Articles Posted in Best Business And Class Action Lawyers Near Chicago

Plaintiffs claim that Lockheed breached its fiduciary duty to its retirement savings plan, under the Employee Retirement Income Security Act, 29 U.S.C. 1132(a)(2). The Plan is a defined-contribution plan, (401(k)); employees direct part of their earnings to a tax-deferred savings account. Participants may allocate funds as they choose. Among the investment options Lockheed offered was a “stable-value fund” (SVF). SVFs typically invest in a mix of short- and intermediate-term securities, such as Treasury securities, corporate bonds, and mortgage-backed securities. Holding longer-term instruments, SVFs generally outperform money market funds. For stability, SVFs are provided through “wrap” contracts with banks or insurance companies that guarantee the fund’s principal and shield it from interest-rate volatility. Plaintiffs allege that the Lockheed SVF was heavily invested in short-term money market investments, with a low rate of return that did “not beat inflation by a sufficient margin to provide a meaningful retirement asset.”
The district court granted Lockheed summary judgment with respect to some claims. The SVF claim survived.

The district court initially certified two classes under FRCP 23(b)(1)(A). On remand, the court declined to certify further narrowed classes. The Seventh Circuit reversed, reasoning that the plaintiffs carefully limited the class to plan participants who invested in the SVF during the class period and employed reasonable means to exclude from the class persons who did not experience injury. The Court held:

To conform to Spano’s warning that the class must not be “defined so broadly that some members will actually be harmed” by the relief sought, Plaintiffs limited their definition of the SVF class to those who suffered damages as a result of Lockheed’s purportedly prudent management of the fund. … [T]his court has never held, and Spano did not
imply, that the mere possibility that a trivial level of intra-class conflict may materialize as the litigation progresses forecloses class certification entirely. … We conclude both that
Spano poses no bar to the proposed SVF class and that the district court’s reservations about the class were unfounded.

You can view the full 7th Circuit opinion here

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Ever since the invention of the internet, it has been wreaking havoc on our Constitution’s First Amendment. People say hurtful and insulting things, particularly about people in the media, without ever considering the consequences of their words. This is especially true when people are able to make these statements anonymously. Frequently, there are no consequences but countless defamation lawsuits have been filed over things that have been said online and the decisions reached by the court are usually hotly debated. Another such case has recently emerged from a federal court in Covington, Kentucky.

The case involves Sarah Jones, a former Cincinnati Bengals cheerleader, and Nik Richie, the operator of thedirty.com, a gossip website. The jury found that posts about Jones on the website were substantially false. Additionally, the jury found that Nik Richie acted with malice or reckless disregard when he posted anonymous submissions to his website.

One such post claimed that Jones had sex with every Bengal player. Another said that she probably had two sexually transmitted diseases. In her lawsuit, Jones said that these comments were false and caused her severe mental anguish.

In his defense, Richie denied any malice in posting the comments and maintained that he was not required to fact-check anonymous submissions before posting them. David Gingras, Richie’s defense attorney, argued that Richie’s website and others like it are protected by the Communications Decency Act. That law was created in part to provide protection to website operators like Richie from liability for content which is originated by third parties.

Eric Deters, the attorney representing Jones, argued that Richie acknowledged that he screens submissions and decides which comments to post and he adds his own comments. This fact separates his website from others such as Facebook where people post their own comments without any sort of regulation.

The judge maintained that the Communications Decency Act does not protect thedirty.com in this case. The jury sided with Jones and awarded her $338,000 in damages.

As with many cases, the decision of this court could have far-reaching consequences. “I think it could put some limits on the ability of a website operator to feel free to post comments that might be offensive or controversial or even just critical,” said Jack Greiner, who specializes in media and free speech issues. “People might err on the side of caution and not take a risk, even if comments are acceptable.”

