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Keep Your Friends Close: What to do When a Friend and Business Partner Allegedly Defrauds You

When entering into business transactions, it’s always important to know the terms of the agreement. The importance of being aware of the exact terms of an agreement cannot be overstated. Sometimes, even more important than the writing, is what is conveyed from one party to another is. A material misrepresentation or omission within a fiduciary relationship will most likely amount to fraud.

In Hassan v. Yusuf, 408 Ill. App. 3d 327, 944 N.E.2d 895 (1st Dist. 2011), Yusuf, the defendant, entered into an agreement regarding the purchase of a gas station together with Hassan, the plaintiff. Hassan claimed that pursuant to the parties’ agreement, he would receive one-third of the interest in a gas station along with interest in the real estate which was secured by a mortgage. These terms had allegedly been dictated to Hassan by Yusuf, who was Hassan’s good friend and one of three investors in the gas station venture. Later, after having invested significant funds, Hassan learned that Yusuf had allegdly duped him into believing that he would receive an interest in the real estate. Hassan then filed suit against Yusuf and the other defendant alleging fraud, breach of fiduciary duty, breach of contract, and sought an accounting and declaratory judgment.

In determining whether or not fraud was committed by Yusuf, the Illinois Appellate Court first addressed whether a fiduciary relationship existed between the parties. In Illinois, the law is clear that “[i]n order to prove fraud by the intentional concealment of a material fact, it is necessary to show the existence of a special or fiduciary relationship, which would raise a duty to speak.” Id. at 912.

The Court identified several facts support a fiduciary relationship, including: (1) that Hassan and Yusuf were each equal shareholders; and (2) that Hassan and Yusuf had been close personal friends for approximately ten years. The trial court had previously found that these facts were not sufficient to establish a fiduciary relationship, but the Appellate Court overturned this finding. The Appellate Court held:

“[T]here is sufficient evidence on the record to establish that such a finding would be against the manifest weight of the evidence and therefore reversible given the fact that a fiduciary relationship exists in all certainty based on their business venture together.”

The Appellate Court even found that the parties’ friendship and their joint venture was “overwhelming” evidence of a fiduciary relationship.

After finding that a fiduciary relationship existing between the parties, the Appellate Court’s concluded that there was a material omission giving rise to a breach of fiduciary duty. The trial court had previously found that Yusuf’s testimony that he told Hassan that Hassan would not receive interest in the property lacked credibility. The trial court had also found that Hassan credibly testified that he understood he would be receiving an equal share in the gas station and real estate. The Appellate Court therefore held: “[c]onsequently, Yusuf’s omission that [Hassan] would not acquire an interest in the real estate amounts to a misrepresentation upon which [Hassan’s] claim of fraud may be based.”

The Illinois Appellate Court’s decision in Hassan v. Yusuf reinforces the importance of committing oral agreements to writing. Had the parties done so, a lawsuit would likely not have been needed or it would not have turned on questions of witness credibility. The decision also reinforces that when an oral agreement is at issue, witness credibility will often be one of the most important factors. Continue reading ›

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Just like any relationship, the breakup of a law firm is complicated, especially when a partner start a new business of their own. In the case of Bernstein & Grazian, P.C. v. Grazian & Volpe, P.C., 402 Ill. App. 3d 961, 931 N.E.2d 810 (2010), the actions of the partners themselves throughout the dissolution of the firm and the fiduciary duty owed to one another play a large role in the division of fees once the firm has closed its doors.

Attorney and partner of Bernsterin and Grazain, Bernstein left the firm to open his own practice. Grazian complained that his former partner allegedly breached his fiduciary duty by opening up his own firm while still working for the current firm. Bernstein denied these claims and the trial court ruled in his favor. The Court determined that there was no breach of fiduciary duty by Bernsiten and that there he was entitled to 10% of the fees for all of the open cases at Bernstein and Grazian before he left. Continue reading ›

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Follow these 8 tips to see if a used car you are thinking of purchasing has been damaged by water from a flood. 

Here are 8 tips to avoid purchasing a flood water damaged car.  These cars can also be brand new water damaged cars.  Be careful! Avoid having to sue for auto fraud.

  • Get a CARFAX Report, and an Auto Check report – These reports may show if the car has been in an accident, flood, fire or odometer fraud but do not fully trust them as they can sometimes be out dated and inaccurate.
  • Take the car to a body shop to have it inspected.
  • Ask to see a copy of the title, if possible.  Most dealers will not let you see this, but it can’t hurt to ask.
  • Use your sense of smell to see if  there are any musty or damp odors inside the car.
  • Has the upholstery or carpet been replaced?  Go throught the car and pull back the carpet in different spots to see if you can see any stains or water lines.
  • Look under the car for mud.  This is a very difficult area to clean.
  • Look under the car for corrosion.
  • Open all doors, including the trunk and hood to inspect for mud, dirt or corrosion.  Look at the hinges, door frame and little crevices.
  • Check all lights, warning lights, electrical components and windows to see if they are working.  This does not mean the car has been damaged in a flood, but it, along with other problems can be a concern.
  • Take a friend with you and ask if the car has ever been flooded, in an accident, involved in a fire or invloved in odometer fraud.  Make sure you ask each question separately and make sure your witness is paying attention!

Continue reading ›

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Workers generally expect that any time required by the employer is time for which they get paid. This should hold true regardless of whether the employees are performing work or receiving training necessary to perform the job. According to a recent class action wage and hour lawsuit against Wal-Mart, the retail giant allegedly failed to compensate its pharmacists for time spent in training. Walmart denies these claims and contends it complied with the law.

