Patrick Austermuehle of our firm filed an Amicus Brief on behalf of the Illinois Trial Lawyers Association and the National Association of Consumer Advocates on a important access to justice issue for consumers who have been defrauded including consumers who have been scammed by used car dealers.
Who Are ITLA and NACA?
The National Association of Consumer Advocates (“NACA”) is a nonprofit corporation whose members are lawyers, law professors, and students practicing or studying consumer-protection law. NACA’s mission is to promote justice for consumers through information sharing among consumer advocates and to serve as a voice for its members and consumers in the struggle to curb unfair and oppressive business practices.
The Illinois Trial Lawyers Association (“ITLA”) is a statewide organization whose members focus their practices in representing injured consumers and workers. Founded in 1952, the organization
has more than 2,000 members. ITLA’s principles and mission are simple: to achieve and maintain high standards of professional ethics, competency and demeanor in the bench and bar; to uphold the Constitutions of the United States of America and the State of Illinois; to secure and protect the rights of those injured in their persons or civil rights; to defend trial by jury and the
adversarial system of justice; to promote fair, prompt and efficient administration of justice; and to educate and train in the art of advocacy.
The Importance of Fee Shifting Under the Consumer Fraud Act For AutoFraud and Other Individual Consumer Fraud Cases.
Our clients, ITLA and NACA, in the brief Lubin Austermuehle drafted, are urging the Illinois Appellate Court to reverse the Circuit Court’s improper fee award to Plaintiff’s counsel— where the Court arbitrarily slashed the fee awarded to Plaintiff’s counsel, whose client had prevailed in a used car consumer fraud case, based on “eyeballing” and “proportionality”—and issue an opinion which formally adopts the framework set out by the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424 (1983), and which recognizes the importance of fee-shifting in individual consumer claims.
Automobiles are often consumers most substantial purchase, and it is very difficult to attract competent counsel if courts routinely treat these cases as if they are small claims matters where
counsel cannot be assured of being paid fairly for the efforts taken on a contingency basis with substantial financial risk. As to individual (non-class action) consumer fraud claims, only a
relatively small number of lawyers practice in this area, given the complexity of the cases and the limited actual damages available in a typical individual consumer fraud matter. It will be
difficult to attract more “private attorneys general” to assist individual consumers to vindicate their rights, or to encourage the lawyers, who do practice in this area, to continue to do so, if
courts routinely slash fee awards without analysis or explanation. Counsel practicing in this area have found this to occur all too often.
A. Vindication of Illinois’ Consumers Rights Hinges on Trial Courts Awarding Attorney’s Fees Under the Illinois Consumer Fraud Act’s Fee- Shifting Provision The Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ICLS 505/1 et seq. (the “Consumer Fraud Act”), is a “regulatory and remedial statute intended to protect consumers against
fraud, unfair methods of competition, and other unfair and deceptive business practices.” Cripe v. Leiter, 184 Ill.2d 185, 190-91 (1998). The Consumer Fraud Act should be “liberally construed to
effectuate its purpose”. Id. at 191 (citing Connick v. Suzuki Motor Co., Ltd., 174 Ill.2d 482, 503 (1996)). Section 10a(c) of the Consumer Fraud Act authorizes a private right of action for “[a]ny
person who suffers actual damages as a result of a violation of [the] Act.” 815 ILCS 505/10a(a) (West 2018); Krautsack v. Anderson, 223 Ill.2d 541, 553 (2006). Accordingly, one of the express
purposes of the Consumer Fraud Act’s fee- shifting provision is to provide consumers with access to legal assistance in the pursuit of their legal remedies under the statute. Id. at 557. The
fee-shifting provision in the Consumer Fraud Act is particularly important because it “allows defrauded consumers, whose claims are frequently small, to obtain counsel and seek redress under
the Act.” Allen v. Woodfield Chevrolet, Inc., 208 Ill.2d 12, 30–31 (2003). “Compromising a consumer’s ability to recover legal fees renders the protections of the Act illusory.” Id.
Automobiles represent “one of the most important and expensive items purchased by consumers.” Totz v. Cont’l Du Page Acura, 236 Ill.App.3d 891, 911 (2d Dist. 1992). However, even in
Consumer Fraud Act cases involving the purchase of an automobile, a consumer’s actual damages will often pale in comparison to the cost of litigation required to litigate a successful claim under
the Act. See e.g. Id. at 910-11 ($19,674.60 in costs and fees vs. $407.50 in compensatory damages and $5,000 in punitive damages); Majcher v. Laurel Motors, Inc., 287 Ill.App.3d 719, 723
(2d Dist. 1997) ($77,683.82 in costs and fees vs. approximately $20,000.00 in actual damages). If Illinois courts are arbitrary in their attorney’s fee awards under the Consumer Fraud Act and
cut fees without analysis, consumer plaintiffs will be unable to obtain competent counsel to litigate claims that are often “complex with respect to the factual and legal issues presented.”
