DCBA President Gerald A. Cassioppi
Volume 30, Issue 1 September 2017
88858_DCBA-Cover-Sept2017.indd 1 8/4/17 8:19 AM 88858_DCBA-Cover-Sept2017.indd 2 8/4/17 8:19 AM The Journal of the DuPage County Bar Association www.dcbabrief.org
Volume 30, Issue 1 Table of Contents September 2017
Don’t miss this year’s rematch of the DCBA v KCBA Cross County Softball Azam Nizamuddin Classic on September 14. Editor-in-Chief Brian Dougherty Associate Editor 3 Editor’s Message Editorial Board Anthony Abear Terrence Benshoof 5 President’s Message 35 I nBrief Annette Corrigan - By Terrence Benshoof Dexter Evans Peter Evans 36 Let Your People Go! Raleigh D. Kalbfleisch - By Mary Gaertner Timothy Klein Christopher J. Maurer 37 DCBA and the Illinois Institute for James F. McCluskey Articles Continuing Legal Education Team Up Christine McTigue to Provide Online CLE Clarissa R.E. Myers 8 Piracy & Punishment - An Appreciation of Hugo Grotius - By James L. Ryan Jane Nagle Joseph K. Nichele - By Edward N. Tiesenga and Ryan Haught 38 Thanks to Everyone Who Helped to John J. Pcolinski, Jr. Make the Human Race a Success Jay Reese Arthur W. Rummler 16 Supreme Court Rule 224- for the DBF Discovering the Identity of an Anonymous Internet Poster James L. Ryan - By Christine Olson McTigue Jordan Sartell - By Christine Olson McTigue David N. Schaffer 39 DCBA Update Michael R. Sitrick 22 Key Points of the Revised Illinois Limited - By Robert T. Rupp Jolianne Walters Liability Company Act 40 Legal Aid Update Eric R. Waltmire - By Gregory M. White - By Cecilia Najera Jacki Hamler 41 Lawyer to Lawyer Mentoring DCBA Liaison/Advertising 26 Income Shares is Here: Now What? Program: Fall Session Implementation Issues and Some Possible Solutions Ross Creative Works Graphic Design - By Nancy Chausow Shafer 42 ISBA Update - By Kent A. Gaertner Kelmscott Communications 31 Illinois Law Update 43 DCBA Installation and Presidents’ Printing - Editor Christine Olson McTigue Ball, A Grand Success at the Drake Cover Photography - By John Pcolinski Jeffrey Ross 47 Classifieds
48 Where to Be in September
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ARTICLES We the people
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From the Editor We the people By Azam Nizamuddin
These are the words which began the every category of American citizenship. founding document of our nation, the U.S. Hence, our understanding of our founding Azam (“Az”) Nizamuddin is Constitution. document, the U.S. Constitution has under- General Counsel with the American gone a change. Trust Corporation and Chief As any right of passage, whether it’s a new Compliance Officer for Allied baseball season or a new school year, we at the As Rafiki reminds the adult Simba in the Lion Asset Advisors in Oak Brook, Illinois. Previously, he practiced DCBA Brief begin our new year with new lead- King, “change is good.” With change comes commercial litigation and family ership and some new members of our Editorial our new DCBA President Gerry Cassioppi. law with large firms, small firms, Board team. As the new Editor in Chief of Gerry’s humble and effective leadership will and as a solo practitioner. He is the Brief, I reflect upon the perennial phrase, keep our organization in good shape and we an active member of the DCBA, “we the people” in light of the DuPage County look forward to working with him and wish and serves on the DCBA Busi- START YOUR Bar Association. For me, this phrase rep- him a successful year. We also welcome our ness Law Section. He also serves resents the entirety of our legal community, new Associate Editor, Brian Dougherty. on the ISBA Corporate Law judges, lawyers, paralegals, staff, whose aim is Additionally, we have two new members, Section and previously served on the ISBA ARDC Committee. to maintain and enhance the integrity of the attorneys Clarissa Myers, and Jolianne He was appointed to the Illinois legal profession, to improve and facilitate the Walters. With the addition of these two rook- Supreme Court Access to Justice Career Right administration of justice, and to promote the ies, we have an all-star line up for the new Commission, Language Access knowledge and education of the law. year. Terry Benshoof will continue to high- Committee. He is also Adjunct Our New Lawyers Program protects you, your clients – and your financial future – against unintended light the activities of DCBA members with Professor at Loyola University mistakes. It’s easy to apply and (really!) affordable. Your first year probably costs less than your annual We intend to continue our award winning work the In Brief section. DCBA Executive Director and frequently lectures on the at the Brief to provide our DCBA members Robert Rupp will provide the latest in DCBA intersection of law and religion. smartphone bill. Visit isbamutual.com/newlawyer or call 800 473-4722 to get coverage now! and the legal community interesting, relevant, tidbits, while Kent Gaertner will update helpful, and timely articles and information us on what’s happening with the ISBA and to enhance their practice and to promote Cecilia Najera will report on DuPage Legal For those who: camaraderie. To this effect, I would like to Aid. Are claims-free thank the extraordinary contribution to the DCBA community and to the literature of the As a legal history buff, I hope to provide more Are solo practitioners legal profession by my predecessors (during vignettes of legal history and personalities to Passed the bar within the past 3 years my time on the Editorial Board) Jim Ryan, enhance our knowledge of the law. For example, Christine McTigue, Raleigh Kalbfleisch the person who actually penned the words, and John Pcolinski, Jr., respectively. “We the People” in the U.S. Constitution was Governor Morris. Morris was a delegate from The collective “We” in the Preamble to the New York to the Continental Congress and U.S. Constitution has been the source of argu- his stalwart intervention in support of George ment and debate for centuries and has resulted Washington from a potential challenge may in several Amendments. Over the course of have actually saved the Republic. So, get ready two centuries, there has been an evolution of to read more about legal history and the inter- this phrase. Originally, it referred primarily to esting interplay between law and culture. land owning males. Now, it includes just about (Continued on page 6) isbamutual.com/newlawyer DCBA Brief September 2017 3
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88858_DCBA-Body-Sept2017.indd 4 8/4/17 8:58 AM President’s Message
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Gerald Cassioppi is the current To kick off this year, at the Officers Installation This means as a team we will work to better Find your place. DCBA President and is a Partner Find your place. dinner in June, I spoke of the need to view the our membership, support their practices and with Momkus McCluskey Roberts members of the DCBA as a team. When I say engage the public. No matter our personal LLC, in Lisle. He counsels team, I don’t necessarily mean a collection of strengths or weaknesses, we will work together businesses, not-for-profits and softball players, but rather a group of people for our individual good and the good of the government entities. He received working together for a common, worthwhile DCBA community. It is that selflessness that his law and undergraduate purpose. has allowed the DCBA to flourish for 138 degrees from the University of years. Illinois, is also a CPA and is active in community leadership, Bob Feller, a hall of fame baseball pitcher, including the Naperville District who honorably served his country during World Further, there should be open, respectful and 203 School Board and as DuPage War II, best described the importance of team- balanced communications among all team County Ethics Commission 126126 SS CountyCounty FarmFarm RoadRoad work beyond sports when he said “You can talk members. No one person should dominate the Chairman. Gerry was recognized about teamwork on a baseball team, but I’ll tell conversation, all should be included and free as DCBA Lawyer of the Year for Wheaton,Wheaton, IllinoisIllinois you it takes real teamwork when you have 2900 to express their opinions and potential solu- 2012 and also served as DCBA men stationed on the U.S.S. Alabama.” tions. Being a good communicator also means General Counsel and on its Board of Directors. •• AmpleAmple parkingparking thoughtfully listening and understanding what As Bob Feller undoubtedly experienced, each others are saying. •• $14.75/SF$14.75/SF grossgross rentalrental raterate team is a collection of diverse individuals. However, it is important to work together to Finally, teams work better when each member achieve something truly special. Successful trusts, supports and respects their teammates •• LowLow DuPageDuPage CountyCounty taxestaxes teamwork is one of the most exhilarating and – each having your back and you having theirs. productive human activities possible. Getting Established goals, communication and trust •• CentralizedCentralized locationlocation there is not a well-guarded secret, as a Google leads to better team solutions and success. We search of “successful teamwork” provides must also work together in ways we may never •• OneOne blockblock fromfrom DuPageDuPage 36,000,000 results. have done before – recognizing that others will CountyCounty CourthouseCourthouse see different ways to approach a problem. I will highlight just 3 keys for an effective and successful DCBA team – collective goals, communication and trust. It has been shown that millennials embrace open communication, mutual support and First, a team must understand and be commit- tolerance – in other words, millennials might ted to attaining its goals. Our goal is our stated decide to be part of an organization, just to be mission: part of a strong team. The DCBA serves the attorneys, judiciary and citizens of DuPage County in providing legal education, business development and Further, every team member has the oppor- networking opportunities, designed to tunity to be a “leader” by embodying those enhance and benefit our membership and traits which promote working together – community, while upholding the highest staying goal focused and not needing to be in degree of civility and professionalism. the spotlight. (Continued on page 6) Adam Johnson Allow us to transform your Adam Johnson Allow us to transform your 630 317 0729 challenges into successes. [email protected] 317 0729 challengeswww.hiffman.com into successes. [email protected] www.hiffman.com DCBA Brief September 2017 5
88858_DCBA-Body-Sept2017.indd 5 8/4/17 8:58 AM Editor’s Message (Continued from page 3) Accordingly, we begin the new year with our September issue, which starts with a fascinating look at the law of the sea. Edward Tiesenga and Ryan Haught survey the influence of Dutch jurist Hugo Grotius in our contemporary legal system, in “Piracy and Pun- ishment”. Former Editor, Christine McTigue writes about the prac- The DCBA BRIEF is a publication of the DuPage County Bar Association tical application of obtaining the identity of a defamatory posting on 126 South County Farm Road social media through the vehicle of Supreme Court Rule 224. Veteran Wheaton Illinois 60187 corporate lawyer Gregory White highlights the changes under the (630) 653-7779 new Limited Liability Company Act which took effect in July of this DCBA Brief welcomes members’ feedback. year. Finally, family law attorney Nancy Chausow Shafer provides a Please send any Letters to the Editor to the attention practical guideline on how to implement the new income shares child of Azam Nizamuddin at [email protected] support statutory scheme which also took effect in July of this year. We appreciate their contributions to the DCBA Brief.
Gerald A. Cassioppi Tricia Buhrfiend I would strongly encourage all the members of our DCBA community President Secretary/Treasurer to contribute a substantive article for this coming year. In addition to providing the Brief reading public a topic worth reading, it will also in- J. Matthew Pfeiffer Jeffrey M. Jacobson President-Elect Assist. Treasurer crease your knowledge of a subject matter which can be a great source of marketing and collaboration with others in the legal profession. Plus, Stacey A. McCullough Directors: you’ll earn necessary CLE credits for your contribution as well! 2nd Vice President Terrence Benshoof Mark S. Bishop Wendy M. Musielak Ashley M. Bump It is often said that behind every good man, there is a woman. So I 3rd Vice President Patrick L. Edgerton would like to thank the diligence and patient support of DCBA staff David S. Friedland member Jacki Hamler who has been a pleasure to work with. Thanks Ted A. Donner James S. Harkness Immediate Past President John J. Pcolinski, Jr. also to Catherine Ross who continues to serve as our designer and Amalia M. Romano layout specialist. Arthur W. Rummler Richard J. Veenstra James L. Ryan General Counsel Kiley M. Whitty (Continued from page 5) Charles G. Wentworth Kent A. Gaertner President’s Message Assoc. Gen’l Counsel ISBA Liaison And don’t forget, teamwork makes the task more enjoyable and the job easier, because we should not and do not have to do everything Robert T. Rupp John Pankau Executive Director Legislative Liaison ourselves.
Finally, execute. Members must make high quality decisions together and effectively carry out the decisions made. A real team gets real The DCBA Brief is the Journal of the DuPage County Bar Association (“DCBA”). Unless otherwise stated, all content herein is the property of results through commitment and effort, not by accident or with speeches the DCBA and may not be reprinted in whole or in part without the express and slogans. permission of the DCBA. ©2017 DCBA. Opinions and positions expressed in articles appearing in the DCBA Brief are those of the authors and not Thanks again to Ted Donner for the job he has done as President during necessarily those of the DCBA or any of its members. Neither the authors nor the publisher are rendering legal or other professional advice and this the past and personally challenging year. I look forward to working publication is not a substitute for the advice of an attorney. Publication with incoming President and Vice Presidents, Matt Pfeiffer, Stacey Guidelines: All submitted materials are subject to acceptance and editing by the Editorial Board of the DCBA Brief. Material submitted to the DCBA McCullough and Wendy Musielak, our Board of Directors, Execu- Brief for possible publication must conform with the DCBA Brief’s Writers tive Director Robert Rupp and the DCBA office team. Guidelines which are available at dcbabrief.org. Advertising and Promo- tions: All advertising is subject to approval. Approval and acceptance of As a member of the DCBA Team and as a volunteer, please find your an advertisement does not constitute an endorsement or representation of any kind by the DCBA or any of its members. Contact information: All passion within the DCBA and be an important part of our successful Articles, comments, criticisms and suggestions should be directed to the DCBA Team. editors at [email protected].
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88858_DCBA-Body-Sept2017.indd 6 8/8/17 1:26 PM 88858_DCBA-Body-Sept2017.indd 7 Christine OlsonMcTigue Articles Editor University ofChicago. University ofMinnesota;andherJ.D.fromLoyola B.A., magnacumlaude,PhiBetaKappa,fromthe of theDuPageBarFoundation.Shereceivedher DCBA BriefandservesontheBoardofDirectors Christine OlsonMcTigue isapasteditorofthe Articles Hugo Grotius 31 26 22 16 8 - EditorChristineOlsonMcTigue IllinoisLawUpdate - ByNancyChausowShafer Implementation IssuesandSomePossibleSolutions IncomeSharesisHere:NowWhat? - ByEdwardN.Tiesenga andRyanHaught Piracy &Punishment-AnAppreciationofHugoGrotius - ByGregoryM.White Liability CompanyAct Key PointsoftheRevisedIllinoisLimited - ByChristineOlsonMcTigue Discovering theIdentityofanAnonymousInternetPoster Supreme CourtRule224-
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Facts of the Case On April 8, 2009, a young Somali named Abduwali Abdukhadir Muse boarded the U.S.-flagged cargo shipMaersk Alabama in the Indian Ocean, in a bid to ransom Captain Richard Phillips and his crew in exchange for millions of dollars. What played out next established Muse’s place in the dashing legacy of the Buccaneers who fought, stole, and killed their way across the seas: Long John Silver; Blackbeard; Captain Kidd.1 Muse entered history as a “Pirate.”2 This was Muse’s third capture of a Western freighter, his own personal contribution to “the eruption of piracy in the Gulf of Aden that began in 2008.”3
The basic fact pattern of Muse’s pirate raid on the Maersk Alabama was repeated 3,313 times in the 10-year period from Piracy & Punishment 1998-2007, before “spiking”4 into an “upsurge off of the coast of Somalia that began in 2008 [that] is unprecedented in mod- An Appreciation of Hugo Grotius ern times.”5 Muse achieved fame not because he was anything special among the crime families of Somalia, but simply as a ~with special recognition to~ result of Tom Hanks Hollywood-izing his exploits.
Abduwali Muse, Barack Obama and Preet Bharara Captain Phillips flew from his home in New Hampshire to the Port of Oman to pilot the Alabama’s delivery of 200 tons of By Edward N. Tiesenga and Ryan Haught U.S. government food aid and 160 tons of fresh water to the Port of Mombasa, Kenya. Captain Muse pushed off from the beachside town of Eyl in the failed state of Somalia, to travel 300 miles out into the shipping lanes of the Indian Ocean, where he and his small crew brandished their weapons and shot their way onto the Alabama. Muse was working with a pirate syndicate supplying the attack boats, tender ships and central communication command and control facilities to track their targets on the high seas; following which the syndicate laun- dered the resulting ransoms, recovered their fixed and variable
1. Muse is now among the list of notable pirates going back to 315 B.C.: https://en.wikipedia.org/wiki/ List_of_pirates. 2. 1300 years earlier to the North, he might be a “Viking,” the old Norse word for “pirate raid.” See http:// www.bl.uk/learning/langlit/changlang/activities/lang/vikings/vikinglang.html. 3. Eugene Kontorovich and Steven Art, An Empirical Examination of Universal Jurisdiction for Piracy, North- western University School of Law Public Law and Legal Theory Series, No. 09-26, Law and Economics Series No. 09-45 at 1. 4. Id. at 8. 5. Id.
