In a case that has potentially far-reaching implications for fee petitions, the Illinois Third District appellate court formally adopted a framework for considering such petitions laid out by the Supreme Court nearly four decades ago. Perhaps just as important, the Third District rebuffed the trial court’s reduction of attorney fees awarded to a successful plaintiff without explaining the reasoning for the reduction. The Court ultimately reversed the trial court’s award and remanded the case for further consideration of the plaintiff’s fee petition.
The plaintiff in the case, Austin Casey III, bought a used vehicle from the defendant, Rides Unlimited Chicago, Inc. The vehicle broke down two hours into Casey’s return trip to his home in Michigan. Casey had the vehicle towed back to Rides Unlimited the same day and requested a refund of the purchase price. Rides Unlimited refused. Casey then sued Rides Unlimited alleging violations of the various statutes including the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act). After discovery, Casey filed a motion for summary judgment on his claim that Rides Unlimited violated Section 2L of the Consumer Fraud Act.
Section 2L prohibits a vehicle dealership from “exclud[ing], modify[ing], or disclaim[ing] the implied warranty of merchantability . . . before midnight of the 15th calendar day after delivery of a used motor vehicle or until a used motor vehicle is driven 500 miles after delivery, whichever is earlier.” It further provides that any “attempt to exclude, modify, or disclaim the implied warranty of merchantability or to limit the remedies for a breach of the warranty in violation of this Section renders a purchase agreement voidable at the option of the purchaser.”
The trial court granted Casey’s motion for summary judgment, awarded Casey the purchase price, and dismissed Casey’s other claims. Casey then filed a petition for attorney fees under Section 10a(c) of the Consumer Fraud Act, which provides that a court “may award, in addition to the relief provided in this Section, reasonable attorney’s fees and costs to the prevailing party.” Casey sought $10,640 in attorney fees and $454.52 in costs, for a total of $11,094.52. The trial court held a hearing on the fee petition and ultimately granted the petition but reduced the fee award to only $2,500. Casey appealed the trial court’s reduced fee award.
The Third District court of appeals granted leave to the National Association of Consumer Advocates and the Illinois Trial Lawyers Association to file an amicus curiae brief in support of Casey’s position that the trial court erred in reducing the attorney fee award. Our own Patrick Austermuehle authored the amicus brief that ultimately resulted in the Third District’s reversal and remand of the case back to the trial court to reconsider Casey’s petition for attorney fees.
In the amicus brief, we urged the Third District to join the other districts in the state and issue an opinion formally adopting the framework for awarding attorney fees set out by the Supreme Court in Hensley v. Eckerhart, which recognized the importance of statutory fee-shifting (i.e. awarding attorney fees to successful litigants) in individual consumer claims. In its decision, the Court acknowledged that the third district is the only appellate district in Illinois that has not yet expressly adopted the Hensley framework. The Court then proceeded to examine the Hensley framework and cite decisions from the First, Second, Fourth and Fifth Districts adopting or employing the Hensley framework. Then, as we urged the Court to do in the brief, the Court formally adopted the Hensley’s framework to bring the Third District “in alignment with the other appellate court districts that have employed the Hensley framework.”
We also argued in the amicus brief that the Court should reverse and remand the case because the trial court arbitrarily reduced the attorney fee award without explaining its reasoning for the reduction. We explained to the Court that permitting trial courts to take an ad hoc approach to fee petitions would undermine the twin goals of uniformity and fairness of outcomes across the state and increased access to justice for Illinois consumers.
In short, we argued that absent a unified methodology for considering fee petitions fewer attorneys will be willing to take on complicated consumer matters where the attorney’s only compensation will come from the fees awarded by the trial courts. Fewer consumer attorneys hurts consumers, who may find that the complexities of litigation act as an effective bar to justice. Requiring courts to explain the reasoning behind reducing fee awards, we argued and the Court agreed, “would eliminate the common issues of circuit courts applying an unreasoned ‘proportionality’ test, or worse, simply ‘eyeballing’ a fee request and arbitrarily determining it is excessive.”
The Court’s full opinion is available here.
Continue Reading Lubin Austermuehle Partner Authors Amicus Brief in Fee Petition Case Successfully Resulting in Reversal of Trial Court

It can be difficult going through a divorce, especially if one spouse is non-compliant with divorce proceedings. In some cases, a spouse may oppose divorce and refuse to file divorce papers. For spouses who want a divorce, a refusal can make the divorce process seem impossible and difficult to navigate. While some states require both […]
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Saturday, October 1, 2022

Is Choosing Death Too Easy in Canada?

