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J&B Blog Archives

The Illinois Cannabis Regulation and Tax Act: Business Formation, Licensing and More

I. Social Equity in the Cannabis Industry In late May 2019, the Illinois House and Senate approved the Cannabis Regulation and Tax Act (the “CRTA”), which Illinois Governor J.B. Pritzker has already signed into law. The CRTA is set to go into effect on January 1, 2020. The CRTA creates a social equity program to   Continue Reading »

“Stay In Your Lane:” SCOTUS Affirms Third-Party Defendants Can’t Remove Class Action Lawsuits from State to Federal Court

Overview: A bank filed a debt-collection action in state court against the defendant, alleging he was liable for charges on a hardware store’s credit card. The defendant responded with an individual counterclaim against the bank, and filed third-party class-action claims against the hardware store and a water purification company. The defendant’s claims alleged that the   Continue Reading »

In Construction Site Insurance Coverage Dispute, Silence on Subcontractor’s Potential Negligence Sufficient to Create Duty to Defend

Overview: The general contractor for a construction project at a corporate office site hired a subcontractor to work on escalators at the construction project. The subcontract agreement required that the subcontractor name the general contractor and the owner of the corporate office as additional insureds under its insurance policy. Subsequently, an employee of the subcontractor   Continue Reading »

Illinois SB 1596 and Its Implications on Latent Injury Cases

The Illinois legislature has passed Senate Bill 1596 (SB 1596) and forwarded it to Governor Pritzker for signature.  This bill amends the Illinois Workers Compensation Act and Occupational Diseases Act to remove the Act as an injured worker’s exclusive remedy against his or her employer where recovery under the Act is barred by the statute   Continue Reading »

Has McKinney Changed the Face of Proof of Proximate Causation in Asbestos Litigation in Illinois?

The case of McKinney v. Hobart, 2018 IL App (4th) 170333, may be again changing the landscape of proximate causation proof in asbestos exposure disputes in Illinois. Recent Key Rulings In Thacker v. UNR Industries, the Supreme Court of Illinois established, “[t]o show causation in an asbestos case, a plaintiff must produce evidence of exposure   Continue Reading »

Defendant Floats “Sophisticated Intermediary Doctrine” in Hopes of Quelling “Popcorn Lung” Class Action Lawsuit. Seventh Circuit Reverses on the Duty to Warn Claim.

The duty to warn usually cannot be delegated, but in Indiana, an exception to this rule exists.  In this case, the defendant applied the “sophisticated intermediary doctrine” in hopes of addressing one of four counts brought against it in a product liability lawsuit. The district court granted summary judgment in favor of the defendant on   Continue Reading »

Biometric Information Privacy Act - Illinois Supreme Court Latest to Tackle Reach of the State's Controversial Act

In 2008, the Illinois legislature passed the Biometric Information Privacy Act (BIPA) to regulate businesses that use biometric data, such as fingerprints and retinal scans, for “streamlined financial transactions and security screenings.”[1] BIPA was drafted in the aftermath of the Pay By Touch bankruptcy in the mid-2000s.[2] Pay By Touch, a biometric payment system that   Continue Reading »

New Developments In Insurer Liability For Excess Judgments In Illinois

On March 15, 2018, the United States Court of Appeals for the Seventh Circuit issued its opinion in Hyland v. Liberty Mutual Fire Insurance Company, Case No. 17-2712. In Hyland, the dispute involved insurer liability — the amount an insurance carrier was responsible to pay where the insurer denied coverage without seeking a declaratory judgment   Continue Reading »

Genetics - The Future is Now

Johnson & Bell Shareholders, D. Patterson Gloor and Stephen P. Ellenbecker, along with Law Clerk, Stephanie Flowers, have developed this primer on the burgeoning area of genetics and its interplay in litigation.  The article touches on the considerations plaintiffs and defendants should factor into genetic litigation strategies, and the court’s familiarity with genetic issues. Genetics:   Continue Reading »

I Hear You Knocking, But You Can’t Come In

By the time you hear the media knocking on your door, it is too late to develop a crisis communication plan. Keeping the door closed is not an option. What is your plan for addressing media and other inquiries resulting from a catastrophic accident or other event? Media attention to your company and your response   Continue Reading »

Can The Underlying Plaintiff Collect More Than The Amount of the Underlying Judgment in Third Party Failure to Settle Cases?