The decision reached by the judge has been highly contested. Gingras, who has won similar lawsuits, has said that, “There’s no question that his ruling is wrong”.
Nate Cardozo is a staff attorney with the Electronic Frontier Foundation, a nonprofit foundation which focuses on civil liberties and privacy issues in the digital age. He agrees with Gingras and said that the judge “got it dead wrong”. According to Cardozo, Jones could sue over the false statements, but “she can only sue the person who made the statements”. That becomes difficult however, when comments are posted anonymously, as is the case here.

Deters is happy with the verdict, saying he hopes that it will “reduce the number of defamation comments made on these types of websites.” Richie plans to appeal the ruling.

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With the Supreme Court’s decision in AT&T Mobility LLC v. Concepcion having left many judges and class action attorneys frustrated with the current state of class action lawsuits, a new decision by the Massachusetts Supreme Judicial Court has reawakened hope for plaintiffs to achieve justice in a court of law. According to the new decision by the Court, a class action ban, as part of an arbitration agreement, is only enforceable if the plaintiff cannot provide compelling evidence that the ban on class actions would prevent them from obtaining a remedy under state law.

The Court recently ruled in two cases where the plaintiffs tried to prove that the class action bans in the relevant arbitration agreements were unenforceable. In Feeney v. Dell Inc., the Court ruled in favor of the plaintiffs, having found that they provided sufficient evidence that the ban on class actions would prevent them from pursuing their claims. In another case, Machado v. Systems4 LLC, the Court upheld the class action ban present in the arbitration agreement, having found that the plaintiffs did not provide sufficient evidence that the ban prevented them from obtaining a remedy under state law.

In its decision in Feeney v. Dell Inc., the Court stated that the Supreme Court’s decision in Concepcion did not provide for a general public-policy-based prohibition on class-actions. Instead, the Court decided that the fact that arbitration procedures must not prevent plaintiffs from attaining justice in a court of law remains despite the Supreme Court’s decision in Concepcion.
The Court further denied that this interpretation applies only to federal statutory rights. Instead, it argued that the Federal Arbitration Act does not deny any remedies available under state law. As a result, a state court cannot prevent the Federal Arbitration Act from achieving its intended goals, simply by deciding that certain provisions of an arbitration agreement are unenforceable if those provisions prevent the assertion of claims provided by relevant state laws.

The court therefore decided that the enforceability of class action bans as part of arbitration agreements would be dependent upon “case-specific factual showings” that the ban would prevent plaintiffs from obtaining remedies which are granted to them by state law. In Feeney v. Dell Inc., a case involving small-dollar claims, the court determined that the class action ban would effectively prevent the plaintiffs from pursuing their claims, as individuals are unlikely to pursue lengthy and often costly litigation for insubstantial amounts. The case of Machado v. System4 LLC, on the other hand, consisted of significantly larger monetary claims, of the sort that individuals are likely to pursue in court, even without the added power of a class action. The court, therefore, determined that, in such a case, the class action ban present in the arbitration agreement remained valid.

The Massachusetts Supreme Judicial Court is not alone in this interpretation of the law. The Missouri Supreme Court and the Second Circuit have also recognized that circumstances exist in which a class action ban cannot be upheld in a court of law. However, the Second Circuit’s decision in Amex that a class action ban which prevents the attainment of rights granted by federal law is unenforceable was just reversed by the Supreme Court. The decision that the Supreme Court has reached in Amex undercuts the reasoning using by the Massachusetts Supreme Judicial Court and allows class-action bans in arbitration agreements all over the nation to preclude class actions from proceeding, even if they are the only means of providing a means for protecting the rights at issue. The Supreme Court has provided businesses with a means of protecting themselves from expensive class action litigation.

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Our client David Bates was sued by Chicago Motor Cars for criticizing the used car dealership online. We represented him in federal court and arbitration where he prevailed. He continues to exercise his First Amendment rights to criticize the dealership and is seeking to expose what he believes are unethical business practices and to support his position with evidence and judgments from court cases against the dealership. There are a number of court judgments finding that the dealer engaged in consumer fraud as to customers other then David Bates which we uncovered in our investigation.