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costs, and paid a cut back to the pirates.6 Muse held Phillips Moral reparation for national independence does not fool and his crew hostage, and started settlement negotiations. us and it doesn’t feed us. The wealth of the imperialist nations is also our wealth. At a universal level, such a state- A few days later, as portrayed in the movie Captain Phillips, ment in no way means we feel implicated in the technical after convincing Captain Muse to come aboard the USS Bain- feats or artistic creations of the West. In concrete terms bridge to personally broker the ransom deal, a team of Navy Europe has been bloated out of all proportions by the gold SEAL7 sharpshooters killed the rest of Muse’s crew with simul- and raw materials from such colonial countries as Latin taneous headshots, saving Captain Phillips. America, China, and Africa. . .The ports of Holland, the docks in Bordeaux and Liverpool owe their importance to In the first U.S. piracy prosecution in 100 years, the United the trade and deportation of millions of slaves. And when States Attorney for the Southern District of New York filed we hear the head of a European nation declare with hand an indictment against Muse,8 charging him with ten counts on heart that he must come to the aid of the unfortunate of piracy. Muse pled guilty, and now lives in a medium secu- peoples of the underdeveloped world, we do not tremble rity Federal Correctional Institution in Terre Haute, Indiana,9 with gratitude. On the contrary, we say among ourselves, operated by the Federal Bureau of Prisons, a division of the “it is a just reparation we are getting.” So we will not accept United States Department of Justice, serving out his 33-year aid for the underdeveloped countries as “charity.” Such aid sentence.10 must be considered the final stage of a dual consciousness – the consciousness of the colonized that it is their due and the consciousness of the capitalist powers that effectively Ideological Angle to the Pirate Story: they must pay up.”12 Pick Your Theorist In the movie version of the story, Muse assures Captain Phil- lips that piracy is nothing personal, but is “just business” and is something of a necessity, since “your companies took all our fish.” Muse thus sets up the classic argument posed by radical anti-colonialist theorist Franz Fanon, that the “wretched of the About the Authors Earth” have no choice but to use violence against their oppres- Edward N. Tiesenga (B.A. cum laude, Hope sors. In Fanon’s thinking,11 Somali pirate violence is justified College, 1981; J.D. American University, 1984), practices commercial law with Tiesenga Reinsma as a necessity to even the score against foreign oppressors like & DeBoer LLP in Oak Brook, Illinois. Captain Phillips and his well-paid, unionized crew of American seafarers trying to deliver free food and water to poor Africans. Fanon states:
Ryan Haught (B.S., Economics, U.S. Naval Academy, 2007) is a retired Navy Lieutenant commissioned 6. According to Donna Hopkins at the U.S. State Department, quoted in BBC News (Feb. 16, 2011): “’It is organized crime and we need to treat it like that’ . . . not as an amateur operation ‘but rather a seriously upon graduation from the Academy as a Surface networked international enterprise’ . . . [in which] only 15% went to the pirates themselves, with the rest Warfare Officer. During Ryan’s six and a half going to a transnational criminal network, not all of whom were Somalis.’” years on active duty service, he earned the Navy 7. United States Navy Sea, Air, and Land teams. 8. United States of America v. Abduwali Abdukhadir Muse, S1 09 Cr. 512 (LAP), containing Count one for and Marine Corps Achievement Medal for his seizure and robbery of a United States-flagged ship, citing 18 U.S.C. §1651, which provides: “Whoever, leadership in capturing 16 suspected pirates off on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards the Horn of Africa. Ryan’s personal decorations brought into or found in the United States, shall be imprisoned for life,” followed by nine more counts. 9. Terra Haute is classed as a medium security prison. include the Joint Service Commendation Medal, 10. Muse, prisoner I.D. No. 70636-054, is scheduled for release on October 31, 2038. Muse’s status may be Navy Commendation Medal and Navy Achievement Medal. He is now a tracked by his I.D. number on this website: https://www.bop.gov/inmateloc/. Senior Project Manager for a global financial services firm. 11. See Franz Fanon, The Wretched of the Earth (1961), and his posthumously published work, Neocolonial- ism (1964), in which “Fanon indicts colonialism and its post-colonial legacies, for which violence is a means of catharsis and liberation from being a colonial subject.” (Wikipedia, https://en.wikipedia.org/ wiki/The_Wretched_of_the_Earth). 12. Fanon, The Wretched of the Earth (Kindle Locations 1231-1239). Kindle Edition (emphasis in original).
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Consequently, says Fanon, piratical violence is not an offense against any Law of Nations, but is the way out of bondage to dominant, self-regarding Europeans: From this fundamental
Violence alone, perpetrated by the people, violence orga- nized and guided by the leadership, provides the key for principle, it follows the masses to decipher social reality. Without this struggle, without this praxis there is nothing but a carnival parade that no state has the and a lot of hot air. All that is left is a slight readaptation, “ a few reforms at the top, a flag, and down at the bottom right to prevent nation- a shapeless, writhing mass, still mired in the Dark Ages.13
Although Fanon adopted the prophetic voice of violent als of another state cathartic deliverance from poverty, there is no indication that Captain Muse ever read anything written by Fanon, or even from using sea-lanes knew his name. However, someone else who would play a decisive role in the drama of the Maersk Alabama knew all about Fanon: the Commander in Chief of the United States. for the pursuit of trade.
Presidents Are Also Students of Theory If trade was free, then Barack Obama was uniquely qualified by his life experience and racial inheritance to consider these two opposing perspectives – whether to punish or condone piracy. In his col- the seas on which they lege memoirs, Obama recounts long nights in the Columbia dorms where, “to avoid being mistaken for a sellout, I chose traded were also free. my friends carefully.”14 In a recollection freighted with identity politics, he described drawing closer to people he considered to be emblematic outsiders, alienated from mainline American society: In these formative years, young Barack Obama sought to The more politically active black students. The foreign understand marginalized people, particularly since his own students. The Chicanos. The Marxist professors and struc- grandfather’s violent resistance to British colonial rule in Kenya tural feminists and punk-rock performance poets. We formed part of his own contemporary identity.16 Obama’s smoked cigarettes and wore leather jackets. At night, in Kansas-born mother also contributed her adopted rage at the the dorms, we discussed neocolonialism, Franz Fanon, legacy of Dutch colonial oppression and resource extraction Eurocentrism, and patriarchy.15 throughout Indonesia to young Barack’s worldview.17
16. According to Barack Obama, his paternal grandfather was locked up in a detention camp by the British for his association with the violent pre-independence Mau Mau rebellion. See Obama, supra fn. 14 at 417-18 13. Id. at 1653-1655. 17. The Dutch formerly ruled Indonesia as colonial masters of the Shell Oil empire, for which Obama’s 14. Barack Obama, Dreams from My Father: A Story of Race and Inheritance, Kindle Edition at 100-101. step-father Lolo Soetoro worked during the years young Barack attended school in Jakarta. See Obama, 15. Id. supra fn. 14 at 45-47.
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Competing Root Cause Paradigms a kind of private navy chartered by the Estates General, the If anyone could have interpreted the root causes of Somali ruling arm of the Dutch Republic. piracy with sensitivity for the enduring legacy of European oppression of colonialized peoples, and found a way to over- The Dutch Republic versus Portugal look the individual moral culpability of four bedraggled local By this time, the Portuguese and Spanish had dominated the pirates, that person was Barack Obama. And yet, as President African and Eastern maritime trade for two hundred years, of the United States, Obama confirmed the order to gun down along the way concocting the idea that it was their permanent Captain Muse’s teenaged Somali crew, and President Obama’s divine right to do so, free of any competitors. This duopoly over Justice Department prosecuted Muse for piracy using legal new lands and transit of the seas required to reach them was doctrines first articulated 400 years ago by Hugo Grotius,18 the confirmed by various treaties and even papal bulls between Dutch lawyer who wrote The Free Sea19 to justify the Dutch 1479 and 1506.22 The Protestants in charge of the Dutch East colonial push into Asia. When it came time to resolve the India Company did not recognize the Pope’s brokerage of Maersk Alabama piracy case, Obama reached for established foreign maritime trade in exclusive favor of two Catholic law, unchallenged by the rigorous critique promoted by his powers, and protested Portuguese23 attacks on Dutch ships college professors. Who was this Dutchman, and how did his and cargoes. The Dutch retained legal counsel to make their legal work become the basis for international law promoting case. They hired Hugo Grotius. free trade and condemning piracy? How did Grotius overrule Fanon? Grotius writes his brief Grotius Defeats Fanon Grotius delivered “his masterwork, Mare Liberum, or in its The Dutch were once wretched and oppressed, too full English title, The Freedom of the Seas or the Right Which In the time of Grotius (1583-1645) the young, resource-starved Belongs to the Dutch to Take Part in the East Indian Trade.24 In his Dutch Republic was desperately seeking to compete in the argument, Grotius asserts freedom of trade as the “principle of maritime Far East trade dominated by the Portuguese, who international law [that] it has been of the international order simply boarded and captured, or blasted to smithereens, any ever since.”25 seaborne competitors for the riches of the East.20 The “low countries” of Europe had been drained of their wealth by the From this fundamental principle, it follows that no state brutal colonial occupation of Spain, whose hereditary rulers has the right to prevent nationals of another state from dominated what is now Belgium and the Netherlands. After using sea-lanes for the pursuit of trade. If trade was free, freeing themselves from the hated Spanish, the rude “[f]isher- then the seas on which they traded were also free.26 men and river raftsmen became ocean adventurers and merchant princes”21 If international law was violated by states interfering with free by venturing out on the high seas to find higher value trade trade on the high seas, what about the actions of non-state across the sea to Asia. These ventures were financed and gov- pirates? In that case, said Grotius: erned by networks of merchant guilds which became the Dutch East India Company, which operated the ships and included All peoples or their princes in common can punish pirates
22. See https://en.wikipedia.org/wiki/Treaty_of_Tordesillas. 23. Since the Pope gave the East to Portugal and most of the “new world” of the Americas to the Spanish, Portugal at this time controlled areas in Africa; “several bases or territories as Muscat, Ormus and Bahrein in the Persian Gulf, Goa, Bombay and Daman and Diu (among other coastal cities) in India; Ceylon, and Malacca, bases in present-day Indonesia as Makassar, Solor and Ambon, Portuguese Timor, the entrepôt-base of Macau and the entrepôt-enclave of Dejima (Nagasaki) in the Far East.” Id. 18. These elements are included above in footnote 8. 24. Timothy Brook, Vermeer’s Hat: The Seventeenth Century and the Dawn of the Global World (2008) at 67. 19. Hugo Grotius, The Free Sea Or a Disputation Concerning the Right Which the Hollanders Ought to Have to 25. Id. at 68. The actual Grotius assertion is: “We will lay this certain rule of the law of nations . . . the the Indian Merchandise for Trading (1609). foundation, the reason whereof is clear and immutable: that it is lawful for any nation to go to any 20. At that time, the high-value articles of trade included Chinese ceramics, Indonesian spices, and pre- other and to trade with it.” Grotius, The Free Sea, Ch. 1 http://oll.libertyfund.org/titles/grotius-the- cious metals. free-sea-hakluyt-trans. 21. John Lothrop Motley, The Rise of the Dutch Republic — Complete (1555-66) (Kindle Location 506). Pu.blic Domain Books. Kindle Edition. 26. Brook, Vermeer’s Hat, fn. 24 at 68.
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and others, who commit delicts27 on the sea against the take the side of the poor, uneducated, downtrodden criminal law of nations. For even supposing a land that has been defendant? Instead, Bharara aggressively prosecuted Muse, occupied by no people, there will be the same right against just as he prosecuted New York mafia crime families. brigands lurking there.28 Bharara’s use of the Law of Nations formulated 400 years ago In his other work, On the Law of War and Peace,29 Grotius in Europe fully overcomes the attack by academics who charge acknowledges that although from the earliest known times, that it “fails to proclaim its identity and its claims to legiti- “piracy was attended with a degree of glory,”30 natural justice macy,” in our modern world where such old things “no longer sanctions unhesitating war “upon pirates, general robbers, and ha[ve] either a history, or a moral justification.”35 One can even enemies of the human race [insofar as such persons] have re- say that Bharara “consecrate[d] it by the very act of putting it nounced the ties and law of nature.”31 These core statements on trial” against Muse.36 from Grotius became elements of the Law of Nations later incorporated into the United States Constitution’s charter of Muse was on his own to justify his actions before the New authority to Congress in Article I, Section 832, providing that: York court, and he couldn’t do it. Ever the negotiator, he took a plea. Muse’s sea-borne feat of larceny ran aground against Congress shall have the power to define and punish Pira- the roots of international law. He learned the hard way how cies and Felonies committed on the high Seas, and Offenses the world really works, and how law undergirds the flourishing against the Law of Nations. trade conducted on the high seas. Barack Obama imposed an even harsher lesson on his three friends who were shot down The United States goes with Grotius on those same high seas, for their crimes against the Law of From this source of authority, in 1948 Congress enacted 18 Nations, which is also the law of the United States. U.S.C. Section 1651, including an integration clause incorpo- rating the Law of Nations,33 and first used 61 years later to indict Muse. The Navies of the Earth Retaliate For as long as “[s]hips have . . . been, and for the foreseeable If any prosecutor could have found a way to legally excuse the future will be, the most efficient method of long-distance trans- conduct of Muse from punishment by the U.S. judicial system, port,” 37 there will be pirates preying upon them. “Today, about it would have to be Preet Bharara – born in post-colonial India 80 percent of world commerce travels by ship . . . ”38 Half of this at a time when most of the population could not feed itself, commercial tonnage is petroleum, and half of that traverses sea in an economy still struggling to recover from the resource lanes off Somalia.39 These facts give rise to “[t]he necessity extraction and rapacity imposed by the minority British rulers of a navy” to maintain “peaceful shipping.”40 These statistics who had left only 20 years earlier.34 Aren’t we to expect identity explain the international response triggered by resurgent politics to instill sympathy in such a person to instinctively Somali piracy.
27. A “delict” is “a violation of the law” and is from the Latin past participle of “to be at fault, offend.” https://en.wikipedia.org/wiki/Delict. 28. Grotius, The Free Sea (Kindle Locations 2092-2093). Evergreen Review, Inc. Kindle Edition. 29. Original title in Latin: De jure belli ac pacis (1631). 30. Hugo Grotius, On the Law of War and Peace (p. 126). Library of Alexandria. Kindle Edition. 31. Id. at 192. 32. Grotius was the first to articulate what became the Law of Nations in terms of rational neutral prin- ciples, further elaborated upon by subsequent scholars and practitioners, including Pufendorf, Burla- maqui, and Vattel. When the framers of the U.S. Constitution met in Philadelphia, they consulted the derivative work of Vattel, whose 567 page reference work The Law of Nations, or Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns (1758) cites Grotius seventy (70) times for core principles further elaborated and applied by Vattel to increase the scope of these seminal concepts inherited from Grotius. The provenance of the language of Article I, Section 8 of our U.S. Constitution tracing back to Grotius is its own scholarly sub-topic. See, Edwin D. Dickinson, The Law of 35. Bernard-Henri Lévy, Barbarism with a Human Face, at 72-73 (Harper & Row, New York 1980). Nations as Part of the National Law of the United States, Univ. Pa. L. Rev. (Vol. 101) (1952). 36. Id. 33. The text of 18 U.S.C. §1651 is included above in footnote 8. 37. William J. Bernstein, A Splendid Exchange: How Trade Shaped the World (2008) at 367. 34. U.S. Attorney Preetinder Singh Bharara was born in Firzpur, Punjab, India, immigrating to the U.S. at 38. Id. at 368. age two with his parents, and attended Harvard College and Columbia Law School, before Barack 39. Id. Obama appointed him as U.S. Attorney for the Southern District of New York. See https://en.wikipedia. 40. A.T. Mahan, The Influence of Sea Power Upon History, 1660-1783 (1890), Barnes and Noble 2004 Edition org/wiki/Preet_Bharara. at 27.
