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Congress is currently considering two new bills that take aim at the practice of requiring consumers to agree to resolve all disputes through binding arbitration and including class action waivers in consumer contracts. If passed and signed into law, the laws could dramatically change the way businesses contract and resolve disputes with consumers.

The first bill being considered is the Forced Arbitration Injustice Repeal Act (“FAIR Act”). Introduced by Senator Richard Blumenthal of Connecticut in the Senate (S. 620) and Representative Hank Johnson of Georgia in the House (H.R. 1423), the FAIR Act seeks to amend the Federal Arbitration Act (“FAA”), 9 U.S.C. §1, et seq., and would prohibit the inclusion of mandatory arbitration clauses in contracts with employees and consumers. Continue reading ›

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In suspending attorney Joel Brodsky from practicing in federal court in Chicago for a year, the Executive Committee held:

By clear and convincing evidence, based on the same misconduct found by Judge Kendall in the Tywman case, the Executive Committee finds that Joel Alan Brodsky violated the following American Bar Association Model Rules of Professional Conduct:

A. Rule 3.1: A lawyer shall not assert an issue unless there is a basis in law and fact that is not frivolous.

Continue reading ›

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Earlier this month, the Supreme Court hear arguments in a case that will decide the fate of a federal prohibition against granting trademark protection to immoral or scandalous material. The case Iancu v. Brunetti involves a lawsuit initiated by Los Angeles street artist Erik Brunetti who sought to challenge the U.S. Patent and Trademark Office’s decision not to register the trademark for his “FUCT” clothing line. His application had been denied, as deputy solicitor general Malcolm Stewart, who was defending the law, delicately put it, because it “would be perceived by a substantial segment of the public as the equivalent of the profane past participle form of. . . perhaps the paradigmatic word of profanity in our language.”

The U.S. Court of Appeals for the Federal Circuit struck down the century-old ban on granting trademark protection to “scandalous” and “immoral” trademarks reasoning that the ban constituted a First Amendment violation. In its December 15, 2017 decision, the Federal Circuit found that the board was correct in determining that the trademark was immoral or scandalous but that the statute’s “bar on registering immoral or scandalous marks is an unconstitutional restriction of free speech.” The Department of Justice wants the Supreme Court to reverse that decision.

The Supreme Court expressed disdain for the public display of vulgarity but seemed reluctant to use federal trademark law to stop it. The government cannot stop Brunetti from selling his wares, Solicitor General Noel J. Francisco told the court in the government’s petition and the Justice Department conceded at oral argument, also taking time to highlight the fact that Brunetti’s clothing was available even in children’s and infants’ sizes. The Justice Department attempted to frame the issue, however, not as to whether Brunetti could sell the clothing but whether the mark deserves federally registered status. Continue reading ›

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A former judge of the Illinois circuit court sued a reporter and a newspaper, accusing them of defamation and false light for publishing an article in which a law professor was quoted as stating that the judge was “corrupt as the day is long” in relation to the judge’s practices when handling asbestos litigation. The Illinois Appellate Court found that the statement was protected speech as an ordinary reader would consider it to be hyperbole.

Heather Gvillo, a reporter for the Madison County Record wrote an article in September 2014 concerning asbestos litigation which recently concluded in the Madison County circuit courts. The article quoted Darren McKinney, Communications Director for the American Tort Reform Association, who stated that Madison County’s reputation as an unfriendly venue for defendants in asbestos-related litigation was due to the actions of Nicolas G. Byron, then a judge in the circuit court. The article went on to state that McKinney believed Byron to be shamelessly plaintiff-friendly, and that Byron allegedly designed a docket in order to beat defendants into submission prior to going to trial, by scheduling trial slots for a single defendant in multiple cases on a single day, resulting in the inability of defendants to prepare for trial. This allegedly led to defendants deciding to settle their cases. Continue reading ›

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We obtained justice in a shareholder dispute and shareholder oppression case after Defendants hired a former partner of the judge.

The Sun-Times reported the story as follows:

Lawyer’s motives questioned after judge’s recusal 

Did lawyers for one side of a case hire the judge’s former law partner just so the judge would recuse himself?

It doesn’t matter — it “just simply looks bad,” Dorothy Kirie Kinnaird, presiding judge of the Cook County Circuit Court’s Chancery Division, wrote in a rare order knocking attorney Myron “Mike” Cherry off a case. Cherry is a heavyweight fund-raiser for Democrats such as former President Bill Clinton and 2004 presidential candidate
John Kerry.