In the federal court case the dealer filed a false affidavit claiming that it had never even been sued for fraud even though, in truth, these fraud judgments had entered against it relating to customers other than David Bates. The federal judge hearing the case entered a rule to show cause against the dealer requiring it to demonstrate why it should not be sanctioned for filing an allegedly false affidavit. The Court indicated that it might consider entering the sanction of dismissing the case along with sanctions against the dealer.

At that point, the dealer facing the impossible task of explaining why it had filed a false affidavit. Chicago Motor Cars decided to drop the case. It settled the federal court case by releasing all of its money damages claims against David Bates and his girl friend.

We then headed to arbitration where the Arbitrator, a retired judge, ruled that Bates’s videos,which were the subject of the arbitration, did not defame Chicago Motor Cars and were essentially true with any minor inaccuracies being irrelevant. Given Chicago Motor Cars’s documented history of fraud judgments entered against it and Chicago Motor Cars’s admissions in deposition and arbitration testimony regarding those judgments for fraud, the Arbitrator ruled against Chicago Motor Cars. He held that all of Bates’s many videos, which were the subject of the arbitration hearing, could remain posted on the internet. Mr. Bates’s First Amendment right to speak his mind and voice his opinions, even using harsh language, was vindicated. Consumers have a right to know that the business they are dealing with has a history of fraud judgments and to take that information into account in making a major purchase decision for a luxury, high priced car. Chicago Motor Cars’s owners admitted when we cross examined them that Bates had a First Amendment right to publish on the internet facts about the fraud judgments entered against Chicago Motor Cars.

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Despite all of the patents and trademarks out there, one might assume that, at the very least, one’s own family history would be safe. However, according to Georgette Mosbacher, the owner of Borghese Inc., that is not the case.

The Borghese family is a noble Italian family, which has included royalty, rulers, philosophers, and a pope. In the 1950s, Borghese Inc. was started by Princess Marcella Borghese and Revlon and has since been developed into a well-known cosmetics brand. In 1976, Revlon bought the rights, title, and interest to the Borghese cosmetics brand. According to the court papers, this included “the words BORGHESE, MARCELLA BORGHESE”, and “PRINCESS MARCELLA BORGHESE”.

In 1992, Revlon sold Borghese Inc. to Ms. Mosbacher, who then became its chief executive. She then reached an agreement with the family regarding final payments, although those have also been disputed.

Since then, Princess Marcella’s descendants have made their own mark on the beauty industry. Her son, Francesco, started his own line of beauty products in the early 1980s under names such as Orlane, Perlier, and Elariia. Beginning in the 1990s, the family (including Francesco, his wife, Amanda, and their son, Lorenzo) started making appearances on the home shopping channel QVC and, after that, HSN.

While none of the products are sold under the Borghese name, their marketing does include the noble lineage of the Borghese family. However, Borghese Inc. argues that that heritage is no longer theirs to capitalize on.

According to Mark N. Mutterperl, the attorney representing Borghese Inc., the lawsuit “is not different than if any other brand name with a surname like Lauder, McDonald, Heinz, Gallo, Ferragamo were to take steps as they do to stop others from using their intellectual property rights”.

Mark Evens, the attorney for the Borghese family, argues that Borghese Inc. “has suffered no harm. No dilution of their mark. No counterfeiting. No palming off.”

For decades, the Borghese family coexisted peacefully with Borghese Inc. It wasn’t until 2006, when Lorenzo entered into discussions with ABC to possibly appear on “The Bachelor” that things started to get heated. It was then that ABC mentioned Lorenzo’s grandmother as the woman who “started the famed self-named cosmetics line, Borghese Inc.” Although there is nothing factually incorrect about this assertion, Ms. Mosbacher nevertheless appeared to feel that her toes were being stepped on. She wrote to Mr. Borghese to warn him not to “cause any false impression in the marketplace that there is a connection or relationship between yourself and Borghese Inc. and our cosmetics products.”