In the typical third party bad faith case, the underlying plaintiff’s attorney makes a policy limits settlement demand, the insurer does not agree to pay its limits, or does not do so in the time the plaintiff’s attorney thinks it should, and the plaintiff then obtains a verdict substantially in excess of the policy limits.   Continue Reading »

The GST Trust Tax Trap

The issues faced by trust and estate lawyers sometimes include complex tax analysis. One of those issues arises when an irrevocable trust skips a generation with trust assets going directly to grandchildren. That event may trigger a tax that is known as the federal generation-skipping transfer (GST) tax. The GST tax can be partially avoided   Continue Reading »

Know Your Adversary: Rules for Claims Against Federally Funded Health Centers

In 2014 alone, more than 1,300 federally funded health centers employed more than 11,200 physicians and more than 9,000 medical staff workers who treated approximately 23 million patients. Today, one in every fourteen people living in the United States relies on a federally funded health center for primary medical care. Further, the United States Department   Continue Reading »

Illinois Supreme Court Rejects Employee’s Direct Action Against Employer for Claimed Asbestos Related Illness

In a much anticipated opinion, on November 4, 2015 the Illinois Supreme Court found that the provisions of Illinois’ Workers’ Compensation Act and the Workers’ Occupational Diseases Act (“the Acts”) barred an employee from bringing a direct civil action against his employer for injuries allegedly caused by exposure to asbestos. In Folta v. Ferro Engineering,   Continue Reading »

Rapid Response to Data Breach Required to Avoid Liability

American companies have been slow to realize that they are a potential target of a cyber-attack.   Last year, FBI Director, James Comey remarked that “there are two kinds of big companies in the United States.  There are those who’ve been hacked….and those who don’t know they’ve been hacked…” But the risk of cyber-attack is not   Continue Reading »

Protection Reflection: The Supreme Court Rules Allow Partners to Limit Their Liability

The future ain’t what it used to be. — Yogi Berra Many lawyers are still unaware that effective July 1, 2003, our Supreme Court promulgated rules which conferred protection from professional liability in certain circumstances. Illinois Supreme Court Rules 721 and 722 allow lawyers in Illinois to protect themselves against vicarious liability for legal malpractice   Continue Reading »

Debt Collectors Beware: Venue Provision of FDCPA Reinterpreted

Neither a borrower nor a lender be …   -Shakespeare   Recent federal court decision reinterprets the Fair Debt Collection Practices Act (FDCPA) and may create venue defense for current or future debtor defendants in debt collection suits. In Suesz v. Med-1 Solutions, LLC, 2014 U.S. App. LEXIS 12562 (7th Cir. 2014), the Seventh Circuit recently reinterpreted the   Continue Reading »

First District Illinois Appellate Court Allows For Direct Common-Law Action Against Employer For Asbestos-Related Disease

On June 27, 2014, in a case of first impression, the Illinois Appellate Court, First District, delivered a decision allowing an employee to sue his employer outside of the Workers’ Compensation Act and the Workers’ Occupational Diseases Act (“the Acts”) where the employee first learned of his injury after the expiration of the statute of   Continue Reading »

HACKER PREVENTION: KEEPING CLIENT-SENSITIVE ELECTRONIC INFORMATION CONFIDENTIAL

I’ve looked at clouds from both sides now   From up and down and still somehow       It’s cloud’s illusions that I recall      I really don’t know clouds at all …                       Judy Collins Back in July of 2011, we warned of a then popular e-mail/fraudulent check scheme whereby lawyers would receive e-mails from alleged potential   Continue Reading »

NOT ONLY SHAREHOLDERS GET PIERCED

Omittance is no quittance.          Shakespeare How many lawyers assist a client in forming a corporation, but merely assist in filing the annual reports and do nothing else?  Failure to advise of the risk associated with this minimal approach may now more likely result in veil-piercing to reach the client for individual   Continue Reading »

Illinois Appellate Court Confirms Lender's Remedies in Mortgage Foreclosure Action