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This spike in pirate activity that captured Captain Phillips was 400 year old legal doctrines of Grotius has worked to reduce the eventually throttled down and put under firm control by an $18 billion cost that the pirates had imposed on world trade, international naval coalition including the U.S., India, U.K., down to a manageable and negligible amount.49 These tangible China,41 and Pakistan, aggressively patrolling the Indian benefits continue to accrue and compound for the benefit of Ocean.42 Multiple counter-piracy initiatives included NATO the civilized world, to the detriment of pirates everywhere.50 Operation Ocean Shield,43 Operation Atlanta (a European Union naval force), African Union Mission on Somalia The Rule of Law and the Law of Nations (AMISOM), and Combined Maritime Task Force 151.44 Rules As Prime Minister David Cameron noted in his remarks at of engagement (ROE) for this international enforcement were Runneymede to commemorate the 800th anniversary of Magna based, inter alia, on the U.N. Convention on the Law of the Carta, “All over the world, people are still struggling to live by Sea (UNCLOS), the Protocol of 2005 to the Convention for the rule of law and to see their governments subject to that the Suppression of Unlawful Acts Against the Safety of Mari- law. The countries that have these things tend to be the long time Navigation Article 8, and the Geneva Convention.45 The term successes. Those who don’t tend to be the long term fail- maritime task forces in and around the Gulf of Aden were ures.”51 Continued understanding and application of the Law of required to conduct operations under thorough and extensive Nations to the oceans will insure the success of those nations ROEs, which were coordinated with national law enforcement dedicated to freedom of the seas, and will continue to be a agencies to provide directives to military units regarding root cause of the interdiction and elimination of piracy. This parameters of the use of force during operations. The military is a refreshing message, at a time in history when themes of forces involved in operations within that region were authorized ethnicity and inclusion are sometimes used to attack the to board vessels, arrest and detain persons suspected of taking universal application of any rules or legal concepts. part in piracy, use force to stop a pirate vessel or intervene in a hijacking, and use lethal force when necessary to protect life. What started as a legal apologia for free trade on the high seas for one set of Europeans to use against other Europeans The Dutch Navy participated alongside their old foes Spain and in their contest for the extension of economic and resulting Portugal in some of these operations, and the Netherlands spe- political power across the globe, is now being used by non- cifically contributed the use of Cougar helicopters, drones, a European navies against non-European pirates who threaten all submarine and an amphibious transport ship named Rotterdam. civilized nations in their quest for booty. The work of Grotius has transcended ethnic identity and historical circumstance to Opening a copy of the UNCLOS is like looking into the study become a universal doctrine of international law, enforceable of Hugo Grotius, where we find the “Right of innocent pas- at any time, in any place, by any civilized power.52 The cultural sage,”46 along with “Freedom of the high seas,”47 and the “Duty portability and appropriation of Grotius supports the same to cooperate in the repression of piracy.”48 Enforcement of these policy continuity on the high seas for centuries to come.
49. See Greenberg, Hirt and Smit, The global forces inspiring a new narrative of progress, McKinsey Quarterly 41. The evolution of Chairman Mao’s Communist China from a former champion of Fanon’s third world (April 2017) at 16, exhibit 7, using time-series graphic overlays to show shipping traffic patterns from revolutionaries into a modern sea power battling Somali pirates is a topic worthy of some study and 2010 to 2014, shifting back toward the much shorter shoreline-route made safe by Operation Ocean reflection. Shield, which “saved the world economy approximately $18 billion a year” in time, fuel economies, 42. Additional countries participating: Denmark, Columbia, New Zealand, Italy, Australia, Norway, Greece, ransom losses, and insurance costs. Ukraine, Canada, South Korea, Japan, Russia, Turkey and Germany 50. In the end, Somali piracy becomes a “self-baffled enterprise,” a “quest . . . for an impossible object” 43. See generally, https://en.wikipedia.org/wiki/Operation_Ocean_Shield?oldid=779180332. so long as the civilized world enforces the Law of Nations. Harold Bloom, The Anxiety of Influence (1973) 44. Laurie R. Blank, Rules of Engagement and Legal Frameworks for Multinational Counter-Piracy Operations, at 10. Case Western Reserve J. of Int’l Law (Vol. 46, 2013) 397 at 398. 51. The full text of Cameron’s remarks is online at https://www.gov.uk/government/speeches/magna-car- 45. For a full list, see Blank, cited above in footnote 44. ta-800th-anniversary-pms-speech. 46. UNCLOS Art. 17. 52. Returning us to the realm of enduring principles, across “[v]ast spaces of nature, the Atlantic Ocean, 47. UNCLOS Art. 87. the South Sea; vast intervals of time, years, centuries, . . . Nothing can bring you peace but the triumph 48. UNCLOS Art. 100. of principles.” Ralph Waldo Emerson, Self-Reliance, Essays: First Years (1841).
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88858_DCBA-Body-Sept2017.indd 14 8/4/17 8:58 AM ARTICLES Pieces of Eight Meanwhile, Muse’s mother blames the U.S. for unfairly arresting her son, and demands a Presidential pardon for him.53 The mother-in-law of one of the other slain pirates has also demanded compensation – or perhaps we can say ransom – for the killing of her daughter’s husband.54 She says the actions of the Navy SEALs entitle her to be paid. This reflexive demand for money calls to mind Captain Flint’s recursive cry in the most famous pirate story ever told: “Pieces of Eight! Pieces of Eight!”55
53. Abdiqani Hassan, Somali pirate families ask for U.S. pardon, recompense, Reuters (April 22, 2009). 54. Id. , quoting Mulaho Mohamud: “Killing our sons was not the right decision. The U.S. has to pay the price for what they have done to us.” 55. Robert Louis Stevenson, Treasure Island (Mobile) (Enriched Classics) (Kindle Location 2561). Mobile Reference Kindle Edition. Long John Silver’s loquacious parrot “Captain Flint” was named after another famous pirate.
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88858_DCBA-Body-Sept2017.indd 15 8/4/17 8:58 AM ARTICLES Supreme Court Rule 224- Discovering the Identity of an Anonymous Internet Poster By Christine Olson McTigue
Anonymous speech has a long and illustrious career in this It [Rule 224] provides a mechanism for plaintiffs to as- country. Think of Thomas Paine’s “Common Sense,” or The certain the identity of potential defendants in a variety of Federalist Papers. Today, instead of putting thoughts to civil cases, including Structural Works Act, products lia- paper, many people post their thoughts on the internet. You bility, malpractice and negligence claims. The rule will be have probably noticed anonymous reviews of local businesses, of particular benefit in industrial accident cases where the or anonymous comments posted on a news site. Many of these parties responsible may be known to the plaintiff’s reviews and comments are insensitive, caustic, mean, or down- employer, which may immunize itself from suit. right defamatory. Most of us would never publish a defamatory statement in writing, but some people seem to have no qualms Rule 224 provides: about posting the same statement anonymously online. A. Procedure. (1) Petition. While the law respects anonymous speech, and the First (i) A person or entity who wishes to engage in discovery for Amendment provides protection for free speech on the in- the sole purpose of ascertaining the identity of one who ternet, the law also provides a remedy to those subjected to may be responsible in damages may file an independent defamatory comments. The mere fact that a statement is posted action for such discovery. on the internet does not mean it is hyperbole (and not capable of being defamatory). What is a person’s redress in this day of (ii) The action for discovery shall be initiated by the filing anonymous internet postings? of a verified petition in the circuit court of the county in which the action or proceeding might be brought or At the intersection of these two protected interests is Supreme in which one or more of the persons or entities from Court Rule 224, which provides a mechanism to discover the whom discovery is sought resides. The petition shall be identity of someone who, without providing a real name, posts brought in the name of the petitioner and shall name a defamatory comment online. The procedure under Rule as respondents the persons or entities from whom dis- 224 is not, however, as simple as asking for the poster’s name. covery is sought and shall set forth: (A) the reason the Instead, a petition must first comply with the procedural proposed discovery is necessary and (B) the nature requirements of Rule 224, which includes the requirement that of the discovery sought and shall ask for an order the petition must allege a claim for defamation that is sufficient authorizing the petitioner to obtain such discovery. to withstand a section 2-615 motion to dismiss. The order allowing the petition will limit discovery to the identification of responsible persons and entities and where a deposition is sought will specify the name Supreme Court Rule 224 and address of each person to be examined, if known, Supreme Court Rule 224 is entitled “Discovery Before Suit or, if unknown, information sufficient to identify each to Identify Responsible Persons and Entities” and is a tool to person and the time and place of the deposition. discover the identity of an unidentified individual who may be liable to the plaintiff. The rule was adopted in 1989 and the (2) Summons and Service. The petitioner shall serve upon the Committee Comments from those pre-internet days are posi- respondent or respondents a copy of the petition together tively quaint. The comments state in part: with a summons in a form substantially as follows:
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B. Expiration and Sanctions. Unless extended for good cause, the order automatically In the Circuit Court of the ______Judicial expires 60 days after issuance. The sanctions available Circuit, ______County, Illinois under Supreme Court Rule 219 may be utilized by a party (Or, In the Circuit Court of Cook County, Illinois) initiating an action for discovery under this rule or by a A.B., C.D., et al. respondent who is the subject of discovery under this rule. (naming all petitioners), Petitioners, C. Expenses of Complying. The reasonable expenses of complying with the require- ments of the Order of Discovery shall be borne by the v. No. ______person or entity seeking the discovery.
In the context of a defamation action, courts have addressed H.J., K.L. et al. the balance between a speaker’s right to anonymity versus the (naming all respondents), rights of a would-be plaintiff. While anonymous speech may be Respondents. protected, there is no constitutional right to defame someone. Anonymous internet speakers do not enjoy a higher degree of protection from defamation claims than the person who has a claim for defamation. To preserve this balance, the following SUMMONS FOR DISCOVERY requirements for a petition under Rule 224 were adopted:1
TO EACH RESPONDENT: (1) The petition must be verified; (2) must state with par- You are hereby notified that on ______, 20__, ticularity facts that would establish a cause of action for a petition, a copy of which is attached, was filed in the defamation; (3) can seek only the identity of the potential above court seeking an order of discovery. Pursuant to defendant and no other information necessary to establish the law a hearing will be held to determine whether such an cause of action of defamation; and (4) is subjected to a hear- order shall be entered in this case. If you wish to contest ing at which the court determines that the petition sufficiently the entry of such order, you must appear at this hearing states a cause of action for defamation against the unnamed at ______, at _____ o’clock ___M., potential defendant.2 on ______, ______, 20__. One should not confuse Rule 224 with Section 2-402 of ______the Code of Civil Procedure, which governs respondents in Clerk of the Circuit Court discovery.3 The two mechanisms are not equivalent. Rule 224
Unless a shorter period is fixed by the court, the summons shall be served at least 14 days before the date of hearing, in the manner provided for service of summons in other civil cases. If service cannot with due diligence be made About the Author Christine Olson McTigue is a past editor of the upon the respondent(s), the court may by order provide for DCBA Brief and serves on the Board of Directors service by publication or otherwise. of the DuPage Bar Foundation. She received her B.A., magna cum laude, Phi Beta Kappa, from the University of Minnesota; and her J.D. from Loyola University of Chicago.
1. Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386 ¶¶15-17. 2. Maxon v. Ottawa Publishing Co., 402 Ill.App.3d 704, 711 (3d Dist. 2010). 3. 735 ILCS 5/2-402.
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88858_DCBA-Body-Sept2017.indd 17 8/4/17 8:58 AM In our prosecution and defense of class actions throughout the United States in We enter into referral and Federal and State Courts, we are proud of our recent accomplishments, which co-counsel agreements with include the following: attorneys who assist us in prosecuting class action or whistleblower claims. Breach of Warranty Claims for Consumer Products We have obtained class certification or are pursuing class actions in numerous state and national product defect cases involving products such as automobiles, faucets, infant car seats, laptops, and windows. We achieved trial, appellate and state Supreme Court victories in We are also investigating some of these cases affirming class certification and have entered into settlements in a number of these cases that benefitted class members. the following Potential Data Breach and Privacy Violation Cases Claims: We are currently representing consumers in class action cases involving data breach and privacy violation claims affecting tens of millions Violations of Federal and State wage claim laws if not hundreds of millions of consumers. by failing to pay overtime to salaried employees, forcing employees to work off the clock or failing Junk Text Messages and Autodial Voicemail Solicitations to pay minimum wages. Represented a national settlement class of consumers who received alleged junk text messages from various national chains or corporations such as Domino’s Pizza, Cox Media, Burger King and Mattel. Each class member who made a claim to receive $105 or their pro Whistleblower claims involving fraud on the rata share of the fund if there were not sufficient funds to pay $105. The total settlement fund was $16,000,000. government or securities purchasers. Overcharges in Consumer Invoices Such as Phony Tax Charges Manufacturers, retailers and advertisers who Court certified a class of all customers of a national hotel chain’s large hotel. Following successful interlocutory appeal, judgment in favor materially misrepresent how a product works or of the class for millions of dollars in damages, prejudgment interest and all attorneys’ fees. Affirmed on appeal. Class received in excess of performs or who knowingly sell a materially 90% of overcharges with monies being mailed to each class member following win on appeal. Settled identical cases on a class-wide basis defective product. against numerous other national hotel chains.
Vocational School Violation of Illinois Law Requiring Accurate Disclosure of Employment Statistics Junk text messages received from national or Court certified class seeking millions of dollars in refunds and other damages for all students who took a medical sonography course but well-established companies. did not obtain jobs in the field. The class claimed that Defendant violated the Consumer Fraud Act’s provision for vocational schools by failing to disclose that very few graduates obtained jobs. Appellate and Supreme courts refused to hear an appeal of class certification order. Areas of Interest:
Breach of Contract and Gift Card Cases Wage & Hour Overtime and Minimum Wage Represented national class of consumers that received a $25 purchase reward card that allegedly did not contain an expiration date but Violations which defendant claims should have contained an expiration date and will no longer honor. Class action certified by District Court and 7th Whistleblower (Qui Tam) Claims Circuit denied request for interlocutory appeal of class certification. In separate state court suit, class certification approved by New Jersey Unfair Check Overdraft Fees appellate court. Healthcare Product Fraud Shareholder Derivative Lawsuits Defective Car & Vehicle Products We have or are representing shareholders of various corporations in shareholder derivative lawsuits involving claims against management Insurance Fraud including cases against DeVry, Cole Taylor Bank, and Nalco. Fair Credit Reporting Act – FCRA Fair Debt Collection Practices Act – FDCPA Unpaid Overtime Class Actions Representing putative class members in a number of cases against employers seeking repayment of alleged unpaid overtime or for other Privacy Violations wage and hour violations such as failure to pay minimum wages. We have obtained favorable class-wide settlements in wage and hour and Violation of Car Repossession Statutes overtime cases. Vocational School Deception Excessive Late Charges Auto Repossessions Class certification order affirmed by the Appellate Court. 365 Ill.App.3d 664. Represented class with co-counsel in claims involving alleged Infomercials & Deceptive Advertising violations of Illinois automobile repossession laws. Case settled with each of the over 7,600 class members able to claim up to $2000. In addition to the damages payment, debt totaling $6.5 million was forgiven as to all class members as part of the settlement.
Hidden Voice Mail Charges in Telephone Bills Court certified consumer fraud claims for failure to disclose hidden voicemail charges. In 2005, Crain’s Chicago Business listed the settlement as the third highest settlement/verdict in Illinois.
Class Action Defense Defended national marketing company in four Fair Credit Reporting Act class claims seeking over $100,000,000 brought in federal courts in Chicago and Maryland. Defended national residential mobile home rental chain in consumer fraud claims. Defend a number of large to mid-size companies in class claims throughout the country including defending a landlord in class claims alleging violations of Illinois security deposit laws, a municipality in claims involving alleged illegal fines, and a medical services finance company regarding alleged illegal loans for plastic surgery procedures. Also act as advisors and co-counsel with attorneys who have asked us to assist them in defending their clients against class claims.
