Chicago Business Litigation Lawyer Blog
Barry Minkow, who, while still in high school, founded ZZZZ Best, a carpet cleaning and restoration company that turned out to be a massive Ponzi scheme, talks about one of the many ways he manipulated auditors.
Wall Street Journal Reports: “Judge Rules Against Lightstone And Enforces Bad Boy Clause in Real-Estate Loan Penalizing Borrower For Declaring Bankruptcy”
Many real-estate loans for large transactions include a so called “bad boy” clause which penalizes borrowers for declaring bankruptcy. Many borrowers didn’t take these clauses seriously in the past believing that they could declare bankruptcy and argue that the clauses were uneforcable as violating public policy encourcaging business business reorganizations as permitted by federal bankruptcy laws.
The Wall Street Journal however reports that a federal court following a trial has enforced a “bad boy” clause and penalized Lightstone Holdings LLC $100 million for putting the Extended Stay LLC hotel chain into bankrupcy. The article states:
A New York state judge has ruled that investor David Lichtenstein’s Lightstone Holdings LLC owes lenders $100 million because he violated a clause in his loan documents prohibiting him from seeking bankruptcy protection for the Extended Stay Inc. hotel chain.
The ruling Thursday by New York Supreme Court Judge Melvin L. Schweitzer stands to focus more attention on so-called bad-boy clauses in real-estate loans. Those clauses require the borrower to pay lenders a set penalty for putting the property pledged as collateral on a loan into bankruptcy or otherwise wasting its value. …
The ruling marks a victory for lenders, including Bank of America Corp., Wells Fargo & Co.’s Wachovia Corp. and the Federal Reserve’s Maiden Lane fund as successor to Bear, Stearns & Co. Those lenders collectively provided Lightstone roughly $2 billion of mezzanine loans, but their claims were wiped out after Extended Stay filed for bankruptcy protection in 2009. …
Mr. Lichtenstein had agreed to the “bad boy” clause while arranging for nearly $8 billion of financing for his 2007 purchase of the 660-hotel chain from Blackstone Group LP. The deal was one of the last big, debt-financed real-estate buyouts before the lending markets, and subsequently the global economy, went into one of its worst downturns …
Throughout the bankruptcy, Lightstone’s attorneys argued that the bad-boy clause wasn’t enforceable.
The full article provides additional insights. You can read the full article by clicking here.
Appellate Court Overturns Dismissal of Chicago Paramedics Unpaid Overtime Class-Action
Every day there are hard working people who are denied the overtime wages that they have rightfully earned. At DiTommaso Lubin, we have much experience representing those with unpaid overtime claims in class-action litigation. As such, we track the changes in the wage laws and are always looking out for new court decisions in the field.
Alvarez v. City of Chicago is a recent class-action case brought by paramedics in the city of Chicago for the systematic miscalculation of their overtime wages. In so doing, Plaintiffs alleged that Defendant willfully violated the Fair Labor Standards Act (FLSA) when it failed to properly compensate the Plaintiffs. The parties each filed motions for summary judgment, and the trial court ruled in favor of Defendant. In making the ruling, the trial court found that the Plaintiffs were not similarly situated and they could not be “readily divided into homogenous subgroups.” The lower court then dismissed the claims and directed the parties to arbitrate the dispute.
On appeal, the Appellate Court disagreed with the trial court’s decision, and held that the case could proceed by using sub-claims if the Plaintiffs were similarly situated and common questions predominated. The Court also held that the case should not have been dismissed; instead the Plaintiffs should be allowed to proceed individually if class certification is inappropriate. The Court then remanded the case with instructions for the district court to consider which form of judicial resolution would be most efficient.
Appellate Court of Illinois Upholds Circuit Court’s Rescission of Oral Agreement to Jointly Purchase a Gas Station due to Fraudulent Misrepresentation
When starting a new business venture, choosing the right partners is one of the most important decisions any company owner will make. Unfortunately, not all partnerships work out, and in some instances that is due to the dishonest machinations of fellow owners. Our Elgin business attorneys recently discovered one such case where one business partner was allegedly defrauded by two other owners in a transaction to jointly purchase and operate a gas station in Tinley Park.
Hassan v. Yusuf pits Plaintiff, a man who thought he was investing in the purchase of a gas station, against his two business partners who were also involved in the deal. Defendants solicited an investment of $120,000 from Plaintiff, equal to their own contributions, to purchase the gas station in question, but allegedly failed to inform Plaintiff that he was only purchasing one-third of the business, and had no claim to the real-estate upon which the station was built. After Plaintiff entered into an oral agreement to purchase the station with Defendants and run the day-to-day operations of the business, Defendants acquired title to the property and conveyed that title to a corporation solely owned by Defendants. The business was profitable at first, but eventually began operating at a loss. Defendants then demanded Plaintiff invest more money in the venture to cover these losses, but Plaintiff had no additional funds to invest, and requested an accounting of the business’s financial records and documentation showing his ownership and portion of the losses. Defendants failed to provide said documentation, and Plaintiff ceased working at the station and eventually filed suit.
