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Don’t Win the Battle and Lose the War. On September 20, 2019, the Seventh Circuit issued a clear word to the wise. If you are in a tax dispute with the IRS and you want the amount of tax or the amount of penalty determined in a bankruptcy court and not the Tax Court, then you must act promptly to file your bankruptcy petition and to thereafter promptly file your adversary case seeking a determination of the tax or penalty. The decision in Donald Bush v. US, No. 16-3244 (2019), put the Seventh Circuit in line with the nine other…
If you enter into contracts in Illinois, you should at least be aware of the Frauds Act. Illinois law limits certain claims and actions if they are not supported by a writing signed by the party to be charged with the claim or action. This statute is known as the Illinois Frauds Act. It states in section one: “That no action shall be brought, whereby to charge any executor or administrator upon any special promise to answer any debt or damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the…
If you enter into contracts in Illinois, you should at least be aware of the Frauds Act. Illinois law limits certain claims and actions if they are not supported by a writing signed by the party to be charged with the claim or action. This statute is known as the Illinois Frauds Act. It states in section one: “That no action shall be brought, whereby to charge any executor or administrator upon any special promise to answer any debt or damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the…
Small Estate Affidavit.  The Probate Act of 1975 contains a provision which governs the use of affidavits in small estates. Under the statute, an estate is considered small when all property passing to any party either by intestacy or under a will does not exceed $100,000. (735 ILCS 5/25-1(b)(6).  When a decedent’s estate assets, subject to probate, do not exceed $100,000, then an affidavit may be used to collect monies or personal property, obtain access to a safe deposit box, or deal with registrar’s or transfer agents. Assets subject to probate does not include assets which transfer automatically upon decedent’s…
Small Estate Affidavit.  The Probate Act of 1975 contains a provision which governs the use of affidavits in small estates. Under the statute, an estate is considered small when all property passing to any party either by intestacy or under a will does not exceed $100,000. (735 ILCS 5/25-1(b)(6).  When a decedent’s estate assets, subject to probate, do not exceed $100,000, then an affidavit may be used to collect monies or personal property, obtain access to a safe deposit box, or deal with registrar’s or transfer agents. Assets subject to probate does not include assets which transfer automatically upon decedent’s…
Clients oftentimes ask me to forecast how much a lawsuit will cost. In the context of contract disputes, the answer invariably depends on the nature of the written documentation. If the parties relied on an oral agreement, then it becomes much more difficult to prevail in the case on what is known as summary judgment. In summary judgment, one of the parties files a written motion asking the court to make a final ruling concerning a particular issue, count, or the entire case. When the parties don’t have a written agreement, it becomes more problematic to proceed on summary judgment…
Clients oftentimes ask me to forecast how much a lawsuit will cost. In the context of contract disputes, the answer invariably depends on the nature of the written documentation. If the parties relied on an oral agreement, then it becomes much more difficult to prevail in the case on what is known as summary judgment. In summary judgment, one of the parties files a written motion asking the court to make a final ruling concerning a particular issue, count, or the entire case. When the parties don’t have a written agreement, it becomes more problematic to proceed on summary judgment…
Donative intent is a phrase used to describe the situation where a transfer of property is made as a gift. Simply put, it is an intent to gift. Someone is said to have donative intent if they give something of value to someone else and do not expect the property returned and do not expect some other property to be given in exchange for the transfer. Oftentimes, people give or exchange property without preparing a document to describe or “classify” the transaction. When my son asks for $20 to buy gas for his car, I don’t typically prepare a document…
Donative intent is a phrase used to describe the situation where a transfer of property is made as a gift. Simply put, it is an intent to gift. Someone is said to have donative intent if they give something of value to someone else and do not expect the property returned and do not expect some other property to be given in exchange for the transfer. Oftentimes, people give or exchange property without preparing a document to describe or “classify” the transaction. When my son asks for $20 to buy gas for his car, I don’t typically prepare a document…
