within the 20-day deadline.  However, the circuit clerk’s office did not file stamp those documents until May 14, 2009, outside of the deadline.   

While the circuit court ruled on the merits of the case (and still denied benefits), the Second District Appellate Court ruled that the circuit court never had jurisdiction to hear the case based upon its determination that the petition for review was untimely filed.  The Supreme Court reversed and held that the mailbox rule applied to the filing of a petition to review to the circuit court of a decision of the Commission.  Important to its analysis, the Court noted that the legislature had considered the matter of restricting the mailbox rule in a variety of other situations and only chose to preclude it as to the Election Code.  Additionally, while noting that the mailbox rule does not apply to the filing of a new civil action, the Court held that a petition to review was different in that important factors in the filing of a new complaint, such as the statute of limitations and notice to the other party, were simply not present with respect to circuit court review of a worker’s compensation decision.

Those intending to take full benefit of the mailbox rule beware.  As indicated above the mailbox rule does not apply to a new complaint being filed.  If your statute of limitations is on the day you mail the new complaint to the court to be filed, it will be filed AFTER the statute of limitations and your case will be barred. 

So the mailbox rule lives on…at least so long as we are still using mail and Cliff Clavin is delivering your mail. 

How to tether your dog outside, according to the State of Illinois.

I recently wrote a three-part blog about criminal and civil liability under the Illinois Humane Care for Animals Act. I wanted to give you a quick update because the Act has been amended, effective January 1, 2014. After the first of the year, it will now be a Class B misdemeanor to violate the provisions concerning tethering your dog outside. Here is the amended section:

(b) To lawfully tether a dog outdoors, an owner must ensure

that the dog:

        (1) does not suffer from a condition that is known, by

    that person, to be exacerbated by tethering;

        (2) is tethered in a manner that will prevent it from

    becoming entangled with other tethered dogs;

        (3) is not tethered with a lead that (i) exceeds

    one-eighth of the dog's body weight or (ii) is a tow chain

    or a log chain;

        (4) is tethered with a lead that measures, when rounded

    to the nearest whole foot, at least 10 feet in length;

        (5) is tethered with a properly fitting harness or

    collar other than the lead or a pinch, prong, or choke-type

    collar; and

        (6) is not tethered in a manner that will allow it to

    reach within the property of another person, a public

    walkway, or a road.

(c) Subsection (b) of this Section shall not be construed

to prohibit:

        (1) a person from walking a dog with a hand-held leash;

        (2) conduct that is directly related to the cultivating

    of agricultural products, including shepherding or herding

    cattle or livestock, if the restraint is reasonably

    necessary for the safety of the dog;

        (3) the tethering of a dog while at an organized and

    lawful animal function, such as hunting, obedience

    training, performance and conformance events, or law

    enforcement training, or while in the pursuit of working or

    competing in those endeavors; or

        (4) a dog restrained in compliance with the

    requirements of a camping or recreational area as defined

    by a federal, State, or local authority or jurisdiction.

This guy needs to call Dexter Evans.

You'll recall that Dexter Evans wrote about disclaimers for injuries at health clubs and gyms last month. He wrote about the case Hussein v. L.A. Fitness, in which the Illinois Appellate Court analyzed a disclaimer contained in the L.A. Fitness membership contract to see if it prevented recovery for injuries sustained in the health club. The court applied Minnesota law to the disclaimer because that is where the contract was signed. The court upheld the disclaimer and found that the plaintiff could not recover for his injuries.  

I am a member of L.A. Fitness. I normally go to Oswego location. Last night I saw that someone had apparently run right through the glass of a racquetball court. That had to hurt. Maybe the outcome will be different next time if the court gets to apply Illinois law to their disclaimer. I think someone needs to bring a case on an Illinois membership. The guy who did this damage should definitely call Dexter:

WHAT DAMAGES AM I ENTITLED TO? THE VARIOUS NUANCES BETWEEN WORKERS’ COMPENSATION & PERSONAL INJURY CLAIMS IN ILLINOIS

One question that often comes up with clients that have a work injury is what the difference is between a workers’ compensation claim and a personal injury claim.  Many clients, particularly first-time clients, don’t understand the nuances of each system.  As an attorney who handles both workers’ compensation and personal injury claims, I get many questions from clients as to what damages are allowed under each system and rightfully so.  What type of damages is an injured worker entitled to when filing a workers’ compensation claim?  When might an injured worker be able to pursue a third-party personal injury case in addition to his or her workers’ compensation claim?  Can the money you receive in workers’ compensation benefits act as an offset. 

