Front cover
DuPage County Elects New Clerk of the Circuit Court for the Eighteenth Judicial Circuit
An Interview With Candice Adams
DCBA-Brief-mar-april-cover-2021.indd 1 3/22/21 7:04 AM Inside front cover
DCBA-Brief-mar-april-cover-2021.indd 2 3/22/21 7:04 AM www.dcbabrief.org
Volume 33, Issue 7 March/April 2021 Table of Contents
Join the Judges’ Nite band and cast for a new take on this annual tradition. Dexter J. Evans Editor-in-Chief Jordan M. Sartell Associate Editor 2 Editor’s Message 3 President’s Message Editorial Board Anthony Abear Jolianne W. Alexander Brian M. Dougherty Alex Fawell 45 Spotlight on Judge Anne C. Fung Robert J. Anderson Raleigh D. Kalbfleisch Articles - By Azam Nizamuddin Rachel E. Legorreta Christopher J. Maurer 47 ISBA Update Jane E. Nagle Litigants continue to test bounds of Illinois’ Biometric 6 - By Kent A. Gaertner Joseph K. Nichele Information Privacy Act following Illinois Supreme Court’s Azam Nizamuddin finding that a plaintiff need not have an actual injury to 48 DuPage County Elects New Circuit John J. Pcolinski, Jr. Court Clerk: An Interview with Jay M. Reese recover damages Arthur W. Rummler - By Rachel Nevarez and Michael Barnes Candice Adams James L. Ryan - By Ted A. Donner Marie Sarantakis 12 Same-Sex Discrimination Claims Under Title VII: The David N. Schaffer 52 Honorable Craig Belford Leah D. Setzen Application of United States Supreme Court’s Decision - By James Ryan Edward R. Sherman in Oncale v. Sundowner Offshore Services, Inc. in the Hilary E. Wild Seventh Circuit 54 Legal Aid Update - By Cecilia Najera Jacki L. Hamler - By Joseph Nichele Publication Production 55 Classifieds 16 Trauma and the Adolescent Brain Ross Creative Works Graphic Design - By Christina Graffagna 56 Where to Be with DCBA By Robert Rupp Jeffrey Ross 18 Successfully Using the Illinois Nursing Home Care Act to Cover Photography Help Your Elderly Clients - By Margaret Battersby Black Mittera Printing 26 Substitution of Judge as of Right: What Bars the Absolute Right to Substitution? - By Emmet Fairfield
30 Highlights of New Illinois Laws Taking Effect in 2021 - By Raleigh D. Kalbfleisch
36 Illinois Law Update - By Editors Hilary Wild and Edward Sherman
DCBA Brief March/April 2021 1
DCBA_Brief_March/April_2021_v2.indd 1 3/22/21 7:42 AM ARTICLES From the Editor New and Exciting Changes Coming Soon By Dexter J. Evans
In 2017, after three years of serving on the DCBA Board, I decided to run for Third You may have noticed that we did not have to wait for the official, monthly release of our Vice President of the DCBA. I was fortunate a March issue and that this particular issue great publication. However, rest assured, we enough to win that election. From the day I combines both March and April. The fact of are not doing away with the hard copy of the won, I began making plans of what I would do the matter is that the Editorial Board voted to Brief. We understand that the great majority during my year of presidency. I thought about take our budgeted money for March and put of the membership values a physical copy of what events we would have, what my trip it all in let it ride on GameStop stock. Now the Brief and we will continue to ensure that Dexter J. Evans is an equity partner would be, and what I would like to accomplish. for the bad news. We never sold it. We are you receive one. at Woodruff Johnson & Evans where he focuses his practice on During the 2019-2020 year, I put pen to paper in for the long haul because we believe that personal injury litigation. Dexter to lock in my plans. The cruise was booked. GameStop can be made great again. I made quite a few calls for articles in the is the Editor-in-Chief of the DCBA My installation was planned. There was going past and I am going to do it once again. We Brief and an active member of the to be food trucks, wine and beer tastings and All kidding aside, the pandemic has forced the need them. There are so many great writers DuPage County Bar Association. He so much more. Right as I was looking to lock entire bar association to look at ways in which in our membership who have a vast array of is a member of the Million Dollar in the rest of the plans for my year, the world to ensure that you, our membership, continue legal knowledge on different practice areas. Advocates Forum. He earned his shut down – literally. We were in a pandem- to receive the content you are accustomed to Not only do you get to showcase your legal J.D. from Northern Illinois College ic. What initially seemed would be a couple receiving while also realizing that we just can- knowledge in a 6-8-page, double-spaced arti- of Law where he graduated magna cum laude in 2005. weeks of “Sheltering in Place” became over not operate at the same level as pre-pandemic cle, but you also can get MCLE credit. It is a two months of it. My originally-planned In- as all of us try and recover from the financial/ win-win situation. stallation and Casino Night needed to be re- economic losses we have suffered during this worked. Events needed to be postponed, but long ordeal. We’d like to thank our article editors for this I was sure by the fall things would be better. issue, Joe Nichele and Tony Abear and Case I was wrong. A survey recently went out to the membership Law editors, Hilary Wild and Ed Sher- and the timing was no coincidence. At least man. Articles were contributed by Rachel I know things in life rarely go exactly as for the time being, you can expect to be re- Nevarez and Michael Barnes, Christina planned. But this was different. It was not one ceiving a bi-monthly issue of the Brief which Graffagna, Joe Nichele, Margaret Bat- or two changes – it was everything. Consider- includes more articles and the same content. tersby Black, and Emmet Fairfield. Also, ing I am a planner and a bit of a Type A per- This will be throughout the year (12 months) a special thanks to Raleigh Kalbfleisch for sonality (alright stop laughing at the “bit of”), rather than over a 10-month period as we her review of new Illinois laws and Ted Don- having all my plans in disarray was unsettling. have done prior. We appreciate the members’ ner for the profile piece on Candice Adams. What was I going to do? How could I lead the responses to the survey and as we work on DCBA during a pandemic? What do you do ways to improve the content and accessibility If you have not already done so, please com- when we cannot safely gather? You pivot and of the Brief, your responses will absolutely be plete the DCBA Brief Reader Survey and make a new plan. considered. Win – The Editorial Board is reaching out to all DCBA members and friends for feedback How many times, as we watched a basketball Some of the changes we hope to see in the near on the DCBA Brief magazine. The survey game, did we see a player pivoting to over- future are an enhanced website, the ability to takes less than ten minutes to complete and come an obstacle? You cannot travel with utilize hyperlinks to access content if you are the results will be used to ensure the DCBA the basketball. You cannot double dribble, viewing the Brief digitally, and regular article publishes the highest quality content in the but you can lock that one foot in place and and case law/statutory updates that are post- most efficient way possible. All respondents move around to see what is open. As you piv- ed on the website ongoing rather than having completing the survey can (Continued on page 4) ot, suddenly something that seemed impos- sible becomes possible. The same is true for
2 DCBA Brief March/April 2021
DCBA_Brief_March/April_2021_v2.indd 2 3/22/21 7:42 AM President’s Message Learning to Pivot By Wendy M. Musielak
In 2017, after three years of serving on the obstacles in life. If you spend your time focus- DCBA Board, I decided to run for Third ing on the obstacle and what you cannot do, Vice President of the DCBA. I was fortunate you miss what you can do. Opportunities exist enough to win that election. From the day I everywhere, but can be easily overlooked when won, I began making plans of what I would do you spend your time focusing on the road- during my year of presidency. I thought about blocks ahead of you. Life is not easy. In fact, Dexter J. Evans is an equity partner what events we would have, what my trip people face challenges daily, but it is how we at Woodruff Johnson & Evans would be, and what I would like to accomplish. face adversity and handle problems that builds where he focuses his practice on During the 2019-2020 year, I put pen to paper our character. Thinking of that reminded DCBA President, Wendy M. personal injury litigation. Dexter to lock in my plans. The cruise was booked. me of one of my favorite quotes: “Success is Musielak is a Partner at Esp is the Editor-in-Chief of the DCBA My installation was planned. There was going not final, failure is not fatal: it is the courage to Kreuzer Cores LLP in Wheaton, Brief and an active member of the to be food trucks, wine and beer tastings and continue that counts.” Winston Churchill. Is where she concentrates DuPage County Bar Association. He so much more. Right as I was looking to lock something a failure because things did not go her practice in family law. is a member of the Million Dollar in the rest of the plans for my year, the world exactly as planned? While initially, it may feel She graduated with highest Advocates Forum. He earned his honors from DePaul University shut down – literally. We were in a pandem- like it is, failure only happens when you stop J.D. from Northern Illinois College College of Commerce with her ic. What initially seemed would be a couple adjusting and stop believing in yourself. When of Law where he graduated magna Bachelor’s Degree in Finance cum laude in 2005. weeks of “Sheltering in Place” became over you refocus on what you have done, you can and Management in 1999 and two months of it. My originally-planned In- start to see how the unexpected may have led earned her J.D. from DePaul stallation and Casino Night needed to be re- to some of your greatest successes. University’s College of Law worked. Events needed to be postponed, but in 2003. In 2015, Wendy was I was sure by the fall things would be better. Despite all the things that we have not been admitted to practice before the I was wrong. able to do this year, there is so much that we United States Supreme Court. Wendy was recognized as the have done just by pivoting. Our MCLE pro- DCBA Lawyer of the Year in I know things in life rarely go exactly as grams have continued to be spectacular. We 2013. planned. But this was different. It was not one have come together in various ways safely (in or two changes – it was everything. Consider- person and virtually). We have worked together ing I am a planner and a bit of a Type A per- to do so many different things this year (pro- sonality (alright stop laughing at the “bit of”), fessionally and personally) that while it may having all my plans in disarray was unsettling. not be what was planned, it continued to bring What was I going to do? How could I lead the a smile to my face. DCBA during a pandemic? What do you do when we cannot safely gather? You pivot and So, for the rest of my term as President, I am make a new plan. going to keep pivoting and see what we can do and hopefully, by my last column, I will be How many times, as we watched a basketball able to share with you what I learned from it. game, did we see a player pivoting to over- In the meantime, I ask all of you to take a mo- come an obstacle? You cannot travel with ment and reflect on your pivoting this year and the basketball. You cannot double dribble, see just how successful you have already been. but you can lock that one foot in place and Take a moment to congratulate yourself for move around to see what is open. As you piv- your hard work and perseverance. It has not ot, suddenly something that seemed impos- been easy, but you have all done it! Be proud sible becomes possible. The same is true for of yourself! You earned it!
DCBA Brief March/April 2021 3
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The DCBA BRIEF is a publication of the DuPage County Bar Association opt into a drawing for one of two Amazon gift cards generously 126 South County Farm Road donated by Raleigh Kalbfleisch. The survey can be found at Wheaton Illinois 60187 www.surveymonkey.com/r/DCBABriefSurvey. (630) 653-7779
As a final thought, as some of you may have heard or read, one of our long-standing members, David Wentz, passed DCBA Brief welcomes members’ feedback. Please send any Letters to the Editor to the attention away suddenly in early January. Although David did not get of Dexter Evans, at [email protected] to see his brilliant article in the publication, we did. I did not know David well, but I have been told by many that he was a great lawyer and an even better man/husband/father. Prayers Wendy M. Musielak Aaron E. Ruswick and thoughts to him and his family/friends. President Secretary/Treasurer
Kiley M. Whitty DeAnna C. Rosinski President-Elect Assist. Treasurer Articles Angel M. Traub Directors: 2nd Vice President Mark S. Bishop Patrick L. Edgerton Richard J. Veenstra James S. Harkness 3rd Vice President Rebecca A. Krawczykowski Ronald D. Menna, Jr. Stacey A. McCullough Karen R. Mills Immediate Past President John J. Pcolinski, Jr. Jay M. Reese Arthur W. Rummler James J. Laraia Alissa C. Verson General Counsel Amanda M. Zannoni
Jennifer L. Friedland Kent A. Gaertner Assoc. Gen’l Counsel ISBA Liaison
Robert T. Rupp Executive Director
The DCBA Brief is the Journal of the DuPage County Bar Association (“DCBA”). Unless otherwise stated, all content herein is the property of the DCBA and may not be reprinted in whole or in part without the express permission of the DCBA. ©2021 DCBA. Opinions and positions expressed in articles appearing in the DCBA Brief are those of the authors and not necessarily those of the DCBA or any of its members. Neither the authors nor the publisher are rendering legal or other professional advice. This publication is not a substitute for the advice of an attorney. Publication Guidelines: All submitted materials are subject to acceptance and editing by the Editorial Board of the DCBA Brief. Material submitted to the DCBA Brief for possible publication must conform with the DCBA Brief’s Writer’s Guidelines available at dcbabrief.org. Letters to the Editor should be limited to 250 words. Preference is given to responses to letters to the editor, articles or columns recently published in the DCBA Brief. Profane, derogatory or obscene language, political views or views that could be considered slanderous or defamatory are not accepted. Letters submitted anonymously are not accepted. All advertising and promotions are sub- ject to approval. Approval and acceptance of an advertisement does not constitute an endorsement or representation of any kind by the DCBA or any of its members. Contact information: Articles, comments, criticisms and suggestions should be directed to the editor at [email protected].
4 DCBA Brief March/April 2021
DCBA_Brief_March/April_2021_v2.indd 4 3/22/21 7:42 AM 6 Litigants continue to test bounds of Illinois’ Biometric Information Privacy Act following Illinois Supreme Court’s New and Exciting Changes finding that a plaintiff need not have an actual injury to recover damages Coming Soon (Continued from page 2) - By Rachel Nevarez and Michael Barnes
12 Same-Sex Discrimination Claims Under Title VII: The Application of United States Supreme Court’s Decision in Oncale v. Sundowner Offshore Services, Inc. in the Seventh Circuit - By Joseph Nichele
16 Trauma and the Adolescent Brain - By Christina Graffagna
18 Successfully Using the Illinois Nursing Home Care Act to Help Your Elderly Clients Articles - By Margaret Battersby Black 26 Substitution of Judge as of Right: What Bars the Absolute Right to Substitution? - By Emmet Fairfield
30 Highlights of New Illinois Laws Taking Effect in 2021 - By Raleigh D. Kalbfleisch
36 Illinois Law Update - By Editors Hilary Wild and Edward Sherman
Article Editors Joseph K. Nichele Anthony Abear Joseph K. Nichele is a partner with Broida and Nichele, Ltd. where Anthony Abear is a graduate of DePaul University College of Law, and he he concentrates his practice in civil litigation. He received his received his baccalaureate degree in Communications from the University undergraduate degree from Purdue University and his law degree from of Illinois. He is a former editor-in-chief of the DCBA Brief and is the Valparaiso University School of Law. owner of Abear Law Offices in Wheaton.
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Illinois’ Biometric Information Privacy Act (or “BIPA”) was en- acted over a decade ago, but it has not been until the last few years that there has been a flurry of litigation over the scope and application of the statute. BIPA sets forth comprehensive re- quirements for entities that possess and collect biometric iden- tifiers and information from people, and further sets statutory damages for each violation, in addition to allowing for other Litigants continue to damages and attorney fees. For years, it was unclear whether a plaintiff needed an actual injury to state a viable BIPA claim, test bounds of Illinois’ but in 2019, the Illinois Supreme Court weighed in and found that a plaintiff need only allege a technical violation to proceed with a claim. This decision opened the floodgates to numerous Biometric Information individual and class actions, which are now making their way Privacy Act following through courts. Recent cases demonstrate that where BIPA applies to an Illinois Supreme entity, it can be difficult to develop defenses to the alleged violations, and some courts have described BIPA as imposing strict liability. However, one area of law that is not well-settled Court’s finding that a relates to the potential liability of third-party vendors and man- ufacturers of programs that entities, such as employers, use to plaintiff need not have track various aspects of employees’ work. There is substantial disagreement among the federal district courts as to whether BIPA’s requirements apply to these parties who have no direct an actual injury to relationship with the plaintiff. In short, the relative success of a case has often hinged on statutory interpretation and meticu- recover damages lous comparison of the facts to BIPA’s requirements.
By Rachel Nevarez and Michael Barnes Statutory Requirements and Legislative History BIPA regulates the collection, use and sharing of individuals’ biometric information by private entities and was enacted to address concerns about the use of biometric information.1 Un- like other identifiers, a person cannot change their biometric data if the data is compromised, and persons with compro- mised data are more likely to suffer identity theft.2 In enact-
1. 740 ILCS 14/1, et seq. 2. 740 ILCS 14/5 (c).
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Illinois’ Biometric Information Privacy Act (or “BIPA”) was en- ing BIPA, the legislature found that the “full ramifications” of Additionally, under section 15(b) of the Act, entities must acted over a decade ago, but it has not been until the last few biometric technology is unknown.3 obtain a written release from an individual whose biometric years that there has been a flurry of litigation over the scope and identifiers or information has been obtained, and a written re- application of the statute. BIPA sets forth comprehensive re- BIPA applies to all “private entities,” which are defined to mean lease means “informed written consent, or in the context of quirements for entities that possess and collect biometric iden- any person, partnership, corporation, limited liability company, employment, a release executed by an employee as a condition tifiers and information from people, and further sets statutory association, or any other group, however organized.4 State and of employment.”14 The written release must meet specific stat- damages for each violation, in addition to allowing for other local governments, as well as their agents and contractors, are utory requirements: it must be signed by the individual, must damages and attorney fees. For years, it was unclear whether a excluded.5 BIPA also expressly exempts certain financial insti- notify the individual that the biometric information is being plaintiff needed an actual injury to state a viable BIPA claim, tutions.6 captured and stored and the purpose and length of time the but in 2019, the Illinois Supreme Court weighed in and found information will be kept.15 An entity in possession of biometric that a plaintiff need only allege a technical violation to proceed BIPA protects biometric identifiers and biometric information. data may not sell or profit from the information.16 Under with a claim. This decision opened the floodgates to numerous It defines biometric identifiers as: 1) a retina or iris scan, 2) section 15(d) of the Act, an entity is prohibited from redis- individual and class actions, which are now making their way fingerprint, 3) voiceprint, or 4) a scan of hand or face geometry, closing biometric information to third parties absent a specifi- through courts. but excludes certain personal information from the definition cally outlined exception.17 Moreover, BIPA requires entities to of biometric identifier, such as handwriting samples, tattoos, store, transmit, and protect from disclosure all biometric data Recent cases demonstrate that where BIPA applies to an physical descriptions, and photographs.7 BIPA defines “bio- in its possession using reasonable care and in the same or more entity, it can be difficult to develop defenses to the alleged metric information” as “any information,” regardless of how it protective manner than that which the entity protects other violations, and some courts have described BIPA as imposing is captured, converted, stored, or shared that is based upon a confidential information.18 strict liability. However, one area of law that is not well-settled biometric identifier.8 Biometric information does not, however, relates to the potential liability of third-party vendors and man- include any information that is derived from items that are ex- BIPA expressly creates a private right of action for individu- ufacturers of programs that entities, such as employers, use to cluded from the definition of biometric identifiers.9 The statute als who are “aggrieved” by the violation of BIPA and allows track various aspects of employees’ work. There is substantial also excludes information captured from a patient for medical plaintiffs to recover statutory or actual damages, whichever disagreement among the federal district courts as to whether treatment and certain information collected under various is greater.19 The amount of statutory damages is dependent BIPA’s requirements apply to these parties who have no direct other statutes.10 on whether the entity violating BIPA was negligent or acted relationship with the plaintiff. In short, the relative success of a recklessly or intentionally. For negligent violation of BIPA, case has often hinged on statutory interpretation and meticu- Section 15 of BIPA articulates the requirements and lous comparison of the facts to BIPA’s requirements. prohibitions on the retention, collection, disclosure and destruction of biometric information.11 First, a private entity Statutory Requirements and Legislative History that obtains biometric data must formulate a written policy BIPA regulates the collection, use and sharing of individuals’ that is publicly available.12 The policy must establish a schedule About the Authors biometric information by private entities and was enacted to for the length of time the data are to be kept, along with guide- Rachel Nevarez is a partner in the litigation address concerns about the use of biometric information.1 Un- lines for the permanent destruction of the data whenever the department of Wiedner & McAuliffe, Ltd. Rachel like other identifiers, a person cannot change their biometric purpose for obtaining the identifier or information has been graduated cum laude from Chicago-Kent data if the data is compromised, and persons with compro- satisfied or three years after the entity’s last interaction with the College of Law and magna cum laude from mised data are more likely to suffer identity theft.2 In enact- individual.13 Knox College.
3. Id. at 14/5(f). 4. Id. at 14/10. 5. Id. at 14/10, 25(e). 6. Id. at 14/25(c). 7. Id. at 14/10. Michael Barnes is an associate in the litigation 8. Id. department of Wiedner & McAuliffe, Ltd. Mike 9. Id. graduated magna cum laude from Chicago-Kent 10. Id. at 14/10, 25(b). 11. Id. at 14/15. College of Law and cum laude from Northern 12. Id. at 14/15(a). Illinois University. 13. Id. 14. Id. at 14/10, 15(a). 15. Id. at 14/15(b)(1)-(3). 16. Id. at 14/15(c). 17. Id. at 14/15(c), (d)(1)-(4). 18. Id. at 14/15(e)(1)-(2). 19. Id. at 14/20.