Kinnaird found Cherry’s 11th-hour entry into the case of Yvonne DiMucci vs. Anthony DiMucci suspicious because the judge in the case, Peter Flynn, practiced law with Cherry for 23 years as the firm of Cherry & Flynn. And Cherry’s entry into the case just two days after Flynn ruled against Anthony DiMucci on some motions prompted Flynn to recuse himself.
Yvonne DiMucci’s lawyers suggested that could have been the goal of Anthony DiMucci’s’ attorneys. Yvonne alleges her brother-in-law, Anthony, froze her out of a business in which he and her late husband, Salvatore DiMucci, were equal partners. The case has dragged on for six years.

“The court believes that the filing of the appearance by Mr. Cherry under the circumstances of this case constitutes the appearance of impropriety and that no objective, disinterested observer would perceive otherwise,” Kinnaird wrote. “This court is specifically not finding that Mr. Cherry entered the case in order to force Judge Flynn’s recusal or in an attempt to
incur favor with him.” However, Kinnaird wrote, given that Flynn recused himself the last time Cherry was on a case, “a persuasive argument
can be made that . . . Mr. Cherry should have known that such a recusal would occur.”

Kinnaird called it “egregious” for Cherry to file his appearance on behalf of Anthony DiMucci without getting Flynn’s
permission, a sentiment echoed by other Chancery Court judges. Judges rarely, if ever, refuse to allow an attorney to join an existing legal team for a case, unless there appears to be
some conflict of interest, as charged in this case. Cherry did not appear in court to file his appearance as Kinnaird said is the custom. Rather, he sent Flynn a copy of the notice that he was joining the case.

“This court has never seen or heard of a situation in the Chancery Division where an attorney has filed an appearance without leave of court and then sent a copy of that appearance by messenger directly to the judge,” Kinnaird wrote. Kinnaird’s solution was to strike Cherry’s appearance from the record and transfer the case back to Flynn. Cherry can
seek Flynn’s leave to join the case. She ascribes no “ill motive” to Cherry or anyone else in the case. Cherry respectfully disagrees with Kinnaird’s ruling, saying the law allows anyone to have the attorney of his choice.

Cherry’s reading of the law is backed by Northwestern University Law Professor Steve Lubet and former Cook County Judge Brian Crowe, who authored an affidavit served on the court.
The law further states that a judge need only recuse himself for three years after practicing with a lawyer. Flynn left Cherry’s firm five years ago. Kinnaird said some Chancery Court judges continue to recuse themselves from cases involving their old firms 20 years after leaving them. Continue reading ›

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Smollett’s Alleged Attackers Sue His Attorneys for Defamation

The case of the alleged attack against Jussie Smollett continues to get even more strange. After an outpouring of love and support following an allegedly racist and homophobic attack on Jussie Smollett in Chicago, in which his face was scratched and a noose was tied around his neck, the media turned on Smollett after the Chicago police department found evidence that the attack had been staged and Smollett had been in on it the whole time.

Despite Smollett’s initial claim that his attackers had been white men wearing MAGA hats, the Chicago police department found video surveillance footage of the two alleged attackers purchasing the items used in the attack. That happened just hours before the attack happened, and instead of white men, the video showed two black men who turned out to be Olabinjo and Abimbola Osundairo, two brothers who both had connections to Smollett through the show Empire, on which Smollett stars. Further condemning Smollett and his alleged conspirators was the evidence the Chicago police department says they found showing that Smollett and the Osundairo brothers were in contact with each other shortly before and shortly after the alleged attack.

What sealed the deal for the investigation was getting the Osundairo brothers into custody, where they confessed to conspiring with Smollett to stage the attack.

Smollett was charged with filing a false report, but he and his attorneys maintain he was innocent and the attack was real. The prosecutors quickly dropped all charges against him, even as they insisted they could prove the attack had been staged. That’s common when the two parties agree to a settlement in which the defendant agrees to pay a certain amount without admitting to any fault, but that didn’t happen in this case, leaving many people scratching their heads as to what could have prompted the prosecutors to drop all charges.

Meanwhile, Smollett has been giving interviews to the press doubling down on his version of the story, in which the Osundairo brothers attacked him.