In 2008, Lorenzo applied for a federal trademark for a line of pet shampoos and conditioners called “La Dolce Vita by Prince Lorenzo Borghese” for PetSmart. Borghese Inc. contested the trademark and, as the trademark approached approval in 2010, Borghese Inc. filed a lawsuit against the family.

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There are multiple reasons why so many people are up in arms against the rising prevalence of genetically modified organisms (GMOs) in our crops. Aside from the debate as to whether consuming food that has been genetically modified is safe, the issue of contamination is potentially a very serious problem.

Recently, Monsanto has been prominent in the news and in the courts, often depicted as an evil corporation putting the health of the public at risk for the sake of profit. Now the company is facing several lawsuits from farmers who claim that they have suffered financial harm as a result of Monsanto’s genetically modified wheat having been found in a wheat field in Oregon. In late May, the U.S. Department of Agriculture announced that a wheat farmer in Oregon had discovered Monsanto’s genetically modified wheat growing on his farm alongside his conventional wheat.

The announcement was followed by European and Asian buyers quickly backing out of buying American wheat when they heard of the contamination. Consumers in Europe and Asia have much stronger feelings against GMOs than American consumers. Both South Korea and Japan have suspended certain purchases of American wheat. The European Union has said it will increase the testing of produce coming in from the United States.

The announcement made by the Department of Agriculture and the ensuing loss of overseas buyers for American wheat has led to a series of lawsuits against Monsanto. Clarmar Farms, Inc., farmer Tom Stahl, and the Center for Food Safety have filed a lawsuit against Monsanto in the U.S. District Court for the Eastern District of Washington. The lawsuit is seeking class-action status on behalf of other farmers it alleges have been harmed by the lower wheat prices, which have resulted from overseas buyers backing out of buying American wheat.

A similar lawsuit was filed a few days prior by a wheat farmer in Kansas who alleges that he and other farmers have been financially harmed by lower wheat prices as a result of the discovery of Monsanto’s genetically modified wheat in American crops. Two other farmers have also filed similar lawsuits in federal court for the western district of Washington state.

The experimental wheat was initially developed by Monsanto in order to withstand treatments of its Roundup weed killer. The product was never commercialized though, due to widespread industry opposition. International buyers were already threatening to stop buying American wheat if the GMOs ever entered the marketplace. The decision to end attempts at commercializing the wheat was announced in 2004.

The field testing of the genetically modified wheat that Monsanto did in many states was supposed to have kept the experimental wheat from contaminating conventional wheat supplies.
Following the most recent onslaught of lawsuits, Monsanto has said that, when it ended testing on the genetically modified wheat, it ordered the wheat to be destroyed or shipped to the U.S. Department of Agriculture’s seed storage facility in Colorado. Company officials have denied knowing how their wheat could have made its way into a wheat farm in Oregon.

Kyle McCain, an attorney for Monsanto, has called the lawsuits premature. He claims that the wheat “is limited to one field in Oregon, and no such wheat has entered the stream of commerce”. However, the genetically modified wheat has been found in one farm of conventional wheat, it takes no stretch of the imagination to think that the modified wheat has made its way, undetected, onto other farms and into the marketplace. When this possibility is taken into consideration, especially given the claims of GMOs’ potentially harmful effects, it is no wonder buyers overseas are hesitant to buy American wheat.

Monsanto insists that it followed “a government directed, rigorous, well-documented and audited” program when conducting experiments on the genetically modified wheat.
The lawsuit filed in Spokane, Washington, alleges that Monsanto’s failure to contain genetically modified wheat qualifies as “wrongful conduct” which has potentially contaminated “the entire wheat farming and production chain” and puts many wheat farmers at continued risk of harm by cross-pollination with and contamination of their crops. The lawsuit has not named a number for specific monetary damages, but it is seeking compensatory, as well as punitive damages. It also asks that Monsanto be made to decontaminate equipment, storage, and transportation facilities.