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injury, the Illinois Supreme Court removed one of the largest In short, BIPA gives rise hurdles facing plaintiffs in BIPA actions. It also opened the door for class action suits on behalf of groups of individuals to claims where liability whose biometric information was collected, stored, and shared in violation of BIPA, regardless of whether there were any tan- can be established gible consequences resulting from the violations. Meanwhile, federal courts in Illinois, which have more stringent standing “ requirements than Illinois state courts, have also recently al- “regardless of whether lowed cases to move forward over objections based on lack of damage can be shown actual injury.25 Although a Plaintiff must establish negligent, reckless or inten- and regardless of the tional conduct to recover statutory or actual damages under BIPA, some courts have concluded that BIPA imposes strict violator’s state of mind. liability because no mental state must be proven to recover attorneys’ fees or obtain injunctive relief.26 Further, at least one district court has gone as far as saying that every time an en- tity discloses or otherwise disseminates biometric information without consent, it violates the statute and potentially entitles statutory damages are $1,000; reckless or intentional violation a plaintiff to statutory damages.27 In short, BIPA gives rise to allows for statutory damages of $5,000.20 Under either scenario, claims where liability can be established “regardless of whether the prevailing plaintiff may also recover reasonable attorney damage can be shown and regardless of the violator’s state of fees and “other relief.”21 mind.” 28
Recent Developments in BIPA claims. The end result is that BIPA has emerged as a powerful tool for BIPA has remained unchanged since its enactment in 2008, plaintiffs that leaves limited room for defendants to maneuver. including its express recognition of a private cause of action To establish liability under BIPA, a plaintiff need only establish for violations.22 However, the courts’ application of BIPA in that a company collected, stored, or used his or her biomet- private causes of action has seen a number of significant de- ric information without following the letter of the law. And as velopments in recent years that have given BIPA claims new can be seen with the number of BIPA cases in litigation, many teeth. As recently as 2017, the Illinois Appellate Court ruled companies which have used biometric information are alleged that a technical violation of BIPA that does not result in to have done so in violation of the Act. In one of the more actual injury to a plaintiff is insufficient to state a viable claim high-profile recent decisions, Facebook reached a $650 million for relief.23 The Illinois Supreme Court subsequently reversed, settlement in a BIPA class action based on its use of facial rec- finding that a technical violation of the Act is sufficient to state ognition, or “tagging,” software that automatically identified a claim under BIPA.24 In eliminating the need for an actual individuals in photographs uploaded to the platform.29
25. Fox v. Dakkota Integrated Systems, LLC, - - F.3d - - , 2020 WL 6738112, No. 20-2782 (7th Cir. Nov. 17, 20. Id. at 14/20(1), (2). 2020) (elaborating on the holding of Bryant v. Compass Grp. USA, Inc., 958 F.3d 617 (7th Cir. 2020)). 21. Id. at 14/20(3), (4). 26. 740 ILCS 14/20; Snider v. Heartland Beef, 2020 U.S. Dist. LEXIS 152791, *15-19 (C.D. Ill. Aug. 14, 22. The only exception being section 30 of the Act, which created a committee to study best practices for 2020); see Cothron v. White Castle Sys., 2020 U.S. Dist. LEXIS 104795, *13-16 (N.D. Ill. June 16, 2020). state and local governments’ use of biometric information and was automatically repealed on January 27. Cothron v. White Castle Sys., 2020 U.S. Dist. LEXIS 141391, *17-20 (N.D. Ill. Aug. 7, 2020). 1, 2009. 740 ILCS 14/30; P.A. 95-994, § 30. 28. Snider, 2020 U.S. Dist. LEXIS 152791, *21-22. 23. Rosenbach v. Six Flags Enter. Corp., 2017 IL App (2d) 170317, ¶¶20-23, 147 N.E.3d 125, 129-31 (2nd 29. Surma, Katie, Illinois residents can now apply for up to $400 from massive Facebook privacy settlement, Dist. 2017). Chicago Tribune, (Sept. 22, 2020, 3:22 PM), https://www.chicagotribune.com/business/ct-biz-face- 24. Rosenbach v. Six Flags Enter. Corp., 2019 IL 123186, ¶ 38, 129 N.E.3d 1197, 1207 (2019). book-settlement-privacy-illinois-20200922-pjgcyodp4zfxha6bvluyndn6mm-story.html.
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A prevalent theme in many cases is employers using security to establish that a third-party vendor committed any of the and payroll systems that utilize biometric information, acts contemplated by BIPA.33 There, the plaintiff was employed leading to class action suits by employees under BIPA.30 by a hospital that utilized an automated medication dispens- Employers’ hopes of finding safe harbor under the Exclusive ing system manufactured by the defendant.34 To gain access Remedy provision of the Illinois Workers’ Compensation Act to the system, and as a condition of their employment, hospi- were recently dashed when the Illinois Appellate Court reject- tal employees were required to scan their fingerprints in the ed an employers’ assertion that workers’ compensation was defendant’s system.35 The court first recognized that, unlike the exclusive remedy for BIPA violations, joining in with the other sections of BIPA, the “mere possession of biometric data numerous federal court decisions that have held similarly.31 In is insufficient to trigger section 15(b)’s requirements,” and then short, employers have been and will likely continue to be the turned to the question of whether BIPA applied only to entities subject of BIPA lawsuits for at least the next few years until which “actively” collect biometric data.36 The court ultimately industries that adopted biometric systems make changes to concluded that the plaintiff’s allegations failed to allege suffi- come into compliance with BIPA, until there are changes made cient facts to assert a claim under Section 15(b) of BIPA.37 The to the statute, or unless and until appellate courts are more court noted that the plaintiff’s allegations did not allege facts receptive to arguments made by defendants. about how the defendant took an active step to “collect, cap- ture, purchase, receive through trade, or otherwise obtain” the Unresolved conflicts for the liability of third-party ven- plaintiff’s biometric data.38 The court also pointed to the plain- dors of equipment and software used to collect, store tiff’s allegations that he was required to scan his fingerprint and use biometric data. using the defendant’s system as a condition of his employment The potential liability of third-party vendors of hardware and and that his fingerprint was subsequently stored on the defen- software that facilitate the use and collection of biometric infor- dant’s system, but that plaintiff failed to allege how the data mation is unsettled. Most entities do not create the equipment made its way into the defendant’s systems.39 Accordingly, the and software necessary to use biometric information. Instead, court dismissed the plaintiff’s section 15(b) claim.40 they hire third-parties which sell those products and services, and in some instances, those vendors themselves sometimes The plaintiff in Heard also brought claims under sections 15(a) obtain (or are alleged to have obtained) the biometric informa- and 15(d) of BIPA, which respectively require an entity in pos- tion used by employers.32 The question of third-party vendor session of biometric information to have a publicly-available liability under BIPA has resulted in a recent split in decisions written policy regarding the use of biometric data and limits in the United States District courts in Illinois which remains its dissemination to third-parties.41 The court first found that unresolved. In many cases, whether a motion to dismiss has the term “possession,” as used in BIPA, contemplates some been successful turned on the sufficiency of facts pled and exercise of dominion or control over the data, although not arguments over the definition and scope of the Illinois legisla- necessarily exclusive control.42 Nevertheless, the court ture’s choice of words in framing BIPA. dismissed the plaintiff’s claims under that section, find- ing that he failed to allege that the defendant exercised any For example, in Heard v. Becton, Dickinson & Co., the district dominion or control over his biometric data.43 In analyzing the court dismissed a complaint that failed to allege sufficient facts section 15(d) claim, the court further found that the plaintiff’s
33. Heard, 440 F.Supp.3d 960 (N.D. Ill. February 24, 2020). 34. Id. at 962. 35. Id. 36. Id. at 965-66. 25. Fox v. Dakkota Integrated Systems, LLC, - - F.3d - - , 2020 WL 6738112, No. 20-2782 (7th Cir. Nov. 17, 37. Id. at 967. 2020) (elaborating on the holding of Bryant v. Compass Grp. USA, Inc., 958 F.3d 617 (7th Cir. 2020)). 38. Id. at 966-67; 740 ILCS 14/15(b). 26. 740 ILCS 14/20; Snider v. Heartland Beef, 2020 U.S. Dist. LEXIS 152791, *15-19 (C.D. Ill. Aug. 14, 30. E.g. Liu v. Four Seasons Hotel, Ltd., 2019 IL App (1st) 182645, 138 N.E.3d 201 (1st Dist. 2019); Cothron v. 39. Heard, 440 F.Supp.3d at 966-67. 2020); see Cothron v. White Castle Sys., 2020 U.S. Dist. LEXIS 104795, *13-16 (N.D. Ill. June 16, 2020). White Castle Sys., 2020 U.S. Dist. LEXIS 104795; Snider, 2020 U.S. Dist. LEXIS 152791. 40. Id. at 967-68; accord Kloss v. Acuant, Inc., 462 F. Supp. 3d 873, 877 (Ill. N.D. 2020) (dismissing BIPA 27. Cothron v. White Castle Sys., 2020 U.S. Dist. LEXIS 141391, *17-20 (N.D. Ill. Aug. 7, 2020). 31. McDonald v. Synchrony Bronzeville Park, LLC, 2020 IL App (1st) 192398, ¶¶27-28 (1st Dist. Sept. 18, claims for failure to allege sufficient facts and finding that the allegations “merely parrot” the statutory 28. Snider, 2020 U.S. Dist. LEXIS 152791, *21-22. 2020)(holding the Illinois Workers’ Compensation Act does not bar a BIPA claim against an employer language) (quotation omitted). 29. Surma, Katie, Illinois residents can now apply for up to $400 from massive Facebook privacy settlement, and collecting federal court cases holding same); Cothron, 2020 U.S. Dist. LEXIS 104795, **16-19. 41. Heard, 440 F.Supp.3d at 968. Chicago Tribune, (Sept. 22, 2020, 3:22 PM), https://www.chicagotribune.com/business/ct-biz-face- 32. Compare Hazlitt v. Apple, Inc., 2020 U.S. Dist. LEXIS 210963, *28-29 (S.D. Ill. Nov. 12, 2020)(describing 42. Id. book-settlement-privacy-illinois-20200922-pjgcyodp4zfxha6bvluyndn6mm-story.html. relationship between plaintiff consumer and defendant manufacturer as “more direct”). 43. Id. at 968-69.
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allegations were insufficient to support his claim that the Kronos’ alleged storage, use and disclosure of plaintiff’s biomet- defendant disclosed the information in violation of that ric data because “to have done those things Kronos necessarily section because plaintiff made his allegations “on information first had to ‘obtain’ the data.”54 The court also rejected Kronos’ and belief.”44 The court held that this is permitted only where argument that in the employment context, BIPA does not the information is peculiarly within the defendant’s control, apply to any entity other than the plaintiff’s employer, conclud- and found that the allegations were too speculative to meet ing that regardless of the context, “Kronos still was a ‘private federal pleading standards.45 entity’ that ‘collected[ed]’ or ‘obtain[ed]’ Plaintiffs’ data, and thus remained obligated to receive a release from them as a In contrast, in Figueroa v. Kronos, Inc., the Northern District con- condition of employment.”55 sidered a Rule 12(b)(6) motion to dismiss a complaint brought under BIPA against Kronos, which provides human resource management software to thousands of employers in Illinois.46 In The court then went on to consider whether plaintiff stated a particular, Kronos provides timekeeping software that utilizes cause of action under section 15(d).56 Unlike in Heard, Kronos employee biometric information.47 The plaintiffs were employees did not argue that it was not in possession of the plaintiff’s at companies which utilized the Kronos software and devices, biometric information.57 However, Kronos maintained that and alleged that their fingerprint data was collected.48 The plain- it did not “disclose” plaintiffs’ biometric information because tiffs asserted claims under sections 15(b), which requires that “disclose” means “to make known or public” or “to show after a an entity obtain informed consent prior to obtaining biometric period of inaccessibility of being unknown.”58 The court found data, and 15(d), which requires an entity in possession of bio- Kronos’ argument unpersuasive, noting that 15(d) governs metric data to obtain authorization prior to disclosure of any not only the disclosure of biometric information, but also the such data.49 The plaintiffs alleged that Kronos did not inform dissemination of such data.59 Therefore, the court concluded them that it was collecting, storing, or using their biometric in- that the plaintiffs’ allegations that Kronos disseminated their formation, or to whom the data would be disclosed.50 biometric data (which were made on information and belief) were sufficient to state a claim under section 15(d), regard- Kronos moved to dismiss the complaint. Like the defendant less of whether Kronos “disclosed” the information.60 Kronos in Heard, Kronos argued that it did not “actively collect” the also argued that section 15(e), which provides that a private plaintiffs’ data.51 Kronos also argued it was not subject to the entity must transmit biometric information using reasonable requirements of section 15(b) because BIPA’s definition of care, permitted its alleged dissemination of the plaintiffs’ “written release” expressly delegates notice and consent obli- biometric data.61 The court also rejected this argument, gations to the employer.52 The court rejected both arguments. however, concluding that section 15(e) does not authorize The court declined to follow Heard, which required the plain- dissemination, but only sets forth the means by which an tiff to plead facts that the defendant “actively” collected bio- entity might transmit biometric data where otherwise metric data under section 15(b).53 The court reasoned that the allowed.62 Accordingly, the court denied Kronos’ motion to phrase “otherwise obtain” was sufficiently broad to encompass dismiss the plaintiffs’ section 15(b) and 15(d) claims.63
44. Id. 45. Id. at 969. 46. Figueroa v. Kronos, Inc., 454 F.Supp.3d 772, 778-79 (N.D. Ill. April 13, 2020). 47. Id. 54. Id. at 784. 48. Id. at 779-80. 55. Id. at 783. 49. Id. at 779. 56. Id. at 785-87. 50. Id. at 779. 57. See Heard, F.Supp.3d at 968-69. 51. Id. at 783-84. 58. Figueroa, 454 F.Supp.3d at 785 (quoting Black’s Law Dictionary (11th ed. 2019)). 52. Id. at 783; Heard, 440 F.Supp.3d at 967-68 (declining to consider defendant’s argument that BIPA 59. Id. should not apply because defendant was not plaintiff’s employer); see Namuwonge v. Kronos, Inc., 418 60. Id. F. Supp. 3d 279, 286 (N.D. Ill. November 22, 2019)(finding it unnecessary to consider whether BIPA 61. Id. at 785-86. requires an entity other than an employer to secure an executed written release). 62. Id. 53. Figueroa, 454 F.Supp.3d at 784-85. 63. Id. at 792.
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Lessons learned from the current state of litigation. However, BIPA cases remain a relatively recent phenomenon. Any party contemplating or faced with BIPA litigation must As a result, there are few appellate court opinions addressing perform a thorough analysis of the facts or allegations to the statute BIPA in general and no appellate court decisions addressing itself. The split in district court decisions can be explained, in part, third-party vendor liability for alleged BIPA violations. Fur- by how the courts construe the allegations of the complaint. The thermore, most decisions that were available at the time of differences also hinge on whether the plaintiff has enough facts to this writing were decided on Rule 12(b)(6) motions to dismiss, bring the allegations beyond the basic statutory requirements such leaving open the possibility of further developments should any that courts are able to find that a plausible reading of the complaint of these cases reach summary judgment, trial, or are appealed. gives rise to the conclusion that a defendant violated it. Allegations This is an area of law to watch, as there are sure to be ongoing that are speculative or are pled “on information and belief” are developments that could impact plaintiffs’ rights and defen- given closer scrutiny and may be more vulnerable to challenge. dants’ liability.
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The Supreme Court in Oncale emphasized that Title VII is Same-Sex Discrimination Claims Under Title VII: The Application not a “civility code” and “the prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the of United States Supreme Court’s Decision in Oncale v. workplace; it forbids only behavior so objectively offensive as Sundowner Offshore Services, Inc. in the Seventh Circuit. to alter the ‘conditions’ of the victim’s employment.”12 For Title VII to apply, a harasser’s conduct still must be severe or per- By Joseph Nichele vasive enough to create an objectively hostile or abusive work environment.”13 The Supreme Court stated “We have always re- garded that requirement as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in It is well known that Title VII of the Civil Rights Act of 1964 Title VII necessarily bars a discrimination claim ‘because … the workplace—such as male-on-male horseplay or intersexu- prohibits discrimination based on a person’s gender. Specifi- of sex’ merely because the plaintiff and the defendant (or the al flirtation—for discriminatory ‘conditions of employment.’”14 cally, Title VII provides, in relevant part, that “[i]t shall be an person charged with acting on behalf of the defendant), are of According to the Supreme Court, the objective severity of unlawful employment practice for an employer…to discrimi- the same sex.”5 Thus, same-sex harassment claims are cogniza- harassment should be judged from the perspective of a reason- nate against any individual with respect to his compensation, ble under Title VII provided that the conduct at issue was not able person in the plaintiff’s position, and that inquiry requires terms, conditions, or privileges of employment, because of merely tinged with offensive sexual connotations, but actually careful consideration of the social context in which particular such individual’s race, color, religion, sex, or national origin.”1 constituted discrimination because of sex.6 behavior occurs.15 “A professional football player’s working en- The United States Supreme Court has interpreted Title VII to vironment is not severely or pervasively abusive, for example, not only cover the terms and conditions of a person’s employ- The Landmark Decision in Oncale v. Sundowner if the coach smacks him on the buttocks as he heads onto the ment, in the narrow sense, but the entire spectrum of disparate Offshore Services, Inc. field – even if the same behavior would reasonably be experi- treatment of men and women in the workplace.2 This means In Oncale v. Sundowner Offshore Services, Inc., the plaintiff was enced as abusive by the coach’s secretary (male or female) back that when the workplace is permeated with discriminatory in- one of eight men working on an oil platform in the Gulf of at the office.”16 timidation, ridicule, and insult that is sufficiently severe or per- Mexico. During his employment, the plaintiff allegedly was vasive as to alter the conditions of the victim’s employment and “forcibly subjected to sex-related, humiliating actions against After the Supreme Court’s decision in Oncale, in Shepherd create an abusive working environment, Title VII is violated.3 him” by his co-workers, was “physically assaulted ... in a sex- v. Slater Steels Corp., the United States Court of Appeals To prevail on a hostile work environment claim, a plaintiff must ual manner,” and was threatened with rape.7 In recognizing for the Seventh Circuit considered whether a male plaintiff establish that: (1) his or her workplace was both subjectively that same-sex harassment claims are actionable, the Supreme established an issue of fact as to whether he was discriminated and objectively offensive; (2) that his or her sex was the cause Court in Oncale set forth three ways a Title VII plaintiff could against because of his sex by a male co-employee.17 In Shep- of the harassment; (3) that the harassment was severe or perva- meet the “because of” requirement in a same-sex case.8 First, a herd, the Seventh Circuit found that the finder of fact could sive; and (4) that there is a basis for employer liability.4 plaintiff can show that he received explicit or implicit proposals permissibly conclude that the plaintiff was sexually harassed by of sexual activity, provided that he also comes forward with his male co-worker because he is male.18 In that case, the plain- What may not be realized by practitioners is that Title VII not “credible evidence” that the harasser was homosexual.9 Second, tiff alleged that his male co-worker repeatedly remarked that only protects employees from harassment from someone who a plaintiff can show that he was harassed “in such sex-specific he found the plaintiff handsome, and embarked on a campaign is of the opposite sex but also prohibits same-sex harassment and derogatory terms” so as to make it clear that the harass- of harassment which featured exposing himself to the plaintiff in the workplace. While recognizing that same-sex harass- er is motivated by a “general hostility to the presence” of one four or five times weekly, repeatedly “grabbed himself,” and on ment in the workplace was not the principal evil that Congress sex being in the workplace.10 Third, a plaintiff may offer direct one instance rubbed himself into an erection and threatened was concerned with when it enacted Title VII, the Supreme comparative evidence showing that the harasser in a mixed-sex to sexually assault the plaintiff. In considering the case in light Court nevertheless has categorically held that, “Nothing in workplace treated one sex better than the other.11 of Oncale, the Shepherd court noted that it did not believe that
5. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79-80 (1998). 6. Id. at 81. 7. Id. at 77. 1. 42 U.S.C. §2000e-2(a)(1)(Emphasis added). 8. Id. at 80-81. 2. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986). 9. Id. at 80. 3. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 10. Id. 4. Lord v. High Voltage Software, Inc., 839 F.3d 556, 561 (7th Cir. 2016). 11. Id.