Well, the situation just got even more interesting following a defamation lawsuit filed by the Osundairo brothers against Smollett’s attorneys: Mark Geragos, Tina Glandian, and the Geragos & Geragos Law Firm. Continue reading ›

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Our settlement for our client in a Chicago Libel, Defamation and Slander Suit was featured in the Cook County Record.
Our clients give us five star reviews for our work in Oak Brook and Chicago Libel Defamation and Slander cases:

Gerald Modory

 7 weeks ago

I really appreciate this opportunity to highly recommend Peter Lubin of the Law Offices of Lubin and Austemuehle. I recall in 2016 considering that I might be involved in litigation. This lead me to search Google for a lawyer as people might do. I saw the law offices of Ditomasso and Lubin which specialized in the problem I had. I called Mr. Lubin by phone and left a message. He returned my call a short time later. We discussed my case over the phone and I was impressed with Mr. Lubin’s insight and experiences. Although I really didn’t know him my “instincts” told me this was the right person. Unfortunately, my fears came into true and I was eventually sued in federal court months later. When I contacted Mr. Lubin again there was no hesitation that he would take the case. He guided me through the initial paperwork and fees and then did all the required notifications involving my insurance company. Mr. Lubin also asked me to send him the paperwork I had and reviewed same. He then started the process of representing me in court. He filed his appearance as the attorney of record and then set about defending me. Not only did Mr. Lubin defend me in the lawsuit, per se, but he also worked on dealing with my insurance company. During this process Mr. Lubin contacted me numerous times via text, phone, and email. He and his staff were well prepared for the work that was required. Mr. Lubin made me feel like I was the only one that he was representing. He was thoughtful, professional, and particularly mindful of how all this would be affecting me personally and financially. When it came to his fees he was considerate that monies would have to come from me and not my insurance company. He specifically counseled me to talk to my wife and family to see how his fees could be paid. He was never pushy about this. He allowed me to pay him a set amount over time. When I got discouraged he consistently encouraged me to have faith that I would prevail. He never promised that I would win but he did promise that he would not give up or abandon me. This was absolutely true. I also want to say that Mr. Lubin could not have done all this without his associates and staff. The staff are fantastic. I got updates from them frequently, and yes, I also got the invoices. But they were very kind about it. I want to let you know that Mr. Lubin was successful in defending me when I was sued. A federal judge dismissed the case, I believe, as a direct result of the superior legal briefs that Mr. Lubin and his staff developed. Mr. Lubin is a very aggressive attorney. Aggressive in the sense of defending his clients. I didn’t sleep so well during all this time, but I did sleep better knowing that Peter Lubin and his superior staff were working for me. Peter Lubin is a seasoned, experienced, and successful Libel, Defamation and Slander lawyer. In my opinion he is the best Chicago area Libel, Defamation, and Slander lawyer that anyone could have. Gerald Modory

Settlements end diamond wholesalers’ fraud, defamation disputes; lawyer accused of ‘extortion ring’

By Jonathan Bilyk | Aug 24, 2018

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A legal dispute, in which one diamond wholesaler allegedly falsely accused another of fraud, has ended in a settlement to resolve a potential multi-million dollar defamation lawsuit, amid accusations the plaintiff in the original fraud suit was acting in coordination with an attorney facing a racketeering action over claims he has participated in an alleged scheme to use alleged fraud lawsuits to allegedly pressure jewelers into settlements.

On Aug. 17, a Chicago federal judge signed off on the settlement deal between diamond wholesalers David Cohen and Ofer Mizrahi. The case was terminated on Aug. 20.

The notice of voluntary dismissal filed in the U.S. District Court for the Northern District of Illinois does not discuss or specify the terms of the dismissal.

However, in a letter to the Cook County Record, an attorney for Mizrahi said the settlement included a “full retraction and apology for all claims made” by Cohen against Mizrahi in an initial lawsuit filed in Cook County court.

LAW_Lubin_Peter
 Peter Lubin    DiTomasso Lubin

The matter had landed first in the courts in January, when Cohen, through his attorney David Hammervold, of Nashville, Tenn., filed a complaint accusing Mizrahi of selling him a diamond without informing Cohen the diamond had been internally laser drilled, was thus worth less than he had been led to believe.

Cohen had demanded at least $1.5 million in damages in that action.

That case was also ultimately settled and dismissed with prejudice on Aug. 15, but not before Mizrahi through his attorney, Peter Lubin, of the firm of DiTomasso Lubin Austermuehle P.C., of Oakbrook Terrace, asked the judge in June to sanction Cohen and his attorney for bringing the lawsuit in the first place.