Illinois Workers’ Compensation Act

As an injured worker, there are certain benefits that you are entitled to when you are injured on the job, assuming your injury arose out of and in the course of your employment.  First, you are entitled to payment of all medical expenses that you incur as a result of your injury.  If you are off work, you are often entitled to payment of lost wages in the form of what is referred to as total temporary disability (TTD) payments.  These payments are two-thirds (2/3) of your average weekly wages.  When you reach maximum medical improvement, meaning you no longer require medical treatment, you are entitled to some type of permanency award, depending on the nature and extent of your injuries. 

There are three types of awards you may be eligible for.  Most commonly, an injured worker receives a permanent partial disability (PPD) award.  These awards are broken down into percentages of a body part, leg, arm, foot, hand, body of whole, etc.  The percentages are related to the number of weeks you are considered permanently and partially disabled.  The maximum amount of weeks is 500, equivalent to 100% of the body as a whole.  That is the maximum PPD award you can receive.  The amount you are entitled to varies depending on which body part is injured and what the nature and extent of your injury is. 

Another award an injured worker might be entitled to is a wage-differential.  This award is meant to reimburse an injured worker for the loss in earning capacity as a result of the worker’s injury.  For example, assume you were working as a laborer making $30 per hour before you work injury.  As a result of the injury, you can no longer work as a laborer.  You find a job based upon your transferable skills, education, and work history, but the job only pays $15 per hour.  Hence, you have suffered a loss in earning capacity of $15 per hour.  You might be entitled to an award of 60% of $15 per hour multiplied by 40 hours per week.  Due to changes in the law, whether you receive this check for the rest of your natural life or for a set time period would depend on what year you were injured. 

Assuming you could no longer work in any capacity due to your work injury, you might be entitled to a permanent total disability award or perm-total award.  Essentially, this would be that you would receive whatever your TTD check was for the rest of your life.  This is the most significant impairment an injured worker can have.

One of the benefits under the Workers’ Compensation Act is that, unlike in a personal injury action, an injured worker need not show that his or her employer was negligent in causing your injury.  No such requirement exits because the workers’ compensation system is a “no fault” system.  If your injury arose out of an in the course of your employment, you should be covered.  What of the trade-offs that comes with such a system is that certain damages an individual would be entitled to in a personal injury claim, i.e. pain and suffering, loss of normal life, etc. is not available to an injured worker.  In this respect, the legislature seemingly sought to create a system that, while protecting injured workers regardless of fault, also protected employers from shelling out a substantial amount of money for injuries.  To that end, workers are generally forbidden from filing a third-party personal injury case against their employers.  The Workers’ Compensation Act is the exclusive remedy.  One added benefit:  The damages you receive in your workers’ compensation claim are not taxable.         

Personal Injury Claims

Unlike workers’ compensation claims, an injured person must show that someone else’s negligence (or intentional act) caused his or her injury.  Like workers’ compensation, you are entitled to damages relating to medical bills and lost wages you suffer as a result of your injury.  Unlike workers’ compensation claims, you are entitled to recover 100% of your gross lost wages.  However, lost wage damages are taxable whereas damages relating to your physical injury are not.  In addition, however, you are entitled to recover for damages for any pain and suffering, loss of normal life, and disfigurement sustained as a result of your injury.  Loss of normal life is generally defined as the inability to conduct your activities or hobbies as you normally did before your injury.  In addition to what you have already endured, if proven, you can recover damages for pain and suffering and loss of normal life that you are reasonably expected to sustain in the future.  Disfigurement generally refers to any scarring that you have suffered from your injuries.  You can also recover for any emotional damages you have as a result of your injuries.  Proof of these damages usually requires competent medical testimony to be admissible at trial.        

Interplay between Workers’ Compensation & Personal Injury

In certain situations, you could have a claim that falls under both systems.  Suppose you were operating a vehicle on behalf of your employer and someone hits your vehicle.  You could have a claim for workers’ compensation against your employer as well as a claim for personal injury against the person that caused the accident.  Assume you were walking from an employee designated parking lot to go into work and slipped and fell on ice in the parking lot.  You could have a claim against your employer as well as a third-party claim against the owner of the property (if not your employer), the manager of the property, and/or the snow and ice removal company.  Perhaps you were working on a machine in your employer’s factory and the machine was defective causing you injury.  Again, you could claim against both your employer and a claim for personal injury against the manufacturer of the machine.  Those are but a few examples of injuries which have both a workers’ compensation and personal injury component to them.   

