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One of the biggest advantages to settling a lawsuit outside of court is that it removes the uncertainty of going to trial. The plaintiffs are sure to get some financial benefit, rather than risking it all at trial, and the defendants often pay a lower amount than they would have had to pay if they had left it up to a jury. Both parties get to avoid the time, expense, and hassle involved in pursuing a legal dispute that has the potential to drag on in the courts for months or even years. This is why most class action lawsuits settle before ever reaching court.

But if the parties reach a settlement agreement and one or more of the plaintiffs don’t agree with the terms of the agreement, they can choose to opt out of the class. Plaintiffs who decide not to opt out, and take the settlement, are usually prevented from filing similar lawsuits against the defendant in the future as part of the settlement agreement. It’s for this reason that, when someone decides to opt out of a class, it’s often because they want to reserve their right to sue the defendant. In most cases, they think they can get better terms, either by pursuing a lawsuit all the way through a trial or pushing for a more favorable settlement agreement.

This is the case with the recent class action copyright lawsuit against Spotify. The music streaming company recently reached a settlement agreement worth $112.55 million with a class of more than 535,000 plaintiffs. After the class members were notified of the settlement and its terms, about 1,200 members opted out of the class. Continue reading ›

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The past few years of Shari Redstone’s life sound like something taken directly from a soap opera after her aging father, Sumner Redstone, fell ill and required a full-time nurse to take care of him.

You probably know Sumner Redstone as the media mogul who ran the National Amusements theater chain (which owns CBS) for more than half a century. When he got sick, Shari kicked his long-time girlfriend out of his mansion, moved in herself, and took control of her father’s media company. Sumner’s girlfriend is suing Shari for having kicked her out and allegedly turned Sumner against her.

But now Shari Redstone has a bigger problem on her hands. Leslie Moonves, the CBS chief executive, has led a sort of a coup against her with other CBS directors. Moonves and the board of directors are suing Redstone for allegedly acting in her own best interests, even when it allegedly went in direct opposition to the best interests of the company’s shareholders. As a result, they are seeking to dilute Redstone’s voting rights as the majority shareholder of CBS and to strip her of much of her control over the media company.

Since Redstone has the power to fire anyone from the board of directors, why would they do all this at the risk of their own jobs? Continue reading ›

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The Illinois Guidelines for Statutory Maintenance are Inapplicable in Proceedings to Modify Maintenance that were Ordered before the Amendment Went into Effect.

Currently, maintenance in Illinois is governed by 750 ILCS 5/504 of the Illinois Marriage and Dissolution of Marriage Act. Recently, Section 504 was amended, and the amendment became effective on January 1, 2018, which increased the combined gross annual income to be less than $500,000 and has a guideline for the duration and amount of maintenance. If a couple that is going through a divorce has a combined annual income in excess of $500,000, then the court can set maintenance at any amount and for any duration as it deems necessary and appropriate. Also, when the couple has a combined gross annual income that is less than $500,000, the court can deviate from the guidelines of Section 504, but the court must make a special finding and disclose its special finding.

Recently, the Illinois Appellate Court decided, if a divorce took place prior to the Section 504 amendment and then a party petitions the Court after the amendment went into effect, the new guidelines do not apply to the modification of maintenance.

This groundbreaking case involved a Petitioner who filed for a dissolution of marriage in 2005, which is well before the amendment to Section 504 went into effect. At the time of Petitioner filing for divorce, the couple was married for nineteen years and nine months (just shy of twenty years). In 2007, the district court dissolved the parties’ marriage and in the court’s Order it ordered that the former husband must pay his former wife maintenance. Also, the court’s order disallowed modification of the maintenance award until the former wife reached the age of sixty-five. Later, both parties filed petitions to modify the maintenance award. The district court found that the Section 504 amendment should be applied to the former couples’ modification of the maintenance award. It was decided by the district court that the former husband’s petition for a reduction of maintenance was denied and that the former wife’s petition for an increase of maintenance was granted due to a substantial change of circumstances of the party’s financial situation. The former wife was granted permanent maintenance by the district court (which under Section 504 would typically only be awarded to a spouse that was in a twenty or more-year marriage). Continue reading ›

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While online tools can be a great way for consumers to gain information on products before they buy, they can be a hassle for sellers. Brick-and-mortar retailers have long complained about shoppers coming in to look over their merchandise before buying it for a lower price online. There have also been multiple scandals involving books and other goods that go on sale at one retailer, and because of Amazon’s automatic price check, they go on sale for that same price on Amazon. This can then cause a domino effect of other retailers selling the product for the lower price, which some people claim devalues the items being sold.

But what about houses?

