Chicago Business Litigation Lawyer Blog
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Illinois Federal Court Finds Putative Class Action Precluded by Arbitration Agreement – Collier v. Real Time Staffing Services
A putative class action alleging violations of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq. (FCRA), must be submitted to binding arbitration, according to the court in Collier v. Real Time Staffing Services, Inc., No. 11 C 6209, memorandum opinion and order (N.D. Ill., Apr. 11, 2012). The court found that a clause in the contract between the plaintiff and defendant required both parties to submit any disputes between them to arbitration. On the question of whether the class claims asserted by the plaintiff were subject to mandatory arbitration, the court left it for the arbitrators to decide.
The plaintiff, Darion Collier, submitted an electronic job application to the defendant, Real Time Staffing Services, which did business as SelectRemedy. According to the court’s order, the plaintiff signed an acknowledgment that said his employment with SelectRemedy would begin once he started an assignment for one of its clients, and that it would be on an “at-will” basis. The acknowledgment further said that SelectRemedy could at any time modify the terms and conditions of his employment. Order at 2. SelectRemedy did not hire the plaintiff after reviewing his application, allegedly based on information in his consumer credit report.
The plaintiff filed suit on September 7, 2011, alleging violations of the FCRA on behalf of himself and a proposed class. SelectRemedy filed a motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure, asserting that an arbitration agreement signed by the plaintiff with his application precluded the lawsuit. The agreement stated that the plaintiff agreed to submit any disputes to binding arbitration in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (FAA). In opposing the motion to dismiss, the plaintiff argued that the arbitration agreement was unenforceable for lack of consideration, that SelectRemedy’s ability to change the terms of employment rendered the contract illusory, and that the arbitration agreement should not cover class claims.
Covenant Not to Compete Ruled Unenforceable for Failing to Comply With State Law – Elite Coil Tubing Solutions v. Guillory
An appellate court in Louisiana affirmed an order granting partial summary judgment to the defendants in a lawsuit over a purported covenant not to compete. The court held in Elite Coil Tubing Solutions v. Guillory that the plaintiff company failed to meet its evidentiary burden to enforce a non-compete agreement under Louisiana law, which generally disfavors such agreements. In addition to failing to identify specific parishes in which the non-compete agreement should apply, the court held that the plaintiff failed to provide sufficient evidence regarding the nature of the business prohibited by the non-compete agreement.
The plaintiff, Elite Coil Tubing Solutions, LLC, provides oilfield services, with a principal business location in Caddo Parish, Louisiana. The company employed the defendant, Weldon Guillory, as Manager of Operations from June 15, 2006 until Guillory’s resignation on October 15, 2010. It also employed defendant Bobby Gill from July 15, 2008 until his resignation on December 18, 2010.
Guillory signed an employment contract with Elite in 2006, which included a non-compete agreement. That part of the contract provided that, while employed by Elite and for a period of two years afterwards, Guillory would not own or accept employment with a business in direct competition with Elite anywhere within two hundred miles of any of Elite’s business locations. It also provided that, in the event of breach or threatened breach by Guillory, Elite could obtain a temporary injunction without a bond, and that it would be entitled to liquidated damages of $250,000. Gill did not sign an employment contract when he began working for Elite.
Decision in Kohl’s Case Reversed and Class Claim Regarding Use of Alleged Fake Sales Prices Allowed to Proceed — Our Chicago Class Action Lawyers Enabled Illinois Consumers to Collect Substantial Class Action Recoveries
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.”
Chicago Class Action Attorneys at Lubin Austermuehle Obtain Certification of Nationwide Class
Judge Certifies Nationwide Class in Lawsuit against Abercrombie & Fitch
A nationwide class has been certified in a lawsuit against Abercrombie & Fitch for allegedly voiding gift cards issued to customers as part of a 2009 winter holiday promotion despite the fact that the gift cards stated “No Expiration Date.” Class counsel, Lubin Austermuehle, P.C. and Schad, Diamond & Shedden, P.C., has created a website http://www.abercrombieclassaction.com where potential class members can obtain more information and review important documents and dates.
A nationwide class has been certified in a lawsuit against Abercrombie & Fitch for allegedly voiding gift cards issued to customers as part of a 2009 winter holiday promotion despite the fact that the gift cards stated “No Expiration Date.”
Chicago, IL (PRWEB) May 24, 2013
A judge in the Northern District of Illinois has certified a nationwide class in a class action lawsuit filed against Abercrombie & Fitch (case no.10-cv-04866). The lawsuit, filed by Tiffany Boundas through her attorneys Lubin Austermuehle, P.C. and Schad, Diamond & Shedden, P.C., alleges that Abercrombie and abercrombie kids issued $25 gift cards to customers as part of a 2009 in-store winter holiday promotion. Abercrombie then voided the gift cards a couple months later despite language on the cards that stated “No Expiration Date.” By doing so, the lawsuit contends, Abercrombie breached its contracts with customers. The lawsuit seeks a payment of the value of the gift cards that customers could not redeem as a result of Abercrombie’s actions. Abercrombie contends that more than $5 million is at issue in this lawsuit.
Copies of the Complaint, the judge’s opinion certifying the class, and the Class Notice can be obtained by going to http://www.abercrombieclassaction.com.
The judge has set a July 20, 2013 deadline for class members to exclude themselves from the class. For more information and to learn other important dates in this case, please visit http://www.abercrombieclassaction.com.