DiTommaso Lubin Austermuehle. Principal Counsel: Vincent L. DiTommaso, Peter S. Lubin and Patrick Austermuehle 17W220 22nd Street, Suite 410, Oakbrook Terrace, Illinois 60181 | Tel: 630-333-0000 | Fax: 630-333-0333 E-mail: [email protected] website: www.ditommasolaw.com
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is meant to supplement section 2–402. Section 2–402 is used or in which one or more of the persons or entities from whom after at least one defendant has been named in an existing suit discovery is sought resides.” In Hadley v. Doe, the petitioner In our prosecution and defense of class actions throughout the United States in We enter into referral and and the plaintiff seeks the identities of other defendants. Rule followed the trial court’s suggestion and filed an amended Federal and State Courts, we are proud of our recent accomplishments, which co-counsel agreements with 224, on the other hand, is the mechanism for discovering the complaint containing a count pursuant to Rule 224.10 The include the following: attorneys who assist us in identity of an initial defendant.4 Illinois Supreme Court held that in this situation, dismissal prosecuting class action or was too harsh a sanction, but emphasized that “the proper way whistleblower claims. Breach of Warranty Claims for Consumer Products Requirements for a Rule 224 Petition to invoke Rule 224 is before suit commences.”11 We have obtained class certification or are pursuing class actions in numerous state and national product defect cases involving products Returning to the requirements of a petition, the first require- such as automobiles, faucets, infant car seats, laptops, and windows. We achieved trial, appellate and state Supreme Court victories in We are also investigating some of these cases affirming class certification and have entered into settlements in a number of these cases that benefitted class members. the following Potential ment is that petition be verified. In an unpublished decision, As for where the petition should be filed, the Appellate the Appellate Court, First District, recognized that a petition Court, Fifth District, held that the terms of the rule are a Data Breach and Privacy Violation Cases Claims: can be verified by having the petitioner be sworn under oath statutory venue provision, not a provision relating to personal We are currently representing consumers in class action cases involving data breach and privacy violation claims affecting tens of millions Violations of Federal and State wage claim laws 12 if not hundreds of millions of consumers. by failing to pay overtime to salaried employees, before a notary, or using the verification found in section 1-109 jurisdiction. forcing employees to work off the clock or failing 5 Junk Text Messages and Autodial Voicemail Solicitations of the Code of Civil Procedure. The First District affirmed to pay minimum wages. Represented a national settlement class of consumers who received alleged junk text messages from various national chains or the dismissal of a Rule 224 petition on the sole basis that the Standard for Determining the Sufficiency of a Rule 224 corporations such as Domino’s Pizza, Cox Media, Burger King and Mattel. Each class member who made a claim to receive $105 or their pro Whistleblower claims involving fraud on the petition was not verified. “Without a proper verification, the Petition rata share of the fund if there were not sufficient funds to pay $105. The total settlement fund was $16,000,000. government or securities purchasers. petition does not meet the basic eligibility requirements for Of all the requirements for a Rule 224 petition, probably Overcharges in Consumer Invoices Such as Phony Tax Charges 6 Manufacturers, retailers and advertisers who proceeding under Rule 224.” the most important is whether the petition states a claim for Court certified a class of all customers of a national hotel chain’s large hotel. Following successful interlocutory appeal, judgment in favor materially misrepresent how a product works or defamation. The Appellate Court in of the class for millions of dollars in damages, prejudgment interest and all attorneys’ fees. Affirmed on appeal. Class received in excess of Maxon v. Ottawa Publishing performs or who knowingly sell a materially 90% of overcharges with monies being mailed to each class member following win on appeal. Settled identical cases on a class-wide basis The second requirement is that the petition must state the rea- Company engaged in a lengthy analysis regarding the standard defective product. against numerous other national hotel chains. son that the proposed discovery is necessary. In other words, to be used by the trial court in making this determination, and
Vocational School Violation of Illinois Law Requiring Accurate Disclosure of Employment Statistics Junk text messages received from national or the petition must state with particularity facts that would concluded that the appropriate standard is whether the peti- Court certified class seeking millions of dollars in refunds and other damages for all students who took a medical sonography course but well-established companies. establish a cause of action for defamation. This requirement is tion would withstand a section 2-615 motion to dismiss.13 The did not obtain jobs in the field. The class claimed that Defendant violated the Consumer Fraud Act’s provision for vocational schools by discussed further in the next section. Illinois Supreme Court later approved this standard in Hadley failing to disclose that very few graduates obtained jobs. Appellate and Supreme courts refused to hear an appeal of class certification 14 order. Areas of Interest: v. Doe. The reasoning behind this standard was explained as: The third requirement limits discovery to the identity of Wage & Hour Overtime and Minimum Wage Breach of Contract and Gift Card Cases the potential defendant. The petition cannot seek any other . . . we recognize a plaintiff’s right to seek redress for Represented national class of consumers that received a $25 purchase reward card that allegedly did not contain an expiration date but Violations which defendant claims should have contained an expiration date and will no longer honor. Class action certified by District Court and 7th Whistleblower (Qui Tam) Claims information necessary to establish the cause of action for unprotected defamatory language but also avoid a con- Circuit denied request for interlocutory appeal of class certification. In separate state court suit, class certification approved by New Jersey Unfair Check Overdraft Fees defamation.7 A petition is inapplicable where the identity of a struction of Rule 224 that would set forth a standard so appellate court. Healthcare Product Fraud potential defendant is known.8 low as to permit individuals to obtain the identity of those Shareholder Derivative Lawsuits Defective Car & Vehicle Products engaging in protected speech and effectively chill or We have or are representing shareholders of various corporations in shareholder derivative lawsuits involving claims against management Insurance Fraud The fourth requirement is that the trial court conduct a eliminate the right to speak anonymously.15 including cases against DeVry, Cole Taylor Bank, and Nalco. Fair Credit Reporting Act – FCRA hearing. At the hearing, the trial court must insure that the Fair Debt Collection Practices Act – FDCPA Unpaid Overtime Class Actions above three requirements are met. The purpose of the hearing As a reminder, a section 2-615 motion attacks the legal Representing putative class members in a number of cases against employers seeking repayment of alleged unpaid overtime or for other Privacy Violations requirement is to prevent fishing expeditions.9 sufficiency of the complaint. It is the petitioner’s burden to wage and hour violations such as failure to pay minimum wages. We have obtained favorable class-wide settlements in wage and hour and Violation of Car Repossession Statutes overtime cases. Vocational School Deception show that he can allege facts to support a cause of action; Excessive Late Charges When and where is the Rule 224 petition filed? The rule the unidentified respondent is not required to file a motion to Auto Repossessions 16 Class certification order affirmed by the Appellate Court. 365 Ill.App.3d 664. Represented class with co-counsel in claims involving alleged Infomercials & Deceptive Advertising provides that the petitioner “may file an independent action for dismiss. Once the petitioner has alleged a prima facie case violations of Illinois automobile repossession laws. Case settled with each of the over 7,600 class members able to claim up to $2000. In such discovery” and that the action for discovery “shall be ini- for defamation, the defendant has no first amendment right to addition to the damages payment, debt totaling $6.5 million was forgiven as to all class members as part of the settlement. tiated by the filing of a verified petition in the circuit court of balance against the petitioner, since there is no first amend- Hidden Voice Mail Charges in Telephone Bills the county in which the action or proceeding might be brought ment right to defame.17 Court certified consumer fraud claims for failure to disclose hidden voicemail charges. In 2005, Crain’s Chicago Business listed the settlement as the third highest settlement/verdict in Illinois.
Class Action Defense 10. Hadley v. Doe, 2015 IL 118000 ¶10. Defended national marketing company in four Fair Credit Reporting Act class claims seeking over $100,000,000 brought in federal courts in 11. Id. at ¶23. Chicago and Maryland. Defended national residential mobile home rental chain in consumer fraud claims. Defend a number of large to 4. Hadley v. Doe, 2014 IL App (2d) 130489 ¶¶64-66, aff’d, 2015 IL 118000. 12. Guava LLC v. Comcast Cable Communications, LLC, 2014 IL App (5th) 130091 ¶59. mid-size companies in class claims throughout the country including defending a landlord in class claims alleging violations of Illinois 5. National Private Client Group, Inc. v. Fatwallet, Inc., 2016 IL App (1st) 151172 ¶15. 13. Maxon, 402 Ill.App.3d at 712. security deposit laws, a municipality in claims involving alleged illegal fines, and a medical services finance company regarding alleged 6. Id. at ¶17. 14. 2015 IL 118000 ¶27. illegal loans for plastic surgery procedures. Also act as advisors and co-counsel with attorneys who have asked us to assist them in 7. Maxon v.Ottawa Publishing Co., 402 Ill.App.3d at 711. 15. Stone, 2011 IL App (1st) 093386 ¶16. defending their clients against class claims. 8. Id. at 710. 16. Stone, 2011 IL App (1st) 093386 ¶18. 9. Id. at 711. 17. Maxon, 402 Ill.App.3d at 714.
DiTommaso Lubin Austermuehle. Principal Counsel: Vincent L. DiTommaso, Peter S. Lubin and Patrick Austermuehle DCBA Brief September 2017 19 17W220 22nd Street, Suite 410, Oakbrook Terrace, Illinois 60181 | Tel: 630-333-0000 | Fax: 630-333-0333 E-mail: [email protected] website: www.ditommasolaw.com
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The First and Fifth Districts of the Appellate Court have held communicable disease, (3) words imputing an individual’s that an order disposing of a Rule 224 petition is appealable inability to perform his employment duties or lack of integrity pursuant to Supreme Court Rule 301.18 The Second District in performing those duties, (4) words imputing a lack of ability agreed in Hadley v. Doe, but Justice Birkett disagreed in a dis- in an individual’s profession or prejudicing an individual in that senting opinion.19 The Appellate Court’s scope of reviewing an profession, and (5) words imputing an individual’s engagement order disposing of a Rule 224 petition is limited to the four in fornication or adultery.22 corners of the petition.20 Even if an alleged statement falls into one of these catego- ries, the statement may not be actionable if the defendant In the context of a defamation can demonstrate that the statement is reasonably capable of an innocent construction. Under the innocent construc- action, courts have addressed the tion rule, a court must consider the statement in context and give the words of the statement, and any implications arising balance between a speaker’s right from them, their natural and obvious meaning.23 If the state- ment may reasonably be innocently interpreted, it cannot be to anonymity versus the rights of actionable. However, when the defendant clearly intended and “ unmistakably conveyed a defamatory meaning, a court should not strain to see an inoffensive gloss on the statement.24 The a would-be plaintiff. While anon- determination of whether a statement is capable of a reason- able, innocent construction is a question of law for the court ymous speech may be protected, to decide.25
there is no constitutional right to A key component to a defamation claim is that a statement of fact was made. Courts look to three factors to make this defame someone. determination: whether the statement has a precise and readily understood meaning, whether the statement is verifiable, and Stating a Claim for Defamation whether the statement’s literary or social context signals that it In order to determine if a Rule 224 petition can survive a mo- has a factual content.26 But what about statements of opinion? tion to dismiss, a quick discussion of the law of defamation is in Opinions do not have automatic protection from a defama- order. (A complete discussion of the law governing defamation tion claim; “there is no artificial distinction between opin- claims is well beyond the scope of this article.) In order to state ion and fact: a false assertion of fact can be defamatory even a claim for defamation, a plaintiff must present facts showing when couched within apparent opinion or rhetorical hyper- that the defendant made a false statement about the plaintiff; bole.” 27 A defamatory statement is constitutionally protected the defendant made an unprivileged publication of that state- only if it cannot be reasonably interpreted as stating actual ment to a third party; and the publication caused damages.21 fact.28 To make this determination, a court refers to the factors set forth above. Even if a statement is couched as an opinion, if Illinois recognizes defamation per se and defamation per quod. the statement is a fact, and it is false, it is actionable.29 There are five categories of statements that are considered defamatory per se. They are: (1) words imputing the commission Finally, a defamatory statement is not actionable if it is privi- of a crime, (2) words imputing an infection with a loathsome leged. Regarding the defense of privilege, the First and Second
22. Doe ex rel. Doe v. Catholic Diocese of Rockford, 2015 IL App (2d) 140618 ¶19. 23. Green v. Rogers, 234 Ill.2d 478, 499 (2009) (emphasis in original). 24. Id. at 500. 18. Beale v. EdgeMark Financial Corp., 279 Ill.App.3d 242 (1st Dist. 1996); Gaynor v. Burlington Northern and 25. Bryson v. News America Publications, Inc., 174 Ill.2d 77, 90 (1996). Santa Fe Railway, 322 Ill.App.3d 288 (5th Dist. 2001). 26. Hadley v. Doe, 2015 IL 118000 ¶41. 19. 2014 IL App (2d) 130489 ¶¶62-69, ¶¶73-82. 27. Solaia Technology, LLC v. Specialty Publishing Co., 221 Ill.2d 558, 581 (2006). 20. Doe ex rel. Doe v. Catholic Diocese of Rockford, 2015 IL App (2d) 140618 ¶22. 28. Solaia at 581. 21. Hadley v. Doe, 2015 IL 118000 ¶30. 29. Solaia at 581.
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Districts of the Appellate Court appear to have a subtle dif- quod is where a statement is defamatory on its face, but does ference of approach as to the timing of raising that defense. In not fall within one of the limited categories of statements Dobias v. Oak Park and River Forest H.S. Dist. 200,30 the First that are actionable per se. In this second type of per quod District has held that privilege is a defense that can be raised actions, the plaintiff need not plead extrinsic facts, because even in a section 2–615 motion if the defense is apparent on the the defamatory character of the statement is apparent on its face of the complaint. Reviewing the granting of a 2-615 mo- face and resort to additional facts to discern its defamatory tion, the court decided that the complaint sufficiently alleged meaning is unnecessary. The action is one for defamation abuse of privilege, to hold that defense was not valid. per quod “simply because the statement does not fall into one of the actionable per se categories.”34 Unlike defamation Dobias, however, did not involve a Rule 224 petition. The per se case, in defamation per quod action the plaintiff must Second District addressed a motion to dismiss a Rule 224 plead and prove special damages to recover.35 petition in Doe v. The Catholic Diocese of Rockford.31 In Doe, the defendants raised the defense of clergy-penitent privilege to Conclusion a Rule 224 petition. The Second District stated that “strictly The law respects anonymous speech, but not defamatory speaking” privilege is an affirmative defense which should not speech. You or your client may want to know who posted be considered when ruling on a section 2-615 motion. The online an anonymous comment that is not fair, not nice, or court, nevertheless, considered the defense of privilege because downright mean. Unless that statement is defamatory, how- the defendants’ motion to dismiss met the requirements of a ever, a claimant may not succeed using Supreme Court Rule section 2-619.1 combined motion to dismiss.32 224 to discover the name of the person who posted that comment. Even if you can meet the requirements of Rule While privilege may be an affirmative defense, in the context 224, discovery under that rule is not a fishing expedition to of a Rule 224 petition, the petition must state a claim for defa- prove your case, but is limited to the name of the would-be mation. If the existence of a privilege is apparent from the face defendant. of the complaint, there is no reason why this defense could not be raised in a section 2-615 motion attacking the face of the complaint.
The other type of defamation recognized in Illinois is defamation per quod. A cause of action for defamation per quod may be brought in two circumstances. The first is where the defamatory character of the statement is not apparent on its face and resort to extrinsic circumstances is necessary to demonstrate its injurious meaning; the plaintiff must plead and prove extrinsic facts to explain the defamatory meaning of the statement.33
The second circumstance of defamation per
30. 2016 IL App (1st) 152205 ¶106. 31. 2015 IL App (2d) 140618. 32. Doe, 2015 IL App (2d) 140618 ¶51. 34. Bryson at 103. 33. Bryson v. News America Publications, Inc., 174 Ill.2d at 103. 35. Bryson at 103.