Selling a house is problematic enough on its own, but now homeowners looking to sell have to deal with buyers who use Zillow’s online tool, Zestimate, to get an estimate of the price of their house. Zestimate takes the information on a house and uses a proprietary algorithm to calculate an estimated home price. Of course, Zestimate only has access to information on the house that’s publicly available, whereas an appraiser would have access to much more information on a property, making their appraisal different from Zillow’s online estimate.

Nevertheless, buyers come in expecting to pay the amount they saw on Zillow, even though the site warns consumers that the number is only an estimate and homes might very well sell for more or less than the amount provided by their online tool. It is not an appraisal and most of its estimates have a 4.6% error rate, meaning the price it gives could be 4.6% more or less than the actual price of the property. Zillow says the estimate is meant as a starting point, not a final number. Continue reading ›

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In Illinois when property is at issue during a divorce the court must first decide if the property in question is marital property or non-marital property. Then, the court can make the decision of who should get what or how the property should be split-up.

The Illinois Marriage and Dissolution of Marriage Act defines what property is to be considered “marital property” or “non-marital property”. 750 ILCS 5/503(a). For example, any property that is acquired as a gift, legacy, or in exchange for such property is considered non-marital property and would be the spouse’s sole property. The court in a contested divorce should not consider non-marital property when making a decision of who should get what at the end of the divorce.

Recently, the Appellate Court concluded that a former spouse’s real estate, which his nonmarital business was located on, was marital property. The business itself was nonmarital property, but the land where the business was on, was considered marital property. Continue reading ›

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Maintenance previously referred to as “Alimony” had a recent revamp in Illinois. Maintenance in Illinois is governed by 750 ILCS 5/504 of the Illinois Marriage and Dissolution of Marriage Act. Under the previous version of Section 504 the maintenance guidelines only applied to divorces when the couple had a combined gross annual income of less than $250,000. Section 504 was recently amended, and the amendment became effective on January 1, 2018, which increased the combined gross annual income to be less than $500,000.

As most couples in Illinois have a combined gross annual income that is less than half-a-million dollars, the amendment to Section 504 affects the vast majority of couples that are filing for divorce here in Illinois. If a couple that is going through a divorce has a combined annual income in excess of $500,000, then the court can set maintenance at any amount and for any duration as it deems necessary and appropriate. When the couple has a combined gross annual income that is less than $500,000, the court can also deviate from the guidelines of Section 504, but the court must make special findings and disclose the special findings. Continue reading ›

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Although no one legally needs a reason to fire a consultant, it’s another matter entirely to allegedly defame that consultant to other potential clients. According to a recent defamation lawsuit, that’s allegedly what happened after Tim Semmerling was fired from the U.S. Department of Defense’s Office of Military Commissions.

Semmerling, who lives in Illinois, opened his own mitigation services practice in 2010, called The Mercury Endeavor LLC, which specializes in working with Arabs, Muslims, and the military.

Semmerling said he was contacted in June of 2011 by Cheryl Bormann, another Illinois resident who is a qualified lead counsel attorney for death penalty litigation. At the time, Bormann was working as a defense attorney for a member of al-Qaeda who was being held at Guantanamo Bay while facing charges pertaining to the terrorist attack that happened on September 11, 2001.

According to the complaint, Bormann allegedly offered to hire Semmerling as the client’s mitigation specialist and instructed him to not accept any offers from other defense teams.

Semmerling said he started working for the client in October of 2011 when he traveled to Washington to meet with Bormann and the rest of the capital defense team. In July 2012, he made another trip to Washington for an interview with agents of the CIA so he could get the security clearance required to serve his new client. According to the complaint, Bormann and Michael Schwartz, a U.S. Air Force officer who was acting as an attorney on assignment at the Military Commissions Defense Organization, allegedly told Semmerling to be open and honest with the CIA operatives, and so when they asked questions about his personal life, Semmerling allegedly did not hold back from talking about his long-term, romantic relationship with another man. Continue reading ›

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A recent ruling in the Illinois Appellate Court decided the controversial issue if a father was an unfit parent and should have his parental rights terminated.

The minor child A.F., allegedly suffered a fracture to her right femur and her left tibia by means other than accidental while in the care of her father. The State of Illinois filed charges against her father for subjecting A.F. to an environment injurious to her welfare due to the fractures the child suffered. Then, the State filed supplemental charges against A.F.’s father based on the allegations that “…the father having disregard for the minor’s pain or risks of moving the minor’s fractured limb.”

A.F.’s father stipulated to the allegations of the original petition, and that they could be proved by the preponderance of the evidence. That same day, the trial court entered an order finding that A.F. was neglected. Soon thereafter, the trial court entered an order finding the father unfit based on the physical abuse of A.F.