The lawsuit was filed in California by Afrouz N., who worked for Wal-Mart from 2003 to 2014. Afrouz alleges Wal-Mart required its pharmacists to take the American Pharmacists Association’s Immunization Training programs, but failed to compensate them for the time spent on those training programs. Continue reading ›

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Whey they buy a used car, many consumers rely on Carfax or AutoCheck to reports to see if car of their dreams has been in an accident, suffered flood damage,  been stolen, or had some other issue that would lower its value substantially. As a result, many car dealerships will offer to provide the Carfax report to prospective buyers.  However, consumers cannot rely on these reports and should get the car inspected by a knowledgeable mechanic and body shop before purchasing any used car.  We have found in our cases that Carfax reports can be incomplete for a number a reasons; many of our clients have been deceived by the Carfax report provided by the dealer and have purchased rebuilt wrecks and flood cars. Reports like Carfax have come under fire in the past for often providing inaccurate or incomplete information when information has been hidden from them such as past owners failing to report accidents and fixing the car without notifying later purchasers of the damage. Further, when the report is provided by the dealer, you cannot be 100% positive that the report is current and accurate and that the vehicle has not been in an accident flood or damaged. Continue reading ›

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The Fair Labor Standards Act (FLSA) is a federal law that governs things like the minimum wages employees can be paid, as well as when they should be paid overtime and how much they should be paid for overtime. States also have their own labor laws to govern minimum wage and overtime, among other issues, for all employees working within the state.

In addition to getting paid for all the hours they spend working, many employees expect to receive pay for a certain amount of time off and sometimes bonuses. Paid time off usually includes holidays that the employer is closed, but is still paying the employee. Many employers also give their workers a certain number of sick days or vacation days (sometimes both) for which the employee can be paid in a calendar year. This is all time for which employees can reasonably expect to be paid, and in some cases, the law requires them to be paid for this time. Continue reading ›

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Many clients come to us with misunderstandings with regard to non-compete agreements which are often called covenants not to compete.  Some clients believe because an employee signed the agreement it is an iron glad and enforceable agreement no matter how broad and restrictive the terms of the agreement.  Some employees come in with the belief that the agreements can never be enforced against them. So when are these agreements enforceable?  It depends on many factors.

Each state has its own set of rules but there are many similarities in those states that enforce such agreement. In California, however, they are invalid and against policy.  Illinois courts, on the other hand, enforce such agreements when they are:

  • In writing;
  • Made part of the employment contract;
  • Supported by valid consideration such as two years of employment or other payments;
  • Reasonable as to time and territory; and
  • Designed to protect the employer’s legitimate business interests.

The first two requirements are fairly self-explanatory. The last three, however, require analysis and review of the facts and circumstances.

Supported by valid consideration:

Consideration is a concept that applies to all kinds contracts, not simply to non-compete agreements. Contracting party must each obtain some consideration or benefit for entering into the contract. The contract must provide to each party a benefit to which that party would not be entitled if the party had not entered into the contract. With non-compete agreements, the affected employee might receive a new job, a promotion, a raise or a bonus for his or her agreement to enter into a non-compete or work for the employer for a significant period such as two years after entering into the agreement.  In summary, for an employee to be bound that employee has to obtain some real benefit for entering into the agreement or work a long time for the company after signing the agreement.

Reasonable as to time and territory:

Non-compete agreements cannot usually be unlimited when it comes to time and territory. In other words, a business cannot subject former employees to an agreement with restricts them from competing everywhere, forever. Determining what is reasonable however depends on many circumstances.

Designed to protect the employer’s legitimate business interests:

Courts will only enforce restrictions on an individual’s right to work when the employer can show that those restrictions protect a legitimate business interest. Such interests can be protecting client relationships and confidential or secret information that provides a competitive advantage and was developed at substantial cost. In crafting covenants not to compete, employers should avoid restricting employees more than is needed to protect legitimate interests and the substantial investment they have made in developing competitive advantages for their businesses.

The Takeaway:

The truth is that many courts do not like to enforce covenants not to compete unless they are properly tailored and do like to put people out of work.

Continue reading ›

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Hiring part-time employees can be a great way for businesses to fill in the gaps in their employee schedule while saving money. It can also be beneficial for employees looking for flexible hours. On the other hand, part-time employees are often left without the benefits of full-time employees, including health insurance and vacation time. Labor law generally requires an employee to work at least 20 hours per week before she is entitled to access to her employer’s health insurance or paid vacation time.

Even if an employee is taken on to work full time, the picture is not always rosy. Employees who are paid at least a salary of $23,600 per year and meet certain qualifications can legally be exempted from overtime compensation, even if they work more than forty hours a week.

Under the federal Fair Labor Standards Act (FLSA), employees can be exempt from overtime if they fit into one of three categories: administrative, executive, and professional. For the administrative category, an employee must perform primarily office work and provide administrative assistance directly to an executive. The executive category includes managers and all employees who spend more than half their time supervising other employees. The professional category is made up of workers whose jobs require a specific set of skills or level of education, including doctors, lawyers, and performers. Continue reading ›

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Many workers have become accustomed to the standard 9-to-5 schedule, in which they work eight hours a day, five days a week. In some parts of the country, that has shifted to ten hours a day, four days out of the week. This gives employees a three-day weekend every week and some studies have shown this schedule actually boosts productivity.

The potential problem this new schedule poses has to do with overtime compensation. Under the federal Fair Labor Standards Act (FLSA), employees are entitled to one and one-half times their normal hourly wages for all time spent working after eight hours a day or forty hours a week. The Act does take into account the potential for the four-day workweek, but it has specific requirements for when employees can work ten-hour days without getting paid the proper overtime rate. Continue reading ›

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