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The Supreme Court in Oncale emphasized that Title VII is the examples set forth in Oncale to establish the “because of” Same-Sex Discrimination Claims Under Title VII: The Application not a “civility code” and “the prohibition of harassment on the requirement were exhaustive, but what matters “is whether a basis of sex requires neither asexuality nor androgyny in the reasonable factfinder could infer from the facts that Shepherd of United States Supreme Court’s Decision in Oncale v. workplace; it forbids only behavior so objectively offensive as was harassed ‘because of’ his sex.”19 The Shepherd court found Sundowner Offshore Services, Inc. in the Seventh Circuit. to alter the ‘conditions’ of the victim’s employment.”12 For Title that although none of the alleged incidents necessarily proved VII to apply, a harasser’s conduct still must be severe or per- that the harasser was homosexual, the connotations of sexual vasive enough to create an objectively hostile or abusive work interest in the plaintiff suggested that he might be sexually ori- environment.”13 The Supreme Court stated “We have always re- ented towards members of the same sex and that should be an garded that requirement as crucial, and as sufficient to ensure issue for the fact finder to determine at trial.20 The Shepherd that courts and juries do not mistake ordinary socializing in court further concluded that the finder of fact, evaluating this the workplace—such as male-on-male horseplay or intersexu- harassment in context, might reasonably conclude that because al flirtation—for discriminatory ‘conditions of employment.’”14 of the relentlessly sexual tenor of the harassment, that plaintiff According to the Supreme Court, the objective severity of was harassed because he is a man.21 Thus, the Shepherd court harassment should be judged from the perspective of a reason- reversed the entry of summary judgment in favor of the em- able person in the plaintiff’s position, and that inquiry requires ployer as to the plaintiff’s sex discrimination claim. careful consideration of the social context in which particular behavior occurs.15 “A professional football player’s working en- In Shafer v. Kal Kan Foods, Inc., the Seventh Circuit reviewed vironment is not severely or pervasively abusive, for example, the entry of summary judgment in favor of the employer where if the coach smacks him on the buttocks as he heads onto the the plaintiff, a male, alleged that his male co-worker made nu- field – even if the same behavior would reasonably be experi- merous explicit and sexual remarks to him; forced the plaintiff’s enced as abusive by the coach’s secretary (male or female) back face to his crotch and moved his groin to give the impression at the office.”16 that plaintiff was performing oral sex; grabbed the plaintiff’s hand and moved it to his own crotch while moaning; pulled After the Supreme Court’s decision in Oncale, in Shepherd a handful of hair from the plaintiff’s chest; and bit the plain- v. Slater Steels Corp., the United States Court of Appeals tiff on the neck hard enough to raise welts.22 The Shafer court for the Seventh Circuit considered whether a male plaintiff ruled that what happened to the plaintiff was not a “pervasive” established an issue of fact as to whether he was discriminated deterioration in the conditions of his employment on account against because of his sex by a male co-employee.17 In Shep- of his sex.23 The Shafer court distinguished the harassment in herd, the Seventh Circuit found that the finder of fact could Shepherd, which it characterized as daily fare, from the harass- permissibly conclude that the plaintiff was sexually harassed by ment of the plaintiff’s co-worker which consisted of four bat- his male co-worker because he is male.18 In that case, the plain- teries.24 The Shafer court reasoned that the plaintiff became a tiff alleged that his male co-worker repeatedly remarked that target because he could not defend himself, and that he did not he found the plaintiff handsome, and embarked on a campaign of harassment which featured exposing himself to the plaintiff four or five times weekly, repeatedly “grabbed himself,” and on one instance rubbed himself into an erection and threatened to sexually assault the plaintiff. In considering the case in light of Oncale, the Shepherd court noted that it did not believe that About the Author
12. Id. at 81. Joseph K. Nichele is a partner with Broida and 13. Id. Nichele, Ltd. where he concentrates his practice 14. Id. in civil litigation. He received his undergraduate 5. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79-80 (1998). 15. Id. 6. Id. at 81. 16. Id. degree from Purdue University and his law degree 7. Id. at 77. 17. Shepherd v. Slater Steels Corp., 168 F.3d 998 (7th Cir. 1999). from Valparaiso University School of Law. 8. Id. at 80-81. 18. Id. at 1012. 9. Id. at 80. 19. Id. at 1009. 10. Id. 20. Id. at 1010. 11. Id. 21. Id. at 1011. 22. Shafer v. Kal Kan Foods, Inc.417 F.3d 663, 665 (7th Cir. 2005). 23. Id. at 666. 24. Id.
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establish that the working conditions at the defendant company were worse for him than women.25 The Shafer court affirmed Title VII not only the entry of summary judgment holding that the plaintiff had not established that his encounters with the harasser reflected protects employees from more than personal animosity or juvenile behavior, and while he may have a solid claim for battery against the harasser un- harassment from someone der state tort law, he lacked a claim against the defendant for sex discrimination.26 “ who is of the opposite sex
In Lord v. High Voltage Software, Inc., the plaintiff brought a Title VII suit complaining that his male co-workers had poked and but also prohibits same- slapped him on the buttocks, reached between his legs, and teased him about a female worker who they thought he liked.27 sex harassment in the The District Court granted the employer’s motion for summa- ry judgment. As proof that his co-workers had discriminated workplace. against him because of his sex, the plaintiff relied entirely on the fact that the co-workers’ behavior had “sexual overtones.”28 According to the Lord court, there was nothing to suggest that the harasser was homosexual, and the harasser’s conduct did mimed oral and anal sex both on the plaintiff and on each not reflect a general hostility to the presence of men in the other. The Smith court recognized that “Shafer and Lord mark workplace.29 Further, the plaintiff pointed to no facts suggest- an important boundary line: Title VII is an anti-discrimination ing that only male employees were subjected to such teasing.30 statute, not an anti-harassment statute;” however, held unlike The Lord court held that sexual touching and taunting was not in Shafer and Lord, that the plaintiff had offered direct compar- enough, standing alone, to prove that the plaintiff had been ative evidence that only men experienced harassment at the de- harassed because he was male.31 “Sexual horseplay differs from fendant’s restaurant.35 Specifically, the Smith court found that sex discrimination, and Title VII covers only discriminatory there had been ample testimony from the plaintiff and other conduct.”32 Because it found that no reasonable jury could witnesses that only men were groped, taunted, or otherwise conclude that the plaintiff was targeted because of his sex, tormented, and that no witness recalled seeing female employ- the Lord court affirmed entry of summary judgment against ees subjected to the same type of treatment.36 The Smith court the plaintiff. rejected the defendant’s argument that this direct comparative evidence was insufficient because only male employees worked In Smith v. Rosebud Farm, Inc., the Seventh Circuit affirmed the behind the meat counter.37 The Smith court recognized that if judgment entered in favor of the plaintiff.33 In Smith, a male the plaintiff had worked in an all-male environment, the fact former employee filed an action against his former employer that only men were touched and groped would not raise an alleging that his male co-workers behind the meat counter inference of sexual discrimination; but, the Smith court found harassed him over a four-year period.34 The plaintiff’s co-work- that the plaintiff did not work in an all-male environment.38 ers grabbed him and reached down his pants, and repeatedly The defendant employed approximately 6-7 women and 15-16
25. Id. 26. Id. at 666-667. 27. Lord v. High Voltage Software, Inc., 839 F.3d 556, 559-560 (7th Cir. 2016). 28. Id. at 562. 29. Id. 30. Id. 31. Id. at 561-562. 35. Id. at 752. 32. Id. at 562 (citing Shafer, 417 F.3d at 663). 36. Id. 33. Smith v. Rosebud Farm, Inc., 898 F.3d 747 (7th Cir. 2018). 37. Id. 34. Id. at 749. 38. Id.
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men in its small store and that female employees sometimes Regarding the first Oncale method, the plaintiff testified work in the meat department when the shop was busy.39 Thus, that he believed that the harasser was bisexual.46 The War- because men worked alongside women at the restaurant, and ner court held that a bisexual harasser does not violate Title only men were harassed, the Smith court found that a reason- VII.47 The Warner court found it important that the plaintiff able jury could conclude the plaintiff’s co-workers would not presented no independent evidence that the harasser was have harassed him if he had been female. gay or bisexual except for his own interactions.48 Based in part on these reasons, the District Court granted summary Warner v. USF Holland, Inc., a case decided by the United States judgment in favor of the employer. District Court for the Northern District of Illinois, provides a good illustration as to the application of the Oncale methods to Conclusion establish the “because of” requirement to a same-sex discrimi- Several principles can be gleaned from the Seventh Circuit nation claim. In Warner, the plaintiff alleged that his immediate and the Northern District of Illinois cases interpreting Oncale. supervisor made sexual comments to him for 18 months.40 First, to establish the “because of” requirement under the first The plaintiff believed that his supervisor was bisexual and that Oncale method by showing the harasser was homosexual, a these comments were implied sexual overtures.41 The plaintiff plaintiff must come forward with “credible” evidence. In most alleged that over the 18 months his supervisor made comments circumstances, a plaintiff must come forward with some inde- to him such as “high-maintenance,” “hi handsome,” “how are pendent evidence other than his or her own interactions for we doing today, lover?,” and “cutie pie.”42 The plaintiff also com- the evidence to be deemed credible. Further, it is insufficient plained that his supervisor would give him a look “like a man to argue that a harasser was bisexual, as bisexual harassment was looking at a woman.”43 Finally, the plaintiff alleged that his is beyond the reach of Title VII.49 Also, under the second and supervisor sexually propositioned him in a men’s bathroom at third Oncale methods, if a plaintiff works in an environment work by exposing his genitalia to the plaintiff and telling him where all the employees are essentially of the same sex, he or that he was “good looking” and by saying “if I was gay, I would she will be unable to proceed under the second and third On- like to be with somebody like you.”44 cale methods.50
In analyzing the plaintiff’s claims, the Warner court held Most importantly, Title VII is not a “civility code” and does not that the plaintiff could not prevail under any of the Oncale prohibit bullying or horseplay, even if such conduct has sexual methods. The Warner court addressed the second and third overtones. There has to be actual discrimination. If a plaintiff Oncale methods first as it believed those to be the plaintiff’s can satisfy one of the three Oncale methods and prove that the weakest claims. Under the third Oncale method, the discrimination was “because of” his or her sex, the plaintiff Warner court found that because all truck drivers and all dock still must prove the other elements of a hostile work environ- workers at the company were men, there was no mixed-sex ment claim. These elements include that the workplace was workplace, and thus, the plaintiff could not proceed under both subjectively and objectively offensive, that harassment the third method.45 Similarly, the Warner court held that the was severe or pervasive, and that there is a basis for employer plaintiff could not succeed under the second Oncale method liability. Unfortunately for plaintiffs, the threshold is high as because given the all-male workplace for drivers it was dif- a workplace that is actionable is one that is considered to be ficult to see how any general hostility towards men exists. “hellish.”51
46. Id. at *5. 47. Id. (citing Holman v. Indiana, 211 F.3d 399, 401 (7th 2000)). 39. Id. 48. Id. at *5. 40. Warner v. USF Holland, Inc, 2012 WL 245190 at *1 (N.D. Ill. January 25, 2012). 49. “But even if we accept plaintiff’s bisexual theory, this raises a separate problem. As noted above, the 41. Id. Seventh Circuit has held that a bisexual harasser does not violate Title VII.” Warner, 2012 WL 245190, 42. Id. at *2. at *5 (citing Holman v. Indiana, 211 F.3d 399, 401 (7th 2000)). 43. Id. 50. Smith, 898 F.3d at 752; Warner, 2012 WL 245190, at *4. 44. Id. at *3. 51. Wittaker v. N. Ill. Univ., 424 F.3d 640, 645 (7th Cir. 2005)(quoting Perry v. Harris Chernin, Inc., 126 F.3d 45. Id. at *4. 1010, 1013 (7th Cir. 1997)).
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When working with adolescents who have experienced trauma, it is crucial to gain knowledge regarding the definition of trauma, how it impacts the brain, what trauma responses can look like emotionally and behaviorally, and how to approach people who have experienced trauma using a trauma-informed approach. Trauma is an event that threatens or is perceived to threaten someone’s life, safety, or well-being. It can overwhelm a person’s “ ability to cope and cause neurophysiological dysregulation that compromises affective, cognitive, and behavioral responses.
Trauma exposure can be acute or chronic. Acute trauma is a single event that produces trauma responses in an individual. Chronic trauma is when multiple and varied traumatic events occur. Chronic trauma may look like an adolescent witnessing domestic violence, being involved in a car accident, and then becoming a victim of community violence. It can also look like Trauma and the longstanding abuse or neglect.
Adolescent Brain Whether acute or chronic, experiencing trauma can affect the brain. Specifically, it may impact the amygdala and medial By Christina Graffagna prefrontal cortex (mPFC). The amygdala is responsible for recognizing and reacting to threats in the environment. This is a crucial part of safety and survival. However, when a brain has experienced trauma, this part of the brain may become hyperaware and cause strong reactions to people, places, and things that serve as reminders of the traumatic event even if those things are not a present threat.
The mPFC connects to the amygdala and sends out cues to calm the brain, reassures that the environment is safe, and re- duces amygdala reactivity. After trauma, the pathway between the amygdala and mPFC may be weakened. The amygdala then experiences heightened awareness of threat and danger and does not have strong access to the mPFC to regulate this perception. These changes in the brain are not permanent. Providing youths who have experienced trauma with safe, sta- ble environments, therapeutic resources, and supports can help heal and manage these changes in the brain.
Because of this impact on the brain, survivors of trauma may experience changes in their emotions, behavior control,
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exposure to traumatic reminders. A trauma-informed juvenile A trauma-informed justice system provides services that increase the safety of the youth and provides supports and tools to cope with traumatic juvenile justice system stress exposure.
provides services that When engaging with youths who may have complex traumatic histories, use a calm demeanor and spend time establishing “ rapport. Model the respect you expect in return. Use age-ap- increase the safety of propriate language and active listening skills such as repeating, paraphrasing, and affirming the youth. Seek to comfort, not the youth and provides threaten. Because of the changes that occur in the brain after trauma, the youth’s threat detection may be heightened. Pay supports and tools to attention to your non-verbal communication, physical space, and tone/volume. Using these skills will assist in calming the cope with traumatic youth and signaling that they are in a safe environment. stress exposure. Trauma can affect the brain, behaviors, and emotions in com- plex ways. Adolescents who have experienced trauma may have acute or chronic exposure leading to trauma-related symptoms and brain changes. These changes are not permanent, and behavioral/emotional symptoms can be managed through self-concept, cognition, and relationships. The impact of trauma trauma-informed care. In the juvenile justice system, can cause physical symptoms like rapid heart rate, sweating, trauma-informed care includes an understanding of complex and stomachaches when presented with a trauma reminder. trauma and its connection to risk-taking behaviors. Approach Trauma responses may manifest as difficulty identifying and those with traumatic histories with understanding and reas- experiencing emotions, impulsivity, low self-esteem, difficulty surance of safety to minimize trauma symptoms and provide planning and completing tasks, and heightened difficulty with support. authority or redirection. This may lead to substance abuse, violence and aggression, risk-taking behaviors, and greater connection with negatively influencing peers. Because of the heightened risk of these behaviors, these youths may have About the Author increased involvement with the juvenile justice system. Christina Graffagna obtained a Master of Using a trauma-informed approach realizes the impact of Education in Community Counseling from Loyola University Chicago and a Bachelor of Science in trauma and understands potential paths for recovery, recog- Psychology from the University of Alabama. Chris- nizes the role trauma-related reactions and survival coping tina delivers LGBTQIA-affirming, trauma-informed play, and responds to enhances a youth’s protective factors and therapy using a strength-based perspective to achievements. Within the juvenile justice system, a trauma- foster meaningful conversations with adolescent informed approach understands complex trauma can lead to clients at 360 Youth Services. aggressive and defensive behavior. It implements system changes to improve a youth’s safety and seeks to reduce
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DCBA_Brief_March/April_2021_v2.indd 17 3/22/21 7:42 AM ARTICLES Successfully Using the Illinois Nursing Home Care Act to Help Your Elderly Clients
By Margaret Battersby Black
The Nursing Home Care Act (“NHCA”), is a consumer rights rights conferred by section 2-107 of the NHCA Act, the right statute that protects residents of nursing homes who are to be free from abuse or neglect: vulnerable to abuse and neglect due to age or infirmity.1 The Illinois General Assembly passed the original NHCA in 1979 An owner, licensee, administrator, employee or agent of as an attempt to reform the nursing home industry “amid a facility shall not abuse or neglect a resident. It is the concern over reports of ‘inadequate, improper and degrading duty of any facility employee or agent who becomes aware treatment of patients in nursing homes.’”2 of such abuse or neglect to report it as provided in “The Abused and Neglected Long Term Care Facility Residents Historically, significant barriers to litigation existed to achiev- Reporting Act”.3 ing justice for the elderly and infirmed because of the costs of litigation in comparison to the potential settlement or verdict. Neglect is defined by the NHCA as “a facility’s failure to Often, nursing home residents are not wage earners, have mul- provide, or willful withholding of, adequate medical care, men- tiple medical conditions or disabilities, and have a decreased life tal health treatment, psychiatric rehabilitation, personal care, expectancy. Ironically, these factors can support defense argu- or assistance with activities of daily living that is necessary to ments for decreased damages due to minimal economic damages avoid physical harm, mental anguish, or mental illness of a res- and non-economic damages undercut by limited life expectancy ident.”4 Personal care means “assistance with meals, dressing, and baseline medical conditions and disabilities. However, movement, bathing or other personal needs or maintenance, or the NHCA makes these cases more legally and economically general supervision and oversight of the physical and mental attractive to lawyers who are willing to advocate for nursing well-being of an individual, who is incapable of maintaining a home residents as more fully set forth in the body of this article. private, independent residence or who is incapable of manag- ing his person whether or not a guardian has been appointed Residents’ Rights are Guaranteed for such individual.”5 When put together, these definitions most The NHCA outlines residents’ rights in Article 2, Part 1. commonly allow for private causes of action under the NHCA Certainly included are the rights guaranteed by law and the for conditions like bed sores, falls, malnutrition, dehydration, Illinois Constitution as well as the United States Constitution, uncleanliness, medication errors, failures to supervise, and but also included are identified rights that are specific to these countless other injuries that can occur in nursing homes when individuals, including a resident’s right to manage his own personal care is not provided. affairs, retain and use her personal property in her immediate living quarters, communicate by mail, telephone or visitation, The NHCA confers legal rights and protections to nursing and the free exercise of religion. This article will focus on the home residents. Section 3-607 of the NHCA guarantees a
3. 210 Ill. Comp. Stat. Ann. 45/2-107. 1. 210 Ill. Comp. Stat. Ann. 45/1-101 et. seq. 4. 210 Ill. Comp. Stat. Ann. 45/2-117. 2. Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 357-358, 95 Ill. Dec. 510, 489 N.E.2d 1374 (1986). 5. 210 Ill. Comp. Stat. Ann. 45/1-120.
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nursing home resident a right to a trial by jury, and section The first obstacle to tackling these defenses is to determine 3-606 invalidates any attempt to obtain a waiver by a resident whether they are valid, and further, whether the signatory to the or his legal representative. However, increasingly and despite agreement had actual authority and/or legal capacity to sign. these assurances, nursing homes are asking residents or the An attorney practicing in the area of elder law would be wise to representatives to sign “pre-dispute” binding arbitration agree- educate her clients on arbitration agreements, encouraging those ments upon admission. Under a purported motivation to limit clients to seek counsel before signing any agreement. A separate the costs of litigation for both parties, these agreements often article on arbitration agreements, their validity, and ways to also limit or seek to completely waive the rights and remedies defeat or dispute them could easily fill another journal article. under the NHCA without adequately informing the signato- ries to these agreements of the existence of the NHCA. This Mandatory Obligations of the Nursing Home When kind of action is clearly contrary to the legislative intent of Rights are Violated the NHCA. The court in Harris v. Manor Healthcare Corp. ad- In Article III, Part 6 of the NHCA, certain duties are dressed the legislature’s intent when it stated that “…we believe outlined for nursing homes. Section 3-601 provides: “[t]he that section 2-602 was enacted primarily to encourage private owner and licensee are liable to a resident for any intentional enforcement of the Act and to compensate residents for viola- or negligent act or omission of their agents or employees which tions of their rights…”6 injures the resident.” Unlike traditional personal injury or med- ical malpractice cases, where employers are often not liable for However, the NHCA’s stated intent is seemingly in conflict the intentional acts of their employees, in contrast the NHCA with the Federal Arbitration Act (“FAA”). In Fosler v. Midwest provides for statutory liability of an owner or licensee for the Care Center II, Inc., the Second District addressed this issue, intentional conduct of its employees. finding that where a resident or resident’s representative has signed an arbitration agreement, Sections 3-606 and 3-607 of the NHCA are preempted.7 However, in Carter v SSC Odin Operating Co., the Illinois Supreme Court found that while the FAA may preempt the NHCA in this regard, arbitration agree- ments may be invalidated along common-law contract defense grounds.8 It is this author’s experience that these defenses may About the Author be plentiful but often dismissed in situations involving a frail Margaret Battersby Black is a partner at Levin & elderly or infirmed nursing home resident who is forced to sign Perconti. A trial lawyer focused on nursing home a pre-dispute arbitration agreement. litigation, Margaret holds the Illinois record for highest verdict in a nursing home case. Marga- ret graduated with a BA from the University of Michigan in 2002 and her JD from Chicago-Kent College of Law, in 2008.
3. 210 Ill. Comp. Stat. Ann. 45/2-107. 6. Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 357-358, 95 Ill. Dec. 510, 489 N.E.2d 1374 (1986). 4. 210 Ill. Comp. Stat. Ann. 45/2-117. 7. Fosler v. Midwest Care Ctr. II, Inc., 391 Ill. App. 3d 397, 331 Ill. Dec. 773, 911 N.E.2d 1003 (2009). 5. 210 Ill. Comp. Stat. Ann. 45/1-120. 8. Carter v. SSC Odin Operating Co., LLC, 229 Ill. 2d 618, 325 Ill. Dec. 2, 897 N.E.2d 250 (2008).
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DCBA_Brief_March/April_2021_v2.indd 19 3/22/21 7:42 AM Momkus LLP is pleased to announce that Patrick R. Boland has been promoted to Partner at the law firm.