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Key Points of the Revised Illinois event without being entitled to distributions. A person who acquires a distributional interest without becoming a member Limited Liability Company Act has only the rights of a transferee.3 In addition to cash, property By Gregory M. White or services, a member’s capital contribution may now consist of any “other benefit” provided to the LLC.4 The Act provides a non-exclusive list of remedies or consequences that the Oper- ating Agreement may impose on a member who fails to make a required capital contribution.5 Background Limited liability companies (“LLCs”) are the business entity of Operating Agreement choice for real estate investments and closely held businesses. The Operating Agreement is the linchpin of the operation- A limited liability company (“LLC”) provides favorable income al structure of the company by setting forth how the LLC tax treatment to owners, flexibility in how they are governed, is governed, the duties and responsibilities of members and including the ability to restrict or eliminate fiduciary managers, and other operational issues. The Act remains a duties of those in control, customized capital and participation default statute meaning that if the Operating Agreement fails to arrangements and liability protection for personal asset of its address an issue, then the applicable provision of the statute members. Effective July 1, 2017, Public Act No. 099-0637 (the applies. The Act significantly expands the ability of members “Act”) extensively revises the Illinois Limited Liability Com- to restrict or override certain default rules, although others are pany Act, 805 ILCS 180/1-1, et seq. making Illinois a more mandatory and cannot be changed. The Operating Agreement business-friendly environment to operate an LLC. Many of can be implied, oral or written (this means paper, electronic the revisions are based upon the Revised Uniform Limited or in another medium that is perceptible and retrievable) or Company Act (2006), (Last Amended 2013) developed by the any combination thereof6 and is not subject to the Statute of Uniform Law Commission. All section references herein are Frauds.7 The company itself is a party to the Operating Agree- to the Act. ment8 and a member is bound to its terms whether or not he or she signs the agreement (which includes a tangible or electronic Formation symbol, sound or process).9 An LLC’s Articles of Organization (“Articles”) may be filed without the existence of a member, provided a member exists Management at the time the Articles become effective, which must occur Whether the company is a member-managed or manager- within sixty (60) days from the date the Articles are filed.1 managed is typically provided for in its Articles. An LLC is member-managed by default unless the Operating Agreement Membership stipulates as such, or it will be manager-managed, managed Members need not make capital contributions or acquire a by managers, management is vested in managers or words of distributional (economic) interest.2 Thus a member can have similar import.10 LLCs that are managed by a “managing-mem- springing voting rights that arise upon the occurrence of some ber” will be deemed to be member-managed under the Act.11
3. Section 10.1(b) 4. Section 1.5 5. Section 20-5(e) 6. Section 1.5 7. Section 1.46 8. Section 15-5(f) 9. Sections 15-5(f) and (g) 1. Sections 5-5(a)(4) and (b) 10. Section 15-1(a) 2. Section 10-1(c) 11. See Section 15-1(a)
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Fiduciary Duties A member of a member-managed LLC and a manager of a or engage in other transactions.21 However, the SOA may not manager-managed LLC owe fiduciary duties to the LLC and grant authority to an unidentified person who holds a particular its members, including the duties of loyalty and care.12 Duties position or office (e.g., “President”). SOAs not involving transfers must be discharged and rights exercised consistent with the of real property conclusively bind the LLC as to non-members obligations of good faith of any fair dealing.13 A member of a who give value in reliance on the SOA without knowledge to manager-managed LLC that is not a manager owes no duties the contrary.22 For transfers of real property, a second step to the LLC or other members solely because it is a member.14 is required to protect the transferee. A certified copy of the The Act, to a greater extent than is currently permitted, allows SOA must be recorded in the county where the real property is fiduciary duties to be restricted or eliminated. Any fiduciary located to conclusively bind the LLC as to non-members who duty of a member or manager, other than the duty of care, may give value in reliance on the SOA without knowledge to the be restricted or eliminated if the Operating Agreement is clear contrary. If a SOA involving the transfer of real property is cer- and unambiguous.15 The duty of care can also be altered, except tified and properly recorded, then any limitation of authority to authorize intentional misconduct or a knowing violation of is binding on all persons who are not members whether or not the law.16 The obligations of good faith and fair dealing cannot they know of the limitation.23 In situations other than a transac- be eliminated or limited. However, the Operating Agreement tion involving real property, a limitation of authority in a SOA may identify specific types or categories of conduct that do not is not evidence of knowledge or notice of a limitation of author- violate any fiduciary duty17 and may set standards by which the ity by any person.24 Authority granted or limited in the Articles performance of a member’s duties or the exercise of a member’s do not bind a person who is not a member or manager unless rights are to be measured.18 No longer may an act that violates the person received actual notice in a record from the LLC that the duty of loyalty be authorized or ratified by a percentage or agency authority is limited in the Articles.25 If the SOA con- number of members or disinterested managers. Only persons flicts with the authority granted or limited in the Articles, the who are fully informed, disinterested, and independent may au- SOA controls as to a person who is not a member or manager. thorize or ratify such acts.19 The person named in a SOA may file a Statement of Denial Authority To Act (“SOD”) with the Secretary of State, denying the grant of Statutory apparent authority of a member or manager for pur- authority or the limitations, and if intended to apply to trans- poses of carrying on the LLC’s business has been eliminated. fers of real estate, a certified copy of the SOD must be filed in The ability of a member to bind the LLC is determined by the the applicable real estate office.26 law of agency or other applicable law.20 Inspection Of Business Records An LLC may file a Statement of Authority (“SOA”) with the There is no change in the business records that a company Illinois Secretary of State, describing the authority, or limits must maintain or make available to members and the legal of authority, of any member, manager or other person associ- representatives of a deceased or legally disabled member.27 ated with the LLC to enter contracts, transfer real property, However, a transferee of a distributional interest is now
12. Sections 15-3(a) and 15-3(g)(2). Since the list of fiduciary duties is not exclusive, courts may interpret or expand on the standard of conduct appropriate for those operating the LLC. 13. Section 15-3(c) About the Author 14. Section 15-3(g)(1) Gregory M. White is Of Counsel with Johnson & 15. Section 15-5(c)(1) 16. Section 15-5(c)(3) Bell, focusing his practice on addressing the 17. Section 15-5(c)(2) business and legal interests of privately held and 18. Section 15-5(b)(7) family owned companies as well as corporate, 19. Section 15-5(d) 20. Sections 13-5(b) and (c) professional, real estate and banking clients. He 21. Section 13-15(a)(2) is recognized by his peers with an AV Preeminent 22. Section 13-15(d) rating from Martingdale-Hubble. He received 23. Section 13-15(f) 24. Section 13-15(c) his J.D. from DePaul University and his L.L.M. in 25. Section 13-15(h) Taxation from John Marshall Law School. 26. Section 13-20 27. Section 1-40(b)
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88858_DCBA-Body-Sept2017.indd 23 8/4/17 8:58 AM The Federal Estate Tax Bogeyman Is Already Dead* But, the Illinois estate tax is still alive! The federal estate tax is the traditional bogeyman of death transfer planning. When I started my estate and tax planning career in 1983 during the Ronald Reagan days, the federal estate tax was $.60 for every one dollar over $275,000 of estate asset value. In those days, the estate planner’s toolbox used the irrevocable life insurance trust (ILIT) coupled with cash value life insurance to leverage the cost of future estate taxes. Since 2010, the estate planner’s world has changed. Due to a revolution in the federal estate tax exemption, the federal estate tax planning world has been on the road to extinction. Now, federal estate taxes are irrelevant for a single person whose estate value at death is less than $5,490,000. A marriedAD couple, with proper here planning, can exclude almost $11 million. * Now, just one couple out of every 1000 US households will ever need to worry about federal estate tax planning. More Illinois families face the Illinois estate than the federal estate tax. Here is a simple chart is to give the attorney an insight into this tax for estates between $4,000,000 and $5,000,000.
Diana Law, Rick Law & Zach Hesselbaum
We serve clients who seek wise solutions with estate and asset protection planning; long-term nursing home care costs; taxation during retirement; guardianships; and post-death administration/probate. Rick L. Law, Esq.
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permitted to inspect these records but only for a proper the basis that it is equitable to do so. To dissolve the LLC, a purpose.28 The LLC must supply the records or state a reason- transferee must obtain a judicial decree that those in control able time to do so within 10 days after receiving the demand.29 have acted, are acting, or will act in a manner that is illegal or fraudulent, or have acted, or are acting in an oppressive manner Rights To Information that is directly harmful to the transferee.38 The right of a mem- The right of members and dissociated members to information ber or dissociated member (but not a transferee) to a judicial concerning the LLC’s activities, finances, and other circum- dissolution because another member has engaged in conduct The Federal Estate Tax Bogeyman Is Already Dead* stances is now expanded. Whenever a member has a right to that makes it not reasonably practicable to carry on the LLC’s vote on a matter, the LLC is required to provide the members, business has been replaced with the requirement that all, or But, the Illinois estate tax is still alive! without demand, all information known to the LLC material substantially all, of the company’s activities are unlawful.39 to the member’s decision.30 In order for members of an LLC The federal estate tax is the traditional bogeyman of death transfer planning. When I started my estate and to properly exercise their rights and duties, they are entitled to Rights Of A Creditor tax planning career in 1983 during the Ronald Reagan days, the federal estate tax was $.60 for every one information concerning the LLC or information that is mate- A judicial charging order against a distributional interest dollar over $275,000 of estate asset value. In those days, the estate planner’s toolbox used the irrevocable rial to their ownership.31 This same information is available to creates a lien thereon and requires distributions otherwise life insurance trust (ILIT) coupled with cash value life insurance to leverage the cost of future estate taxes. a dissociated member if it relates to the period the person was payable to the judgment debtor to be paid to the creditor. No a member, and is sought in good faith.32 On the other hand, a other rights with respect to the assets or affairs of the LLC are Since 2010, the estate planner’s world has changed. Due to a revolution in the federal estate tax transferee has no rights to such information.33 In addition to granted thereby.40 However, a court may foreclose the lien on a exemption, the federal estate tax planning world has been on the road to extinction. restrictions contained in the property agreement, the LLC is distributional interest which entitles the purchaser to the judg- Now, federal estate taxes are irrelevant for a single person whose estate value at death is less than permitted in the ordinary course of its business to impose rea- ment debtor’s rights to distributions and those rights available $5,490,000. A married couple, with proper planning, can exclude almost $11 million. sonable restrictions and conditions on access to and use of the to a transferee [to inspect records that the LLC is required to information provided.34 maintain and petition for a judicial dissolution of the LLC in * Now, just one couple out of every 1000 US households will ever need to worry about federal estate tax limited circumstances].41 The Act clarifies that although other planning. Dissociation/Withdrawal laws may permit a lien against a distributional interest or “other LLCs are no longer required to purchase the distributional in- rights of a member or transferee” the lien under such law is More Illinois families face the Illinois estate than the federal estate tax. Here is a simple chart is to give the terest of members upon dissociation. A dissociated member treated only as a charging order subject to the Act.42 attorney an insight into this tax for estates between $4,000,000 and $5,000,000. retains its distributional interest solely as a transferee35 and has no right to vote. A member’s dissociation does not discharge Series LLCs the person from any debt, obligation or other liability incurred No substantive changes are made to the existing law. as a member.36 Conclusion Judicial Dissolution The Act provides members greater freedom of contract in The ability of a member, dissociated member, or transferee to defining the relationship among members, managers and the cause the involuntary dissolution of the LLC is more difficult LLC. In turn, an Illinois LLC will be a more flexible and under the Act, and courts are provided greater flexibility in investor friendly business entity that can more easily adjust fashioning alternative remedies to dissolution, including but to the everchanging needs of real estate investors and closely not limited to, a court-ordered buy-out of the applicant’s inter- held businesses. Given the numerous and significant changes est in the LLC.37 created by the Act that apply to existing LLCs, it is important to consider the impact these changes will have on your LLC A transferee may no longer petition to dissolve the LLC on and to update its Operating Agreement accordingly. Diana Law, Rick Law & Zach Hesselbaum 28. Section 1-40(c) 29. Section 1-40(d) 30. Section 10-15(c) 31. Section 10-15(a) We serve clients who seek wise solutions with estate and asset protection planning; long-term nursing home 32. Section 10-15(d) care costs; taxation during retirement; guardianships; and post-death administration/probate. 33. Section 10-15(g) 38. Section 35-1(a)(5) 34. Section 10-15(h) 39. Section 35-1(a)(4)(B) Rick L. Law, Esq. 35. Section 35-55(a)(4) 40. Section 30-20(a) 36. Section 35-55(b) 41. Section 30-20(c) 37. Section 35-1(b) 42. Section 30-20(g)
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[Note from the Editor: Back in Spring of 2017, we ran a very useful article by attorney Gunnar Gitlin which previewed the enactment of the new Income Shares Child Support Calculation in July 2017. Because this is such a dramatic new way for parties and their attorneys to approach child support calculation, we asked our good friend and veteran Family Law attorney Nancy Chausow Shafer to provide a practical approach of how the new Income Shares model actually works now that the new law took effect on July 1, 2017].
By way of background, every four years, States are required to review and evaluate their child support guidelines. Illinois has been using the percentage of obligor net income model since 1984. While pretty straightforward, the percentage of net Income Shares is Here: Now What? income of the obligor model was deemed by many to be unfair for certain families. For that and other reasons, after the review Implementation Issues and of year 2010, the Illinois Child Support Advisory Committee recommended changing the statutory child support calcula- Some Possible Solutions tions to an Income Shares model. Consequently, child support in Illinois completely changed on July 1, 2017 with the imple- By Nancy Chausow Shafer mentation of the original income shares statute [P.A.99-0764] and the technical corrections [P.A.100-0015]. If you are going to read the statute (!) don’t bother with the original act, the technical corrections embodies the entire current version, just look to SB 69, now P.A.100-0015 http://www.ilga.gov/legisla- tion/publicacts/fulltext.asp?Name=100-0015&GA=100.
The income shares model for determining child support is used in 38 states throughout the US, and is the most commonly used method today. The basis for income shares is a table that uses economic data to determine the amount that parents who reside together expend for the needs of their child or children, based on combined family income and the size of the family. The method then determines the pro-rated amount each parent should contribute to their child or children when the parents do not reside together.
This article will recap the statute, identify and attempt to provide answers for several implementation and interpretation con- cerns over this new statute. Let’s recap: Illinois is now going to compute child support by looking to both parent’s net incomes.
Step 1 Determine the net incomes of each parent. There are two ways to determine net income: standardized and individualized. The standardized net income method assumes the parent is filing incomes taxes as Single, with no itemized deductions – only the standard deduction, and only one exemption for him/herself
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unless the dependency exemption has been allocated by agree- Implementation Problem #2: How can the same child support ment or court order. There is a well-designed calculator on the amount based on expenditures be the same in Naperville and HFS website https://cscwebext.hfs.illinois.gov/CscWebEx/ Cairo, Illinois? Can I argue for a deviation from the BCSO app/csc?execution=e1s1 which will provide the child support in the Schedule based on regional disparities? We start from amount based on gross incomes. Embedded in this calculator the requirement that every state can have only one schedule is the official Gross to Net Income Conversion Table, based for child support, and the obligation must be consistent on these assumptions. All well and good for HFS, but for the everywhere in the state. While as a matter of public policy, this private bar, the standardized tax method does not fit for most could have been handled in many different ways, the variables cases. The differences in net income from application of the determined to be relevant in our Schedule are only combined individualized tax method can have significant impact on the net income and number of children. In order to argue for final child support obligation and payment. Simple reliance deviation, we have to understand how the schedule was built. on the standardized tax method computation and the HFS A report on the HFS website provides an explanation of the Child Support Estimator can be detrimental to your client’s basis for the Schedule. This should be required reading for all interests. On the other hand, software programs to calculate of us: https://www.illinois.gov/hfs/SiteCollectionDocuments/ net income, or accountant computation, will provide accurate TechnicalDocumentationIllinoisScheduleNetIncomeTable.pdf computations we can rely on to present the individualized net income amounts to the Court. Step 3 Allocate the BCSO between the parents in the percentages Implementation Problem #1: Who decides whether to use stan- of their individual incomes to the combined net income. In dardized or individualized net income? The statute provides a the example we have been using in trainings throughout the rebuttable presumption for the standardized net income method. state, if Dad’s net income is $7,500, and Mom’s net income is That, I believe, shifts the burden on us as practitioners to pres- $2,500, their combined net income is $10,000. Mom’s share is ent the appropriate information as to the individualized net in- 25%, Dad’s share is 75%. We apply those percentages to the come result. This can easily be done through utilizing software BCSO at $10,000 per month combined net income, which for or accountant computation. For example, in Family Law Soft- one child happens to be $1,445. If there is no shared parenting ware (www.familylawsoftware.com) there is a Tax Worksheet in this case and Mom is the majority time parent, then Dad will which shows both the standardized and actual (individualized) pay Mom 75% of the BCSO of $1,445, or $1,083.75. Mom’s taxes to be deducted to arrive at net income. The statute fur- share of the BCSO of $361.25 will be retained by her to apply ther provides either party can opt in to the individualized tax to the children’s expenses. Mom, as the majority time parent method. If there is a dispute, the court can determine which without shared parenting, will have the entire $1,445 of BCSO one to use based on appropriate documentation of the basis to use to support the children. for the computation. I read this to provide the court can reject the individualized method if insufficient documentation is provided, and can reject the standardized method if appro- priate documentation is provided. However, this requires the About the Author practitioner to do the computations and determine whether to Nancy Chausow Shafer of Highland Park IL, accept or dispute the other side’s computations and prevent concentrates in Matrimonial Law, including Liti- your client’s interests from being impaired. gation, Mediation and Collaboration. A frequent presenter and organizer at CLE programs, Nancy Step 2 is also the Illinois sales rep for Family Law Soft- Once the net incomes are determined, then take the combined ware. She received her JD from Northern Illinois University, College of Law. net income number, and find the corresponding Basic Child Support Obligation (“BCSO”) from a Schedule. The Schedule is promulgated by the IL Department of Healthcare and Family Services (HFS), and developed by economists based in large part on the Consumer Expenditure Survey done by the federal government.
