Explains how Illinois’ federal courts apply the control group test and common interest doctrine to determine whether attorney-client privilege applies to communications with non-employees.
Describes changes in redaction requirements for all materials filed in Missouri courts from updates and revisions to the Missouri Rule of Civil Procedure.
Explains changes made to appropriate venues for challenging Illinois administrative rules, executive orders, and constitutionality of state laws. Includes pros and cons of those changes.
Synopsis of the Department of Justice’s recent updates to its corporate voluntary self-disclosure policies, including a new clawback policy to impose costs of corporate crime on responsible executives.
Analysis of cases where Illinois Supreme Court chose to and not to use its powers of extraordinary intervention via writs of mandamus and prohibition
Reviews Missouri appellate court ruling that the Prompt Pay Act calls for the interest on late payments to be calculated using simple not compound interest
As construction projects become more complex, new technologies and innovations more specialized, trades more regulated, and bidding more competitive, general construction contractors have become increasingly reliant on subcontractors to perform construction contracts. The result is that general contractors are less able to control, inspect, and even assess the work. Yet despite this continued shift, general contractors continue to assume almost complete contractual responsibility for job completion.
Imagine this scenario from a recent case that was tried to verdict. A ...
In a recent decision, the Illinois Appellate Court, Third District, considered what should and should not be considered by a trial court when making a determination on a motion to stay a declaratory judgment action on insurance coverage pending resolution of the underlying litigation. Pekin Insurance Company v. Johnson-Downs Construction, Inc., 2017 IL App (3d) 160601. The underlying suit in Johnson-Downs concerned an injured employee of a subcontractor who sued the general contractor. Originally, the plaintiff employee alleged negligence and premises liability theories ...
Independent insurance producers often are thought to be, well, independent from the insurance companies for which they sell policies. Independent producers typically sell insurance policies for a number of carriers, and often work with intermediaries to sell policies for even more carriers, so that they can offer their policyholder clients the insurance product most suitable to their needs.
A recent unpublished decision from the Illinois Appellate Court, Fifth District, in Founders Insurance Company v. Flores, 2018 IL App (5th) 160404-U, however, shows that in some ...
As we have learned in recent days, we all need to be careful with the things we say, for sometimes those things we say can be used against us. But the life lessons do not end there. We also need to read things carefully, for the things we fail to read can be used against us as well, especially holders of insurance policies.
A recent opinion from the Illinois Appellate Court, Third District, in Laurent v. Johnson, 2017 IL App (3d) 160627, shows just how far an insured’s duty to read his or her insurance policy can reach. The Laurent plaintiff sued the lawyer of her deceased husband’s estate for ...
The Missouri Court of Appeals, Southern District, issued an opinion on Jan. 31, 2018, in Shelter Mutual Insurance Company v. Lester that allowed stacking of full auto liability coverage policy limits on four separate policies. The underlying matter involved bodily injury claims brought by multiple claimants. Each of the auto insurer’s liability policies had applicable bodily injury limits of $50,000 per person / $100,000 per accident. Each policy also had the following anti-stacking provision:
If more than one policy issued by Shelter Mutual Insurance Company or Shelter ...
It is commonplace in construction projects for a contractor to require its subcontractors to purchase liability insurance that protects against certain claims and that includes the contractor as an additional insured. The problem is that many times the policy that the subcontractor purchases does not on its face meet the requirements set forth in the written agreement between the contractor and subcontractor. For example, the construction agreement may require liability insurance with higher limits of liability than that actually provided by the subcontractor’s policy, or ...
Background
Virtually all property policies provide an insurer with the right to rescind coverage when there’s evidence that the insured intentionally concealed or misrepresented material facts in their application for insurance. For a misrepresentation to be deemed material, it must have been an untrue fact that would have, if the truth was known, caused the insurer to reject the application. In other words, an insurer is entitled to truthful responses so that it can determine whether the applicant meets its underwriting criteria.
Under that backdrop, the U. S. Court of Appeals ...
Judicial estoppel, also known as estoppel by inconsistent positions of law, precludes a party from taking a position in a case that is contrary to a position it has taken in earlier legal proceedings. Often, it is asserted as an affirmative defense in a personal injury lawsuit where the plaintiff failed to disclose the existence of the personal injury lawsuit as an asset in a prior bankruptcy. A plaintiff’s failure to disclose a personal injury cause of action in the bankruptcy proceeding deprives the trustee, and by proxy, the plaintiff’s creditors, of an asset that the creditors ...
Southern Illinois was recently in the national spotlight as the path of a total solar eclipse passed across the state. This rare occurrence brought hundreds of thousands of people to a thin path of the state to experience a natural phenomenon that, if not experienced correctly, could cause serious and permanent eye injuries. It also created opportunities for some to profit from this influx of celestially motivated travelers. This event provided a reminder of the potential uses of exculpatory language in contract; namely to limit or eliminate liability by an express assumption of ...