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Where Rights and Obligations Collide: Lawsuits under under the NHCA, additional legal theories must be pursued Momkus LLP is pleased to announce that Patrick R. Boland the NHCA against those defendants, such as healing arts malpractice. When a lawyer believes a nursing home resident has been has been promoted to Partner at the law firm. wronged under the NHCA, she is entitled to file a private When filing a case that is strictly NHCA based in origin, a law- cause of action under the NHCA. A complaint under the yer is not required to comply with the affidavit requirements of NHCA should be clear on its face that the cause of action is 735 ILCS 5/2-622. The 2-622 statute normally requires that being brought under the Act. However, not all nursing facilities attached to a complaint for medical malpractice is an affida- are covered by the Act. Section 1-113 identifies facilities that vit identifying that a health professional has determined that are not covered under the NHCA including, but not limited to, there is a reasonable and meritorious cause for the filing of hospitals, assisted living facilities, and facilities for child care. such action. However, in a NHCA lawsuit, no such affidavit is required. Because the NHCA holds both the licensees and owners lia- ble, it is important to know who the owner and/or licensee of The Illinois Supreme Court decision in Eads v. Heritage Enter- the facility was at the time of the cause of action. The Illinois prises Inc. is instructive on the distinction between a NHCA Department of Public Health identifies the current licensees action and a healing arts malpractice action.11 The Supreme online.9 However, because an action may have occurred un- Court in Eads agreed with the appellate court that requiring der the operation of a different licensee, it is always prudent Plaintiff’s to file a 2-622 affidavit would “thwart the purpose to confirm licensure by emailing DPH.LTCQA.Licensure@ of the Act,” in which “litigation was viewed as an engine of illinois.gov. reform.”12 In other words, requiring a 2-622 affidavit in healing arts malpractice cases has been seen as posing a deterrent to Differentiating between NHCA Cases and Healing Arts those improperly bringing such cases by ensuring that a med- Malpractice Cases ical professional supports the case. In contrast, it is clear that It is important to know at the outset of a case whether it will be a the legislature did not intend to put up any obstacles to filing a pure NHCA case or some hybrid theory of recovery that might case under the NHCA. include a claim for medical malpractice. Under the NHCA, only owners and licensees are liable to residents whose rights Similarly, the NHCA does not require proof of professional are violated. In Wills v. DeKalb Area Retirement Center et. al., the negligence. In Myers v. Heritage Enterprises, Inc., (“Myers 2”), Second District held that based upon the plain reading of the the Fourth District reversed the trial court when the jury NHCA and the fact that owners and licensees are vicariously was instructed on professional negligence in its jury instruc- liable for their agents, the individual healthcare professionals tion rather than ordinary negligence.13 In Myers, the negli- Patrick’s areas of practice include: are specifically excluded as Defendants under the NHCA.10 gence at issue was the operation of a Hoyer Lift, a lift used to transfer immobile residents, operated by two certified COMMERCIAL AND CIVIL LITIGATION Therefore, when filing a case involving an Illinois nursing home nurse’s aides, or CNAs.14 The Myers court specifically deter- under the NHCA, the complainant is suing the owners and mined that “the act of CNAs moving a nursing home resi- PARTNERSHIP AND SHAREHOLDER DISPUTES licensees, not the individual medical staff. A complaint filed dent does not constitute skilled medical care requiring the REAL ESTATE LITIGATION under the NHCA is not a traditional medical malpractice law- professional negligence instruction,” focusing on the mini- suit; if additional defendants are sought to be included, such mal training requirements and primary job of providing per- as nurses or doctors, because those individuals cannot be sued sonal care of a CNA.15 This suggests that expert testimony
11. Eads v. Heritage Enters., 204 Ill. 2d 92, 272 Ill. Dec. 585, 787 N.E.2d 771 (2003). 12. Eads, 204 Ill. 2d at 103. LLP 13. Myers v. Heritage Enters., 354 Ill. App. 3d 241, 248, 289 Ill. Dec. 828, 820 N.E.2d 604 (2004). 9. https://ltc.dph.illinois.gov/webapp/LTCApp/ltc.jsp. 14. Myers, 354 Ill. App 3d. at 608-09. 10. Wills v. De Kalb Area Ret. Ctr., 175 Ill. App. 3d 833, 844, 125 Ill. Dec. 657, 530 N.E.2d 1066 (1988). 15. Id. at 610.
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would not be needed to prove a case under the NHCA, un- (I)dentified rights that like a medical malpractice case. While this may be the law, the determination of whether to are specific to these disclose an expert witness should be on a case by case basis. In particular, where the conduct of licensed nurses is at issue, it is not clear that the holding of Myers 2 would necessarily individuals, (include) a prevail. This author finds it helpful to retain a nursing expert “ to navigate through the nursing home chart, the nursing home resident’s right to manage employee depositions, and explain these concepts to the jury at trial. This is particularly true in cases that involve issues that have more complex medical principles, such as pressure sores his own affairs, retain and that become infected, improper assessments of a resident’s condition, medication errors, and changes in condition. How- use her personal property ever, simple neglect cases such as failures to maintain dignity, abuse, and failures to provide basic personal care are cases in which the holding of Myers 2 would likely prevail, and it may in her immediate living not make sense economically to secure an expert. quarters, communicate Litigation on a NHCA action does not automatically termi- nate in the event of the passing of the subject nursing home resident. Due to the very nature of NHCA claims, often by by mail, telephone or the time the case is filed, or frequently during the litigation, the resident dies. In Myers v. Heritage Enterprises Inc., (“Myers visitation, and the free 1”), the Fourth District held that a NHCA claim survives the death of a resident and may be brought by the resident’s rep- Get 0% interest on monthly, quarterly, resentative.16 Therefore, complaints can be filed or amended exercise of religion. upon a resident’s death to include a Survival Act claim pursu- or semi-annual payment plans (with NO additional fees). ant to 755 ILCS 5/27-6 under the NHCA.
You can even choose your preferred payment method: Remedies Available under the NHCA Section 3-602 requires that a licensee pay the actual dam- Credit Card or ACH. ages, costs and attorney’s fees to a resident whose rights are violated under Part 1 of Article 2 of the NHCA. One of the rights enumerated under this section is the right to be free from abuse or neglect. Therefore, when a trier of fact finds that a facility licensed under the NHCA has committed abuse or neglect, damages for the actual injuries to the resident must be
To learn more, call us at (312) 379-2000 or email us at [email protected].
16. Myers v. Heritage Enters., 332 Ill. App. 3d 514, 517, 266 Ill. Dec. 32, 773 N.E.2d 767 (2002) (citing Wills v. DeKalb Area Ret. Ctr., 175 Ill. App. 3d 833, 841, 125 Ill. Dec. 657, 530 N.E.2d 1066 (1988)). (312) 379-2000 | ISBAMUTUAL.COM
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awarded. Actual damages will include items ordinarily recov- Berlak acknowledged should be considered, along with a full erable for a living plaintiff, or a deceased plaintiff pursuant to evidentiary hearing on the attorney’s fee applicable.23 Accord- the Survival Act, such as medical expenses, pain and suffering, ingly, the Grauer court awarded $1,287,159.22 in attorney’s fees disability, and disfigurement. on the NHCA portion of the verdict.
Over time, case law has helped further shape and define the Grauer is also notable for establishing the scope of costs to be scope of the NHCA and confirm its legislative intent to al- awarded to successful litigants under the NHCA. In Grauer, low private attorneys to help police the industry by acting as the plaintiff argued that “costs” as provided by Section 3-602, private attorneys general.17 What’s more, Section 3-602 of the included all litigation costs expended by the plaintiff. Defen- NHCA awards successful litigants with attorney’s fees and dant argued that “costs” included only those statutory costs costs taxed against the owner and licensee of the facility. The already provided for by 735 ILCS 5/5-108, which included First District first addressed attorney’s fees under the NHCA minimum nominal costs like filing fees and a jury demand. The in Berlak v. Villa Scalabrini Home for the Aging, Inc. finding Grauer Court sided with the plaintiff on the basis of statutory that the payment of attorney’s fees and costs is a mandatory construction, reasoning: requirement evidenced by the word “shall” within the Act.18 We agree with the plaintiffs that it can be presumed that, The Berlak court specifically opined that attorneys would not when the General Assembly enacted section 3-602, it was be reasonably induced to represent clients in these types of aware that the predecessor statute to section 5-108 already lawsuits if they did not think that they could recover their allowed the taxation of “court costs” to any prevailing fees.19 In Berlak, the court determined that the existence of a plaintiff against any losing defendant. We therefore agree contingency fee agreement between an attorney and client is a with the plaintiffs that, if we construed the word “costs” in relevant factor in considering the reasonableness of the fee.20 section 3-602 to mean the same thing as “costs” in section In Berlak, the Plaintiff’s recovery was nominal at $11,218.44, 5-108, we would be finding that the legislature’s inclusion and the attorney’s hourly rate fees and costs approved by the of this term in section 3-602 afforded a nursing home res- appellate court amounted to $85,000, which was over seven ident who prevails against a licensee with nothing beyond times the actual verdict.21 what was already provided by Illinois law.24
However, in the more recent case of Grauer v. Clare Oaks, the In Grauer, the plaintiff was awarded $147,471.55 in litigation First District declined to follow the hourly rate fee calculation costs in addition to the attorney’s fees awarded.25 methodology when it upheld the trial court’s award of a contin- gency fee on a verdict of $4,111,477.66.22 Grauer is distinguish- Residents injured at nursing homes may also be entitled to able from the facts of Berlak because in Grauer a contingent fee punitive damages. While the NHCA initially provided for to plaintiff’s attorneys of one-third of the $4.11 million award treble damages for violations of resident’s rights, the act was appeared to more reasonably compensate plaintiff’s attorneys amended in 1995 and the treble damages provision of the act for pursuing the claim. While taking note of Berlak, the Court was repealed.26 In the legislative hearings and debates on the in Grauer determined that the trial court in Grauer had fully amendment, there is legislative support for the principle that considered all relevant factors in assessing the attorney’s fee in- punitive damages should be assessed in a nursing home case. cluding the existence of the contingency fee contract, a factor For example, Senator Beverly J. Fawell commented:
17. Harris v. Manor Healthcare Corp., 111 Ill. 2d 350, 369, 95 Ill. Dec. 510, 489 N.E.2d 1374 (1986). 18. Berlak v. Villa Scalabrini Home for the Aged, 284 Ill. App. 3d 231, 236, 219 Ill. Dec. 601, 671 N.E.2d 768 (1996). 19. Berlack, 284 Ill. App. 3d at 240. 23. Grauer v. Oaks, 2019 IL App (1st) 180835, 134. 20. Id. at 241. 24. Grauer, 2019 IL App 180835, 156. 21. Id. at 243. 25. Grauer v. Oaks, 2019 IL App (1st) 180835. 22. Grauer v. Oaks, 2019 IL App (1st) 180835. 26. 210 ILCS 45/3-602 P.A. 89-197 (eff. July 21, 1995).
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The elimination of the mandatory provision in no way However, Section 3-605 of the NHCA provides that any funds prevents a judge or jury from awarding punitive damages recovered for a resident under the NHCA are exempt from in any amount, even in excess of triple actual damages, the reach of a public aid lien and cannot disqualify a resident if actions of the nursing home or any of its employees or receiving benefits from a continuation of their public aid ben- agents are deemed to be intentional or willful and wanton, efits. In In re Estate of Castro, the Second District confirmed or grossly negligent.27 that the exemption provided to residents under Section 3-605 extended to the representative of the estate: “to allow an exemp- The case law that followed made clear that the repeal of tion for settlement funds paid to a nursing home resident only if treble damages did not mean that other remedies were unavail- she survives the date of the settlement would be an unjust if not able. In Dardeen v. Heartland Manor Inc., while discussing the an absurd result.”29 Additionally, Section 3-608 of the NHCA amendment repealing treble damages, the Illinois Supreme makes clear that a facility and its agents cannot retaliate against Court noted “[u]nder the amended version of the statute, a resident or his representative for reporting, testifying or bring- plaintiff may recover actual damages and attorney fees upon ing a cause of action in conjunction with the NHCA. proof of defendant’s negligent violations of the Act, and may additionally recover common law punitive damages upon proof Practitioners Wanting to Represent Clients under the of willful and wanton misconduct on the part of defendant.”28 NHCA Should Familiarize Themselves with the Rele- Pleading and proving punitive damages need to be consistent vant Case Law with a common law complaint for punitive damages, alleging In conclusion, the plain language of the NHCA and the case facts that amount to willful and wanton misconduct. law developed in the years since its enactment can benefit your elderly and infirmed clients. This author highly recommends Hesitancies of Residents and their Families in Filing that anyone seeking to represent clients who have redress these Cases under the NHCA further familiarize themselves with both the Residents and their families are often hesitant to move forward Act and the case law cited in this article to establish a working with these cases due to fear of retaliation and concern that re- knowledge of how the NHCA can be used to advocate on covery may disqualify the resident from receiving public aid. behalf of your clients.
23. Grauer v. Oaks, 2019 IL App (1st) 180835, 134. 27. 89th General Assembly, Regular Session, Senate Transcript, 57th Legislative Day, p. 90 (May 24, 1995), 24. Grauer, 2019 IL App 180835, 156. www.ilga.gov/senate/transcripts/strans89/st052495.pdf. 25. Grauer v. Oaks, 2019 IL App (1st) 180835. 28. Dardeen v. Heartland Manor, Inc., 186 Ill. 2d 291, 300, 238 Ill. Dec. 30, 710 N.E.2d 827 (1999) (See also 29. D ep’t of Pub. Aid v. Castro (In re Estate of Castro), 289 Ill. App. 3d 1071, 1075, 225 Ill. Dec. 592, 683 26. 210 ILCS 45/3-602 P.A. 89-197 (eff. July 21, 1995). Eads v. Heritage Enters., 204 Ill. 2d 92, 104, 272 Ill. Dec. 585, 787 N.E.2d 771 (2003)). N.E.2d 1255 (1997).
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DCBA_Brief_March/April_2021_v2.indd 25 3/22/21 7:42 AM ARTICLES Substitution of Judge as of Right: What Bars the Absolute Right to Substitution? By Emmet Fairfield
Two years ago, I wrote an article entitled, “The Absolute Right matter of right” provided the party timely exercises the right.5 A to Substitution of Judge is not Absolute: The ‘Test the Waters’ substitution motion is timely if it is filed prior to the commence- Doctrine Continues to Muddy the Waters.” In the article, I ex- ment of the hearing or trial and before the judge to whom it is amined the substitution of judge as of right statute and its judi- presented has ruled on any substantial issue in the case.6 Gener- cially grafted “test the waters” doctrine and argued the Illinois ally, a court has no discretion to deny a motion to substitute un- Supreme Court should reject the test the waters doctrine in der section 2-1001(a)(2) if it meets the timeliness requirement.7 favor of the plain language of the statute.1 However, our reviewing courts have engrafted two exceptions to this rule: the court may deny the motion if (1) it was brought Given the test the waters doctrine remains a viable exception to for the purpose of delaying the proceedings8; and (2) the moving the substitution of judge as of right statute in the First, Third, party had the opportunity to test the waters and form an opin- and Fifth Districts, and despite the fact I argued against it in ion as to the judge’s disposition toward his or her claim.9 It is my previous article, I thought it would be useful to whomever important to note the requirement the motion be brought before may read this publication to survey cases in which courts have the judge to whom it is presented has made a ruling on a sub- applied the substitution of judge statute in common practice stantial ruling issue in the case applies both in original actions, scenarios.2 (The Second District has not taken a position on refiled actions, as well as post judgment proceedings.10 the viability of the doctrine. However, it has cited the rule fa- vorably in unpublished orders in dicta.3) An understanding of What constitutes a ruling on a substantial issue in the case? how the substitution of judge statute is applied is important be- A “substantial issue” is one which relates directly to the merits cause any orders entered after an erroneous denial of a motion of the case.11 The determination of whether the judge has made for substitution of judge as of right are void.4 Before any discus- a ruling on a substantial issue relating directly to the merits sion of cases applying the statute, however, a quick refresher of the case often requires only a routine application of this on the substitution of judge as of right statute, its timeliness principle. For instance, courts have held rulings on motions to requirement, and the test the waters doctrine is appropriate. dismiss, to strike a complaint (even when done sua sponte), for summary judgment, or for preliminary injunction, constitute Substitution of Judge as a Matter of Right rulings on substantial issues for purposes of the statute.12 Such Section 2-1001(a)(2) of the Code of Civil Procedure (Code) pro- rulings clearly relate directly to the merits of the case, such that vides that each party is entitled to one substitution of judge “as a the right to substitution is defeated.
5. 735 ILCS 5/2-1001(a)(2) (West 2018). 6. Id. § 2-1001(a)(2)(ii) (West 2018). 7. See Schnepf, 2013 IL App (4th) 121142, ¶ 27, 327 Ill. App. 3d 333, 336 (4th Dist. 2002). 8. Id. ¶ 42 (citing In re Estate of Wilson, 238 Ill. 2d 519, 557 (2010)). 9. Cicinnati Ins. Co. v. Chapman, 2012 IL App (1st) 1117792, ¶ 23. 10. Bowman v. Ottney, 2015 IL 119000, ¶ 25 (refiled action); In re Marriage of Kozloff, 101 Ill. 2d 526, 532 (1984) (postjudgment proceedings); Niemerg v. Bonelli, 344 Ill. App. 3d 459, 464-66 (5th Dist. 2003) 1. 31 DCBA Brief 8 (February 2019). (section 2-1401 petition). 2. S afeway Ins. Co. v. Ebijimi, 2018 IL App (1st) 170862, ¶¶ 34-35; City of Granite City v. House of Prayers, 11. Rocha v. FedEx Corporation, 2020 IL App (1st) 190041,¶ 73. Inc., 333 Ill. App. 3d 452, 461-62 (5th Dist. 2002); In re Estate of Gay, 353 Ill. App. 3d 341, 343-44 12. Gilliland v. Board of Ed. Of Pleasant View Consol. School Dist. No. 622 of Tazewell County, 67 Ill. 2d 143, (3d Dist. 2004). 157 (1977) (motion to dismiss); Rocha, 2020 IL App (1st) 190041, ¶ 76 (sua sponte order striking 3. Galvan v. Allied Ins. Co., 2013 IL App (2d) 120525-U, ¶ 26; People ex rel. Illinois Department of Healthcare complaint); Heman v. Jefferson, 136 Ill. App. 3d 745, 751 (4th Dist. 1985) (motion for summary judg- and Family Services v. Finney, 2019 IL App (2d) 190577-U, ¶ 26. ment); Sarah Bush Lincoln Health Center v. Berlin, 268 Ill. App. 3d 184, 188 (4th Dist. 1994) (motion 4. Schnepf v. Schnepf, 2013 IL App (4th) 121142, ¶ 24. for preliminary injunction).