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Step 4 We have to determine the parenting time schedule and alloca- fought so hard to obtain? Initially, this problem may be raised tion of overnights. If there is shared parenting, defined in Illi- as a concern during settlement negotiations, or it may arise nois as each parent having at least 146 overnights, then we add after the fact. If during negotiations, several options could be several steps to the child support calculation to determine the discussed to address the concern. If time has passed, then there final child support obligation. There are several ways to calcu- are opportunities in the statute to modify or compensate a par- late the allocation of overnights once a parenting time schedule ent. I have thought of the following, and there may be other has been decided. Here we arrive at one of several concerns ideas we could share with each other as we begin addressing the over the new statute: the fight over “days for dollars”, or in our new statute in our practices: case, “overnights for dollars”. I believe we will come to realize two things: (1) reaching the requisite 146 overnights is not go- 1. If after the fact, file a Petition to Modify Child Support and ing to be that hard in cases with active, involved parents; and possibly also a Petition to Modify the Parenting Time Sched- not even a problem in cases where one parent is more tradition- ule to comply with the actual schedule being implemented. ally secondarily involved in the children’s daily lives, and (2) The problem is that a Petition to Modify Child Support can demands for 40% of the parenting time (the equivalent of 146 only apply prospectively, and will not compensate the ma- overnights) is better for the children and the divorce process jority time parent for the lost child support or the additional than the prior demands for 50% of the parenting time which expenditures for the child(ren) when the other parent did not were financially motivated. At least now, the anticipated result actually shoulder the allocated share of the burden. of a demand for 146 overnights will not be no child support – there will still be a child support obligation in almost all cases. 2. File a Petition under 607.5 of the IMDMA, Abuse of Allo- cated Parenting Time, and utilize the remedies to be found The calculation of the number of overnights potentially is a in that section of the statute. logistical knot to be unraveled – each of us will need to find an easy, reliable and viable method to count the overnights. 3. Require a bond to be posted (or an escrow account estab- While Family Law Software has an overnights calculator, it lished), pursuant to 607.5(4) to be forfeited to the other par- does not tally the days allocated to each parent over the year, ent if the 146 overnights schedule is not followed. Again, the it depends on your count and input. I have used CustodyX- amounts could be determined by the difference in child sup- Change (www.custodyxchange.com) to create calendars that port impacted by the shared physical care formula. automatically count the overnights, but it is a time-consuming task. We all have developed methods of plotting out parenting 4. Build in a dollar amount to be paid if the actual exercise of time calendars, including colored markers on a paper calen- parenting time does not comply with the planned schedule. dar. The particular difficulties in accurately counting the en- Of course, parameters of how many missed overnights, and tire year of overnights revolve around not the regular parenting how frequently this occurs will be important to define. One time schedule, which is relatively easy to compute (the number method to calculate an appropriate dollar amount is to com- of overnights weekly or every two weeks for example). Rather, pute the support obligation as a basic support obligation and the complexity revolves around the holidays and vacation allo- a shared physical care obligation, and use the difference as cations, which both add and subtract from the total number of the compensatory dollar amount. overnights. Don’t forget that when Dad gets 7 days of vacation, if it includes his regular weekend he is not adding 7 overnights, 5. Determine a set dollar amount per unexercised overnight to he is adding only the additional nights. When Mom also gets a be paid to the other parent, regardless of reason for the fail- week of vacation with the children, it subtracts from Dad’s to- ure to exercise the time. This could go both ways, and be tal overnights if his regular schedule would have included any part of the overall provisions for right of first refusal and vari- of those nights. The accuracy of that tally will be important as ations of the parenting time schedule that are a normal part the number of overnights approaches 146. of parenting after divorce. Of course, this has to be balanced against the other interests of the parents and the children Implementation Problem #3: What if the non-majority time encouraging the flexibility and open exchange of the children parent does not actually exercise the 146 overnights he or she as time goes on.
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Step 8 Consequently, child support in Illinois Only in cases where the shared parenting formula applies, the parents’ respective obligations are then netted, with the parent completely changed on July 1, 2017 with the with the higher obligation paying the parent with the lower implementation of the original income shares obligation the difference as their child support obligation. This netting does not apply to the basic support obligation where statute [P.A.99-0764] and the technical there is no shared physical care. corrections [P.A.100-0015] . . . Of course, “ Implementation Problem #4: Are we going to still see the pos- while these new guidelines now apply to all sibility of a majority time parent (formerly custodial parent) required to pay support to the non-majority time parent (for- child support determinations, there can still merly non-custodial parent)? This controversial result can oc- cur in shared physical care situations, but not in basic support be deviations from the guidelines (as long as obligation cases where there are not at least 146 overnights. appropriate findings are made and the actual This is due to the instruction to net the respective support obligations in shared physical care cases. support amount is referenced). After July 1, we are now required to use the income shares Step 5 child support guidelines for all pending and undetermined If at least 146 or more overnights are allocated to both par- matters. Some issues have arisen about what this means. ents, we then enter the Shared Physical Care formula. First, apply the shared physical care multiplier to the BCSO. This Implementation Problem #4: Matters which are currently is a simple multiplication of 1.5 to the BCSO. In the prior ex- pending for determination or modification, and which were ample, the basic support obligation of $1,445 multiplied by 1.5 filed prior to July 1 (sometimes many months or years prior). yields a shared physical care child support obligation (SPCSO) Many of us have experienced cases that were delayed until the of $ 2.167. 50. new law became effective, hoping to get the benefit of the new guidelines. While it is clear a determination of support going Step 6 forward needs to be determined under the new guidelines (al- Again, the SPCSO is allocated between the parents based on though deviations are always possible), should the new guide- their percentage share of the combined net income. The per- lines essentially be applied retroactively to the determination centage allocation based on the combined net incomes does for the time the pending motion was waiting for determina- not change, in our example the same 75/25 percent allocation tion? I would go back to the federal statutes underlying all of applies, but now to the enhanced number for the shared phys- the child support guidelines here and across the country. We ical care obligation. are required to have only one guideline for the entire state. Until July 1, that guideline was based on the percentage of Step 7 obligor’s income method. As of July 1, the guideline is based Each parent’s allocated share of the enhanced SPCSO is then on the income shares method. I would posit that until July 1, multiplied by the allocated share of parenting time of the the support can only be determined by the then applicable OTHER parent. Stephanie Kasten of the Gitlin Law Firm apt- statute, using the percentage of obligor’s income method. ly described this as paying the other parent from your share of the child support obligation for the additional share of the Implementation Problem #5: With both the amount and allo- children’s expenses that parent will be paying during their par- cation of the BCSO dependent on the determination of each enting time. This cross multiplication is the part of the new parent’s net income, how do we account for variable income income share guideline formula that seems to be the most con- when setting child support? Clearly, a change income can al- fusing and complex to most of us. It becomes easy with the use ways be a basis for a Petition to Modify Support if it is a sub- of software, and is going to become routine as we get used to stantial change of circumstances, that Petition can only effect this new formula. a prospective modification. If we know a parent typically gets
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bonuses, or has commission based compensation, overtime 3. Provide for permissive modifications retroactively in the or other variable income, how can we set child support that agreement. If this is an agreement, there is no reason why adequately accounts for that variability. This is made especial- the bar to retroactive modifications could not be waived ly difficult (more than under the prior percentage of obligor in certain well defined circumstances. Provide for periodic income method) because both the amount and allocation of production or exchange of income information, and permit the basic child support obligation (BCSO) is impacted by addi- either party to trigger a review of the support amount for a tional income on one side. This can be even more complicated prior period with specific terms for any shortfall or overpay- if both parties’ incomes are subject to variability. Some ideas ment. to address this problem: Of course, while these new guidelines now apply to all child support determinations, there can still be deviations from the 1. True-up child support periodically. A true up agreement guidelines (as long as appropriate findings are made and the could be applied retroactively, to the past year or other pe- actual support amount is referenced). For negotiated cases, riod of child support, or prospectively based on inclusion of consider whether support guidelines have any meaningful ap- the additional income to set support for the next period of plication, or whether the family’s best interests might be served time. Additional considerations for negotiating these true up by allocating or sharing payment of the children’s direct and in- agreements are items like the payment terms for the retro- direct expenses rather than an arbitrarily defined child support active additional support payments (lump sum payment or amount. While the support amount is supposed to reflect ex- payment terms over a period of time?). The process for re- penditures (for an intact family) at various income levels for the computation of the support amount should be determined children, those statistical averages may not in any way reflect specifically – when will this be done, what information needs your client’s family’s expenditures. Consider moving outside to be provided, who will do the calculation, will there be a these defined amounts to allow the clients to make their own process for dispute or verification of the computation, how agreements in mediation, collaborative or other settlement will the new amount be memorialized processes. and/or enforced?
2. Determine an amount or percentage of additional income to be paid as addition- al child support. While the amount and allocation of support changes if the net income changes, one can run several al- ternative scenarios and look at realistic T. Patrick Rice other income results and predetermine additional support amounts to be paid, even if not precisely accurate predictions of what later occurs. This can always be Mediation expressed as additional dollar amounts or percentages on ranges of income. As has 311 S. County Farm Road, Suite A, Wheaton, IL 60187-4523 been expressed in other venues, it may be 630.260.8880 www.riceltd.com [email protected] “good enough for government work”.
30 DCBA Brief September 2017
88858_DCBA-Body-Sept2017.indd 30 8/4/17 10:32 AM ARTICLES Illinois Law Update Editor Christine Olson McTigue
Criminal Law In a 5 to 2 Decision, the Illinois Supreme Court Affirms any law enforcement agency asked him for assistance. the Trial Court’s Quashing of Evidence Found by LaSalle Absent this duty, the conduct of the SAFE unit fell outside County SAFE Program Special Investigator the scope of section 3-9005(b). People v. Ringland, 2017 IL 119484 LaSalle County’s former State’s Attorney, Brian Towne, formed The court concluded that Towne’s common law duty to inves- a team of special investigators known as the State’s Attor- tigate suspected illegal activity did not cover the situation in ney’s Felony Enforcement (SAFE) Unit, pursuant to section the case. 3-9005(b) of the Counties Code. The purpose of the unit was to engage in drug interdiction on I-80. Jeffrey Gaither was one Civil Law of the investigators. Gaither never took an oath as a deputy The Second District Addresses the Dead-Man’s Act in a sheriff, and never took an oath in any regard. He was provid- Pair of Decisions ed a car equipped with emergency lights and a video camera. State Farm v. Plough, 2016 IL App (2d) 160307 and Gaither stopped multiple defendants, including Ringland, who Spencer v. Wayne, 2016 IL App (2d) 160801 were all eventually charged with felony drug charges. Illinois is in the minority of jurisdictions that follow the dead man’s rule of evidence. It is found at 735 ILCS 5/802, and the The trial court granted each defendant’s motion to quash and purpose of the Dead-Man’s Act is to bar only that evidence suppress evidence. The appellate court affirmed, holding that which the decedent or disabled person could have refuted. Gaither’s conduct exceeded the scope of section 3-9005(b). A Notwithstanding the limited scope of this evidentiary rule, it majority of the Illinois Supreme Court affirmed. is alive and well as demonstrated by the fact that the Second District issued not one, but two published decisions on the Section 3-9005(b) of the Counties Code (55 ILCS 5/3-9005(b)) same day which discussed the Dead-Man’s Act, 735 ILCS provides that the State’s Attorney of each county shall have 5/802. These decisions turned upon different requirements of authority to appoint one or more special investigators to (1) serve the Act. subpoenas, (2) make return of process, and (3) conduct inves- tigations which assist the State’s Attorney in the performance In State Farm v. Plough, Anne Rodriguez’s car was struck in a of his duties. In finding that Gaither’s conduct violated sec- head on collision by a car driven by William Plough. State Farm, tion 3-9005(b), the Court looked to section 3-9005(a), which Rodriguez’s insurer, filed a subrogation action against Plough. prescribes the duties of a State’s Attorney. The court agreed At some point, Plough became legally disabled and a special with the argument that nowhere does section 3-9005(a) representative was appointed to proceed in Plough’s stead. prescribe that a State’s Attorney patrol the highways, Rodriguez, police office Frieling, and a State Farm adjuster all engage in law enforcement, and conduct drug interdiction. In testified at trial. The appellate court held that the while the response, Towne argued that his duty to investigate was found defendant waived any objection to the testimony of Frieling and in common law. The Supreme Court disagreed. The court held the adjuster by failing to object at trial, the Act did not apply as follows: to them for two reasons. First, neither Frieling nor the adjuster was a party to the action. Second, neither was a “directly inter- We hold that the State’s Attorney’s common-law duty to ested” witness because they did not have a monetary interest investigate suspected illegal activity did not apply to in any judgment. As for Rodriguez, court held that she should Towne because he made no showing that law enforcement not have been permitted to testify since State Farm’s subro- agencies inadequately dealt with such investigation or that gation action sought to recover her deductible. However, any
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error in her testimony did not warrant reversal because it was cumulative of Frieling’s testimony that Plough admitted fault at the scene.
In Spencer v. Wayne, Arlethia Spencer was injured when she slipped on a mat while exiting a car driven by Mona Strenger when the car was in Strenger’s garage. Strenger died during the pen- dency of the case and Gail Wayne was appointed as Strenger’s representative. Wayne moved for summary judgment on the ground that Spencer could not establish Strenger’s negligence without testimony that would be inadmissible under the Dead-Man’s Act. The trial court entered summary judgment and the appellate court affirmed.
On appeal, the appellate court focused on the Act’s language that it applies to “any event which took place in the presence of the deceased.” Spencer argued that the Act did not apply because Strenger was in the driver’s seat, so could not see Spencer’s feet and, therefore, could not rebut Spencer’s testimony. The appellate court disagreed. At her deposition, Strenger answered “yes” when asked if she saw the plaintiff fall. She was not asked where she was and never admitted to being in the driver’s seat. The court concluded that because plaintiff’s testimony that Strenger was in the driver’s seat was barred, so was her testimony about the fall.
About the Editor Christine Olson McTigue is a past editor of the DCBA Brief and serves on the Board of Directors of the DuPage Bar Foundation. She received her B.A., magna cum laude, Phi Beta Kappa, from the University of Minnesota; and her J.D. from Loyola University of Chicago.
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News & Events 36 35 48 47 Classifieds 43 42 41 40 39 38 37 softball game. Judge JoshDiedeniscongratulatedbyteammatesatthe2016 - ByJamesL.Ryan Up toProvideOnlineCLE DCBAandtheIllinoisInstituteforContinuingLegalEducationTeam - ByMaryGaertner LetYour PeopleGo! I nBrief Where toBeinSeptember - ByJohnPcolinski A GrandSuccessattheDrake DCBA InstallationandPresidents’Ball, - ByKentA.Gaertner ISBA Update Program: FallSession Lawyer toMentoring - ByCeciliaNajera Legal AidUpdate - ByRobertT. Rupp DCBA Update - ByChristineOlsonMcTigue Success fortheDBF Thanks toEveryoneWhoHelpedMaketheHumanRacea - ByTerrence Benshoof
8/4/17 8:58 AM D&LAdforDCBA8.5x11.pdf 1 6/21/17 2:23 PM
NewsSeeking & Events Financial, Business or Marketing Guidance for your DuPage County Law Firm?