Essential Business Contracts. Some clients are proactive and prepare written agreements and others prefer a verbal agreement with a good handshake. Both oral and written agreements are legally enforceable, but written agreements help the court by providing a tangible form of the terms of the agreement. To be certain, your foundational corporate governance records should be written. This includes an operating agreement (LLC) or bylaws and a shareholders agreement to address succession planning, rights of first refusal, and handling deadlocks. Once the company is established and has written governance documents, clients should consider creating a contract form with standard terms…
Essential Business Contracts. Some clients are proactive and prepare written agreements and others prefer a verbal agreement with a good handshake. Both oral and written agreements are legally enforceable, but written agreements help the court by providing a tangible form of the terms of the agreement. To be certain, your foundational corporate governance records should be written. This includes an operating agreement (LLC) or bylaws and a shareholders agreement to address succession planning, rights of first refusal, and handling deadlocks. Once the company is established and has written governance documents, clients should consider creating a contract form with standard terms…
Defend Trade Secrets Act – A Federal Trade Secret Cause of Action. The DTSA establishes a federal civil cause of action for the misappropriation of trade secrets related to a product or service used in, or intended for use in, interstate or foreign commerce.  While Illinois has the ITSA (Illinois Trade Secrets Act), the DTSA has enhanced remedies and Protections which may be useful to employers.  The Act contains a notice provision, so it is important that employers provide employees with written notice of their rights.  Without the notice, the employer losses valuable financial protections under the Act. The DTSA…
Defend Trade Secrets Act – A Federal Trade Secret Cause of Action. The DTSA establishes a federal civil cause of action for the misappropriation of trade secrets related to a product or service used in, or intended for use in, interstate or foreign commerce.  While Illinois has the ITSA (Illinois Trade Secrets Act), the DTSA has enhanced remedies and Protections which may be useful to employers.  The Act contains a notice provision, so it is important that employers provide employees with written notice of their rights.  Without the notice, the employer losses valuable financial protections under the Act. The DTSA…
Non-Compete Covenant found unenforceable. Employers Non-Compete Covenant was not supported by Adequate Consideration where employment period did not exceed two years. It is not uncommon for employers and employees to enter into employment agreements containing a restrictive covenant.  Typical restrictive covenants include confidentiality agreements, non-solicitation agreements, and agreements not to compete. Unfortunately, all too often these agreements fail to set forth separate and specific consideration for the restrictive covenant provisions.  Instead they rely upon a general recitation that the promise to employ is the consideration given for all of the promises or agreements extended by the employee.  Employers need to…
Non-Compete Covenant found unenforceable. Employers Non-Compete Covenant was not supported by Adequate Consideration where employment period did not exceed two years. It is not uncommon for employers and employees to enter into employment agreements containing a restrictive covenant.  Typical restrictive covenants include confidentiality agreements, non-solicitation agreements, and agreements not to compete. Unfortunately, all too often these agreements fail to set forth separate and specific consideration for the restrictive covenant provisions.  Instead they rely upon a general recitation that the promise to employ is the consideration given for all of the promises or agreements extended by the employee.  Employers need to…
Reliable Fire v. Arredondo.  Dec. 2011.  The Four Elements of the Three-Dimensional Rule.  The dangling ancillarity. RELIABLE FIRE EQUIPMENT COMPANY, v. ARNOLD ARREDONDO.  Docket No. 111871. SUPREME COURT OF ILLINOIS. 965 N.E.2d 393; 2011 Ill. LEXIS 1836; 2011 IL 111871; 358 Ill. Dec. 322; 33 I.E.R. Cas. (BNA) 278 CASE SYLLABUS.  The enforceability of an employees’ covenant not to compete should be judged by the three-prong test of reasonableness, of which the employer’s legitimate business interest continues to be a part, and which looks to the totality of all of the circumstances, rather than focusing on named specific factors. For…