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Similarly, there are certain rulings which obviously are not surance company disputed or denied coverage constituted rul- rulings on substantial issues. For example, orders setting a ings on substantial issues, rendering the substitution motion Substitution of Judge as of Right: briefing schedule or hearing on a contested motion and rulings untimely.17 Likewise, in Williams v. Estate of Cole, the court on motions for continuance, unopposed motions for leave to held discovery orders quashing subpoenas, imposing special What Bars the Absolute Right to Substitution? amend, and motions for severance of the issues are not rulings discovery rules, and denying a motion to disqualify an attor- on substantial issues under the statute.13 Such rulings clearly ney constituted rulings on substantial issues.18 In In re Estate of do not relate directly to the merits of the case. Hoellen, the appellate court found an order directing a party to produce certain documents was a ruling on a substantial issue, Many times, however, more analysis must be performed to de- explaining the order “entailed more than a mere administrative termine whether a ruling constitutes a ruling on a substantial or ministerial decision” and the documents ordered to be pro- issue. What follows are brief examinations of cases in which duced contained information allowing the nonmoving party to the statute was applied in common practice situations. go forward with its claim.19
In the context of discovery, whether a ruling on a discovery Courts have also found that a pretrial ruling on an issue of law, motion or dispute constitutes a ruling on a substantial issue such as a ruling on a motion in limine, constitutes a ruling on depends on the circumstances of the dispute. Courts focus on a substantial issue.20 In Estate of Roselli, the trial judge issued whether the ruling pertains to “‘evidentiary trial matters,’” or a pretrial ruling that certain evidence sought to be introduced whether the discovery motion concerns the admissibility and by the moving party was inadmissible.21 The appellate court relevance of material information.14 affirmed the denial of the motion for substitution, explaining the ruling on the admissibility of evidence barred the right to In Nasrallah v. Davilla, for example, the appellate court held substitution.22 the trial judge’s rulings setting a physician’s deposition fee and granting additional time to answer Rule 213 interrogatories did In the context of contempt proceedings, like discovery disputes, not constitute rulings on substantial issues under the statute whether a finding of contempt is a ruling on a substantial issue and, therefore, the trial judge should have granted the mo- depends on the circumstances. In Chavis v. Woodworker’s Shop, tion.15 In In re Marriage of Birt, the appellate court reversed the Inc., the moving party made an inappropriate remark directed denial of a motion for substitution where the trial judge had at the judge, causing the judge to find him in contempt and made rulings on two motions to limit discovery by nonparties place him in a holding cell until he apologized, and thereafter to the action, finding the motions did not relate to the merits sought substitution as of right.23 The appellate court character- of the case.16 ized the moving party’s conduct as criminal contempt, found the contempt finding “had nothing to do with the merits” of In Safeway Insurance Co. v. Ebijimi, on the other hand, the court the claim, and therefore, reversed the order denying the motion held the granting of leave to depose a former employee of the and vacated all subsequent orders.24 insurance company defendant, denying a motion to compel written discovery and for broader depositions, and ordering the moving party to come forward with evidence that the in-
13. In re Marriage of Crecos, 2015 IL App (1st) 132756, ¶ 26 (order setting a briefing schedule); Caprata v. Black, 127 Ill. App. 2d 363, 366 (1st Dist. 1970) (order granting continuance); People ex rel. Alexander v. Keogh, 81 Ill. App. 3d 729, 730 (4th Dist. 1980) (order granting unopposed motion to amend a com- About the Author plaint); Delta Oil Co., Inc. v. Arnold, 66 Ill. App. 3d 375, 380-81 (1st Dist. 1978) (motion for severance of 5. 735 ILCS 5/2-1001(a)(2) (West 2018). issues of single cause of action. 6. Id. § 2-1001(a)(2)(ii) (West 2018). 14. Ebijimi, 2018 IL App (1st) 170862, ¶ 33 (quoting Granite City, 333 Ill. App. 3d at 461); In re Marriage of Emmet C. Fairfield is a 2013 graduate of NIU 7. See Schnepf, 2013 IL App (4th) 121142, ¶ 27, 327 Ill. App. 3d 333, 336 (4th Dist. 2002). Petersen, 319 Ill. App. 3d 325, 339 (1st Dist. 2001). College of Law. He is a staff attorney for the 8. Id. ¶ 42 (citing In re Estate of Wilson, 238 Ill. 2d 519, 557 (2010)). 15. Nasrallah v. Davilla, 326 Ill. App. 3d 1036, 1039-41 (1st Dist. 2001). research division of the Illinois Appellate Court, 9. Cicinnati Ins. Co. v. Chapman, 2012 IL App (1st) 1117792, ¶ 23. 16. In re Marriage of Birt, 157 Ill. App. 3d 363, 367, 368-69 (2d Dist. 1987). 10. Bowman v. Ottney, 2015 IL 119000, ¶ 25 (refiled action); In re Marriage of Kozloff, 101 Ill. 2d 526, 532 17. Ebijimi, 2018 IL App (1st) 170862, ¶ 35. First District, a former associate attorney at (1984) (postjudgment proceedings); Niemerg v. Bonelli, 344 Ill. App. 3d 459, 464-66 (5th Dist. 2003) 18. Williams v. Estate of Cole, 393 Ill. App. 3d 771, 775 (1st Dist. 2009). Broida and Nichele, Ltd. in Naperville, former (section 2-1401 petition). 19. In re Estate of Hoellen, 367 Ill. App. 3d 240, 246-47 (1st Dist. 2006). law clerk to Justice Lisa Holder White, and staff 11. Rocha v. FedEx Corporation, 2020 IL App (1st) 190041,¶ 73. 20. Yassin by Yassin v. Certified Grocers of Illinois, Inc., 150 Ill. App. 3d 1052, 1073 (1st Dist. 1986) (motion 12. Gilliland v. Board of Ed. Of Pleasant View Consol. School Dist. No. 622 of Tazewell County, 67 Ill. 2d 143, in limine). attorney for the Fourth District. 157 (1977) (motion to dismiss); Rocha, 2020 IL App (1st) 190041, ¶ 76 (sua sponte order striking 21. Estate of Roselli, 70 Ill. App. 3d 116, 120 (1st Dist 1979). complaint); Heman v. Jefferson, 136 Ill. App. 3d 745, 751 (4th Dist. 1985) (motion for summary judg- 22. Id. at 121-22. ment); Sarah Bush Lincoln Health Center v. Berlin, 268 Ill. App. 3d 184, 188 (4th Dist. 1994) (motion 23. Chavis v. Woodworker’s Shop, Inc., 2018 IL App (3d) 170729, ¶ 5. for preliminary injunction). 24. Id. ¶¶ 14-15.
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Under what circumstances has a party tested the ...it must be noted that waters? When has a party tested the waters and formed an opinion parties must actively test the as to the judge’s disposition toward his or her claim? In many cases, courts look to the record to determine whether the waters and that the judge’s judge and the parties have discussed the matters ultimately at issue and whether the judge has given any indication of “voluntary injection of his or his view of the case. Courts will also evaluate whether the judge voluntarily brings to the parties’ attention its dis- position toward certain issues in the case.28 What follows her feelings about the case are several examples where the appellate court has applied without prompting by the the doctrine. In Levaccare v. Levaccare, the appellate court found the mov- parties does not defeat the ing party had “ample opportunity to test the waters,” in part, where the trial judge had been intimately involved in the right to substitution. parties’ settlement negotiations.29 In that case, the brother and sister involved in a dispute over the distribution of their mother’s estate engaged in settlement negotiations in court with the trial judge’s participation and, afterward, the judge prepared a memorandum memorializing seven points of In the context of pretrial settlement conferences, the appellate compromise.30 court has found that a judge’s recommendation as to the amount of settlement does not constitute a ruling on a substantial issue. In In re Estate of Gay, the appellate court found the mov- In Rodisch v. Commacho-Esparza, the parties participated in an ing party had tested the waters and had the opportunity to off-the-record settlement conference during which the parties form an opinion as to the judge’s disposition toward the case had discussed settlement and the trial judge made a recommen- where the parties had engaged in several pretrial conferences dation.25 Later, the judge court explained its reasons for denying during which the judge had discussed the merits of the case the motion, indicating the parties had discussed the merits of and suggested the moving party’s burden of proof would be the case.26 The appellate court held no ruling on a substantial significant.31 issue had been made even though the pretrial conference had “necessarily involved discussions about certain aspects of the In Rocha v. FedEx Corporation, the appellate court found the merits of the case,” noting there was no indication in the record test the waters doctrine provded additional support for its con- the judge had “clearly established his position on any of the clusion that a sua sponte order striking a complaint defeated the issues.”27 (Although it certainly appears this case would have right to substitution of judge.32 The court found it significant been ripe for the application of the test the waters doctrine, the that the parties seeking substitution had filed their motion 13 appellate court did not discuss the doctrine in this case.) months after it filed its initial complaint and 7 months after
28. See e.g., Palos Community Hospital v. Humana, Inc., 2020 IL App (1st) 190633, ¶ 30. 29. Levaccare v. Levacarre, 376 Ill. App. 3d 503, 508 (1st Dist 2007). 25. Rodisch v. Commacho-Esparza, 309 Ill. App. 3d 346, 348 (2d Dist. 1999). 30. Id. at 504-05. 26. Id. at 348-49. 31. In re Estate of Gay, 353 Ill. App. 3d 341, 344 (3d Dist. 2004). 27. Id. at 351. 32. Rocha, 2020 IL App (1st) 190041.
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Under what circumstances has a party tested the the court had sua sponte struck their initial complaint, giving Palos Community Hospital and Granite City demonstrate the waters? the trial judge a “reasonable concern” the parties were “judge right to substitution may be defeated if the moving party had When has a party tested the waters and formed an opinion shopping.”33 the opportunity to test the waters as to the judge’s disposition as to the judge’s disposition toward his or her claim? In many toward contentious discovery disputes. cases, courts look to the record to determine whether the In Estate of Hoellen, the appellate court likewise found the judge and the parties have discussed the matters ultimately test the waters doctrine provided additional support for its While these cases illustrate when a party has tested the wa- at issue and whether the judge has given any indication of conclusion the trial judge had properly denied the motion for ters, it must be noted that parties must actively test the wa- his view of the case. Courts will also evaluate whether the substitution.34 In that case, the moving party’s attorney stated ters and that the judge’s voluntary injection of his or her feel- judge voluntarily brings to the parties’ attention its dis- at the hearing on the motion for substitution that he believed ings about the case without prompting by the parties does not position toward certain issues in the case.28 What follows the judge had shown a predisposition to ruling in favor of the defeat the right to substitution. In Cincinnati Ins. Co. v. Chap- are several examples where the appellate court has applied opposing party, which the appellate court found was clear man, the appellate court held the moving party’s knowledge the doctrine. evidence the attorney had formed an opinion as to the court’s of the judge’s ruling in an unrelated case involving a common disposition toward the case.35 issue that was directly adverse to the moving party’s posi- In Levaccare v. Levaccare, the appellate court found the mov- tion did not bar the right to substitution under the test the ing party had “ample opportunity to test the waters,” in part, Levaccare, Estate of Gay, Rocha, and Hoellen involved scenarios waters doctrine.40 There, the trial judge sua sponte informed where the trial judge had been intimately involved in the where the moving party had the opportunity to form an opin- the parties of its ruling in the unrelated case and, there- parties’ settlement negotiations.29 In that case, the brother ion as to the judge’s disposition toward the merits of the case. fore, the appellate court found neither party had tested the and sister involved in a dispute over the distribution of their However, it appears the party’s opinion of the judge’s disposi- waters.41 The facts in Chapman lend support to the Fourth mother’s estate engaged in settlement negotiations in court tion need not necessarily relate to the merits of the case. For District’s concern, as expressed in Schnepf v. Schnepf, that a with the trial judge’s participation and, afterward, the judge example, in Palos Community Hospital v. Humana, the appellate trial judge could inadvertently extinguish the “absolute” right to prepared a memorandum memorializing seven points of court found the moving party had tested the waters where the substitution.42 compromise.30 judge’s ruling permitted the moving party to discern the judge’s “position on the production of documents [that] were at the Conclusion In In re Estate of Gay, the appellate court found the mov- heart of [the] controversy.”36 Section 2-1001(a)(2) of the Code, while seemingly straightfor- ing party had tested the waters and had the opportunity to ward on its face, remains a cause for significant litigation in form an opinion as to the judge’s disposition toward the case Likewise, in City of Granite City v. House of Prayers, Inc., the ap- the trial and reviewing courts and often involves more than a where the parties had engaged in several pretrial conferences pellate court affirmed the denial of a motion for substitution of straightforward application of the statute and its interpreting during which the judge had discussed the merits of the case judge as of right.37 There, the party seeking substitution sought case law. In some instances, the dispute becomes whether the and suggested the moving party’s burden of proof would be substitution after a newly assigned judge issued a discovery party seeking substitution has tested the waters, which often significant.31 order requiring it to comply with previous courts orders within requires the judge “to make the ‘nuanced, subjective deter- two days and post a $50,000 cash bond after having previous- mination,’ of whether they have indicated their disposition In Rocha v. FedEx Corporation, the appellate court found the ly failed to comply with certain deadlines.38 Applying the test toward a claim at some point in the proceedings.”43 In any event, test the waters doctrine provded additional support for its con- the waters doctrine, the appellate court explained that, in light because the doctrine remains a viable reason to deny a motion clusion that a sua sponte order striking a complaint defeated the of the newly assigned judge’s “more serious approach” to the for substitution of judge as of right, it is important to under- right to substitution of judge.32 The court found it significant moving party’s noncompliance, it was “reasonable to assume” stand how courts apply the substitution of judge statute given that the parties seeking substitution had filed their motion 13 the moving party had formed an opinion that the judge did not the grave consequences – all subsequent orders become void – months after it filed its initial complaint and 7 months after hold “a favorable view of its reasons for noncompliance.”39 that result from the erroneous denial of such motions.
33. Id. ¶ 77. 34. Hoellen, 367 Ill. App. 3d at 247. 35. Id. 36. Palos Community Hospital, 2020 IL App (1st) 190633, ¶ 29. 40. Chapman, 2012 IL App (1st) 111792, ¶ 25. 37. Granite City, 333 Ill. App. 3d at 460-62. 41. Id. 38. Id. at 454-56. 42. Schnepf, 2013 IL App (4th) 121142, ¶¶ 54-55. 39. Id. at 462. 43. Schnepf, 2013 IL App (4th) 121142, ¶ 50.
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Below are just some of the new laws that take effect in 2021.
EDUCATION HB 26: All Illinois high schoolers with a grade point average in the top 10% of their class will be accepted to Northern Illinois University, Eastern Illinois University, Southern Illinois University and Western Illinois University (provided they meet other criteria like college preparatory curriculum requirements and test scores).
SB 1601: Starting in the 2020-2021 school year, U.S. history classes for K-12 students must include instruction on the history of Illinois.
HB 3550: Sex education courses and instruction in grades 6 through 12 will now be required to include an age-appropriate Highlights of New Illinois discussion on the meaning of consent. 1 HB 3404: Beginning in the 2020-2021 school year, each pub- Laws Taking Effect in 2021 lic university and community college in Illinois must make By Raleigh D. Kalbfleisch information on all of the school’s mental health and suicide prevention resources available to students.
HB 2237: The law creates the Illinois Higher Education Sav- ings Program, where the state will deposit $50 into a college savings account for every child born or adopted in Illinois af- ter Dec. 31, 2020. The funds (plus interest and earnings) can be used for higher education expenses like tuition, fees, books and more if parents or guardians claim the funds by the child’s 10th birthday, the child has completed secondary education or turned 18 and is an Illinois resident.
HB 2691: Transgender students ineligible for federal financial aid (including those disqualified for failing to register for the draft) as well as students who are not U.S. citizens (also unable to qualify for federal financial aid) are both eligible to receive state financial aid through the Monetary Award Program.
1. https://www.nbcchicago.com/news/local/chicago-politics/these-are-the-new-illinois-laws-taking-ef- fect-in-2021/2403532/#:~:text=Senate%20Bill%20667%20caps%20out,limit%20prescription%20 insulin%20co%2Dpays; https://www.illinoissenatedemocrats.com/caucus-news/48-senator-don- harmon-news/1624-interesting-new-laws-for-2020-and-2021; https://www.chicagoparent.com/learn/ new-illinois-laws-for-families/.
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CONSUMER PROTECTION SB 1507: The Civil Remedies for Nonconsensual Dissemi- SB 1624: Companies that collect personal information about nation of Private Sexual Images Act allows victims of revenge Illinois residents will be required to report any data breaches porn to recover damages (economic, emotional distress, puni- impacting more than 500 Illinois residents to the state tive and more) in the two years after an image is disseminated attorney general, as well as steps taken or plans related to the or threat to disseminate is made. incident. The attorney general can then publish information about the breach to help consumers protect themselves. HB 2135: The law removes the statute of limitations for crim- inal sexual assault, aggravated criminal sexual assault and HB 2189: Companies that provide direct-to-consumer com- aggravated criminal sexual abuse for all ages, not just minors. mercial genetic testing (like ancestry.com or 23andMe) are now prohibited from sharing genetic test or other personally HB 3498: Removes the statute of limitations for female genital identifiable information about a person with health or life mutilation for victims under 18, meaning the crime can be insurance companies without written consent from the person. prosecuted at any time. It also makes female genital mutilation done by a parent or guardian a Class X felony. HB 88: The law reduces the post-judgment interest rate on consumer debt under $25,000 from 9% to 5% and cuts the HB 2818: Allows survivors of sexual assault and stalking to timeframe to collect on a judgment from 26 to 17 years, aimed keep their home addresses confidential to reduce the risk that at helping people better manage their debt and stopping pred- their attacker may locate them. The measure enables people to atory debt collection practices. list the Illinois attorney general’s office as their contact address in some circumstances through the address confidentiality pro- SB 667: Insurance companies must limit the total amount a gram already established for domestic violence survivors. person is required to pay for insulin to $100 for a 30-day supply. INMATES RIGHTS AND RESOURCES SEXUAL HARASSMENT, ABUSE AND VIOLENCE SB 2090: Cook County Jail will now be required to set up SB 75: The Workplace Transparency Act prohibits any con- a temporary polling place within the jail during elections tract or agreement (like a non-disclosure agreement) from re- to allow those incarcerated, but not yet convicted, to cast stricting an employee from reporting allegations of unlawful their ballots. Every other local election authority in the state conduct for investigation. must also coordinate vote by mail opportunities for pre-trial detainees in county jail, and mandates that upon release of a The state’s Department of Human Rights is now also required person who is eligible to vote, the Department of Corrections to create a sexual harassment prevention training program for give that person a specified form informing him or her that employers, plus a separate program specifically for restaurants and bars, and employers must provide training each year.
The Sexual Harassment Victim Representation Act mandates that in any proceeding in which a victim and accused perpe- About the Author trator are both members of the same union, they cannot be Raleigh D. Kalbfleisch is a sole practitioner represented by the same union representative. concentrating in family law. She is a graduate of Purdue University and the Quinnipac University School Law and was a visiting student at Chicago Kent College of Law. She is an active member of the ISBA, DCBA and Family Law Section. She is a 1. https://www.nbcchicago.com/news/local/chicago-politics/these-are-the-new-illinois-laws-taking-ef- past president of D.A.W.L and on the Board of the fect-in-2021/2403532/#:~:text=Senate%20Bill%20667%20caps%20out,limit%20prescription%20 DuPage Bar Foundation. insulin%20co%2Dpays; https://www.illinoissenatedemocrats.com/caucus-news/48-senator-don- harmon-news/1624-interesting-new-laws-for-2020-and-2021; https://www.chicagoparent.com/learn/ new-illinois-laws-for-families/.
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voting rights have been restored, as well as a voter registration PROTECTIONS FOR ANIMALS application. HB 3390: Requires dog and cat kennels to be equipped with a fire sprinkler or alarm system in each building housing ani- HB 2541: Requires the Department of Corrections and the mals, if the kennel is not staffed at all times. Department of Juvenile Justice to implement a nonpartisan civics program throughout correctional institutions to teach SAFETY ON THE ROAD civics – including voting rights, government, current affairs SB 1496: Increases the maximum penalty for hitting a work- and more – to those who will be released within the next 12 er in a construction zone from $10,000 to $25,000 and those months. who disobey traffic-control devices in a highway construction or maintenance zone will face fines between $100 and $1,000. SB 156: The Department of Corrections will allow inmates to access job search and career-building websites in a specified HB 1873: Doubles the fines for illegally passing a school bus period of time before their release. from $150 to $300 for the first violation and from $500 to $1,000 for any subsequent violations. HB 2045: Prohibits the Department of Corrections and the Department of Juvenile Justice from requiring a co-payment SB 1862: Scott’s Law requires drivers to change lanes, slow for receiving medical or dental services. down and proceed with caution when approaching emergency vehicles or disabled cars on the side of the highway. Anyone LABOR AND WORKERS’ RIGHTS who fails to do so will be fined at least $250 for the first viola- HB 3405: Stipulates that gratuities and tips to employees are tion (rather than the previous $100 minimum penalty) and at property of the employees and cannot be retained by the em- least $750 for the second, reaching as high as $10,000. ployer. HB 331: Requires state law enforcement and transportation SB 161: Creates a Worker Protection Unit within the Illinois agencies to work together to increase the number of camer- Attorney General’s office, dedicated to enforcing employment as on Cook County highways and allows any law enforcement laws and protecting workers by ensuring they are paid properly, agency in the area to use images from the cameras to investi- have safe workplaces and more. gate gunfire or detect hazards on roadways.
HB 253: Graduate assistants doing research, teaching or other SB 86: Prohibits the use of an electronic device to stream or pre-professional duties will no longer be classified as “students” watch videos while on the road with violations punishable by a when it comes to state labor law, and instead will be consid- fine of $75 for a first offense, $100 for a second, $125 for a third ered employees, granting them the same rights as employees, and $150 for a fourth or subsequent offense. including the right to collectively bargain. SB 1786: Failure to pay a fine for a non-moving violation will Side note: An amendment to the Illinois Human Rights Act no longer result in the loss of a driver’s license. reduced the number of employees, from 15 to one, that an em- ployer must have to be subject to state discrimination laws. LAW ENFORCEMENT Employers will be required to file any final, adverse judgments HB 2767: Requires the curriculum of police training schools or administrative rulings entered against them in discrimina- to include information on recognizing signs and symptoms of tion or sexual harassment cases to the Illinois Department of work-related stress, issues that may lead to suicide and solutions Human Rights. Employers will have to file these reports for the for intervention with peer support services. In-service training preceding calendar year before July 1 of each subsequent year. for officers, required to be completed every three years, must
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now include information on officer wellness. And additionally, PREGNANCY AND CHILDBIRTH the Illinois Law Enforcement Training Standards Board will HB 2895: Requires medical staff caring for pregnant or post- have to develop or approve an in-service course on wellness and partum women at birthing facilities to take annual training on suicide prevention that includes stress management techniques said care for African-American women and infants, and directs and intervention, among other topics related to mental health. the Illinois Department of Public Health to create an initiative to improve birth equity, including the development of implicit HB 2708: Creates a process to handle the DNA of a miss- bias training and more. ing person. Police may gather a DNA sample from the missing person and a DNA reference sample from family members and HB 2: Sets forth 21 specific rights of women with regard to submit it to the National Missing and Unidentified Persons pregnancy and childbirth, including things like the right to re- System if the person remains missing for 30 days or longer. ceive healthcare consistent with medical standards, the right to choose a midwife or physician, the right to choose her birth INSURANCE AND MEDICAL CARE setting, the right to receive information on her condition and HB 2847: This new law prohibits insurers from refusing to treatment (including pain relief), the right to privacy, the right insure, charging different rates or otherwise discriminating to refuse treatment, the right to contact with her newborn, the against those who are living organ donors – people who, while right to give birth in the position of her choice, and more. Illi- still alive, have donated organs like a kidney or portion of their nois agencies, healthcare providers, day care centers and more liver to patients who need them. The measure also prohibits will post these rights in prominent places and on their websites. employers from retaliating against employees who request or take a leave of absence to donate an organ, bone marrow or DEPARTMENT OF CHILD AND FAMILY SERVICES blood. Finally, it requires the secretary of state to create an HB 1551: Requires DCFS to follow several new guidelines organ and tissue donor registry. when a child is returned to the custody of a parent or guardian. The agency must complete a home safety checklist within the HB 3113: Health insurance policies must cover one annual of- 24 hours before the child is discharged from foster care, as well fice visit for a full-body skin examination for lesions suspicious as again within five days of the child’s return, plus every month for skin cancer, without charging the patient a deductible, co- thereafter until the case is closed. DCFS must also provide a insurance or co-payment. minimum of six months of aftercare services beginning when the child returns home, as well as ensure that the child is up SB 162: Requires insurers to cover diagnostic mammograms to date on well-child visits. Additionally, when a person who when deemed medically necessary, without imposing a co-pay is legally required to report child abuse allegations (known as or cost-sharing requirement. mandated reporter, a category that includes people like teach- ers, law enforcement, medical professionals, etc.) makes an HB 889: Insurers are required to cover long-term antibiotic allegation using the telephone hotline about a home with prior therapy (including doctor visits and testing) for people with contact with the agency, the department is required to accept tick-borne illnesses like Lyme disease, among others. it as a referral.