Canada recently changed its assisted death law, loosening the requirements for people to seek medical assistance to end their lives. The new law allows people with “grievous and irremediable” conditions to seek death, even if they are not terminally ill.
Canada is one of 12 countries and a handful of American states where assisted death is permitted, however, it is only one of three nations that permits assisted death without a condition being terminal. When the original law was suggested in 2016, it was a hotly debated issue that
Continue Reading Is Choosing Death Too Easy in Canada?

Abuse of trust is considered a breach of the fiduciary duties owed by the trustee of a will or estate. When an individual decides how to distribute his or her estate among one or more beneficiaries, he or she will typically name a trustee who will be responsible for carrying out those wishes. A trustee may be a person or an organization and, in fact, can be anyone specified by the deceased, from a family member or friend to a lawyer to a financial investment company.
Depending on the size of the estate and the complexity of the deceased’s instructions, acting as a trustee can involve coordinating with multiple beneficiaries and being entrusted with distributing millions of dollars. Whenever there is a lot of money and someone in a position of trust, there is a potential for abuse. When a person in a position of trust, like a trustee, abuses that trust, it can be devastating for all involved.
If the trustee does not perform its duties in a careful and loyal manner as instructed, the trustee has engaged in an abuse of trust and breached its fiduciary duties. Because a trustee is expected to make judgment calls at times regarding the best disposition of the estate, it can be difficult to determine if an abuse of trust has taken place. This is where it can be useful to consult with an experienced breach of fiduciary duty attorney as not all breaches are cut and dried.
Although many courts and attorneys describe the fiduciary duties that a trustee owes to the beneficiaries in different terms, these fiduciary duties can generally be distilled into three main categories:

  • Duty of loyalty: requires a trustee to act solely in the interest of the beneficiaries.
  • Duty of care: requires a trustee to manage the estate in accordance with the trust guidelines and in compliance with applicable law.
  • Duty of impartiality: requires a trustee to treat all beneficiaries equally and prohibits favoring one beneficiary over the others.


Continue Reading Abuse of Trust: Breach of Fiduciary Duty by a Trustee

There are a host of offenses that can be either a Class A Misdemeanor or a Class 4 felony if you knowingly possess or display a fictitious or unlawfully altered driver’s license or permit.  (See 625 ILCS 5/6-301.1).  Simply possessing such a license is a Class A Misdemeanor on a first offense and a Class 4 felony on a later offense.
It is also a Class 4 felony if you possess or display that altered license under any of the following circumstances:

  • You wanted to obtain an account, credit, credit or debit card from a bank, financial institution or


Continue Reading WHAT IS THE CRIME OF “FICTITIOUS OR UNLAWFULLY ALTERED DRIVER’S LICENSE OR PEMIT” IN ILLINOIS?

Friday, September 30, 2022

Another Inflation Stress: Rising Costs of Senior-Living Homes Strain Families

Many long-term-care facilities are responding to inflation by raising prices and adding new fees to their residents bills. This is to cover higher costs of food, utilities, insurance, wages, supplies, and management of COVID-19 protocols, but the increase in cost of living is now putting on a strain on many older Americans.
Prices vary by region and type of care, but many have seen increases ranging from 3% to 12%, leaving monthly bills to skyrocket. A recent study by NORC at University of Chicago showed that approximately
Continue Reading Another Inflation Stress: Rising Costs of Senior-Living Homes Strain Families

Getting a divorce can be a difficult process, regardless of the situation surrounding the end of a couple’s marriage. However, there are some issues that can complicate the divorce process, and if they are not handled correctly, a case can become much longer, more drawn-out, and more expensive. Financial concerns related to the division of marital property can often lead to contentious disputes, and this is especially true in situations involving business ownership. Whether divorcing spouses own a business together, a spouse owned a business before getting married, either spouse has an ownership share in a family business, or a
Continue Reading How Is Business Ownership Addressed During a Divorce?