A recent Illinois Appellate Court decision from the first district settled the question of whether or not a party to a mortgage may sue under the promissory note and separately under a mortgage foreclosure action.  The Court in Turczak v. First American Bank, 2013 IL App (1st) 121964 applied principles of res judicata to determine   Continue Reading »

ILLINOIS’ LIMITED LIABILITY IS UNLIMITED

In a case of first impression, a First District Panel of the Appellate Court of Illinois issued an opinion confirming immunity from liability arising from fraud under the Illinois Limited Liability Company Act (“LLC Act”) (805 ILCS 180/10-10). Careful lawyers must consider the Illinois law before forming an LLC in another state.  In Dass v.   Continue Reading »

Attorney Client Privilege: Dead Men Tell No Tales, But Their Agents Might

Estate planning often involves multiple professionals who must exchange confidential information regarding their clients’ affairs. The Illinois Court of Appeals provides an insightful opinion regarding when such privileges terminate, who can waive them after the client’s death, and what actions, if any, would put confidential information “at issue” and thus make discoverable.  (This article also   Continue Reading »

Are Plaintiff's Class Action Lawyers Already Setting Up Shop For Violations of New CFPB Rules?

New Rule Affects Title Companies, Lenders, Mortgage Brokers and Borrowers As Consumer Financial Protection Bureau Finalizes “Know Before You Owe” Mortgage Forms. A final regulation that combines mortgage disclosures required under the Truth in Lending Act (TILA) and the Real Estate Settlement Procedures Act (RESPA), finalized by the Consumer Financial Protection Bureau (CFPB), was released today. The   Continue Reading »

Self-Insured Retentions and High Deductibles: Their Impact on Insurers and Policyholders

In the current economic climate, first-dollar coverage has become a luxury that many commercial insureds can no longer afford. Although policies with large self-insured retentions and deductibles have always been available, they were frequently overlooked in the past when bottom lines were healthier and insurance premium costs were subject to less scrutiny. As more insureds   Continue Reading »

JURISDICTION OVER A FOREIGN DEFENDANT -- RECENT ILLINOIS DECISION WILL IMPACT COMPONENT PARTS MANUFACTURERS

I.  Synopsis Illinois Supreme Court in Russell v. SNFA, 2013 IL 113909 (April 18, 2013) finds specific jurisdiction over a foreign component part manufacturer, finding that its products were part of the marketing plan of the seller’s product.  What does this mean for component part manufacturers that have integrated marketing plans with the seller’s product?   Continue Reading »

PRODUCT LIABILITY CASE EVALUATION AND TRIAL STRATEGY CONSIDERATIONS - Part Three

In the final installment of his in-depth analysis of case evaluation and trial strategy, Johnson & Bell Shareholder, Charles P. Rantis, focuses on the sole proximate cause argument in product liability cases – withdrawing all affirmative defenses and trying the case on damages alone. (Read Part One and Part Two) Trial Strategy: Withdrawal of Affirmative Defenses   Continue Reading »

PRODUCT LIABILITY CASE EVALUATION AND TRIAL STRATEGY CONSIDERATIONS – Part Two

Following up his analysis of case evaluation and trial strategy in Part One of his three-part series, Johnson & Bell Shareholder, Charles P. Rantis, explores the potential benefits and challenges of using plaintiff’s contributory fault defenses in product liability cases. (Part Three) Trial Strategy: Defense Based on Plaintiff’s Contributory Fault The extent to which plaintiff’s   Continue Reading »

A COOK COUNTY FIRST MUNICIPAL DEPARTMENT PRIMER

Many lawyers have found themselves slightly confused while appearing in courtroom 1501 of the Richard M. Daley Center for the first time.  Courtroom 1501 is responsible for handling all First District Municipal cases in which a jury demand has been filed. These cases are typically personal injury lawsuits arising from motor vehicle accidents.  Unlike the   Continue Reading »

EMAIL COMMUNICATIONS BETWEEN ATTORNEY AND EMPLOYEE ON EMPLOYER-ISSUED COMPUTER USING PERSONAL WEB-BASED ACCOUNT ARE PRIVILEGED