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The world of professional athletes has long been extremely financially rewarding. In recent years, college athletics have approached professional levels where revenue is concerned. The biggest difference is whether or not the players get a cut of the action. Beginning in 2008, the National Collegiate Athletic Association (NCAA) has faced increasing criticism from people who claim that college athletes are being exploited while colleges and the NCAA are making millions off the performance of these players.

The exploitations might not be permitted to last much longer. Ed O’Bannon, a former basketball star for UCLA, watched a friend’s son start up a video game in 2008 and was surprised to see himself appear on the screen. While his name never appeared, the player in the game undoubtedly resembled O’Bannon, down to his physique, his player number, and his right-handedness. O’Bannon was initially flattered until he realized that the gaming company was making money off of his likeness while he, O’Bannon, received nothing. The video game was published by E.A. Sports, a brand of Electronic Arts.

Beginning in 2009, O’Bannon filed a lawsuit seeking licensing of broadcast and video game rights for student athletes. Shortly after O’Bannon filed his lawsuit, the NCAA released a statement that its agreement with E.A. Sports prohibits the use of the names and pictures of athletes. However, in July 2003, six years before the lawsuit was ever filed, Peter Davis, an NCAA official, noted that Electronic Arts did include a feature in their latest football game, which allowed users to download rosters of players’ real names. Electronic Arts responded that the game did not use real names, although it did use “all the attributes and jersey numbers of the players.”

In an email, Davis asked if that was “too close to reality”. He was then warned by another NCAA executive, Melissa Caito, to be “cautious as you move through this – any more ‘watering down’ of the video games will likely move the manufacturers to cease operations with us”. Such a statement reflects the NCAA’s awareness that the video game avatars were pushing the limits of the law. It also demonstrates their determination to make as much money as possible off of the student athletes, while simultaneously making sure that they do not receive any of that money.

Other emails provide further evidence of high-level executives who see absolutely nothing wrong with the way they treat their athletes. David Berst, a senior NCAA executive, wrote to the head of the organization in August 2008 that, regarding “the student athlete, I think the focus of the exploitation may be misplaced, and maybe it is not our duty to protect the student athlete.”
Christine Plonsky from Texas, part of the presidential task force on commercialism, was equally dismissive. She wrote, “We have things we have to do a certain way to raise funds and pay for the scholarships and other things that [student athletes] and their parents expect. I view these cases as being the result of the entitlement attitude we’ve created in our revenue sports.”
Now O’Bannon’s lawsuit is moving to a critical stage.

A federal judge in Oakland, California will hear arguments concerning whether the case can proceed as a class action. If class-action status is granted, it would give the plaintiffs the opportunity to represent thousands of current and former student athletes.

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The Chicago class action attorneys and consumer fraud lawyers at Lubin Austermuehle filed a lawsuit alleging consumer fraud on behalf of our clients against famed Chicago Chef Charlie Trotter claiming that he sold what the specially retained expert concludes is a counterfeit bottle of rare wine. Trotter denies our client’s claims and asserts that they simply have “buyer’s remorse” according to a report in the Chicago Tribune. Our clients, a small family of wine enthusiasts, very much wanted to add the rare wine to their collection. They believed it was a magnum-size bottle of 1945 Domaine de la Romanée-Conti. They sought to have it insured but their carrier required them to get it authenticated. The expert concluded in the report attached to the lawsuit that the bottle was not authentic. After trying to get their money back, the client believed that they had no choice but to file suit so that they could get their over $46,000 investment back. They retained our Chicago fraud attorneys and we filed suit alleging consumer fraud and magnuson moss warranty claims on their behalf. We based the suit on the expert report that the wine was unmerchantable and that Charlie Trotter should have known based on his claimed expertise that it was not authentic. Charlie Trotter denies the claims according to the Chicago Tribune report and has not yet responded to the suit formally so it will now be a matter of proving the case in court before a jury which will decide the merit of the claims. The Complaint only states our clients’ claims which they need to prove.