In that motion for sanctions, Mizrahi’s attorney said the lawsuit was brought in an effort to “extort” a settlement from Mizrahi, after a customer of Mizrahi’s decided to directly deal with Mizrahi, rather than use Cohen as a “second middleman,” exacerbating what Mizrahi said was Cohen’s declining business, which “was losing tens of thousands of dollars a year” before the incident at the heart of Cohen’s lawsuit.

Later in June, Mizrahi followed his Cook County court motion for sanctions with a defamation lawsuit filed in Chicago federal court.

In that lawsuit, again filed through attorney Lubin, Mizrahi detailed accusations against Cohen and his attorney, Hammervold, who they said is accused in a separate action pending in federal court in the U.S. Fifth Circuit of participating in an “extortion ring” in which the lawyers “allegedly use the lawsuits they file as a jumping off point to begin defamatory smear campaigns against … jewelers’ businesses” to secure settlements that pay the lawyers “contingency fees.”

In the defamation lawsuit, Mizrahi accused Cohen and Hammervold of using “these same tactics” in the Cook County case, including issuing a “defamatory press release” which was “eventually picked up by both national and international media outlets,” accusing Mizrahi of harming his business.

“In fact, there were no lost reputation damages and thus there could not possibly be punitive damages of anything more than a few thousand dollars and certainly not the $1.5 million falsely represented by Cohen,” Mizrahi asserted in his defamation complaint.

In the defamation lawsuit, Mizrahi had requested actual damages of at least $2 million, and punitive damages of at least $6 million.

Continue reading ›

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Our clients give us 5-star reviews for winning judgments or obtaining favorable settlements for them in used car fraud cases where they could have lost 10s of thousands of dollars:
****** 6 weeks ago
Continue reading ›

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Litigation can be an expensive proposition. It used to be that a company with a great claim may not have had the ability to assert that claim because it lacked the ability to pay for the litigation it would take to enforce its rights. Commercial litigation funding has changed this.

Commercial litigation funding (also known as litigation finance) is the provision of capital to a plaintiff in exchange for a portion of any future settlement or judgment. Litigation funding is not a loan because it is non-recourse, meaning the plaintiff does not owe anything unless it recovers in the underlying lawsuit. It is this non-recourse aspect of litigation funding that causes some companies that have the means to fund their own litigation to turn to litigation funding as a means of managing the risk of litigation. There are myriad other reasons companies turn to litigation funding as well. It helps businesses avoid tying up capital that can be used as working capital during the pendency of the litigation. It reduces the risk of a company being forced to accept a low-ball settlement offer as a result of running out of money to fund a lawsuit. On a related note, it grants access to justice by permitting the proverbial Davids take on the proverbial Goliaths without fear of being spent out of the lawsuit. It also allows attorneys to take on cases that they wouldn’t otherwise be able to take for clients who have great claims but do not have the money to fund a protracted lawsuit. Continue reading ›

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Where an asset purchase agreement between two companies did not contemplate the forfeiture of an entire reserve payment as a result of an audit of assets taking one month longer than originally contemplated, and such a forfeiture would result in a windfall for one of the parties.

ARC Welding Supply Co. was a distributor of compressed gases and welding supplies in Vincennes, Indiana. As part of an asset purchase agreement American Welding & Gas, Inc. paid ARC $1,534,796.06 for ARC’s assets, of which the primary assets where its asset cylinders. Some cylinders were already rented to ARC’s clients, so determining the number of asset cylinders that could be transferred from ARC to American was difficult. As a result, American withheld $150,000 for 180 days to protect against a shortage of up to 1,200 out of a potential 6,500 cylinders.

American conducted an audit of the number of cylinders, beginning with those at ARC’s facility, and then those that were rented to existing clients. American did not visit every client, only those for whom rental records could not clearly indicate the number of cylinders in the client’s possession. The agreement originally specified that settlement would occur on or before April 15, 2015. Ron Adkins, American’s President, and CEO, informed ARC’s owner, Charles McCormick, that the audit was taking longer than expected and the overall count was shorter than expected. As a result, American wanted to extend the time for the audit as a means of locating every possible cylinder. At the conclusion of the audit in May 2015, the final number of cylinders was 4,663, 1,837 short of the estimated total of 6,500. As a result, American did not pay the $150,000 that was held back, and ARC filed suit. Continue reading ›

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Chicago Office
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Phone: 630-333-0333
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Phone: 630-333-0333 Please direct all mail correspondence to our Oakbrook Terrace address.
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