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Dugan & Lopatka’s specialized services to law firms and their lawyers include:
• Marketing and business development consulting • Business valuations • Succession and ownership transfer planning • Wealth management solutions
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34 DCBA Brief September 2017 A DIVISION OF DUGAN & LOPATKA ACCOUNTING
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Seeking Financial, Business or Marketing News & Events Guidance for your DuPage County Law Firm? InBrief By Terrence Benshoof
Time to begin another edition of the not have malpractice coverage will be Xinos as a Director in the Estate DCBA Brief, with new leadership required to take a 6 hour program on Planning Department. abounding. We welcome the new Editor proper management of their practice. in Chief, Azam Nizamuddin, or as he’s Hint: buy coverage, unless you want to Momkus McCluskey Roberts continues known around the Ed Board, “Az”! His use up a bunch of billable hours. to make news, adding Nicole L. understudy for the year, Brian Dough- Simmons as an associate attorney. erty, will have time to learn the ropes. Prosecution of ordinance violations: To help cover the Circuit’s cost of Rick Felice was named chair of the The reins of the DCBA were handed over processing these cases, every deferred ISBA Mutual Insurance Board. to Gerry Cassioppi at the installation prosecution covered under Supreme dinner, in June, at the Drake Oak Brook. Court Rules 570 – 579 will be assessed Terry Benshoof has been appointed Past President Ted Donner moves over $100 by the Clerk of the Circuit which as National Judge Advocate of the Re- to the “relaxing” spot of chair of the will be disbursed as $20 to the Court serve Officers Association of the United Judiciary Committee, and Matt Pfeiffer Automation Fund; $20 to the Document States. becomes the President-Elect. Storage Fund and $60 to the Clerk Fund. Scott Hardek has joined Will County With the new dramatis personae in place, Another summer; another retirement based Kavanagh, Grumley & Gorbold, InBrief settled in to enjoy the DCBA golf from the 18th Circuit bench, as Judge LLC, as the head of that firm’s new outing. InBrief was able to destroy Nick Bruce Kelsey hangs up his black robe. Wheaton office. He’ll focus on medical Nelson on the course…well, not by His misdemeanor and MICAP court negligence claims, and on zoning, land actual skill…but by using Common Core role has been assigned to Judge Jim use and development matters. Professional service industry practitioners have one thing in common - each of us has chosen to math in determining his score! Konetski. provide guidance to our client’s that ensures the growth or safety of their business. Since 1974, Retired Circuit Court of Cook County Speaking of judges and assignments, In- Judge and current President of the ISBA, Dugan & Lopatka has provided DCBA member law firms and their lawyers with the accounting, In the Courts Brief says “watch this space” for develop- the Hon. Russell W. Hartigan, has tax and business services needed to grow their practice or provide guidance to their clients. We have Rules here...! The latest, start- ments concerning the “veterans’ court” joined the Burr Ridge law firm of Gold- ing with the CLE year beginning required as of January 1, 2018. stine, Skrodzki, Russian, Nemec and July 1, 2017, is a requirement that the Hoff, Ltd., as a Partner. Dugan & Lopatka’s specialized services to law firms and their lawyers include: professional responsibility MCLE will now, as a mandatory matter, include a People, Places The Davi Law Group continues ex- course on diversity, and a course on sub- Breaking with tradition, InBrief begins pansion of its practice, adding Jessica • Marketing and business development consulting • Business valuations stance abuse. The exception will be for the “people” year with a new person, as Naples to conduct the firm’s bankruptcy those in the mentoring program, where we congratulate Jordan Sartell of our practice. • Succession and ownership transfer planning • Wealth management solutions the 6 hour professional responsibility will Editorial Board on the birth of his second cover that requirement. child. Mom and baby are doing just fine. Moving to a downtown Chicago practice is Jolianne Walters, joining Kopon & Also new for this year, attorneys who do Huck Bouma has welcomed Anastasia Airdo as an associate. Call today: 630.665.4440 www. DuganLopatka.com
A DIVISION OF DUGAN & LOPATKA ACCOUNTING DCBA Brief September 2017 35
88858_DCBA-Body-Sept2017.indd 35 8/4/17 8:58 AM News & Events Let Your People Go! By Mary Gaertner
My name is Mary Gaertner. As incoming information presented very helpful in Chair of the DCBA Paralegal Committee, getting acclimated to a practice area, and a paralegal at Momkus McCluskey and they will earn CLE credit. Welcome Roberts LLC law firm, I wanted to reach Continued out to all of the attorneys out there who Our programs will be noted on the employ paralegals, or critical staff people DCBA website Event Calendar, in the Lillig & Thorsness, Ltd.; Miriam Herrmann that you just could not run your office weekly Docket e-newsletter, and all who Szatrowski; Joseph P. Tylutki; Celeste M. without! I believe that would probably be are on the Paralegal Committee will Walker, Law Office of Celeste M. Walker; Pa- just about every attorney who reads this. get E-mail notice. Legal Community mela J Weinstock, Gamma Technologies, LLC; bar members can log in to make sure Krista Sebastian Marcheschi, The DuPage The DCBA Paralegal Committee your committee selections include the County Family Center; Alyssa Arriola Aliperta, is planning monthly programs for Paralegal Committee and those who Law Offices of Patrick Fagan; Michael David the 2017-2018 year that will help to are not members can call the DCBA Blanton, Michael D. Blanton, Attorney at make your staff more knowledgeable, office at 630.653.7779 and ask to Law; Jennifer M. Cusack, Mirabella, Kincaid, prepared, and better able to make your receive the Docket email every Thursday. Frederick & Mirabella, LLC; L. Michael office and law practice run smoothly I hope to see you for all of the upcoming Flanagan, Flanagan Injury Law Group; and efficiently. Our speakers will be the programs! Christina A. Gray, Paulsen, Malec, Malart- top attorneys in their field, current and siks; Christopher A. Parrish; Sarah-Joel M former Judges, and representatives from the Clerk’s office. We will be present- Privert, SmithAmundsen LLC; Lauren Pyle; ing information your staff needs to get Ishita Saran, Schiller DuCanto & Fleck, LLP; Welcome Ryne Joseph Vitug, Ariano, Hardy, Ritt, Nyuli, things done, including preparation of documents, filing of documents, ethics, Welcome to our new DCBA Members. Richmond, Lytle & Goettel, P.C. and general knowledge of the law in each Attorneys: Denise M. Bezick Hume, Prairie New Affiliate Members: Nancy Hopkins, Sort area. At each meeting there will always State Legal Services; Nancy D. Chausow and Simplify; Brett Newsome, Fidelity Na- be time for questions. This will be a big Shafer, Chausow Shafer; Grace C. Daigel; John tional Title; Dan Pagano, Wintrust Mortgage. win/win for your office and your staff. M. Drews, Drews & Associates, P.C.; Michael Legal Community Members: Molly Cas- R. Hartigan, Hartigan & O’Connor P.C.; Sharon telvecchi, A. Traub & Associates; Eric J. However, in order for this to happen, you Lynne Heath, Heath & Heath, PC; David Lee, Delgado, Mulyk Laho Law; Juana Venegas, need to “LET YOUR PEOPLE GO”! Law Office of David Lee; John Norman Maher, Mulyk Laho Law; Debby Wells. Let them take a few extra minutes for Maher Legal Services PC; Marian S. K. Ming, Student Members: John Harrison; Dana C. a Lunch & Learn to come to the Whea- Marian S. K. Ming & Associates; Burton S Herskovic; Christian Ketter; Abigail Van Hook; ton Bar Center classroom and attend Odelson, Odelson & Sterk, Ltd.; Kathleen A Uchenna Agomo; Elizabeth Bowling; Ashleigh these valuable programs. It will be time Opal, Dussias Skallas Wittenberg Koenigs- Burdick; Linda Chan; Oscar Lopez; Alicia P well invested in your office productivity. berger; James D. Palmatier, Applied Patent Panczyk; M. Kelly Roche; Laura Sadasivam; We also welcome attorneys to attend! Services; Gregory Smith, Jennifer Steele. New attorneys especially may find the
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DCBA and the Illinois Institute for Continuing Legal Education Team Up to Provide Online CLE By James L. Ryan
Cost-effective continuing legal educa- ber viewing the program online. As an combines the strengths of both organi- tion programming continues to be one additional benefit, through December zations for the benefit of all attorneys. of the most widely used member benefits 31, 2017, all IICLE online programs “In keeping with its mission to help within the DCBA. In June alone, DCBA and publications are discounted 15% for Illinois lawyers be better lawyers, IICLE offered 31 hours of free or deeply DCBA members logging on to IICLE is proud to work collaboratively with the discounted MCLE and PRCMLE through the DCBA website. DuPage County Bar Association,” said programming to our members. In an Moore. “By sharing the outstanding effort to better address a desire of some IICLE will also be the accrediting educational programs produced by members to obtain CLE hours on de- authority for these programs and DCBA with the broader IICLE audi- mand and online, DCBA is pleased to certificates of completion will be issued ence, this collaboration expands and announce that it has entered into a new by IICLE. CLE credits for the DCBA enhances IICLE online on-demand agreement with the Illinois Institute for online, on-demand programs will be program offerings.” Continuing Legal Education (IICLE) automatically tracked in the viewer’s as its exclusive provider of online CLE account on iicle.com, along with other content effective July 1, 2017. credits earned through IICLE. DCBA For example, the Business Law Section’s members can upload their credits from recent seminar on the changes to the Through this new agreement with IICLE or any other CLE provider to Illinois Limited Liability Company Act IICLE, DCBA will retain full control their DCBA member record if they wish has already generated significant views over its program options and pricing by using the “Professional Develop- on iicle.com by attorneys outside of structure. Members may continue to ment” screen in their member profile on DCBA. By collaborating with IICLE as access online programs through the dcba.org. our online CLE provider, the DCBA is DCBA website before being directed able to reach a far wider audience than to iicle.com for purchasing and view- By teaming up with IICLE, the DCBA is those willing to spend an hour, after- ing. (Members must be logged in to not only able to improve the delivery of noon, or day at the ARC or at another receive DCBA pricing, including free online CLE to its membership through one of the DCBA’s event venues. programs.). If a DCBA program is IICLE’s advanced technology, but it is offered free for DCBA members who also able to broaden the availability of attend in person, the program would DCBA programs to others in the legal If you have questions about the program also be free for members who view the community who are not members of the or tracking your credits, you may contact program online through IICLE. If the DCBA. According to IICLE Director CLE Administrator, Janine Komornick DCBA program has a fee, then a fee of Programming, Megan K. Moore, at [email protected] or (630) 653- would also apply for a DCBA mem- IICLE’s collaboration with DCBA 7779.
DCBA Brief September 2017 37
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Thanks to Everyone Who LRS Stats Helped to Make the Human 6/1/2017 - 6/30/2017
Race a Success for the DBF The Lawyer Referral & Mediation Service received a total of 1,048 referrals, including By Christine Olson McTigue 19 in Spanish (918 by telephone, 36 walk- in, and 94 online referrals) for the month of June.
If you have questions regarding the service, The DuPage Bar Foundation once again And thank you also to those who donated attorneys please call Barb Mendralla at participated in the DuPage Human money to the DBF for the race: (630) 653-7779 or email [email protected]. Race, held on May 6, 2017, at the Espla- Irene Bahr, Terrence Benshoof, Please refer clients to call (630) 653-9109 nade at Locust Point in Downers Grove. David Clark, Ted Donner, Kevin or request a referral through the website at Participants had a choice of a 5K run, a Lyons, Vincent Machroli, Timothy dcba.org. 2K walk, or a kids walk. The DBF raised Martin, Christine McTigue, Mario over $1450 at the event. Palermo, Susan Reedy Williams. Administrative ...... 0 Appeals ...... 0
Bankruptcy ...... 24 The DBF wishes to thank those who Your next opportunity to support the Business Law ...... 10 participated in the race: DBF is at the DCBA Golf Outing on Civil Rights ...... 0 Bob Anderson, Janice Anderson, August 24, 2017, at Cantigny. The DBF Collection ...... 71 Irene Bahr, Doris Carter, Ted will be selling raffle tickets for a variety Consumer Protection ...... 0 Donner, Meghan Early, Alycia Fitz, of prizes. Contract Law ...... 4 Lisa Giese, Carmel Huseman, Beth Criminal...... 269 Indelicato, Lindsay Jurgensen, Established in 1997, the DuPage Bar Elder Law ...... 15 Employment Law ...... 78 Raleigh Kalbfleisch, William Kalb- Foundation is the charitable 501(c)(3) Estate Law ...... 43 fleisch, Andrea Kmak, Christopher arm of the DuPage County Bar Family Law ...... 226 Maurer, James McCluskey, Brian Association. Federal Court ...... 0 McKillip, Christina Morrison, Government Benefits ...... 10 David Morrison, Jim Mulyk, Sharon Note: In accordance with DCBA Brief Health Care Law ...... 0 Mulyk, Clarissa Myers, Daniel policy, we have not included the names Immigration ...... 9 Myers, Eileen Myers, Jane Nagle, of the children under 18 who also Insurance...... 18 Melissa Piwowar, Roger Poeppel, participated, but wish to thank them Intellectual Property ...... 8 Mediation ...... 1 Sarah Poeppel, Jay Reese, Kimberly as well for their enthusiasm and Mental Health ...... 0 Reese, Esther Schlagel, Laura Sumlin. encouragement. Military Law ...... 0 Personal Injury ...... 87 Real Estate ...... 158 School Law ...... 2 Social Security ...... 6 Tax Law ...... 3 Workers’ Compensation ...... 6
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DCBA Update
What Did You Do with Your Summer? By Robert T. Rupp
As a child growing up in Florida, I could The CLE theme continued in July with the DCBA website or by contacting count on three things every August: the launch of our new partnership with the staff at the Bar Center. Watch the scratchy new jeans for school, a hurri- IICLE. You can learn more about this Docket weekly for the slate of upcoming cane scare, and the essay assignment to in the news coverage provided in this programming and take advantage of all recap my summer in writing. MANY month’s DCBA Brief, but suffice to say that will be coming your way. years later and I find myself in the same this is an incredibly exciting development boat, breaking in new suits, dodging late that will bring a vastly improved delivery August brought the return of our annual summer thunderstorms and sharing my platform to DCBA members while main- Golf Outing (watch for coverage and pic- first column of the new bar year with you taining our benefit of free and/or deeply tures in a future issue!) which received all. discounted online MCLE. overwhelming support from our mem- bers and sponsors. Along with educating Some might think summer is the quiet This development will also bring DCBA our members, we have an equally im- time for the DCBA. Nothing could be content to a statewide audience (and portant purpose of building community. farther from the truth! Those of you beyond) which raises the stakes for all Events like the Golf Outing, our upcom- around in June saw a high water mark for the work our Sections do. This was a ing softball game and picnic with our CLE with over 30 hours of live MCLE primary theme of the Section Leader- colleagues from Kane County, and our and PRCMLE offered. Many members ship Training that also took place in July. monthly Happy Hours are clear evidence took advantage of these courses as well Our Section Chairs and Vice Chairs are of the good work the DCBA does in this as our online CLE ahead of the June 30 some of the most committed and knowl- area. I don’t expect to see each of you at reporting deadline. Looking at the num- edgeable volunteers with whom I have everything, but it would be great to meet bers of credits issued, the participant ever had the pleasure of working. They more of you at these events. (Continued evaluations and the sheer number of have developed significant plans for the on page 41) attendees only served to reinforce my year ahead and you have a part in those belief that our free CLE to DCBA plans as either an active volunteer in a members is the most valuable of our leadership position assisting them or as a member benefits. We could not do what participant and attendee in the programs About the Author we do in this area without the hard work they have arranged. We celebrated this Robert Rupp is the Executive Director of and support of our Section leadership work and recruited many helping hands the DuPage County Bar Association. He who plan these programs, the presenters at our July Happy Hour at Klein Creek, has worked in professional association who prepare and deliver the first-class but there are still many opportunities. management since 1994, serving a variety of national and international medical and content, and the sponsors who provide If you have not indicated your Section legal associations, including the American the financial support that make all this preferences on your membership pro- Bar Association. programming possible. file, please make sure to do so through
DCBA Brief September 2017 39
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Legal Aid Update
What We Did on Our Summer Vacation By Cecilia Najera