The Complaint filed by our Chicago class action lawyers and Chicago consumer fraud attorneys alleges the following:

13. … A Charlie Trotter’s employee negotiated the price – $46,227.40 – with Benn and Ilir. Based on Defendants’ representation of the rarity and value of the DRC magnum, Benn and Ilir agreed to purchase it. Ben and Ilir paid Charlie Trotter’s $40,000 in cash and $6,227.40 by credit card for the DRC magnum.

14. On June 17, 2012, Defendants shipped the DRC magnum to Benn’ New York residence.

15. Upon receiving the DRC magnum, Benn contacted his insurance carrier. He notified the carrier that he wanted to list the DRC magnum on his homeowners insurance. Benn’s carrier informed Benn that 1945 bottles of Domaine de la Romanee-Conti are often counterfeited and that Benn would need to authenticate the DRC magnum through an expert before it would provide coverage.

16. On or about September, 2012, Benn retained Maureen Downey, DWS, CWE, FWS of Chai Consulting to authenticate the DRC magnum. Ms. Downey determined that the DRC magnum was counterfeit and valueless based on the physical attributes of the DRC magnum, the provenance provided by Charlie Trotter’s, and her discussions with experts on Domaine de la Romanee-Conti wines. See Exhibit 1. Ms. Downey visited the estate of Domaine de la Romanee-Conti after preparing her report. She spoke with Jean-Charles Cuvelier, the estate director of Domaine de la Romanee-Conti, regarding the production of large format bottles. The information Ms. Downey received from Jean-Charles Cuvelier confirmed the accuracy of her report.

The Complaint’s claims have been denied by Charlie Trotter according to the Chicago Tribune report and Defendants have denied the allegations.

Below is a video about famed Chef Charlie Trotter:

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Many times people buy things because they are on sale that they would not have bought otherwise. The idea of a good deal is a powerful motivator for shoppers and many retailers our Chicago class action lawyers have observed take advantage of that fact. Kohl’s is currently facing a class action lawsuit for allegedly advertising certain items as being marked down between 32 and 50 percent from their “original” prices when those items were not, in fact, marked down at all.

Antonio Hinojos bought a Samsonite suitcase at Kohl’s that was advertised as being 50% off of its original price of $299.99. He also bought some shirts that were allegedly marked as being on sale for 32 to 40 percent less than their original prices.

However, Hinojos alleges in his lawsuit that the items were, in fact, not marked down at all, and that their supposed “sale” prices were the same as the prices the items regularly sold for. Hinojos says that, had he known that, he never would have purchased the items.

A district court dismissed the lawsuit, saying that, because Hinojos got the items he wanted, he could not show that he had lost any money as a result of the alleged false advertising.
The 9th U.S. District Court of Appeals disagreed and reversed the ruling. In the court’s 21-page opinion, it argued that Hinojos demonstrated that he had lost money as a result of the false advertising, “because the bargain hunter’s expectations about the product he just purchased is precisely that it has a higher perceived value and therefore has a higher resale value.”

The court stated that advertisements such as “not available in stores”, “available for a limited time only”, “the same model shoe worn by LeBron James”, and “more doctors recommend our product than any other brand” are not examples of false advertising. However, the court finds this case to be distinctly different from those claims.

The court went on to enumerate that, in this case, “Hinojos specifically and plausibly alleges that Kohl’s falsely markets its products at reduced prices precisely because consumers such as himself reasonably regard price reductions as material information when making purchasing decisions.”

The court also rejected Kohl’s motion to certify the matter to the California Supreme Court. Kohl’s did not do so until after the oral arguments, at which point it perceived that the judges were not sympathetic to its position. According to the court, “Kohl’s conduct regarding certification violated both our rule against belated certification requests and our long-standing prohibition against a party’s use of procedural motions to avoid having its appeal decided by a panel it perceives as unfavorable.”

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