Also, these injuries that A.F. suffered gave rise to criminal proceedings against A.F.’s father. Initially, the father was charged with a Class X Felony of aggravated battery to a child, but based on a plea agreement, the father plead guilty to a Class 2 Felony of aggravated domestic battery. Based on the plea agreement, the Class X felony charge was dismissed, and the father was sentenced to a term of seven years in the Illinois Department of Corrections.

Then the State petitioned the court to have the father’s paternal rights terminated. The father’s paternal rights were petitioned to be terminated under 750 ILCS 50/1(D)(i), because the father was convicted of Aggravated Domestic Battery to a Minor. The father filed an answer to these claims and admitted to his conviction but claimed that he was rehabilitated and denied that it was in the best interest of the child to have his parental rights terminated. Continue reading ›

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Janitors can be seen as caretakers of a building; custodians. Their role can be either undermined or seen as part of what makes the world go around. They have also hit headlines recently when it comes to the push to have their pay raised. Their recognition has made its way into the realm of Contract Law and that trend is continuing. Janitor tests ended up setting the standard in non-compete cases and situations.

The Janitor Test and Non-Compete Agreements 

A non-compete agreement is a contract between an employee and an employer in which the employee agrees not to enter into competition with the employer during or after employment. These legal contracts prevent employees from entering into markets or professions considered to be in direct competition with the employer. Restricting covenants have had their application in the utilization of a concept that some courts and litigants refer to as the “janitor analogy” or the “janitor test,” when questioning the breadth and scope of a non-compete provision. The test has evolved over the years, which shows us that janitors and the test will stay.

The first case we can look at is Reading & Language Learning Center v. Sturgill (2016). That case arguably had an overbroad, unenforceable agreement because the agreement did not clearly define the capacity in which scope of services could be provided. The speech therapist could even be prohibited from services other than the function in which that person worked previously, including but not limited to, selling furniture, providing cleaning services or plan school functions.

This line of reasoning was also applied in Distributor Service, Inc. v. Stevenson (2014). The Court stated, “[t]he bottom line is that the plain language of the Non-Compete Provision would prohibit Mr. Stevenson from being an ‘employee’ of any entity who engages in ‘Competitive Business Activity,’ whether he is in sales, works as a janitor, or maintains the second employer’s lawn. Thus, it is overbroad and unenforceable.”

When scope was limited, a “janitor analogy” did not go far because the scope of services was limited to areas in which that person had worked previously. The confidential information could, therefore, be used.

The more recent case of Medix Staffing Solutions, Inc. v. Dumbrauf (2018) had “janitor clauses”. It just goes to show that their use is another example of why these sorts of clauses can prove costly to employers. Courts will even be reluctant to want to modify them. On its face, the clause excluded an employee from taking any position with another company that engages in the same business, without regard to whether that position is similar to the prior position held. Accordingly, it was argued that the covenant was “too restrictive” and that the “covenant bars him from taking positions with those companies extend beyond roles that were similar to those he previously held to any position whatsoever at other companies in the industry.” The argument extended so far as to say that he couldn’t even work as a janitor for another company. The question of the justification of broader restrictions vs. legitimate business interests was the main crux of in which way the court was likely to lean. Continue reading ›

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Anyone who thought the story of Stormy Daniels’s alleged affair with Donald Trump would blow over quickly should think again. Not only is Daniels not going anywhere, but she’s drawing other people into the scandal, including Keith Davidson, her former attorney.

Davidson represented Daniels in the negotiations between her and Trump for the non-disclosure agreement she signed regarding the affair she and Trump allegedly had in 2006. Under the terms of the non-disclosure agreement, Daniels was to keep quiet about the affair in exchange for $130,000.

Daniels kept her end of the deal for the first five years. Then, in 2011 she tried to sell the story of the affair to a magazine, which had agreed to pay her $15,000 for the story. But Trump’s attorney, Michael Cohen, allegedly threatened to sue the magazine, which backed out and never paid Daniels for the story.

Daniels said she was also threatened by a man in a parking lot while she was with her daughter, who was an infant at the time. The man allegedly told Daniels to leave Trump alone, saying it would be “a shame” if anything were to happen to her.

Although that kept Daniels quiet for the next five years, she has since come out and spoken publicly about the affair she allegedly had with Trump all those years ago.

At first, Daniels merely hinted at the possibility of an affair and refused to explicitly confirm or deny its existence. She received lots of media attention and was invited to be on various talk shows, but she consistently cited her non-disclosure agreement as the reason she could not directly talk about the alleged affair. It wasn’t until a few months ago that Daniels started talking more openly about the affair and its aftermath, claiming the non-disclosure agreement was invalid because Trump never actually signed it. Continue reading ›

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