Employees’ use of personal email accounts (e.g., Yahoo, Gmail, etc.) on employer-issued computers is standard practice in most work environments.  These email accounts come with personal identifications and passwords that are generally only known by the employee.  What many employees do not realize is that copies of nearly every web page they visit on their   Continue Reading »

ILLINOIS SUPREME COURT PROVIDES (SOME) CLARITY ON START OF STATUTE OF LIMITATIONS FOR LOSSES BY INVESTORS

Determining the start date for any statute of limitations can be difficult.  This is particularly true in cases of alleged financial exploitation or fraud.  In such cases, the damages themselves can often be difficult to determine, let alone pinpointing the moment in time when they began.  In the recentKhan v. Deutsche Bank AG decision, the Supreme   Continue Reading »

THE CHALLENGES OF LEGACY EQUIPMENT

American and European product manufacturers face many challenges operating in the international marketplace.  Foremost is the product liability lawsuit, which can challenge a manufacturer’s every decision, from the design and development stage, through sale of the product, and even for an undefined period thereafter.  A manufacturer’s potential liability for legacy equipment, i.e., older or prior   Continue Reading »

INSURERS BEWARE: ILLINOIS' FIFTH DISTRICT SCRUTINIZES POLICY LIMIT SETTLEMENT ISSUES

On May 22, 2012, Illinois’ Fifth District issued an opinion that insurers across the state should take immediate notice.   The opinion, entered in Kirk v. Allstate Insurance Co., No. 5-10-0573 (Ill. App. 5th Dist. 2012), highlights the importance of securing proper releases which fully protect their insureds from personal liability in matters involving policy limit payments.   Continue Reading »

Product Liability Case Evaluation and Trial Strategy Considerations -- Part One

In the first of three installments of his in-depth analysis of case evaluation and trial strategy, Johnson & Bell Shareholder, Charles P. Rantis, explores the critical importance of weighing intangible factors of a given case.  He argues that these factors can impact defense counsel’s trial strategy and tactics as much as a mathematical methodology assessment of   Continue Reading »

PRODUCT MANUFACTURERS' POTENTIAL LIABILITY FOR USERS' ALTERATIONS OF THE PRODUCT

Under Illinois law, a manufacturer’s liability for an allegedly defective product is determined by the condition of the product at the time that it left the manufacturer’s possession and control. Augenstine v. Dico Co., 135 Ill.App.3d 273, 481 N.E.2d 1225 (1985). Defects existing in the product at the time it leaves the manufacturer’s possession and   Continue Reading »

RECENT NORTHERN DISTRICT DECISION IMPACTS CONFLICT OF INTEREST CASES IN ILLINOIS

When Does a Conflict of Interest Exist Between an Insurer and Its Insured Under Illinois Law? Under Illinois law, when a conflict of interest exists between an insurer and its insured, the insurer must decline to defend the insured and, instead of participating in the defense, the insurer must pay for independent counsel for the   Continue Reading »

THE SEVENTH CIRCUIT CONFIRMS THE REQUIREMENT FOR EXPERT TESTIMONY UNDER THE "CONSUMER EXPECTATIONS" TESTS

A recent opinion from the United States Court of Appeals for the Seventh Circuit affirmed a district court’s order granting summary judgment in favor of a defendant-manufacturer when the plaintiffs failed to present expert testimony in support of their design defect case, prosecuted under the “Consumer Expectations” test. In Show v. Ford Motor Co., 2011 U.S.   Continue Reading »

JOHNSON & BELL NEWS OF NOTE

Practice group co-chair and shareholder Kevin G. Owens recently presided as Chairman of the ALFA International Product Liability Practice Group at the group’s seminar in Nashville, Tennessee.  The program, “Is the Next Verse the Same as the First…or Has the Tune Changed,” presented a variety of timely topics, including Enforcement of Indemnity Agreements with Foreign   Continue Reading »

LAW UPDATE: TRANSFER ON DEATH JUST BECAME EASIER IN ILLINOIS

Effective January 1, 2012 – HB 1153 (Bradley/Wilhelmi) P.A. 97-0555 creates the Illinois Residential Real Property Transfer on Death Instrument Act. The Act will establish procedures for the non-testamentary transfer of residential real estate upon the death of the owner. The act defines Residential real estate to include one to four housing unit properties; condominium   Continue Reading »