Lubin Austermuehle, P.C. is a law firm committed to fighting for consumer’s rights. With over two and a half decades of experience litigating class action lawsuits across the nation, the attorneys at Lubin Austermuehle, P.C. have recovered millions of dollars for consumers. Lubin Austermuehle, P.C. has offices in downtown Chicago and throughout the Chicagoland area. To learn more about Lubin Austermuehle, P.C. or to contact one of its attorneys please visit https://www.chicagobusinesslawfirm.com.
Breach of Contract Claims May Proceed in Putative Class Action Against Health Spa Chain, According to Illinois Federal Court – Grabianski v. Bally Total Fitness — Our Chicago Class Action Lawyers Pursue Consumer Rights Class Actions
Our Chicago class action lawyers have noted a recent decision where an Illinois federal court dismissed several claims in a putative class action lawsuit against a nationwide chain of health spas, but allowed two causes of action for breach of contract to proceed. Grabianski, et al v. Bally Total Fitness Holding Corp., et al, No. 12 C 284, memorandum opinion and order (N.D. Ill., Feb. 21, 2013) (the “2013 Order”). The dismissed claims alleged additional breaches of contract and violations of state consumer protection statutes. The court had dismissed the plaintiffs’ original complaint in the same cause, granting them leave to amend, in an order dated September 11, 2012 (the “2012 Order”).
The plaintiffs purchased memberships at Bally Total Fitness (“Bally”), a nationwide chain of gyms, during a period from 1986 until 2002. They all purchased “Premier” or “Premier Plus” memberships, which gave them the right to use any Bally location in the country. Bally allowed transfer of these membership plans, so while some of the plaintiffs purchased their plans directly from Bally, others obtained them in a secondary market. After declaring bankruptcy, Bally sold 171 of its clubs, more than half of its total, to LA Fitness, subject to an Asset Purchase Agreement (“APA”) dated November 30, 2011. According to the plaintiffs’ amended complaint, LA Fitness assumed their membership agreements as part of the sale.
Plaintiffs allege that after the sale was completed, they were denied access to Bally clubs now owned by LA Fitness. They claim that LA Fitness denied them access because their “home clubs,” where their memberships originated, were not part of the APA. In the cases of plaintiffs who acquired their memberships via a secondary market, the “home club” might be in a different state. While the plaintiffs could still access clubs that Bally owned, they did not live near any of those clubs.
Viacom Sued in TCPA Class Action For Allegedly Sending Out Unsolicited Text Messages — Our Chicago Class Action Lawyers File Unsolicited Text Message and Fax Class Actions
With all the spam that companies tend to send out, it’s no wonder that most people carefully guard their telephone numbers. Many people, however, don’t think of the fact that they are giving their number to every person and company that they call or send text messages to. In a recent class-action lawsuit against MTV’s parent company, Viacom, plaintiffs allege that the company violated the Telephone Consumer Protection Act by sending promotional texts to people who voted in the 2011 Video Music Awards.
The lead plaintiff in the case, Erin Mock, voted in the 2011 Video Music Awards via text message and was allegedly bombarded with promotional text messages shortly thereafter. According to the lawsuit, one such message read “MTV: ‘Jersey Shore’ sneak peek of tonight’s episode – why is Snooki lying in a bush? Watch”. Another said, “MTV: ‘Real World San Diego’ premieres Wednesday, Sept. 28 at 10/9c”.
The lawsuit alleges that, during the VMA solicitation for votes, viewers were never warned that, by voting, “they would be consenting to receipt of future text SPAM advertisements from Defendant and/or its subsidiaries and/or employees and/or agents”.
Mock further alleges that she sent a text message asking to stop receiving these text advertisements. She received a confirmation that the text messages would stop, but she allegedly received another such message (this one with a link to a “Real World” trailer) after she received her confirmation.
The lawsuit, filed in U.S. District Court in Tennessee, alleges that the “Plaintiff and the members of the Class and Sub-Class have all suffered irreparable harm as a result of the Defendant’s unlawful and wrongful conduct”. The suit is seeking $1,500 per alleged violation for each member of the class, as well as an injunctive relief against such conduct in the future.
Chicago Tribune Settles Class Action Alleging Subscribers Overcharged
Once a subscriber gives a company their credit/debit card or bank information to charge subscription fees, some companies will take advantage of that to raise their fees without notifying their subscribers. Such is allegedly the case with the Chicago Tribune.
Cheryl Naedler and Theodore Raab, two Tribune subscribers, filed a class-action lawsuit against the company in the Circuit Court of Cook County. The lawsuit alleges that the Chicago Tribune breached its contract with subscribers and violated the Illinois Consumer Fraud Act by charging an inflated subscription fee, without warning subscribers at least 30 days in advance of the change.
According to the class counsel, what the Chicago Tribune should have done, “is send notice at least one billing cycle in advance saying we’re going to increase it … if you agree to pay. And they didn’t do it.”
Our Chicago class action lawyers note that the Chicago Tribune recently began mailing out a proposed offer to settle the lawsuit. Although the company denies the allegations, it said that it reached the settlement to, “avoid the cost, risk, and delay of litigation and uncertainty of trial” according to the notice.
If the court approves the settlement, about 41,000 subscribers will receive $6.50 each as part of the settlement. Naedler and Raab, as the class representatives, will receive $2,000 each.