HB 3487: Hospitals with emergency rooms will now be required SB 1743: DCFS is now required to develop and circulate a to post in each ER information about how to sign up for health standardized survey to gather feedback from children aging insurance coverage in the Illinois health insurance marketplace. out of or transitioning out of the state’s foster care system to include requests for information on the children’s experience HB 3435: Insurers will be required to cover medically neces- with foster care and their recommendations for improvement. sary epinephrine injections for children under the age of 18. DCFS will submit a report with the survey results to the
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DCBA_Brief_March/April_2021_v2.indd 33 3/22/21 7:42 AM ARTICLES Donor-Advisor: Susan Reedy Williams Donor-Advisor:Donor-Advisor: Susan Susan Reedy Reedy Williams Williams Donor-Advisor:Law Firm: Williams Susan & Kite,Reedy LLC Williams LawLaw Firm: Firm: Williams Williams & Kite,& Kite, LLC LLC LawPassion: Firm: Helping Williams small & Kite, organizations LLC with dedicated missions and big hearts. Passion:Passion: Helping Helping small small organizations organizations with with dedicated dedicated missions missions and and big big hearts. hearts. Passion: Helping small organizations with dedicated missions and big hearts.
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Visit: dupagefoundation.org/REFER Visit:Visit: dupagefoundation.org/REFER dupagefoundation.org/REFER Visit:Call: 630.665.5556dupagefoundation.org/REFER Call:Call: 630.665.5556 630.665.5556 Call:Email: 630.665.5556 [email protected] 34 Email:Email: [email protected] [email protected] Brief March/April 2021 Email: [email protected]
DCBA_Brief_March/April_2021_v2.indd 34 3/22/21 7:42 AM ARTICLES Donor-Advisor: Susan Reedy Williams Donor-Advisor: Susan Reedy Williams governor and the General Assembly each time it is conducted, cants for a driver’s license or state identification card to choose Donor-Advisor:Law Firm: Williams Susan & Kite,Reedy LLC Williams Law Firm: Williams & Kite, LLC every five years. This measure also requires the department to from “male,” “female” or “non-binary” when designating sex. LawPassion: Firm: Helping Williams small & Kite, organizations LLC with dedicated missions and big hearts. Passion: Helping small organizations with dedicated missions and big hearts. put a locked suggestion box in each shelter, group home, transi- Passion: Helping small organizations with dedicated missions and big hearts. tional living arrangement and more, as well as submit an annual SB 1378: This measure prohibits anyone who is qualified and report to lawmakers on the issues and concerns raised from the able from being excluded from serving on a jury on the basis of suggestion boxes, plus solutions. their sexual orientation.
HB 831: This new law mandates that whenever DCFS receives CANNABIS a claim of suspected child abuse while the child was receiving SB 455: This measure allows a trained school nurse or admin- care in a hospital, including a psychiatric hospital, the depart- istrator to administer or supervise the self-administration of ment must notify the directors of the Department of Public cannabis infused products to a student who is part of the state’s Health and the Department of Healthcare and Family Services. medical marijuana program, with the written permission of a parent or guardian as well as proof of the student’s participa- SB 1239: DCFS is required to immediately report to local tion in the program in the form of the registry ID card. Learn more about Sue at wklaw.biz law enforcement any allegation that a child is being abused or Learn more about Sue at wklaw.biz Learn more about Sue at wklaw.biz neglected by a person who is not the child’s parent, immediate HB 1438: Adults over 21 are now legally allowed to use mari- family, person responsible for the child’s welfare or paramour of juana recreationally. Illinois residents can have up to 30 grams Susan Reedy Williams’ clients are often planning their financial futures with an eye the child’s parent for a possible criminal investigation. of cannabis flower, five grams of cannabis concentrate and onSusan leaving Reedy a legacy. Williams’ For clients those areinclined often toward planning charitable their financial giving, futures Sue recommends with an eye 500 milligrams of THC-infused products, known as edibles. onSusan leaving Reedy a legacy. Williams’ For clients those areinclined often toward planning charitable their financial giving, futures Sue recommends with an eye onDuPage leaving Foundation. a legacy. For those inclined toward charitable giving, Sue recommends BATHROOMS Non-Illinois residents can have up to half of those amounts. DuPage Foundation. SB 556: This law requires all single-occupancy restrooms in You can only buy marijuana at state-licensed dispensaries, and DuPage Foundation. a public place to be identified as for use by all genders, with only consume them in your own home – otherwise you can DuPage Foundation has a solid financial backing and a sign indicating it is for no more than one person at a time be ticketed for public consumption. Landlords can prohibit “ DuPage Foundation has a solid financial backing and “ experiencedDuPage Foundation management. has a solid DuPage financial Foundation backing empowers and (unless for family or assisted use) and not designating it for any cannabis use in their properties, and employers can still prohibit “ experienced management. DuPage Foundation empowers specific gender. its use and drug test employees. Growing marijuana plants is donorsexperienced to give management. to the charities DuPage of their Foundation choice, knowing empowers donors to give to the charities of their choice, knowing only allowed for medical patients and even then, they can only theirdonors wishes to give − andto the their charities donations of their − will choice, be managed knowing HB 3711: Requires every public place to have at least one have five plants. their wishes − and their donations − will be managed expertlytheir wishes and −honored and their in donationsperpetuity. − will be managed “safe, sanitary, convenient, and publicly accessible” baby diaper expertly and honored in perpetuity. ” changing station accessible to either both men and women, or Law enforcement agencies will automatically expunge arrests expertly and honored in perpetuity. ” that did not lead to a conviction for amounts up to 30 grams, and Sue is a practicing estate planning attorney and CPA. Since” 1985, she has been in both the men’s and women’s restrooms. This doesn’t apply, Sue is a practicing estate planning attorney and CPA. Since 1985, she has been however, to industrial buildings or nightclubs and bars that the governor will grant pardons authorizing expungement for Sueadvising is a practicingindividuals estate and families planning to developattorney estateand CPA. plans Since that 1985,maximize she incomehas been and don’t allow patrons under 18. convictions up to 30 grams. The state has also launched a social estateadvising tax individuals planning andand families meet their to develop personal estate financial plans and that family maximize goals. income She is anda estateadvising tax individuals planning andand families meet their to develop personal estate financial plans and that family maximize goals. income She is anda equity program aimed at giving easier entry into what promises community activist, volunteer, charitable fundraiser and philanthropist. to be a lucrative business for those who have been historically, communityestate tax planning activist, andvolunteer, meet their charitable personal fundraiser financial and and philanthropist. family goals. She is a SEXUAL ORIENTATION AND GENDER IDENTITY community activist, volunteer, charitable fundraiser and philanthropist. HB 3534: Requires the Illinois secretary of state to allow appli- disproportionately impacted by drug laws in Illinois. To Susan, family is everything. AndTo Susan, community family is is part everything. of family. AndTo Susan, community family is is part everything. of family. AndIt’s about community being togetheris part of tofamily. solveIt’s about life’s being challenges together and to solveIt’s about life’s being challenges together and to solvegive back. life’s challengesTogether, they and havegive back. raised Together, tens of thousands they havegive back. raised Together, tens of thousands they haveof dollars raised to tenshelp oforganizations thousands likeof dollars JDRF toand help more. organizations likeof dollars JDRF toand help more. organizations like JDRF and more.
Visit: dupagefoundation.org/REFER Visit: dupagefoundation.org/REFER Visit:Call: 630.665.5556dupagefoundation.org/REFER Call: 630.665.5556 Call:Email: 630.665.5556 [email protected] Email: [email protected] DCBA Brief March/April 2021 35 Email: [email protected]
DCBA_Brief_March/April_2021_v2.indd 35 3/22/21 7:42 AM ARTICLES Illinois Law Update Editors Hilary Wild and Edward Sherman
Wrongful Death Action against Forest Preserve and The Estates filed an amended complaint, modifying their Construction Contractors Arising From Fatal Crash claims against the Forest Preserve and adding ComEd and In- Due to Hydroplaning Near Camp Bullfrog Dismissed tren as defendants. The plaintiffs now asserted that debris from Because Defendants Owed No Duty to Remove Debris the Camp Bullfrog construction project, which was close to the Allegedly Clogging Drainage System location of the accident, migrated into the road’s drainage sys- Grabinski v. The Forest Preserve of Cook County et al., 2020 IL tem, causing it to be “obstructed and [filled] with soil and de- App (1st) 191267 bris, in effect closing the ditch and drainage system and mak- ing it useless, and allowing water run-off onto the road***.” In Grabinski, the Special Administrators of the Estates of The plaintiffs claimed that the Forest Preserve, ComEd, and Jonathan Grabinski and Salvatore Melant brought wrongful Intren, which were involved in the construction of Camp Bull- death claims against the Illinois Department of Transportation frog in 2014 and 2015, were negligent in allowing the road’s (IDOT), the Forest Preserve District of Cook County (Forest drainage system to become obstructed with debris. Preserve), Commonwealth Edison Company (ComEd), and Intren, Inc. (Intren). 17-year-old Grabinski and his 18-year- The Forest Preserve supplemented its original motion to dis- old passenger, Melant, both died when the car Grabinski was miss in response to the amended complaint. Intren and Comed driving hydroplaned and hit a tree. The accident occurred on also moved to dismiss the amended complaint under section Archer Road adjacent to property owned by the Forest Preserve. 2-619. The Cook County trial court entered an order grant- ing all three motions to dismiss stating, “[T]he uncontroverted The Estates claimed that IDOT and the Forest Preserve evidence shows that IDOT has exclusive jurisdiction over the owned, controlled, maintained, possessed, and/or managed the road.” Neither the Forest Preserve, ComEd, nor Intren had a road, adjacent ditch and/or adjacent terrain where the accident concurrent duty to maintain the road or its drainage system. occurred. The plaintiffs voluntarily dismissed IDOT. Moreover, the governmental tort immunity defenses raised by the Forest Preserve protected it against the plaintiffs’ allega- The Forest Preserve moved to dismiss under section 2-619(a) tions. (9) of the Code of Civil Procedure, arguing that the Forest Pre- serve did not own, operate, or control the road or its drainage The Estates appealed, arguing that the trial court erred in dis- system, as it was all under the exclusive jurisdiction and control missing the amended complaint because all three defendants of IDOT. The Forest Preserve also raised three governmental owed a duty to remove debris from the Camp Bullfrog con- tort immunities: (1) no liability for failing to inspect the prop- struction project and not allow it to clog the adjacent road’s erty of others; (2) no liability for the effects of weather on road- drainage system. Specifically, the estates claimed that the three ways; and (3) no liability for failure to install warning signs. defendants breached their duty by cutting down trees and dig-
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The Estates filed an amended complaint, modifying their ging up dirt and not cleaning up the leftover debris. Over a year out by IDOT, causing water to pool on the road. Moreover, claims against the Forest Preserve and adding ComEd and In- later, debris migrated into the adjacent road’s drainage system, requiring the Forest Preserve to ensure that debris on its land tren as defendants. The plaintiffs now asserted that debris from allowing water to pool on the road and causing the accident. did not migrate into the adjacent road’s drainage system and the Camp Bullfrog construction project, which was close to the that IDOT did not let the debris build up over time would place location of the accident, migrated into the road’s drainage sys- The First District Appellate Court affirmed the dismissal of an undue burden of the Forest Preserve. tem, causing it to be “obstructed and [filled] with soil and de- the amended complaint. Citing 605 ILCS 5/4-203, it con- bris, in effect closing the ditch and drainage system and mak- firmed that IDOT exclusively owns, controls, and maintains The Court applied substantially the same analysis to the ing it useless, and allowing water run-off onto the road***.” the road, including the road’s drainage system. It distinguished claims against ComEd and Intren, holding that neither The plaintiffs claimed that the Forest Preserve, ComEd, and the facts before it from those in Whittaker v. Honegger, 284 Ill. company owed any kind of care to the decedents regarding Intren, which were involved in the construction of Camp Bull- App. 3d 739 (5th Dist. 1996), where the Fifth District Appel- frog in 2014 and 2015, were negligent in allowing the road’s late Court held that the landowners owed a duty to travelers drainage system to become obstructed with debris. on the adjacent road to keep their land free from conditions that were unreasonably dangerous to such travelers who may About the Authors The Forest Preserve supplemented its original motion to dis- come into contact with the condition. Unlike the plaintiffs in Hilary Wild graduated from the University of miss in response to the amended complaint. Intren and Comed Whittaker, the Estates did not allege that the Forest Preserve Colorado School of Law and practiced in New also moved to dismiss the amended complaint under section let debris from the Camp Bullfrog construction project mi- York for several years before moving to Illinois. 2-619. The Cook County trial court entered an order grant- grate directly onto the road. There were no allegations that Since 2014, she has worked for Rolewick & ing all three motions to dismiss stating, “[T]he uncontroverted the Forest Preserve’s property invaded the actual pavement of Gutzke, P.C., specializing in employment law, evidence shows that IDOT has exclusive jurisdiction over the the road. Rather, the plaintiffs alleged that the Forest Preserve business law, and a variety of types of litigation, road.” Neither the Forest Preserve, ComEd, nor Intren had a let debris migrate into the road’s drainage system, but IDOT including personal injury, wills and trusts and commercial. concurrent duty to maintain the road or its drainage system. (which had been voluntarily dismissed) was solely responsible Moreover, the governmental tort immunity defenses raised by for maintaining the road’s drainage system. the Forest Preserve protected it against the plaintiffs’ allega- Edward R. Sherman is an attorney in the tions. The Court next determined that the Forest Preserve did not Oak Brook firm of Lillig & Thorsness, Ltd. His owe a common law duty to the plaintiffs to clean up the debris practice includes civil litigation and appeals. The Estates appealed, arguing that the trial court erred in dis- from Camp Bullfrog to ensure that it did not migrate into the He is a member of the Appellate Lawyers Association, Illinois Association of Defense missing the amended complaint because all three defendants adjacent road’s drainage system. The decedents’ injuries were Trial Counsel, as well as the Defense Research owed a duty to remove debris from the Camp Bullfrog con- not reasonably foreseeable to the Forest Preserve – it is high- Institute’s Appellate Advocacy Committee. struction project and not allow it to clog the adjacent road’s ly unlikely that the Forest Preserve could foresee that debris drainage system. Specifically, the estates claimed that the three would migrate into the adjacent road’s drainage system more defendants breached their duty by cutting down trees and dig- than a year after construction was complete and not be cleared
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debris migrating from the Forest Preserve’s property into propriated; and (3) used in the defendant’s business.” Id., quot- IDOT’s drainage system. It further determined that, even if ing Strata Marketing, Inc. v. Murphy, 317 Ill. App. 3d 1054, 1068 ComEd and Intren had a contractual duty to clean up any de- (2000). Whether the information constitutes a trade secret bris they created as part of Camp Bullforg construction proj- focuses on its secrecy. To show that information falls within ect, the Estates could not assert any contractual rights against the Act, the plaintiff must show that the information was suffi- ComEd or Intren because the decedents were not third-party ciently secret to give the plaintiff a competitive advantage and beneficiaries to those contracts. Accordingly, the amended the plaintiff took affirmative measures to prevent others from complaint was properly dismissed. acquiring or using the information.
Summary Judgment and Attorney’s Fees Properly The defendants contended that MSM failed to maintain Awarded to Defendants in Trade Secrets Act Case customer lists or identify what information it was trying to Where Plaintiff Failed to Keep Customer Names Secret protect. They argued that the depositions of the plaintiff’s Multimedia Sales & Marketing, Inc. v. Marzulla et al., 2020 IL witnesses showed that there were no actual customer lead App (1st) 191790 lists, and MSM’s failure to identify specific customer infor- mation, in the form of a customer list or otherwise, that it In Marzulla, Multimedia Sales & Marketing, Inc. (MSM) sued was seeking to protect precludes it from claiming a trade Radio Advertising, Inc. (RAI), and former MSM employees, secret violation. alleging that when three of its employees left MSM to work for RAI, they improperly took MSM’s potential customer lead lists The Appellate Court disagreed. It determined that MSM’s “re- that were protected by the Illinois Trade Secrets Act (the Act) newal lead lists,” which contained information regarding the (765 ILCS 1065/1 et seq.) and used the information to solicit customer’s name, telephone number, purchase history, PSAs MSM customers. purchased, and pricing, were eligible for protection under the Act. However, the claims under the Act still failed because The Cook County trial court granted summary judgment to MSM did not show it kept the information on the renewal lead the defendants, finding that they presented evidence that many lists sufficiently secret or made reasonable efforts to maintain parties shared MSM’s lead lists and MSM failed to raise a genu- their secrecy. MSM gave the names of its customers to radio ine issue of material fact that the lists qualified as trade secrets stations, which then broadcast that information and were oth- under the Act. The trial court further granted the defendants’ erwise free to use it without restrictions. The Appellate Court motion for attorney’s fees under section 5 of the Act, finding determined it was “irrelevant” that MSM did not disclose the that MSM’s trade secrets claims were made in bad faith. The customer’s contact person, purchase history, or PSA preferences trial court awarded the defendants $71,688 in attorney’s fees. to the radio stations because, once a competitor hears a PSA from one of MSM’s customers or otherwise receives the name MSM appealed the summary judgment determination and at- of an MSM customer from the radio station, it can contact torneys’ fees award. While the appeal was pending, the defen- the customer and acquire whatever information the customer dants filed a motion for attorney’s fees incurred in defending is willing to provide. “In short, once the customer’s name is the appeal. The First District Appellate Court affirmed the known, the other ‘important information’ MSM says is secret trial court’s judgment, but it declined to award additional is easily ascertainable and so not secret information under the attorney’s fees to the defendants. Act.” Id. at ¶26.
“To set forth a violation of the Act, a plaintiff must allege facts Section 5 of the Act permits the court to award reason- that the information at issue was: (1) a trade secret; (2) misap- able attorney’s fees to the prevailing party when a “claim of
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misappropriation is made in bad faith.” Applying the stan- In his deposition, the plaintiffs’ expert, Gary Hutter, opined dard set forth in Rule 137, the trial court had found that that the steps on the dump trailer were defective and unreason- MSM’s trade secrets claims were “never well-grounded in ably dangerous. He explained that the spacing and width of the fact or warranted by existing law or an argument to extend steps, as well as the lack of side rails on the dump trailer, did existing law” and awarded attorney’s fees. MSM admitted to not comply with the recommendations of OSHA, the American providing material information about its customers to radio National Standards Institute, the Federal Motor Carrier Safety stations without requiring the stations to sign confidentiality Regulations, and the Truck Trailer Manufacturers Association. agreements and knowing that the radio stations would air the customers’ information or otherwise disclose it. Accord- The Cook County circuit court granted East Manufacturing’s ingly, the Appellate Court held that the trial court did not motion for summary judgment, ruling that OSHA does not abuse its discretion in finding that MSM’s claims were made apply to trailers and that industry standards are not manda- in bad faith. tory. The circuit court also found that the trailer met industry custom and practice because East Manufacturing built the The Appellate Court denied the defendants’ motion for attor- trailer pursuant to the specifications of the purchaser and the ney’s fees incurred on appeal. Section 5 of the Act does not purchaser had the trailer modified by a third party who added specifically provide for payment of attorney’s fees incurred on a tarp cover and cap. The court further found that the third- appeal, and defendants provided no other basis for an attorney’s party modifications demonstrated that the trailer was not fees award. Even if section 5 extends to an appeal, MSM had a unreasonably dangerous when it left East Manufacturing’s right to appeal the trial court’s summary judgment order as long control. as it had a good faith belief the trial court committed error. The Gillespies appealed, and the First District appellate court reversed the trial court’s summary judgment grant. The appel- Summary Judgment in Favor of Defendant Manufacturer late court reasoned that the deposition testimony of Hutter of Dump Trailer in Strict Liability Action Inappropriate and others was sufficient to create a genuine issue of material Where Plaintiff’s Expert’s Testimony Created a Genuine fact as to whether the trailer was unreasonably dangerous. East Issue of Fact as to Whether the Product was Unreason- Manufacturing appealed. ably Dangerous Gillespie et al. v. Edmier et al., 2020 IL 25262, Dec. 3 2020 The Illinois Supreme Court affirmed the appellate court’s deci- sion. It recited the elements of a strict product liability action: In Gillespie, the Illinois Supreme Court affirmed the appellate (1) the injury complained of resulted from a condition of the court’s reversal of summary judgment in favor of the defendant product; (2) the condition was unreasonably dangerous; and manufacturer, East Manufacturing Corporation (East Manu- (3) the condition existed at the time the product left the man- facturing), in a strict liability action brought by the plaintiffs. ufacturer’s control. A showing that the product is unreasonably dangerous in a strict liability claim, based on a design defect, Plaintiff Dale Gillespie was injured when he fell off the stairs of may be proved “by evidence of the availability and feasibility a dump trailer manufactured by East Manufacturing. Dale and of alternate designs at the time of its manufacturer, or that his wife filed suit against East Manufacturing, among other the design used did not conform with the design standards of defendants. The Gillespies alleged that East Manufacturing the industry, design guidelines provided by an authoritative was strictly liable for, and acted negligently in, designing, man- voluntary association, or design criteria set by legislation or ufacturing, and selling a defective and unreasonably dangerous governmental regulation.” Id. at ¶11, quoting Anderson v. Hyster product. Co., 74 Ill.2d 364, 368 (1979).
