Celebrate the Spirit of Giving Volume 30, Issue 4 December 2017 The Journal of the DuPage County Bar Association www.dcbabrief.org Volume 30, Issue 4 Table of Contents December 2017 Come Celebrate with DCBA at the Holiday Party on December 6. Azam Nizamuddin Editor-in-Chief Brian Dougherty Associate Editor Editor’s Message Editorial Board 3 Anthony Abear Terrence Benshoof 5 President’s Message 39 I nBrief Annette Corrigan - By Terrence Benshoof Dexter Evans Peter Evans Raleigh D. Kalbfleisch 40 School Law Section Timothy Klein - By Josette Allen, Section Chair Christopher J. Maurer James F. McCluskey Articles 41 The Pragmatist Judge Christine McTigue Clarissa R.E. Myers - By Brian Dougherty & Peter Evans 8 Tilting at Windmills: Foundation for a Constitutional Jane Nagle Joseph K. Nichele Challenge Against a Criminal Statute 44 DCBA Update John J. Pcolinski, Jr. - By Wayne Brucar - By Robert T. Rupp Jay Reese Arthur W. Rummler 16 An Employer’s Guide to Copyright Law’s Work for Hire Doctrine James L. Ryan 45 Legal Resources: Jordan Sartell - By Andrew Murphy Top Web Links for Lawyers David N. Schaffer Michael R. Sitrick 20 Member and Manager Authority After the 2017 Illinois Limited Jolianne Walters 48 ISBA Update Eric R. Waltmire Liability Company Act and its Effect On Real Estate Transactions - By Kent A. Gaertner - By Ken Clingen and Tom Sisul Jacki Hamler 49 Legal Aid Update DCBA Liaison/Advertising 26 The Battle Over Rule 23: Authority v. Precedent - By Cecilia Najera - By Paul E. Wojcicki, Sara R. Strom, Jaime L. Padgett, and Ross Creative Works Graphic Design Patrick F. Sullivan 51 Classifieds Kelmscott Communications Printing 32 Illinois Law Update 52 Where to Be in December - Editor Jordan Sartell DCBA Brief December 2017 1 ARTICLES Looking for a title Tis the Season underwriter that offers ease of use, superior service, and a 50+ year history of supporting lawyers? There’s only one. 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As usual, we have several Asset Advisors in Oak Brook, we eagerly anticipate the first snowfall of the important articles this month. We begin with Illinois. Previously, he practiced season. On the other hand, I’d rather be in a our trend of constitutional issues with Consti- commercial litigation and family warmer climate. Speaking of warmer climates, tutional Challenges by Wayne Brucar. Next law with large firms, small firms, I was in New Orleans last month for a trial. up is a timely article on the Copyright Law’s and as a solo practitioner. He is an active member of the DCBA, Unlike any other time I had been involved Work for Hire Doctrine by Andrew Murphy and serves on the DCBA Busi- in a trial, I was not directing or cross-exam- where he provides a nice history of the Copy- ness Law Section. He also serves ining witnesses. Rather, as general counsel, I right Act. Transaction attorneys Ken Clingen on the ISBA Corporate Law was the one on the witness stand. I was the and Tom Sisul help unwrap the thorny Section and previously served one being led through direct examination by issue of member-managed and manager- on the ISBA ARDC Committee. my counsel and then grilled on cross by my managed LLCs under the recently revised He was appointed to the Illinois client’s opponent. It was a peculiar position to Illinois LLC Act. We conclude our articles Supreme Court Access to Justice be in, but one I actually enjoyed. I think my with a comprehensive discussion of the Commission, Language Access Committee. He is also Adjunct litigation background prepared me to testify role of Supreme Court Rule 23. Thanks to Professor at Loyola University with comfort and confidence. Of course like Paul E. Wojcicki, Sara R. Strom, Jaime L. and frequently lectures on the anything else, being prepared and being Padgett, and Patrick F. Sullivan for provid- intersection of law and religion. familiar with the facts and documents helps. ing a terrific overview of this important Rule. We appreciate their timely and helpful con- Last month, we talked about mentorship, tribution to the DCBA Brief. Thanks also to this month is the time of holidays, family, our colleague Jordan Sartell for the case law and feasting. December offers the DCBA updates in December. legal community many opportunities to spend some quality time with members of the As a reminder, keep those substantive articles legal profession. On December 6, the DCBA coming! Also, you can earn necessary MCLE will be having its annual Holiday party. In credits for your contribution. conjunction with the holiday party, Lawyers Lending a Hand will be having its annual Have a wonderful holiday season and a safe Toy Drive. Just bring any new, unwrapped toy and joyous new year. and drop it off at the Holiday Party or DCBA office by December 18. Finally, the DuPage Bar Foundation has its annual breakfast on December 14, 2017. DCBA Brief December 2017 3 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.