ILLINOIS SUPREME COURT APPOINTS MARCONI TO ADVISE DISCOVERY COMMITTEE

Effective January 1, 2012, the State of Illinois’ Supreme Court appointed Johnson & Bell, Ltd. Shareholder Joseph R. Marconi as Advisor to the Judicial Conference Committee on Discovery Procedures.  Mr. Marconi is the chair of the Business Litigation/Transactions group at the firm. The Committee is comprised of circuit and appellate court judges from around the state and   Continue Reading »

PROOF WITHOUT A "PROOF OF LOSS"

Any insurance policy you come across these days will contain a suit filing deadline, but in Illinois that deadline is more often than not tolled by section 143.1 of the Illinois Insurance Code.  215 ILCS 5/143.1 (West 2006).  Section 143.1 is a statutory restriction on contractual limitation provisions that was designed to prevent insurance companies   Continue Reading »

UNITED STATES SUPREME COURT DECISION ON FEDERAL PREEMPTION AIDS GENERIC DRUG MANUFACTURERS

On June 23, 2011, in a 5-4 decision, the United States Supreme Court held that federal statutes and FDA regulations governing the labeling of generic drugs preempt state law tort claims against generic drug manufacturers for failure to provide adequate warning labels.  In Pliva, Inc., v. Mensing the court determined that it was impossible for   Continue Reading »

THE ILLINOIS SUPREME COURT EXAMINES THE RISK-UTILITY TEST IN DESIGN DEFECT CASES

A recent Illinois Supreme Court ruling of major significance examines the risk-utility test as a method of proof in product liability cases premised on a design-defect theory.  The holding in the case, which includes a rejection of a post-sale duty to warn, merits the special attention of the product liability defense bar. Jablonski v. Ford Motor   Continue Reading »

RECENT U.S. SUPREME COURT DECISIONS ON PERSONAL JURISDICTION BENEFIT FOREIGN PRODUCT MANUFACTURERS

The first step in any litigation involving a corporate defendant that is foreign to the selected forum is determining whether the court can exercise jurisdiction over the defendant.  There are two different types of personal jurisdiction that a court can exercise over a defendant – general and specific.  A state court may assert general jurisdiction   Continue Reading »

FIRST DISTRICT REVISITS COOPERATION ISSUES IN RECENT THIRD PARTY LIABILITY CASE

Illinois’ First District in Founders Ins. Co. v. Shaikh, 405 Ill.App.3d (1st Dist. 2010) recently examined various issues and obligations surrounding the duty to cooperate in a third- party liability defense case.  Specifically, the Shaikh decision highlights the existence of dual cooperation obligations placed on the insurer and the insured, and provides a fairly detailed historical overview of   Continue Reading »

SEVENTH CIRCUIT BARS PLAINTIFFS LAST MINUTE CHANGE IN THEORY OF PRODUCTS CASE

In Aldridge v. Forest River, Inc., et al., 635 F.3rd 870 (2011), plaintiff filed a strict product liability lawsuit arising out of injuries allegedly sustained while the plaintiff was descending the steps of her recreational vehicle.  Throughout the course of the litigation, plaintiff had maintained that it was a step controller, installed on the vehicle, which   Continue Reading »

"LEGACY" EQUIPMENT - WHAT IS THE MACHINE MANUFACTURER'S DUTY ONCE THE MACHINE LEAVES THE PLANT?

The answer to the question: “what is a product manufacturer’s duty” relative to its products once they leave the plant, is not one that is easily answered.  In Illinois, a manufacturer has no duty to issue post-sale warnings or to retrofit its products to remedy defects first discovered after a product has left its control.  To the   Continue Reading »

SUPREME COURT FURTHER ERODES FEDERAL PREEMPTION DOCTRINE

In the recent case of Williamson v. Mazda Motor of America, 562 U.S.__(2011), the United States Supreme Court has held that the 1989 version of Federal Motor Vehicle Safety Standard 208 (FMVSS 208) giving vehicle manufacturers a choice to install either a lap belt or a lap and shoulder belt in a rear inner seat of a motor   Continue Reading »

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