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East Manufacturing argued that summary judgment was proper Laches Avoids Vacation of Defective Summons under the risk-utility test, under which the utility of the design In Foreclosure Case must be weighed against the risk of harm created, and if the In Ocwen Loan Servicing, LLC v. DeGomez, 2020 IL (1st) likelihood and the gravity of the harm outweigh the benefits and 190774, the Illinois Appellate Court (Second District) utilities of the product, the product is unreasonably dangerous. affirmed the dismissal of a petition to vacate judgment in which It argued that government regulations and industry standards the defendants asserted that the judgment was void because not applicable to it or the dump trailer were irrelevant and that they were not properly served under Illinois Supreme Court the appellate court erred in considering those standards. Rule 101(a).
The Gillespies countered that the OSHA and industry stan- In March of 2010, Ocwen Loan Servicing filed a foreclosure dards served as a basis for their expert’s opinion, and that the action against the defendants. The summons caption stated: issue on appeal was limited to Hutter’s use of such standards in Ocwen Loan Servicing, LLC v. Guadalupe DeGomez, et al. and forming his opinion. Whether the standards could be admitted attached to the summons was a page directing Defendant De- into evidence was not the issue. Gomez, as well as Defendant Teresa Trujillo to be served. All Defendants were served and in June of 2010 the circuit court en- The Illinois Supreme Court agreed with the Gillespies. It held tered a default judgment. The subject property was later sold at that Hutter’s deposition testimony was sufficient to create a a sheriff’s sale and subsequently confirmed by the court. Third genuine issue of material fact as to whether the dump trailer parties later purchased the subject property. was unreasonably dangerous, and that Hutter must be allowed to testify regarding the basis of his opinion, including the In September of 2018, the defendants filed a petition for relief OSHA and industry standards, even if those standards them- from void judgment under Section 2-1401(f) of the Code of Civil selves could not be admitted into evidence. Procedure. Defendants argued in their petition that they were not properly named on the summons and the court lacked per- Justice Karmeier filed a concurring opinion, joined by Justices sonal jurisdiction over them. Defendants subsequently settled Garman and Burke, taking issue with the majority’s opinion’s with the third party purchasers as to the title to the subject implications that the OSHA and industry standards properly property. The circuit court then found that the petition to formed the basis for Hutter’s opinion, and that Hutter could vacate was moot as to Ocwen as no money damages were sought testify as to the OSHA standards as the basis of his opinion. and the claims to the subject property had been resolved. The The majority’s opinion suggested that an expert must always be circuit court also found that the rest of the remaining relief was permitted to testify to the basis of his opinion. However, the barred by laches. concurring justices pointed out that the trial court, in its role as “gatekeeper,” must determine whether any standard raised by On appeal, the appellate court first referenced Supreme Court an expert is sufficiently reliable to form the basis for his expert Rule 101(a) that states a summons is to be directed to each opinion. Hutter may or may not be able to testify about the defendant and that a summons that does not name a person OSHA and industry standards he used to reach his conclusion, on its face is no summons at all as to the unnamed person con- depending on the trial court’s determination as to whether this cerned. The appellate court went on to cite its previous holding information is of a type that is reliable in the context of the in Arch Bay Holdings, LLC-Series 2010B v. Perez, 2015 IL App data and facts of the case. (2d) 141117 in which it held a summons that failed to list a defendant on its face was fatally defective. Ultimately, the concurring justices agreed that Hutter pro- vided a factual basis for his opinion and did not rely solely on However, the appellate court distinguished the present case. OSHA standards. This meant that there was a genuine issue of First the appellate court noted that “[i]t is difficult to imagine fact precluding summary judgment. how the caption on the summons, stating ‘OCWEN LOAN
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SERVICING, LLC vs. GUADALUPE DEGOMEZ, ET AL,’ could have possibly prevented DeGomez from understanding the meaning or significance of the summons: that Ocwen was the plaintiff and that DeGomez was a defendant.”1 The appel- late court further noted that “we cannot determine that the alleged technical deficiency regarding the absence of DeGo- mez’s name following ‘To each Defendant:’ defeated personal jurisdiction over her. There were only two names listed on the summons, and DeGomez would have known if she were a de- fendant.” 2
With respect to Defendant Trujillo, the appellate court found that the summons was improper as she was not named on its face and therefore there was no summons at all. However, the appellate court found that although void judgments may be attacked at any time, laches can preclude relief where prej- udice is demonstrated. The appellate court then noted that Defendant Trujillo did not argue that she was not served or had no knowledge of the foreclosure action. The appellate court then noted that the unreasonable delay allowed Defen- dant Trujillo to increase the damages she sought and resulted in irreparable harm to Ocwen who could not recover the subject property.
Issuing of Deed in Foreclosure Lawsuit Bars Borrowers’ Claim For Violation of RESPA and Consumer Fraud In Adler v. Bayview Loan Servicing, LLC and The Bank of New York Mellon, 2020 IL App (2d) 191019, the Illinois Appellate Court (Second District) affirmed the dismissal of a lawsuit by borrowers after the confirmation of sale was found to be a barred claim under Section 15-1509(c) of the Illinois Mortgage Foreclosure Law, which bars claims of all parties to a foreclo- sure after the deed vesting title has been issued.
In 2010, Bank of New York Mellon filed a foreclosure action against Plaintiffs Ronald and Lisa Adler and obtained a judg- ment of foreclosure in 2012. Bayview Loan Servicing, LLC subsequently acquired servicing rights and communicated with the Adlers regarding a trial period payment plan. Bay- view then noticed the Adlers’ home up for a sheriff’s sale in September of 2015. The Adlers filed a motion to stay the sale and requested leave to file a counterclaim against Bank of New
1. Ocwen Loan Servicing, LLC v. DeGomez, 2020 IL (1st) 190774, ¶ 21 (2nd Dist. 2020). 2. Id.
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York Mellon for breach of contract in the foreclosure case. The Affordable Program and concluded that the Adlers’ claims circuit court denied the request to stay the sale and leave to file were encompassed within the statute’s provisions. The the counterclaim due to untimeliness. The foreclosure sale was appellate court also noted that the proper time to raise the confirmed on November 2, 2015 and Bank of New York Mellon Adlers’ issues was between the entry of the judgment of fore- issued a deed on November 6, 2015. closure and the judicial sale, that the Adlers were aware of the issues set forth in their complaint for five months before The Adlers then filed a complaint against Bank of New York the judicial sale and only raised the issues 20 days before News Mellon and Bayview Loan Servicing, LLC in the United States the judicial sale was scheduled and that the Adlers did not District Court for the Northern District of Illinois. However, appeal the circuit court’s denial of their requested leave to the Federal Court dismissed this lawsuit under the Rooker-Feld- file a counterclaim. man doctrine that prevents a federal court from hearing a claim that is “inextricably intertwined” with a prior state court judg- ment when “the plaintiff had a reasonable opportunity to raise Events the issues in state court proceedings.”3
The Adlers then filed a separate lawsuit in the circuit court in state court in which they claimed that Bank of New York Mellon and Bayview Loan Servicing, LLC violated RESPA by conducting a foreclosure sale without following the act’s pro- cedural requirements, and the Illinois Consumer Fraud Act by engaging in various unfair acts while the Adlers sought a permanent loan modification offer following their default. The circuit court dismissed this lawsuit on the basis that the claims were barred by Section 15-1509(c) of the Illinois Mortgage Foreclosure Law and by res judicata.
On appeal, the Adlers argued that the barring of “all claims” under Section 15-1509(c) was limited to seeking relief from a foreclosure judgment or an order confirming sale. Bayview Loan Servicing, LLC and Bank of New York Mellon argued that Section 15-1509(c) applies to “all claims” relating to the foreclosure action.
The appellate court reviewed Section 15-1509(c) in con- text of other parts of the Illinois Mortgage Foreclosure Law that specifically allow for a judicial sale to be set aside for violations of other statutory provisions, including mort- gagors who applied for assistance under the Making Home
3. Adler v. Bayview Loan Servicing, LLC and The Bank of New York Mellon, 2020 IL App (2d) 191019, ¶ 11 (2nd Dist. 2020).
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DCBA_Brief_March/April_2021_v2.indd 42 3/22/21 7:42 AM News & Events 45 Spotlight on Judge Robert J. Anderson - By Azam Nizamuddin
47 ISBA Update - By Kent A. Gaertner
48 DuPage County Elects New Circuit Court Clerk: An Interview with Candice Adams - By Ted A. Donner
52 Honorable Craig Belford - By James Ryan
54 Legal Aid Update - By Cecilia Najera
55 Classifieds
56 Where to Be with DCBA By Robert Rupp
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Momkus LLP is pleased to announce that John P. Killacky is now an Equity Partner at the law firm.
John’s areas of practice include: COMMERCIAL LITIGATION GENERAL COUNSEL SERVICES BUSINESS LAW LLP
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Momkus LLP is pleased to announce that John P. Killacky Spotlight on Judge is now an Equity Partner at the law firm. Robert J. Anderson LRS Stats By Azam Nizamuddin 12/1/2019 to 12/31/2019
The Lawyer Referral & Mediation Service received a total of 910 referrals, including 36 in Spanish (782 by telephone, 119 online I distinctly recall the first time I heard referrals and 9 walk-ins) for the month Judge Robert (“Bob”) J. Anderson of December. speak. It was at a DCBA judges’ forum at the Attorney Resources Center We receive calls in the following areas but currently have no attorneys in these at the 18th Judicial Circuit Courthouse, areas: Civil Rights, Health Care Law and many years ago. The panel consisted of Mental Health. If you practice in these several seasoned judges providing in- areas and would like to join LRS or add sights and suggestions of how attorneys them to your existing LRS profile, please should practice when they appear before call Tim Doyle at (630) 653-7779 or email them. When Judge Anderson took the [email protected]. mic, he focused less on civil procedure If you have questions regarding the service, and more on decorum and profession- attorneys please call or email Tim. Please alism. He cautioned against unpro- refer clients to call (630) 653-9109 or fessionalism and untoward behavior in request a referral through the website at the heat of litigation and disputes. He www.dcba.org/lawhelp. advised the attendees to treat everyone, Administrative Law ...... 0 Honorable Robert Anderson (Ret.) including fellow attorneys, with respect Animal Law ...... 0 and courtesy. Judge Anderson reminded Appeals ...... 9 us all how stressful and demanding the legal profession can be, with the demands Bankruptcy/Credit Law ...... 26 of clients, particularly in the area of family law and criminal law. But our lives and Business ...... 17 practice can have a fortunate balance by avoiding personalizing disputes and mak- Collection ...... 44 Consumer Protection ...... 5 ing sure that everyone is accorded respect and courtesy. Frankly, so many years John’s areas of practice include: Contract Law ...... 5 later, his presentation is the only one I can recall. I think it had to do with the level Criminal Law ...... 212 of sincerity and integrity with which Judge Bob Anderson has not only practiced Elder Law ...... 13 COMMERCIAL LITIGATION law, and adjudicated disputes, but also how he has lived his life. Indeed, he certainly Employment Law ...... 62 GENERAL COUNSEL SERVICES practiced what he preached because I had the pleasure of appearing before him Estate, Trusts and Wills ...... 70 many times and found him to be prepared, substantive, respectful, and accommo- Family Law ...... 155 Government Benefits ...... 9 BUSINESS LAW dating to attorneys and their clients. Immigration Law ...... 5 Insurance Law ...... 25 Bob Anderson began his career in private practice and then became an Assistant State’s Intellectual Property Law ...... 0 Attorney in DuPage County. After a very successful private practice where he was Mediation ...... 0 a named partner, Bob Anderson was appointed Associate Judge in DuPage County Military Law ...... 0 in March of 1992. Three years later, he was appointed as a Circuit Judge by the Illi- Modest Means ...... 0 Personal Injury ...... 109 nois Supreme Court. He was elected by the people of DuPage County as a perma- Real Estate Law ...... 121 nent Circuit Court Judge in 1996 and retained that post until his retirement in 2019. School Law ...... 2 LLP Early on, he was assigned to the Felony Criminal division. Subsequently, he found Tax Law ...... 7 his place in Juvenile, Divorce, and Paternity Court. In fact, for many years, he served Workers’ Compensation ...... 14 as Presiding Judge of the Domestic Relations Division and was (Continued on page 46)
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Spotlight on Judge Robert J. Anderson (Continued from page 45)
head of the Juvenile Courtroom, hearing bowl. As a prosecutor, Bob Anderson took presents an award to those that have gone Child Protection and Delinquency cases immediate steps to provide help and pro- above and beyond, and set an example of until his retirement. tection to the young children who were support. In 2018, LAP presented its Judge being abused. Since then, he has spent of the Year Award to Judge Bob Anderson. Judge Anderson enjoyed hearing cases much of his career making sure both in the Juvenile Division for obvious rea- women and children are protected from Although he has been retired for two sons. But a case early on in his career as a abuse by family members and others. years, Judge Anderson’s schedule has not prosecutor endeared him to the rights and dwindled. He continues to teach at Loyola plight of children trapped in difficult and Judge Anderson’s deep interest and desire University as Adjunct Faculty. He’s still challenging situations. In the early 1980’s, to protect members of our society from active with the ISBA and he continues two parents were prosecuted for abuse any kind of abuse is what led him to par- to serve on several not-for-profit boards of their young children, ages 7 and 9. It ticipate in the ISBA’s Lawyers’ Assistance including the Illinois CASA (Court Ap- was a horrendous situation for the family. Program (“LAP”). LAP is designed to help pointed Special Advocates) for children, The parents locked up the kids who were lawyers and their families concerned with and Project Help, designed to prevent both sleeping in cribs, the windows in the alcohol abuse, drug dependency, and de- child abuse for at-risk families. Judge Bob home were blocked with newspapers, and pression or burnout. Every year, as a re- Anderson is an ideal representation of the the kids had not been fed regularly, were sult of the outstanding work of the LAP judiciary and of our legal system here in unwashed, and were being fed from a dog staff and the sacrifice of volunteers, LAP Illinois and across the nation.
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ISBA Update
Criminal Justice Reform Rushed Through By Kent A. Gaertner
In the closing days of the 101st Legisla- outweighs the good of the few.” Most of The Illinois Supreme Court Rules Com- ture, the Illinois Black Caucus brought the provisions of this bill go into effect mittee has taken no action as of this forth a criminal justice reform bill that on 7/1/2021. writing on the CBA/CBF proposals for was more than 600 pages in length. It access to justice. As I have previously deals with numerous topics including As to other matters being discussed at discussed, the ISBA has serious concerns bail reform, police accountability and the Board level, the Scope and Correla- about many of these proposals. training, prisoner’s rights, police pur- tion Committee is circulating a draft chasing of military-type equipment and to the Section Councils and Commit- The Board just completed three training/ new standards for decertification of a po- tees of possible proposed changes to planning sessions to move forward with lice officer. Little time was given before Illinois Rule of Professional Conduct its responsibilities for long-range plan- a vote was called, although many of the 8.4. This involves updating guidelines ning. They were assisted by a facilitator provisions that ended up in the bill were regarding sexual harassment in the from the ABA. The next Board meeting the subject of previous hearings in 2020. legal workplace. Comments were due is the last week in March with another Many of the provisions of the bill were by 2/19/2021. These will be used to scheduled in May. The June Annual not supported by Illinois prosecutors and fine-tune the proposal or perhaps recon- Meeting is still currently planned as an law enforcement. sider the matter completely. I will keep in-person event. Let’s keep our fingers you posted. crossed. ISBA responded by immediately so- liciting input from its various section Among the agenda items for the March Stay well, mask up, keep your distance councils and committees. The overall Board meeting is a proposal to allow and let’s get everyone vaccinated as soon positions taken were supportive of the free ISBA membership to all Illinois law as possible so we can go back to living bill despite the many controversial pro- students starting their first year. This our lives. visions. The Executive Committee of may also be extended to the St. Louis the ISBA is authorized to take action on law schools who have many graduates behalf of the ISBA where there is insuf- accepting positions in Illinois. ficient time to fully vet the issues with About the Author the Board of Governors or the Assembly. Also to be considered is a proposal to Kent Gaertner is the Eighteenth Judicial Circuit’s representative on the ISBA Board Using this authority, the Executive Com- require mandatory malpractice insur- of Governors. He is the principal of Kent A. mittee voted to support this legislation, ance in order to practice in Illinois. Gaertner P.C. and “Of Counsel” to Pfeiffer feeling that, on the whole, the reforms Again, this would be an initial investi- Law Offices, P.C. where he concentrates his in the bill were important. As the Vul- gation into feasibility with a follow-up practice in bankruptcy and workouts. He can saying goes, “The good of the many report to be published. was president of the DCBA in 2009-2010.
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DuPage County Elects New Circuit Court Clerk: An Interview with Candice Adams
By Ted A. Donner
We sat down to talk with Adams about handle the archives, court orders and her background and the perspective she other records necessary to the court’s brings to her new role on January 20, business. “It definitely hasn’t gone unno- 2021, the day that Kamala Harris was ticed to me,” Adams continued, “that I sworn in as the first female Vice Presi- am the first woman to be here, in this dent of the United States. Adams told position, overseeing a department that’s us she was particularly conscious of that primarily made up of women. They have fact, being the first woman to ever serve someone in the lead, now, who’s one of as Clerk of the Circuit Court in DuPage them as well.” County. “When you walk into this office,” she said, “there are portraits of the four She is also one of “us lawyers,” having men who held this office previous to me, come to her new job at the courthouse and then there’s me, and that is certainly from Ankin Law in Chicago, a personal something that, being a woman, I’m ex- injury and workers compensation firm cited for my daughter to see. Before I got where she worked as an associate. “I this position, she wouldn’t have seen a think I’m the first person to hold this job woman there on that wall because there who’s a lawyer,” she said when we asked Candice Adams had never been one. Now there is a wom- about her background. “I know what Candice Adams is the first woman and an’s portrait up there and that shows my it’s like to walk into one of the court- the first attorney to serve as Clerk of the daughter that she can do this too so, yes, rooms here and have no idea how to do Court for the Eighteenth Judicial Circuit. today is a big day. It’s an important day an electronic order, and I know that it’s A graduate of The John Marshall Law in history and it’s important for us here.” different in other counties. I’m used to School, she was a member of The John Cook County, where you still have to use Marshall Law Review and their National As Clerk of the Court, Adams oversees a carbon paper between your copies and Moot Court Team before graduating cum staff of some 150 people, most of whom have to press down to write out your or- laude in 2012. Eight years later, she won are themselves women. That staff in- der for the judge to sign. Things are very the county-wide election for her current cludes the clerks assigned to each of the advanced here in DuPage County. The position in a race in which almost a half individual judges, people handling files in speed at which this team moves to make million voters participated, defeating the the clerk’s office on the first floor of the things change is incredible. I come from incumbent by just over 6,000 votes. courthouse, and dozens of others who a law firm where we were constantly
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trying to find the most efficient, cost- right? I have spent time in courtrooms, in particular, has taught us that we can effective way to do things and it’s very so I certainly understand what makes a still hold court proceedings and not take much the same here. People here are courtroom more efficient or less efficient. up somebody’s entire day by forcing them always looking for the quickest, easiest, Change? Will there be changes in some to be in the courthouse. There are now most efficient way for people to get their things? Yes, there probably will be – and monitors being installed so that Zoom work done and these electronic orders a lot of the changes that will be made, I can be continued in the DuPage County are a good example of that. It takes a expect, are going to be dictated by the courtrooms. That may be something peo- minute to learn how to do them, but they Illinois Supreme Court.” ple are worried about, but I don’t think have changed how the courthouse works. it’s a bad thing. I think, instead, that it’s They have changed how we maintain She leaned forward. “But, when we’re going to be a huge benefit for people who records and how people are able to get talking about how the bar is going to be are trying to make their court dates.” access to the courthouse system.” impacted specifically, I guess I’d have to say that I’m hoping it will be in a very First Initiatives. “I want to hit the Change and Progress. While the positive way and that it will mean, for ground running,” Adams said, “so we’re DuPage legal community might take one thing, that you’ll have more access working on developing a few things right some comfort from knowing that Adams to things online. You’ll be able to see away. The Illinois Supreme Court recently understands what it means to work as a more online and you’ll get more infor- said that we can do texting notifications, lawyer, there has been some trepidation mation that you would have otherwise for example, so we’re in the process of de- since she was elected. Chris Kachirou- had to come to the courthouse for. So, veloping a texting system to remind liti- bas held this position for some 16 years, should the bar expect change? Yes, they gants of when they have to be in court. after all, and people had certainly come to probably should, but the progress that It’s still in the developmental stage, we know what they should expect from him. we make in this office over the next four still need to figure out some of the logis- years while I’m serving as Clerk should tics, but we’re in meetings now and we’re We had to ask whether lawyers should make life easier for the attorneys and for talking with some companies about what be worried over how much Adams might pro se litigants alike.” texting services there are that could sup- just want to change everything – how port what we’re trying to do here. We’re determined she might be to just upset “I’m not sure what change is a concern for going to start out on a small scale with the apple cart? “Your question is interest- people, what they worry may affect them some of the courtrooms so we can see ing,” she said in response, leaning back in negatively,” she continued, “but I think how it works, but the idea is you’ll sign her chair, “but I’m a member of the bar, the pandemic has taught us a lot. Zoom, up and provide your number, and then
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you’ll get text reminders when your court something that this office can help with, entitled to the use of court resources, is date is coming up.” then we want to do that here.” something very important to us here.”