The Circuit Court of Cook County found that Defendants had defrauded Plaintiff through their misrepresentations regarding the purchase of the business and accompanying real estate. In its judgment, the trial court granted Plaintiff rescission of the contract and damages for the total amount of money he invested in the business. After the trial verdict, Defendants appealed the finding of fraud on the basis that there was not clear and convincing evidence of a misrepresentation that Plaintiff would be an owner of the real estate under their agreement.
The Appellate Court upheld the Circuit Court’s decision, finding the record sufficient to support a finding that Defendants misrepresented to the Plaintiff that he was purchasing a one-third interest in the station and accompanying real estate, even though they had no intention of actually doing so. Furthermore, there was clear evidence of a fiduciary relationship between the parties, which gave rise to a claim for fraud by omission when Defendants failed to make explicit to Plaintiff that he was not acquiring an interest in the land. The Court went on to state Plaintiff’s reliance upon Defendants’ misrepresentations were justifiable, and upheld the trial court’s decision to rescind the contract, but reduced the damages award in an amount equal to Plaintiff’s share of the profits from the station. The Court did so because giving Plaintiff his share of the profits would be inconsistent with the remedy of rescission, which is supposed to place a party in the same position they would be in had the contract never occurred.
Northern District of Illinois Federal Court Grants Motion to Send Notice to Expanded Class in Unpaid Overtime Class-Action Litigation
Large corporations are often built upon the labor of many hard-working hourly employees. Unfortunately, such companies do not always pay their employees the wages that they have earned, and when such mistakes are made, those employees must do what they can to get what they are owed. When enough employees have been denied their earned wages, a class-action lawsuit may be the most efficient means to get everyone their unpaid wages, and our Naperville overtime class-action attorneys recently discovered another such lawsuit in the Northern District of Illinois federal court.
In Hundt v. DirectSat USA, Plaintiffs were employed by Defendant as warehouse managers who regularly worked more than forty hours per week, but were not paid any overtime because Defendant classified them as exempt employees. Plaintiffs believed that they were misclassified because their job duties did not meet the overtime exemption requirements under the Fair Labor Standards Act (FLSA) and the Illinois Minimum Wage Act (IMWA), and filed a class action lawsuit for the unpaid overtime. After sending out opt-in notices to the potential class members, Plaintiffs discovered that the class should not be limited to just those employees with the title of warehouse manager. Plaintiffs therefore amended the complaint to broaden the class to include warehouse supervisors and other workers in similar positions, and filed a motion to send notice to these additional putative class members.
Defendants opposed the motion, stating that there were significant differences between warehouse managers and supervisors and claimed that Plaintiffs failed to sufficiently allege the existence of a common decision, policy, or plan to deprive them of overtime wages. The Court disagreed with Defendants, holding that all of the putative plaintiffs were similarly situated despite their varied job titles. In making its decision, the Court cited several internal communication emails that indicated the titles were interchangeable, and that was enough to meet the minimal burden required. Thus, the Court granted the motion to send notice to the additional class members.
Illinois’ Franchise Act Does Not Require Manufacturers to Extend Contractual Agreements that Grant Exclusive Sales Territory
DiTommaso Lubin has clients that operate a variety of businesses all across the state of Illinois. While there are common laws and legal principles that apply to all companies and corporations, there are other Illinois statutes that apply to specific types of businesses. Our Elgin business attorneys came across Clark Investments, Inc. v. Airstream , Inc., which is an Appellate Court of Illinois case involving laws that govern motor vehicle dealerships.
Clark Investments, Inc. v. Airstream , Inc. is a dispute between a Recreational Vehicle (RV) manufacturer and an RV dealer over a contractual agreement between the two companies. Initially, the Plaintiff car dealer contracted with Defendant manufacturer to have exclusive rights to sell Defendant’s RV’s in the state of Illinois. The initial contract was for a period of approximately two years, and shortly before the end of that contract Defendant proposed to renew the agreement with different terms. Defendant’s new contract contained no expiration date and gave Plaintiff no exclusive sales territory. Plaintiff rejected this contract and proposed the same exclusivity terms as the first contract, but Defendant rejected Plaintiff’s proposed changes. Shortly after these negotiations, the initial contract expired, but Defendant continued to supply Plaintiff with merchandise and service and Plaintiff continued to operate its business for almost nine months. The parties then entered into a new contract that contained no exclusive sales region for Plaintiff but allowed Plaintiff to sell more types of Defendant’s RV’s. After this new contract was signed, Defendant entered into an agreement with another RV dealership located ninety miles from Plaintiff’s business. This agreement authorized that dealership to sell some, but not all of the same products contained in Plaintiff’s agreement with Defendant.