Many recently divorced parents find it helpful to leave the area where they resided during the marriage to seek a new beginning elsewhere. Relocating can have a wonderful effect on the mental health of a newly divorced parent, particularly if the divorce was very challenging or the marriage itself was harmful. However, in Illinois, a parent cannot simply pack their children’s belongings and relocate to a faraway area without first obtaining permission from the court. Parental relocations are not automatically granted if the other parent objects. If your former spouse resists the relocation and has been allocated any parenting time,
Continue Reading Important Considerations Before Planning to Relocate With Children

The current real estate market is making it harder to find the perfect new home than most people are expecting. Let’s assume, however, that you found the right house, and you are ready to make an offer, but your real estate agent tells you that the home is an FSBO. You might recognize that abbreviation to mean “for sale by owner,” but do you understand the effects that a sale by the owner can have on your homebuying experience? Selling an FSBO property can be tricky, but so can buying one. Here are a few things you should know
Continue Reading Pros and Cons of Buying a “For Sale By Owner” Home

Have you heard the term “independent medical exam,” or IME for short? If you have, you likely heard it in the context of a workers’ compensation case. There are many misconceptions about these exams, how they work, and what your rights and duties are if you are an injured workers’ compensation claimant. 
Calling It Independent Doesn’t Make It So
Independent medical examinations, commonly referred to as IMEs, are actually not called that at all. Well, sure, people use the term all the time, but if you read the Illinois Workers’ Compensation Act, Section 12, you will find no mention of
Continue Reading Do I Have to See Their Doctor?

Chicago has a lead problem that may rival the contamination in Flint, Michigan, according to The Guardian. The publication analyzed years of Chicago tap water tests (conducted for residents between 2016 – 2021) and discovered that 1 in 20 of the tests performed by the city showed lead levels at or above U.S. government limits. Out of 24,000 tests, 1000 had lead levels exceeding the federal standard of 15 ppb in drinking water. More than 30% of the tests had lead levels exceeding the FDA standard of 5 ppb lead for bottled water. This is extremely concerning because lead exposure
Continue Reading Chicago’s Lead Problem: Analysis Reveals Shocking Lead Contamination in the City’s Tap Water

 
Can a Debt Collector do that?
Despite what some may believe, debt collectors do not have full reign when attempting to secure payments for defaulted accounts. The Fair Debt Collection Practices Act (FDCPA) prohibits third-party collectors from verbally harassing and using other tactics meant to pressure the debtor into making agreements that he may not be able to keep.
The best way to ensure fair treatment as a debtor is to hire an attorney.
What exactly is the FDCPA?
The Fair Debt Collection Practices Act (FDCPA) is a federal law that limits the powers of third-party debt collectors. This
Continue Reading Fair Debt Collection Practices Act (FDCPA) and Debt Collection in Illinois

Initiating the process of beginning a divorce can seem like an impossible task. Not only does a divorce take an immense emotional toll on everyone involved, but it can also be overwhelming to navigate through all of the legal proceedings and logistics of the process. As is the case with many things in life, starting can be the hardest part. Fortunately, the [[title]] has years of experience to help you take that first step so you may begin your new life.
Determining your Situation 
There are many considerations at the beginning of the divorce process, but to determine how to
Continue Reading How Do I Begin my DuPage County Divorce?

In a blog we posted earlier this month, we began to discuss what happens when a person is arrested for a felony or misdemeanor crime they did not commit. This unenviable situation can cause extreme hardship. You may be filled with anxiety about how your case will end. Sadly, there is always some risk of conviction, even if you are entirely innocent. This is why you need a highly skilled and experienced criminal defense attorney to fight back against the false charges. Outcomes like dismissal or acquittal at trial are possible when the case is well-handled. Remember that it
Continue Reading Responding to a False Criminal Charge – Part 2

Patients expect to receive the best possible care from their doctors, but in some cases, they may suffer serious harm because they are not provided the proper treatment. This often occurs due to misdiagnosis, which involves a failure to properly diagnose a dangerous medical condition or an incorrect diagnosis that does not actually identify the issues affecting a person. In some cases, misdiagnosis can lead to delays in treatment, allowing the condition to worsen, or an incorrect diagnosis, which can result in expensive and unnecessary treatments. In the most serious cases, a misdiagnosis can lead to a person’s wrongful
Continue Reading 5 Medical Conditions Commonly Misdiagnosed by Doctors

While some victims of highway vehicle accidents may not sustain any injuries or will only have less severe ones that they can recover from, other victims won’t be as fortunate. Numerous individuals may get severe wounds that render them fully or partially incapacitated.
*Due to the exorbitant expense of the victim’s medical treatment, salary loss, and constant need for support, this not only permanently alters their own life but also that of their family. If a motorist’s negligence led to the victim’s catastrophic injuries, that driver may be liable for paying the victim’s past and future damages.
In this guide,
Continue Reading 5 Catastrophic Injuries Resulting from Highway Car Accidents