The Second DCBA vs. KCBA Softball the years. The Carol Stream Rotary disbursed these funds to many organiza- Game will be played on September 14, raised approximately $8,000 from its tions. It takes nearly 4,000 volunteers to 2017 at Benedictine University. Le- annual Chili Golf Outing, held on May run Ribfest from greeters and beer servers gal Aid will be the beneficiary of funds 12, 2017. Legal Aid was the recipient of to trash/recycling patrol. Some of the raised from this event. Last year Legal $4,000 from those proceeds, awarded for volunteers are students and interns who Aid received over $4,000 from the event. the work we do with the Order of Protec- are looking for service hours, but many We will be holding the Chuck a Duck, tion call and to help victims of domestic volunteers come from the organizations “Judges Race”, and 50-50 Raffle during violence attain more stability. The that are given awards by the Exchange the event. Please contact the DCBA if second organization that was given an Club. We are grateful to the Exchange you are interested in being a sponsor. award from the 2017 Chili Golf Outing Club and Bob Black (who is the 2016- Sponsorships start at $250 and at that was Synergy Adaptive Athletics, a pro- 2017 Co-chair of the Exchange Club’s level a sponsor receives recognition in gram that provides athletic programs for Allocations Committee), and Lisa the BRIEF and on the Scorecard. Spon- individuals with physical disabilities and Giese, Lindsay Jurgensen, Alycia sors contributing $500 also receive Brief visual impairments. We are very thankful Fitz, Christina Morrison, and other and scorecard recognition and may pro- that DuPage Legal Assistance Board friends that volunteered in the name vide a banner for the field at the event. Member, Lisa Murphy, and DCBA of Legal Aid. Legal Aid’s Staff mem- Come cheer on our team! member, Bob McNees helped us obtain bers: Lucy Cortez, Tim Golen, Mary the award. Both Lisa and Bob are mem- Rodriguez, and myself were also With the Softball game, this summer bers of the Carol Stream Rotary. pleased to volunteer and in the process will come to a close, and many kids will enjoyed the sun and made some new be telling their classmates what they did Many of you may have attended Rib- friends. Close to 50 organizations were over Summer Break. So, I thought it fest in Naperville over the Fourth of given awards in 2016. Legal Aid is very would be appropriate to report what Le- July weekend. Maybe you ate some proud to be included with CASA, Fam- gal Aid was up to as well. This summer really great ribs or saw Toby Keith, ily Shelter Service, Loaves and Fishes, brought a couple of new opportunities Better Than Ezra, or the B-52’s. If you and NAMI as a recipient of these funds. for Legal Aid in the form of funding. did, you also helped support Legal Aid. (Continued on next page) Ribfest is always a good time, but did you The Carol Stream Rotary is one of the know that the Naperville Exchange Club friendliest groups around. Rotary In- (“Exchange Club”) is the organization ternational is a network of “neighbors, that puts the event together? They run a About the Author friends, leaders, and problem solvers who very efficient and well organized event. A Wheaton native, Cecilia “Cee-Cee” Najera is a come together to make positive, lasting The Exchange Club was chartered in graduate of the University of Iowa and received change in communities at home and 1987 and is dedicated to the elimination her J.D. from Southern Illinois University. She abroad.” Their motto is “Service Above of child abuse and domestic violence. served as the DCBA New Lawyer Director from 2004 to 2009 and is currently the Director of Self.” They have raised funds and awarded Since then, they have raised more DuPage Bar Legal Aid Service. them to countless organizations through than $15.5 million through Ribfest and
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Legal Aid Update Lawyer to Lawyer Mentoring Program: (Continued from previous page) In accepting funds from these wonderful Fall Session organizations, and seeing individuals come together to work towards a The DCBA is proud to be a provider of Mentee Qualifications: common goal, I’m touched by the many the Lawyer to Lawyer Mentoring Pro- • will complete program within first five kindhearted individuals that volunteer gram sponsored by the Illinois Supreme years of practice in Illinois as well as organizations formed to make Court Commission on Professionalism. • registered as active on the IL ARDC this community a better place to live. The program will begin its fall session Master Roll You make a difference. with a mandatory orientation on Friday, • practicing or intending to practice law September 22 from 11:30 a.m. until 1:00 in Illinois p.m. at the Attorney Resource Center. DCBA Update Mentor Qualifications: (Continued from page 39) • practiced law for five years or more When you see me at a DCBA event, Effective July 1, 2017, under amended • active and in good standing on the please don’t be shy about saying hello Rule 794(d)(2), completing this men- Illinois ARDC Master Roll either. toring program as a mentor or mentee • never suspended or disbarred in any will fulfill the new CLE requirements jurisdiction A third project from the summer involved of meeting the diversity & inclusion working with our Public Information and and mental health substance abuse Both Mentor and Mentee must complete Education (PIE) Commission to develop requirements. Please note that the six the applications which can be found a communication plan to broadcast their hours of professional responsibility CLE through the dcba.org website. For more work and by extension all the public- credit is earned upon the completion information or if you have questions, facing projects of the DCBA. These of the program, i.e. at the end of your please contact Janine Komornick at projects round out the third leg of our mentoring year in September 2018. 630.653.7779 or [email protected]. mission, service to the public, and provide many significant opportunities for our members to give back. If you have not volunteered in a DCBA program before, I would really encourage you to look at these programs which include the community service projects of Lawyers Lending a Hand, staffingPro Se help desks, the projects of our annual Law Day celebrations and pro bono representation opportunities through DuPage Legal Aid.
As you see, it has been an exciting summer laying the groundwork for About the Author the great year ahead. Thank you for supporting our work through your mem- bership, your volunteer hours and for being a part of this great thing we have built together. I welcome your call or comments at any time at (630) 653-7779 or [email protected].
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ISBA Update
Honorable Russell Hartigan Takes Over as ISBA President By Kent A. Gaertner
This year’s changing of the guard took Another emphasis for Russ will be on the help our elected officials and police in place at the ISBA Annual Meeting on other end of the age spectrum. Russ will getting this problem under control. June 15th through 17th. The Honorable be initiating programs for older attorneys Judge Russell Hartigan was installed on succession planning and how to wind Under Russ’ leadership the ISBA will as President of the ISBA for 2017/2018. down or sell your practice. He would also also continue to work with law school DCBA’s own Jim McCluskey was like to have a program in place for older administrators in Illinois on the stu- installed as President Elect. Other attorneys who are temporarily medically dent debt issue and on making students officers installed were DCBA member disabled for a period of time. practice-ready when they graduate from David Sosin as Second Vice President, law school. The ISBA will also continue Dennis Orsey of Granite City Illinois Having been a practitioner in small firms to monitor the evolving issues of non- as Third Vice President and DCBA mem- during his career, Russ will also empha- attorney competition in the legal field ber Vince Cornelius as Past President. size programming for solo and small firm from various companies. attorneys. One idea he hopes to bring Russ Hartigan is a Chicago boy who was to fruition is an ISBA sponsored, web I will have a report for you on the July an all-star quarterback at St. Ignatius based law office management site to be 21 Board of Governors’ meeting in the “back in the day”. He also has coached called “PracticeHQ”. This site would be October issue. Should you have any high school football and refereed high one stop shopping for management and ideas for programming or would just school and college football games. His technology treatises and articles, train- like to express your opinion to the ISBA legal career has included private practice ing videos, product comparisons and any leadership, please do not hesitate to call for thirty-three years handling personal other information that solo and small me. Enjoy the rest of your summer and I injury litigation and workman’s compen- firm practitioners need to keep abreast of will see you all at the various ISBA and sation cases as well as municipal law. He the latest trends in technology and law DCBA events coming up in the next few was also a law division judge for six years office management. months. in Chicago’s Fifth Municipal District. Russ grew up in the Austin neighbor- Russ has always put a large emphasis on hood of Chicago. The rising amount of bringing young attorneys into the ISBA gun violence in Austin and throughout and giving them a chance to assume the City is also a disturbing issue that About the Author positions of responsibility. He intends to Russ thinks the ISBA should be looking Kent is the Eighteenth Judicial Circuit’s continue with those efforts on an even at. He intends to appoint a blue ribbon representative on the ISBA Board of Governors. larger scale. Sometimes the younger panel on gun violence which will He is the principal of Kent A. Gaertner P.C. and attorneys are hesitant to join bar explore an appropriate role the ISBA can “Of Counsel” to Springer Brown, LLC. where associations, but Russ feels that can be take in trying to combat this disturbing he concentrates his practice in bankruptcy overcome by making the ISBA a place trend. He hopes to include educational and workouts. He was president of the DCBA in where young attorneys can grow their programming on the issue and come up 2009/2010. experience and practice. with specific steps the ISBA can take to
42 DCBA Brief September 2017
88858_DCBA-Body-Sept2017.indd 42 8/4/17 8:58 AM News & Events DCBA Installation and Presidents’ Ball, A Grand Success at the Drake By John Pcolinski
Swearing in of new Board Members, L to R: Matt Pfeiffer, President-Elect; Stacey McCullough, 2nd Vice President; Wendy Musielak, 3rd Vice President; Ted Donner, Immedi- ate Past President; Rick Veenstra, General Counsel, Charles Wentworth, Assoc. General Counsel; Tricia Buhrfiend, Secretary/Treasurer; Jeff Jacobson, Assistant Treasurer.
The DCBA returned to the recently re- Year, Kent Gaertner. When Kent was Kathleen M. May opened and glamorous Drake Oak Brook the president, his choice for that honor Markus May for the installation of officers which was was Sean and thus the remarks from Amanda Meindl combined with the Presidents’ Ball on Sean were fitting. Ronald D. Menna June 9, 2017. Convened on the veranda Nicolas R. Nelson overlooking the beautiful grounds, the Several members were recognized by Bradley N. Pollock event moved indoors just in time to avoid the Board of Directors for their service James L. Ryan a thunderstorm that few noticed given throughout the last year with the Board Timothy P. Whelan the busy agenda for the evening. of Directors Distinguished Service About the Author Award. They are: Five law students were awarded scholar- ISBA Immediate Past President, Vince Terrence J. Benshoof ships. In addition to DBF Ambassador Cornelius delivered the invocation in Michael J. Calabrese Scholarships awarded by Raleigh customary thoughtful fashion and was David W. Clark Kalbfleisch to Sierra Hagl of DePaul followed by now Past President Ted Don- Kimberly A. Davis University, Krystina Yackle of Loyola ner, who delivered the opening remarks Jennifer L. Friedland University and Sarah Ahmed of the and, in something of a shift, introduced Clifford R. Holm University of Illinois, Dexter Evans pre- DCBA member Sean McCumber to James J. Laraia sented the Woodruff, Johnson and Evans remark on Ted’s choice for Lawyer of the Hon. Paul Marchese Scholarship to (Continued on next page)
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(Continued from previous page) Abigail Van Hook also of the University of Illinois. Federal Appellate Judge William Bauer of the Seventh Circuit presented the William J. Bauer and Mulyk Laho Law Scholarship to Diana Martinez of Loyola University.
Keynote Speaker, James McCuskey, delivered gracious and humorous re- marks before the installation of Officers: Gerald A. Cassioppi, President J. Matthew Pfeiffer, President Elect Stacey A. McCullough, Second Vice President Wendy M. Musielak, Third Vice President Ted A. Donner, Immediate Past President Tricia R. Buhrfiend, Secretary/Treasurer Jeffrey M. Jacobson, Gerry Cassioppi is sworn in as President by the Honorable Kenneth Popejoy Assistant Treasurer Richard J. Veenstra, General Counsel Charles G. Wentworth, Associate General Counsel and Directors: Mark S. Bishop James L. Ryan Kiley M. Whitty
Gerry’s Theme for his year as President is Home Court Advantage. He plans to stress the benefits the association provides for its members and to work to further enhance team building and inclusiveness. His remarks were succinct and ended just in time for all to retire outside for photos and a gorgeous sunset after the passing of the storm, all of which was followed by dancing the rest of the evening. New Directors being sworn in, L to R: Jim Ryan, Kiley Whitty, Mark Bishop
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A gathering of DCBA Past Presidents, L to R: Rick Felice, Glenn Gaffney, Steve Ruffalo, Hon. Linda Davenport, Hon. Pat Leston, Chris Ory, Kent Gaertner, Hon. William Bauer, Colleen McLaughlin, Chuck Roberts, Jim McCluskey, Ted Donner, Hon. Neal Cerne, Jay Laraia.
Jan Davi and Jim McCluskey Terry Benshoof Ted Donner and Melissa Piwowar
DCBA Brief September 2017 45
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DCBA Brief September 2017 47
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Where to Be In September
By Annette Corrigan
DCBA & KCBA year to take home the trophy. “Last year’s game was a close one,” he recounted, “but I have no doubt we will bring home Square-off at the victory this time around!”
Second Annual Each team is made up of 10 men and 6 women volunteer play- ers. To be eligible, players must have been members in good Cross County standing with their respective bar association as of July 1st. Team DuPage will see several returning member along with Classic some newcomers still to be named as of this writing. The DuPage County Bar Association’s Softball Team began preparing in mid-July for their long-awaited re-match with the Both bar associations have pledged contributions of $2,500 in KCBA team. The teams will compete for the second time at sponsorship money to the “Winner’s Pot” which will be awarded the annual Cross County Co-ed Softball Classic scheduled to the team’s bar association for their charity in a 75/25 for 7:00p.m. on September 14, 2017, and will once again take Winner/Loser split. Anyone interested in becoming a DCBA place at Benedictine University’s Stadium Complex located sponsor for the event should contact DCBA Executive at 5700 College Road, Lisle. In the event of a rain-out, the Director Robert Rupp at [email protected]. Sponsorships start game will take place on September 19th at the same time and at $250 and include a “Scorecard” ad and publication in the location. Event proceeds will benefit both the DuPage Legal DCBA Brief. A $500 sponsorship includes the “Scorecard” ad, Assistance Foundation and the Kane County Bar Foundation publication in the DCBA Brief, and a space at the game to with the winning team’s charity taking home 75% of the prominently display a sponsor-provided banner. Any sponsor- initial $5,000 pot pledged by the 2 teams. Additional dona- ship over and above the $2,500 pledged DCBA contribution tions made to the team will benefit its charity. Admission is will go directly to DuPage Legal Assistance Foundation. free for all who attend. An extra “buck for a beer” will be included on all alcohol Early arrivals will enjoy pre-game activities commencing purchases, with the extra dollars going into the Pot to be split at 6:00p.m. The concession stand will also be open an hour between the charities. The 50/50 raffle will be back again, and before the first pitch and will feature typical ball game fare, the DCBA/KCBA planning committees will host an exciting soft drinks and beer. Pre-registered DCBA members will re- game of “Chuck a Duck ”. Rubber ducks to chuck can be ceive a meal voucher for a hot dog, hamburger or cheeseburger purchased for $5 each. The owners of the two ducks closest plate that includes chips and a soda. With a better-than-last- to the pitcher’s mound will each receive a $50 gift certificate. year turnout expected and limited seating, the coordinators of Finally, committee organizers are excited to add the “Judge’s the event highly recommend that attendees consider bringing Race” for 2017. (No details were provided at the time this article chairs and blankets. was sent to print, but it certainly sounds like something to come out and witness first-hand.) DCBA is going into this year’s event down one having lost to Team KCBA last September 16th with a score of 1 to 2. “We have a plan of winning again this year”, stated Kane Coach Plan to come early and stay late. Bring your family and neigh- Steven Titiner during a phone interview earlier this season. bors while catching up with fellow bar association friends and “There’s a lot of talent on our (the Kane) team.” Nevertheless, colleagues. Cheer your favorite bar association team on to the ever-optimistic DuPage Coach, Mike Calabrese, has victory (D-C-B-A!) while supporting an important local charity. been readying his team to make sure that 2017 will be DCBA’s A great night out at the ball park is in store for everyone!
48 DCBA Brief September 2017
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