Unleashing a Trade Secret Misappropriation Federal Private Right of Action
President Obama is poised to sign a bill passed unanimously by the Senate and House Judiciary Committee. What issue of the day could possibly secure such bipartisan support in a tumultuous presidential election year? One that even Donald Trump and Bernie Sanders could agree upon.
The emergence of relatively anonymous cyber threats and persistent state-sponsored economic espionage, together with breaches of confidence and traditional bribery, corrupt employee, and misrepresentation schemes, simply ...
Supreme Court Refuses to Review Consumer Appliance Defect Class Actions
Critics of the Supreme Court as consistently “pro-business” welcomed the Court’s February 24, 2014 order denying certiorari in a series of consumer class action cases alleging defects in millions of front loading washing machines. A pair of recent Sixth Circuit and Seventh Circuit decisions, and a 2012 Ninth Circuit decision permitted the class actions to proceed, notwithstanding the Supreme Court’s recent Comcast decision, over the objections of Whirlpool Corp., Sears Holdings Corp., and a unit ...
Stratus Building Solutions faced a business challenge on a bet the company scale. Despite winning many franchise awards, five franchisees charged that its entire system imposed a fraud on franchisees. The plaintiffs sued 179 defendants, including the system franchisor, master (regional) franchisors, and over 70 individuals associated with the franchise system of violating §§ 1962(c) & (d) of the Racketeer Influenced and Corrupt Organizations Act (“RICO”). They claim the Defendants collectively operate the Stratus franchise system through a massive, but vaguely ...
** By HeplerBroom Summer Associate Tiffany B. Wong
A. Direct Participant Liability Negligence Theory in Illinois
In Illinois, it is a bedrock principle of limited liability deeply ingrained in our economic and legal systems that a parent company is not liable for the acts of its subsidiary. Liability for negligence arises when one person breaches a duty of care owed to another. To establish a cause of action for negligence under the law, a plaintiff must establish four “elements”: (1) a duty of care, (2) a breach of that duty, (3) an injury caused by the breach, and (4) resulting ...
In Russell v. SNFA, 2013 IL 113909 (Ill. Apr. 18, 2013), the Illinois Supreme Court held that Illinois courts had jurisdiction over a French company despite the fact that the company had no offices, assets, property or employees in Illinois, no license to do business in Illinois, and did not specifically direct product sales in Illinois and was generally unaware its products were being distributed in the state.
On January 28, 2003, the sole occupant and pilot of a helicopter died after his helicopter crashed in Illinois. The decedent was a resident of Georgia who was living in Illinois ...
On March 19, 2013, the U.S. Supreme Court unanimously ruled in Standard Fire Ins. Co. v. Knowles that class-action plaintiffs cannot circumvent the jurisdictional requirements of the Class Action Fairness Act of 2005 (“CAFA”) by stipulating damages under the jurisdictional threshold.
CAFA provides federal courts original jurisdiction over class actions where, among other things, the class has more than 100 members and the matter in controversy exceeds the sum or value of $5 million exclusive of interest and costs. To calculate the amount in controversy, the claims of the ...
The attorney-client privilege is one of the oldest recognized privileges protecting confidential communications between two parties. While the privilege serves as the cornerstone of the attorney-client relationship, the privilege is waived when confidential communications are disclosed to third parties. In fact, the “subject-matter waiver” doctrine holds that where a privileged communication concerning a particular subject is voluntarily disclosed to a third party, waiver of the attorney-client privilege extends to all other communications pertaining to the ...
Following the lead of multiple Illinois appellate districts, the Illinois Supreme Court recently recognized for the first time an actionable tort for “intrusion upon seclusion.” Intrusion upon seclusion is one of four torts generally recognized under the umbrella of the "right to privacy" torts along with public disclosure of embarrassing private facts, publicity which places a person in a false light in the public eye, and appropriation of a person's name, likeness or identity for trade or advertising purposes without consent.
In Burress-Taylor v. American Security Insurance Company, 2012 IL App (1st) 110554 (Cook Co. 5th Div.) (October 26, 2012), an Illinois appellate court recently reversed the dismissal of an insured’s complaint against her insurance company for alleged violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (“Consumer Fraud Act”) (815 ILCS 505/1 et seq.).
The plaintiff alleged that in August of 2006 her home was damaged by a fire. The plaintiff had two insurance policies, both of which covered fire losses, and submitted claims to both. The first ...
When does a gift or entertainment risk being treated as a violation of the Foreign Corrupt Practices Act (FCPA)? When do payments associated with obtaining international business become bribes? What do you do when facilitation payments are requested? How can you deal with these thorny issues and maintain your competitive edge? The answers are fact and setting specific but the Feds have provided some important new guidance. And the best part is that it is free!
On November 14, 2012 the Department of Justice and the Securities and Exchange Commission released a 120 page “Resource ...