Totz, 236 Ill.App.3d at 910; see also Keefe v.Allied Home Mortg., 393 Ill.App.3d 226, 235 (5th Dist. 2009) (under the Consumer Fraud Act, “the average consumer will not be able to successfully arbitrate or litigate a claim without the assistance of an attorney.”).
Unreasoned or Arbitrary Reductions in Attorney’s Fees Awarded Under the Consumer Fraud Act Threaten Consumers’ Access to Justice
In order to promote uniformity and fairness across the State and to increase access to justice for Illinois’ consumers, the Third District should join its four sister Districts and formally adopt the statutory fee-shifting framework arising out of the United States Supreme Court’s decision in Hensley v. Eckerhart, 461 U.S. 424 (1983). Under this approach, a court “begin[s] by calculating the lodestar by multiplying the attorney’s reasonable hourly rate by the number of hours reasonably expended.” Schlacher v. Law Offices of Phillip J. Rotche & Associates, P.C., 574 F.3d 852, 856 (7th Cir. 2009). There is a strong presumption that the lodestar represents a reasonable fee. Id. If a party seeks an adjustment to the lodestar, that party bears the burden of demonstrating that the “adjustment is necessary to the determination of a reasonable fee.” City of Burlington v. Dague, 505 U.S. 557, 562 (1992) (quoting Blum v. Stenson, 465 U.S. 886, 898 (1984)).
The court can then consider the following factors in determining whether an enhanced fee is appropriate: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Hensley, 461 U.S. at 430 n.3.
By adopting an objective and normative framework for calculating fee awards under the Consumer Fraud Act (and other similar fee-shifting statutory schemes), the Court 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. See e.g. Millea v. Metro-North R. Co., 658 F.3d 154, 169 (2d Cir. 2011) (“The whole purpose of fee-shifting statutes is to generate attorneys’ fees that are disproportionate to the plaintiff’s recovery.”) (emphasis added); People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1314 (7th Cir. 1996) (“The court will not, however, ‘eyeball’ the fee request and cut it down by an arbitrary percentage, even if the request seems excessive, in the absence of objections stated with particularity and clarity.”). By formally adopting Helmsley, the Third District would ensure that fee awards under the Consumer Fraud Act are rendered in a fair, objective, and standardized manner, and thereby promote access to justice for Illinois consumers by ensuring they can obtain competent counsel to aid in their pursuit of claims under the Consumer Fraud Act.…
Continue Reading Patrick Austermuehle of Lubin Austermuehle is Advocating for Consumer Rights on Behalf of Two Important Consumer Rights Organizations in the Illinois Appellate Court

Our founding fathers may not have guaranteed the right to free speech in the first draft of the U.S. Constitution, but it did make it into the very first amendment to the document. A series of Supreme Court rulings during the Civil Rights movement extended the right to free speech, but now at least two Supreme Court Justices want to reverse that decision.
At the height of the Civil Rights movement, The New York Times published an advertisement that criticized terrorism against protestors in the Civil Rights movement in the South. L.B. Sullivan, the police commissioner of Montgomery, Alabama at the time, sued the newspaper, claiming the ad falsely accused him of misconduct. Sullivan was not even named in the ad, but a jury in Alabama ruled in his favor and awarded him $500,000 in damages.
The case made its way up to the Supreme Court, which reversed the decision. The Court based its ruling on the fact that the First Amendment of the U.S. Constitution prohibits public officials from recovering damages for defamation regarding their official conduct. The only exception to that rule is if the plaintiff can prove the allegedly defamatory statement was made with “actual malice”, meaning the defendant knew the statement was false at the time they made it, and they made it anyway with the intention of inflicting some sort of harm (financial or otherwise) on the plaintiff.
The Court concluded by saying the ruling was in the spirit of the First Amendment, which was designed to encourage free and open debate on public issues, even when it means leaving public figures to get attacked in the press. While the First Amendment initially applied only to public officials (those holding elected government positions), later Supreme Court rulings extended the protection to any speech about any public figure, including entertainers and other celebrities.
Now Clarence Thomas and Neil Gorsuch are threatening to overturn those rulings and impose stricter sanctions on one of the founding principles of our country that has separated us from England. While England’s government is a democracy, and while the U.S. government was largely based on that of England, one of the key differences between the two countries is the restrictions on defamation.
In the U.S., the First Amendment has allowed the press to flourish with books, newspapers, magazines, and TV and radio shows catering to all kinds of audiences and making all kinds of assertions, regardless of their validity. When a defamation lawsuit is filed, the burden is on the plaintiff to prove the statements in question were not only false, but that the person making them knew they were false at the time they made them.
By contrast, England’s much stricter defamation laws put the burden on the defendant to prove their statements are true. The result is that books revealing crucial information on powerful people (such as “Putin’s People: How the KGB Took Back Russia and Then Took On the West”) are more likely to get published in the U.S. than in England because they’re less likely to face legal action in the U.S.
Thomas and Gorsuch claim the rise of online trolling requires stricter defamation laws, but if they have their way, the American press could end up looking a lot like the British press, and that would not necessarily be a good thing for the press or for the American public.…
Continue Reading When the First Amendment Is at Stake