Assuming you have an injury where both types of claims are applicable, there are even more nuances that a legal practitioner must be aware of.  If you receive any workers’ compensation benefits from your employer (i.e. medical payments, TTD, permanency award), your employer is entitled to receive 75% of what was paid to you out of the third-party personal injury case.  This is generally referred to as a subrogation interest or “lien”.  If the lien is more than the personal injury settlement or judgment, your employer is entitled to 75% of the total settlement or judgment.  Often, these liens are negotiable, but require a great effort on the part of the practitioner.  Although these liens do not generally apply to an underinsured motorist claim you have against your own insurance company, most policies now contain a provision wherein the insurer claims a credit or set-off for any amount paid to you in workers’ compensation benefits relating to your injury.     

These are just some of the nuances between workers’ compensation and personal injury claims.  There are many, many more.  Not just between the two very different systems, but also within those particular systems.  It is always best to consult a workers’ compensation attorney, a personal injury attorney, or one whopractices both to ensure your rights are being adequately protected. 

Creative Lawyering

News flash: People do not like to be sued. Oftentimes, they know it is coming and they will go to great lengths to avoid service of the summons and complaint.  

In situations like this, 735 ILCS 5/2-203.1 allows litigants to accomplish service by alternative means. The question becomes what alternative means to use. I've used this statute dozens of times. I always ask for regular mail and posting at the defendant's residence. Some judges, however, require that the mailing be sent via certified mail, return receipt requested.

You already know my feelings about certified mail (See, Certified Mail is Stupid, Northern Law Blog, January 29, 2013). No defendant in his right mind would sign for a certified letter while ducking service.  Instead, I would suggest a counter-proposal to the judge. How about UPS? No one ever turned away a package from UPS. Imagine the defendant's surprise when he tears open a huge box and finds only a summons and complaint in there.  I love it!!

Full disclosure: I didn't think of this myself. I saw another lawyer this morning hand up a UPS receipt as proof of service.    

Established Joliet Law Firm Seeks Attorney

Position Title:         Associate-Attorney

Job Type:                Full-time
Company Name:    Sabuco, Beck, Hansen & Schrock, P.C.
Entry Level:            No
Location:                 Joliet, Illinois 
Min. Experience:   2-3 years

Well established, growing, mid-sized law firm seeks an Associate Attorney with experience in family law.  Individual should have desire and/or consider a position as a junior partner.  Supportive Environment for a motivated, organized, intellectual individual. Research/appellate brief experience helpful.  Salary commensurate with experience.  If interested, please send resume to sbhslaw@hotmail.com or fax to 815.730.8865.

The Unpaid Internship under Federal Law

A federal judge has held that unpaid interns for a movie production company were employees under the federal Fair Labor Standards Act (FLSA).  The plaintiffs were unpaid interns for a movie production company in the filming and post-production of the movie Black Swan.   After the internships concluded, the interns sued under the FLSA for its wage and hour protections (minimum wage,  etc.).

Before ruling for the interns (at the Summary Judgment stage) the Judge noted that because the FLSA is a “remedial” statute an “expansive interpretation of its provisions” is warranted so that the statute will have “the widest possible impact in the national economy.”   (emphasis added)

The Judge first found that an employment relationship existed under both the Formal Control Test and the Functional Control Test.

The Judge then looked at whether the movie interns fell within the trainee exception to FLSA coverage established by the U.S. Supreme Court in Walling vs Portland Terminal Co., 330 U.S. 148 (1947).  The Judge also relied on a U.S. Department of Labor Fact Sheet (FS71) based on Walling that lists six criteria for determining whether a person is a trainee not entitled to employee status.  The movie production company argued that the DOL criteria were not an accurate reflection of the law and for a primary beneficiary test.  But the Judge disagreed, finding that the DOL criteria – which use a sole beneficiary test - had “support in Walling” and are entitled to deference. 

    

The Judge then examined the criteria and found that the interns were not trainees and were entitled to FLSA protections because i) the interns were not given training like in an educational environment, ii) the interns were not the sole beneficiary of the internships, iii) the interns’ work displaced paid employees, and iv) the interns’ work was “essential” and provided immediate advantage to the employer.  The Judge noted that although the interns knew going in that they would not be paid that did not matter because employees are not permitted to decline the protections of the FLSA. 

The decision is Glatt v. Fox Searchlight Pictures Inc., 11 Civ 6784 (WHP) United States District Court for the Southern District of New York.  Memorandum and Order issued June 11, 2013.

Coming soon: The law on unpaid internships in Illinois

Submitted by Brian D. Moore, Class of ’92.

brian@moorelawpc.com

www.moorelawpc.com