Upon learning of this new agreement, Plaintiff filed suit against Defendant alleging violations of the Franchise Act and the Franchise Disclosure Act. Defendant then filed a motion for summary judgment on both causes of action, and the trial court granted the motion as to both claims. Plaintiff appealed the court’s ruling as to the Franchise Act claim only, alleging that Defendant’s had violated section 4(e)(8) of the Act by granting an additional franchise within Plaintiff’s relevant market area and refusing to extend the first contract that granted Plaintiff all of Illinois as its exclusive sales territory. The Appellate Court rejected this argument by citing language from the Act that defines the relevant market area as the fifteen mile radius around Plaintiff’s principle location. Because the other franchise was located further than fifteen miles away, there was no violation of the Act.
Plaintiff also argued that Defendant violated section 4(d)(6) of the Act by refusing to extend the first contract that granted Plaintiff an exclusive sales territory of the whole state. The pertinent part of the Act makes it unlawful for a manufacturer
“1) to cancel or terminate the franchise or selling agreement of a motor vehicle dealer,
2) to fail or refuse to extend the franchise or selling agreement of a motor vehicle dealer upon its expiration, or
3) to offer a renewal, replacement or succeeding franchise or selling agreement containing terms and provisions the effect of which is to substantially change or modify the sales and service obligations or capital requirements of the motor vehicle dealer.”
The Court disagreed with Plaintiff’s claim that Defendant’s actions fell within the first category of conduct. The Court explained that Defendant’s conduct fell under the third category because Defendant offered Plaintiff a new contract with different terms before the initial contract expired. They held that the changes in the new contract did not substantially change the sales and service obligations or capital requirements of the Plaintiff, and upheld the lower court’s ruling.
LLC Operating Agreement Arbitration Clauses are Only Enforceable Against Those Party to the Agreement
As a firm of Chicago and Orland Park business attorneys, DiTommaso Lubin handles litigation for companies in a wide range of industries. Our Schaumburg business lawyers recently came across a case from St. Clair county that is of interest to LLC’s and those businesses who include arbitration clauses in their business agreements.
The Plaintiff in Trover v. 419 OCR, Inc. was a member of a limited liability company, Fair Oaks Development Group LLC (FODG) that planned to develop the land owned by FODG. Plaintiff was advised by counsel that the company would benefit from a tax perspective should the company transfer its interest in the land to Defendant 419 OCR, Inc. and allow that company to develop the land. Relying upon that alleged tax advice and the representations of Defendant, Plaintiff allegedly allowed FODG to sell and assign its interest in the land to Defendant 419 OCR, Inc., who later transferred parts of the land to Defendant O’Fallon Group. The sale was executed by a written agreement, but Plaintiff alleged that there was an additional oral agreement between the parties that was never put in writing. Under this oral agreement, Defendants were allegedly to pay Plaintiff a to-be-determined sum of money in addition to the price of the land. Defendants eventually developed the land and made a profit, but allegedly never paid any of the sums from the oral agreement.
Plaintiff then filed a shareholder derivative action on behalf of FODG alleging breach of contract, fraud, breach of fiduciary duty, and corporate waste. Defendants filed a motion to compel binding arbitration based upon the arbitration provisions contained within the operating agreement governing FODG. The trial court denied the Defendants’ motion to compel arbitration, and in response, Defendants filed for an interlocutory appeal on the arbitration issue.
The Appellate Court performed a de novo review of the motion to compel arbitration because the trial court did not hold an evidentiary hearing or make any factual findings. The Court examined the operating agreements that contained the arbitration provisions and found that, while the land transaction in question fell within the scope of the provisions, Defendants 419 OCR and the O’Fallon Group were not parties to those agreements and therefore were not bound by them. Thus, the Court upheld the trial court’s denial of arbitration for the breach of contract claims as to those two Defendants.
Next, the Court examined whether the claims for breach of fiduciary duty brought on behalf of FODG were bound by the arbitration clauses. The Court found that FODG was not a party to its own operating agreement because no signatories on the agreements indicated that they were signing on behalf of the LLC. As such, the claims brought on behalf of FODG were not bound by the arbitration clause and the Court denied the motion as to the breach of fiduciary duty claims. The Court then reversed the trial court’s denial as to the fraud cause of action because the individual Defendants and Plaintiff both signed the operating agreement and were bound by the arbitration provision contained therein.
Trover v. 419 OCR, Inc. contains important information for limited liability companies and the members of those organizations. The holding in this case indicates that an arbitration clause in the operating agreement of an LLC can only be enforced against those who were party, or are successor in interest to a party to the agreement. Additionally, it is important to note that an LLC itself is not a party to its own operating agreement without express language indicating that it is.