“And we’re looking at expungements,” Prior to law school, while Adams was Changes in the Community. Adams she said, “which is something we’re plan- still living in her native Ohio, she spent started in her position within weeks of ning to do on a couple of different fronts. four years working as a rape crisis coun- Hon. Kenneth Popejoy being sworn We want to do an expungement summit selor, helping the victims of sexual as- in as the new Chief Judge and just a few similar to those held in other counties, sault. Since then, her commitment to months after Suzanne Armstrong first where people can come in and get their public service appears to have been started as Courthouse Administrator. records expunged, but we’re also devel- paramount, something bound to affect The three of them are working together oping an application process here in the how she approaches her position as Clerk in a courthouse in which roughly a third office to make it easier for people to come of the Court. “One of my goals,” she told of the judges, the sheriff, and a great in throughout the year and start work us, “is to make the courthouse a place many people on staff are all fairly new on getting the documents filed for the where people can come and feel like it’s to their positions – and they are work- expungement that they’re looking to get.” a resource for them, as opposed to being ing with a County Board which, for the some forbidden place they’re afraid to first time in its history, is made up of a The DuPage County Bar Association, walk into.” majority of Democrats. working with the Public Interest Law Initiative and DuPage Legal Aid, had Whether that means developing bi- “We meet regularly, our office and the likewise been developing an expunge- lingual signage or setting up facilities Chief Judge’s office,” Adams told us. “We ment program when the pandemic put where those with sensitive concerns, meet every two weeks, more if it’s needed, the brakes on that effort. But there is still like the need for an order of protection, and we are working together, all of us, hope that it can continue in 2021. “We can get their filing done more privately, very closely. Suzanne Armstrong, who is have begun meeting with groups within it ultimately involves concern with the the Court Administrator, is someone I’ve the legal community and will be reach- needs of self-represented litigants. “Pro se called with a ton of questions about how ing out to many more in the near future,” litigants are a unique group of people,” the world is supposed to look and how Adams told us, “and hopefully we’ll get she said, “so we spend a lot of time in everything works here in the courthouse. this program up and going soon.” this office trying to figure out how we Bob Berlin, the DuPage County States can best help make the systems we have Attorney, is likewise someone I talk to “It’s really important to me,” she contin- in place more user friendly for that group about what we’re doing and with whom ued. “Expungements change lives. Your of people. If we can get things working we’re doing some presentations for the record affects you when you apply for so that a pro se litigant understands what County Board. We’re going to be doing housing or a job or for the military. It the forms are saying, that makes it eas- some presentations pretty soon about can affect whether you get into a partic- ier on everybody else throughout the how the new criminal reform bill will af- ular school to get an education. So, an courthouse. Finding a way to make pro fect our office, cannabis expungements expungement can have a big impact on se litigants feel like they’re seen here, that and the like, and how that all looks. We somebody’s life and, certainly if that’s they have a voice here and that they are want to make sure that we have positive
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working relationships with the other de- in political science and a minor in crimi- That was evident during a discussion partments throughout the county that nology, so politics is something that has Adams and Kachiroubas had with the rely on us and upon whom we rely. You’d always been of interest to me. I knew Daily Herald during the campaign (one be right to assume we work very closely that I wanted to run but I didn’t under- which may have been intended to be a with the Chief Judge, but we also do a stand, back in 2018 when I was very new debate, but which proved far too cordial lot of work with the States Attorney and to politics, how big the divide between for such a moniker). When Adams de- the Public Defender, Jeff York. This is Republicans and Democrats really was. I scribed some of her ideas for the Clerk’s something of a hub for a lot of differ- didn’t know when I was first starting out office, Kachiroubas was quick to say that ent departments throughout the county in all of this, how much of an uphill bat- he wanted to “compliment Candice on so a great many people have some kind tle it was supposed to be. I didn’t know this,” calling one of her suggestions “an of working relationship with us. Main- or didn’t understand at the time how rare outstanding idea.” When she was asked taining those relationships and making a Democrat was among elected officials by Herald editor Robert Sanchez, in sure they can be positive so that we can in DuPage County. Where I grew up, turn, why she had decided to run against make sure that things work smoothly are everybody was a Democrat, so when I the incumbent court clerk of 16 years, definitely things that we’re going to be decided to run, I didn’t think about how she looked down just a touch and said focusing on here. It doesn’t matter who’s much of an uphill battle this was going with a smile, “I thought he was retiring.” a Democrat or who’s a Republican, this to be. I thought I could do this job, I is an office that we can work together to thought I would be good at it, and I ran The race was close, it was cordial and build. For me and for this office, as much for it. I put a lot of work into trying to get civilized, and it ended amicably with Can- as we can do to make sure that we’re this job, and I am just so appreciative and dice Adams elected as the first woman to working well with others, regardless of so grateful that the results came out the serve as Clerk of the Circuit Court in the political affiliation, we want to do that. way they did.” history of DuPage County. “I want peo- It’s in everyone’s best interest for us to all ple to know how proud I am to be a part come together.” “That said,” Adams added, “I would be of this office in this county,” she told us, remiss if I didn’t acknowledge that the “and of the staff that’s out here working A Civilized Changing of the Guard. person who sat in this chair before me every day on new initiatives to make DuP- “I didn’t grow up in DuPage County, I did a lot of good things. He spent 16 age County a leader when it comes to the grew up in Cleveland Heights, Ohio,” years here doing a lot of good things, clerk’s office. Oftentimes, people don’t Adams told us,” and I would say the and he’s been very gracious to me and really understand what the clerk’s office Republicans were in the minority there. I I very much appreciate Chris for all does but they’re often the unsung heroes don’t know that I even knew a lot of Re- that he’s made available to me during of the courthouse. The coronavirus had a publicans growing up. But then I moved the transition, and what he’s pointed huge impact on this office and the court- to Chicago, I went to law school, I met out to me. We actually had a remark- house, and this department just handled my husband, and I moved to DuPage ably good campaign season together. it all with such grace. So, I’m very proud County and 2016 happened, right? And It was never aggressive or attacking to be here, I’m very appreciative of the I think that changed a lot of people. and it was very respectful, and it was staff, and I’m very excited to see what new You have to understand, I had a major a dialogue.” initiatives we can do going forward.”
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Honorable Craig Belford By James Ryan
Craig Belford
In May 2020, the Honorable Craig practice law. After short stints in private Second District Appellate Court, then Belford was sworn in as associate practice with the firm of Rathje & Wood- for Supreme Court Justice Robert judge, the first to be sworn in during the ward and in-house at a healthcare com- Thomas for 19 years, and briefly for Coronavirus pandemic. He is currently pany, Judge Belford first began serving the Supreme Court Justice Michael Burke assigned to the Chancery Division. Judge judiciary as a staff attorney for the Second following Justice Thomas’s retirement in Belford’s appointment as associate judge District Appellate Court. After a year early 2020. Judge Belford also made his came after he spent over 20 years serving of service on the general research staff, way back to court as a litigant both as a the Illinois judiciary in various roles, Supreme Court Justice Louis Rathje foster parent and eventually as an adop- including service as a Law Clerk for three hired him away to serve as his senior law tive parent for two of his five children. Illinois Supreme Court justices. clerk. Judge Belford served in that posi- Through these experiences as a party, tion for almost two years, until Justice Judge Belford learned in a way that he Judge Belford is a DuPage County Rathje’s term ended in the Fall of 2000. never could have through the practice of native and a proud graduate of Lake law just how gut-wrenching and all-con- Park High School in Roselle. After high Toward the conclusion of his time with suming a court proceeding can be for the school, Judge Belford enrolled at the Justice Rathje, Judge Belford suffered a parties involved. A case is not simply a University of Illinois where he majored profound, personal tragedy when his wife file in the office; it is a constant, looming in Political Science and graduated sum- was killed suddenly in a motor vehicle presence in a party’s life. ma cum laude. Judge Belford reports accident, leaving him a widowed, single that he first began to consider a legal father of a two-year-old daughter. That During our interview, we discussed career as a possibility after doing some tragedy gave Judge Belford a different Judge Belford’s work on Justice Thom- assigned reading for a course on con- perspective on the judicial system that as’s staff for 19 years. Throughout that stitutional law taken during his junior he never could have imagined – that of a time, Judge Belford observed up close year. After the University of Illinois plaintiff in a wrongful death case. In our not only a great jurist with an excellent fueled an interest in the law, Judge interview, Judge Belford recounted the legal mind, but also a great man who Belford enrolled in the prestigious Uni- fear, the uncertainty, and the frustration successfully navigated work, family, and versity of Chicago Law School, from that he experienced as a party that he community life with a sense of purpose. which he graduated in 1995. never could have imagined before. Judge Belford specifically noted Justice Thomas’s work establishing the Illinois Fortunately for us, although he had the After stepping away for several months, Supreme Court’s Committee on Profes- opportunity to interview with firms Judge Belford made his way back to the sionalism, which Judge Belford regards nationwide, Judge Belford chose instead judiciary first by serving as a law clerk as an enduring legacy to Justice Thomas’ to come back home to DuPage County to for Justice Thomas Callum on the extraordinary career.
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Craig Belford
In transitioning from working along- side Supreme Court judges to working as an associate circuit court judge him- self, Judge Belford quickly noticed two major changes. First, he noticed that the pace of a trial court is significantly different from that of the appellate court. Judge Belford observed that he went from a court that decided approximately 100-120 cases per year, to a traffic courtroom in which he sometimes decided between 100-120 cases before lunch. Second, he noticed a difference between being an advisor to the decision-maker and being the Welcome decision-maker himself. Judge Belford commented that this change truly sunk Welcome to the new DCBA members. in for him when he imposed a jail sen- tence for the first time. Attorneys: Andrew Y. Acker, Storino, Ramello & Durkin; Greg S. Gann; Angela S. Larimer, Larimer Law LLC; When Judge Belford is not on the bench, Bridget Greeley Wrobel, Law Office of Bridget G. Wrobel, LLC; Tanya Witt, The Witt Law Firm, he enjoys reading and spending time with P.C.; Jessica A. Michaels, Mayer Brown LLP; Josie R. Norton, The Law Offices of Jonathan Merel, his family. He is also an avid musician, P.C.; Michael P. Tomlinson, Tomlinson & Shapiro, P.C.; Joseph S. Hamrick, Dreyer Foote; Joel C. who continues to play drums regularly Zimmerman, Joel C Zimmerman & Associates Ltd.; Tej M. Shastri, Knauf Law P.C.; Sheldon L. both at his church and with his band, Lebold; Eric J Vogel, Law Offices of Benedict Schwarz, II P.C.; Libby F. Vassmer; Amina Z. Jaffer; Side Project, which has been together for Elizabeth A. Cronin, Power & Cronin, Ltd.; Amanda McDonough; Matthew Adam Dejewski; several years. This past December, Judge Alexandra N. Prejzner; Jacqueline Noel McClellan, Attorney Sally McClellan, Ltd.; Kelsey J. Belford was honored to administer his Burge; Carrie A. Ganci-Clodi, Clancy & Associates; Anthony D. Scorzo; Jessica G. Nosalski; first oath of office when his Side Project Carlos M. Arteaga, Castlebrook Law PC. bandmate, Lynn LaPlante Allaway, was sworn in as a member of the DuPage New Student Members: County Board. Holly F. Rumiano, Indrakshi Kaushik Roy, Ayesha Mohammed.
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Legal Aid Update
Judges’ Nite 2021! By Cecilia Najera
Hard to believe we have lived an entire Nite 2021 will take place! This year’s We have already procured a condo stay year with pandemic protocols in place. show may look a little different, but I in Siesta Key, Florida and a Private Pool In the past year, I have learned to Zoom have no doubt that the event will bring Party. We will have a “Call for Funds for for business and social reasons. I have just as much fun and entertainment as a Brighter Future”, as well as a 50-50 helped my child learn virtually and sent it has in the past. Since January, our res- Raffle. Judges’ Nite will continue to be him to school in a mask. I’ve had to take ident Director, Nick Nelson; Produc- Legal Aid’s most successful fundraiser of four COVID tests out of precaution and ers, Jess Defino and Rachel Boehm; the year. have foregone the annual family vaca- as well as some of our favorite perform- tion. I have also had the opportunity to ers have been hard at work writing and Legal Aid is so grateful for the efforts of equip the office to work from home and practicing via Zoom as well as in person. the Judges’ Nite cast, the band, and crew then do so. I’ve spent quality time with JNB (“the band”) has also been pulling for taking on the challenge to provide my family and neighbors, enjoyed gar- together their scores. us a show during a pandemic. Words dening in my backyard, and watched a cannot express the appreciation I have lot of Iowa Hawkeye football and basket- Judges’ Nite 2021 will be held on April for the dedication that each and every ball. Although our office remains open 16, at the Danada House in Wheaton. one of them has to their craft and to by appointment only, DuPage Legal The show will be one hour long, it will be make us laugh during such a challenging Aid continues to assist our clients with pre-recorded and more of a sketch come- time. After all, “Laughter is an instant Orders of Protection, Divorce, Parentage, dy format, but one way or another, there vacation.” -Milton Berle. Guardianship, Bankruptcy and some will still be song in the form of music expungement cases. We continue to videos! Huzzah! If the Governor’s orders See you at the show! give monthly legal clinics to Loaves permit, we will be able to gather in the and Fishes and Family Shelter Services pavilion to enjoy a buffet and watch the clients, even if it is over the telephone or show on two projector screens. If we are by Zoom. We have all found many ways unable to gather traditionally, the Dana- About the Author to interact virtually for business and da House parking lot will transform into A Wheaton native, Cecilia “Cee-Cee” Najera is a social reasons and continue to find other a drive-in theater for the night. Either graduate of the University of Iowa and received ways to adapt to our circumstances. The way, we will still have a Silent Auction. her J.D. from Southern Illinois University. She tradition of Judges’ Nite is no different. Unfortunately, the auction will be scaled served as the DCBA New Lawyer Director from back and there won’t be Pfizer COVID 2004 to 2009 and is currently the Director of I am so pleased and excited to be able to Vaccines to bid on, but there will be DuPage Bar Legal Aid Service. write that the show will go on and Judges’ other pandemic protocol-friendly items.
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Oak Brook Naperville Fully furnished and bright office (18’ x 13’6”). Office suite includes Attorney office space 12’ x 14’ office just east of downtown Naperville. conference room (15’9”), eat in kitchen (with fridge, microwave and dish Unfurnished first floor space includes use of conference room, reception Judges’ Nite 2021! washer), reception area, internet, fax and multifunction copier. Excellent area, kitchen, internet, utilities and parking. Available immediately. Oak Brook location in elevator building. Available immediately. $950/ Monthly rent $650. Perfect for sole practitioner. For additional details, month. Call Harry at 630-792-1000. contact Debbie at 630-753-8033 or email [email protected]
Wheaton Downtown Naperville One room available for rent in a shared office space near courthouse with Are you in need of a spacious office suite with windows, hard wood floors We have already procured a condo stay exclusive 1st floor entrance. Monthly rent of $600 per month for a 15’x9’ and conference area? The suite includes a furnished large reception in Siesta Key, Florida and a Private Pool room. Utilities included: electric, water, sewer, heat, air conditioning, and area, shared copy room and kitchen, as well as high speed internet. Party. We will have a “Call for Funds for internet. Telephone services not included. Room has lock and key. Contact The adjacent offices are shared by attorneys. The building is located in a Brighter Future”, as well as a 50-50 Niki at 630-784-8500 or [email protected] downtown Naperville, has an elevator and tremendous parking. Available Raffle. Judges’ Nite will continue to be immediately. Contact Pamela at 630-416-7600. Legal Aid’s most successful fundraiser of Naperville the year. Multiple office spaces for rent in downtown Naperville. We are centrally located between the Metra station and downtown Naperville. Currently Legal Aid is so grateful for the efforts of renting multiple units: 2 Unfurnished offices starting at $500 per month; the Judges’ Nite cast, the band, and crew and 2 fully furnished ready to use offices beginning at $750 per month. for taking on the challenge to provide Please contact Darran to inquire at (630) 926-8377 us a show during a pandemic. Words cannot express the appreciation I have for the dedication that each and every one of them has to their craft and to make us laugh during such a challenging time. After all, “Laughter is an instant vacation.” -Milton Berle.
See you at the show!
About the Author A Wheaton native, Cecilia “Cee-Cee” Najera is a graduate of the University of Iowa and received her J.D. from Southern Illinois University. She served as the DCBA New Lawyer Director from 2004 to 2009 and is currently the Director of DuPage Bar Legal Aid Service.
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Mega Meeting 2021 Recordings also being arranged for those unable to Day21 are greatly appreciated. Should Thank you to everyone who joined us attend in person, which may be for ev- the in-person luncheon proceed, tickets for the 2021 Virtual Mega Meeting on eryone should we not be able to gather will be available for purchase. Should March 5th and 12th. The programming in person. Visit www.dcba.org/JN2021 the program be virtual, your RSVP will was very well-received and we were to purchase your tickets today. As al- ensure you receive access information. honored to host Chief Judge Kenneth ways, Judges’ Nite will be a fundraiser Popejoy’s first State of the Courthouse for DuPage Legal Aid, and your support 2021 Presidents Ball address, a text version of which will be is critical in that respect. A number of All DCBA members and friends are in- included in a future issue of the Brief. Re- fundraising activities are planned that vited to a gala celebration nearly a year cordings of all CLE Sessions from Mega are outlined in the Legal Aid Director’s in the making on May 14th, commencing Meeting, including the ARDC’s special Report found on page 54 of this maga- at 6:30 PM. Our plans to mark Wendy program on Diversity, will be available zine. DCBA members are always gen- Musielak’s installation last June with on the IICLE Website starting April erous, and the circumstances of the last a grand party and Casino Nite, like so 15th. Access the DCBA/IICLE Library 12 months make that generosity all the many other plans, were pushed back again through the DCBA website to activate more needed. and again over the year. We are excited member pricing for these programs or though to be able to finally come together to receive complimentary access to our Nashville is Calling! at the Doubletree in Lisle for a night of library of Section programming. There is still time to join in on the celebration. In addition to celebrating the DCBA President’s Trip to Nashville, TN, accomplishments of Wendy’s year as pres- New DCBA Website Launching April 22-25, 2021. Our host property, ident, we will finally have the opportunity Speaking of the website, make sure and DREAM Nashville, will put us close to to formally present the 2020 Lawyer of visit DCBA.org this month as we launch all the great country music nightlife the the Year to Hon. Paul Marchese and the a completely redesigned site. The new Music City has to offer. Registration in- 2020 Gabric Award to John “Jack” Do- webpage has been built with user re- cludes a welcome reception, group din- nahue. Visit www.dcba.org/prezball21 to sources in mind. This means that you ner and breakfast CLE. RSVP at www. purchase tickets today. can come to the DCBA website for quick dcba.org/Nashville. links to 18th Circuit court information, 2021 Installation of Officers easier access to CLE materials, a new Law Day 2021 and Directors reading experience of DCBA Brief, and We look forward to celebrating Law Day On June 4, 2021, Kiley Whitty will be exciting new ways to connect with your 2021 on April 30, 2021. At the time of installed as president for DCBA’s 142nd fellow DCBA members. publication, we are hopeful that this year, along with a new Third Vice Presi- event will be celebrated with an in-per- dent, three Directors and a New Lawyer Judges’ Nite 2021 son noon luncheon at Le Jardin at Can- Director (please watch for your email bal- Amidst plague and pestilence, the Judg- tigny Park. In the event that we are not lot and vote by May 3 for these positions). es’ Nite Cast and Crew and the Judges’ able to celebrate in person, a virtual This event will be held as a luncheon, Nite Band have pulled together a 2021 event will be held at that date and time. returning to Le Jardin at Cantigny Park. edition of Judges’ Nite that is not to be Whether live or in person, our program Tickets are available through the DCBA missed. The virtual curtain will rise on a will feature the presentation of the 2021 website at www.dcba.org/Install21. Please video performance unlike any other JN Liberty Bell Award, recognition of the also note that this event will serve as the production on April 16th at 7:00 PM. pro bono award winners from DuPage association’s annual meeting as prescribed If the fates allow, the judges and law- Legal Aid and programming that high- by the DCBA Bylaws. yers of DuPage County will gather with lights the 2021 Law Day theme, “Ad- family and guests at Danada House for vancing the Rule of Law Now.” RSVP’s For the latest details on all DCBA events, a lavish viewing party. Online viewing is for this event at www.dcba.org/Law- check the DCBA.org website.
56 DCBA Brief March/April 2021
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