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Latest from HeplerBroom, LLC

In a recent 9-0 holding, the U.S. Supreme Court held that state-level “affidavit of merit” requirements for medical malpractice suits do not apply in federal court. This holding creates a notable divide in state and federal practice as more than half of all U.S. states have similar state-level pleadings requirements. 

The case, Berk v. Choy, was filed in federal court but governed by Delaware state substantive law. Delaware, like many states, requires that plaintiffs filing medical malpractice suits submit an affidavit of merit — a statement from a qualified expert certifying that the lawsuit has a reasonable basis — either with…
Continue Reading No Certificate, No Problem: Recent Supreme Court Decision Clears the Path for Federal Medical Malpractice Claims

Legal Rule

Illinois’s discretionary immunity rules are found in sections 2‑109 and 2‑201 of the Tort Immunity Act. Together, these provisions protect local governments and their employees from liability for policy decisions and discretionary judgments made in good faith. In short, a public employee—and by extension the public body—is not liable for injuries that result from discretionary decisions made performing their official duties.

The Conscious Decision Standard

For discretionary immunity under the Act to apply, a local government must present evidence that it made a conscious decision with respect to the acts or omissions alleged in the complaint. This requirement…
Continue Reading Illinois Discretionary Immunity: The Local Government Knowledge Requirement

Background

Plaintiff Raymond Winkler[i] hired defendant Danna Pools, Inc. (DPI) to construct an in-ground swimming pool at plaintiff’s home. The contract guaranteed DPI’s work would be free from defects in material and workmanship for 14 months from the date the pool was filled with water.  It also expressly voided all warranties if maintenance, service, or warranty work was performed by anyone other than DPI. The pool was filled with water in July 2019.

During the 2019 season, defendant performed various services, including vacuuming, chemical testing, routine maintenance, and training plaintiff on proper pool maintenance and chemical levels. A maintenance…
Continue Reading Breach of Contract Claim Fails When Plaintiff Can’t Prove Damages

Treetops seen from the ground
ANGELA BENITO, Unsplash

 
EPA Returns to Prior Approach to Major Source Reclassification
In January 2026, the U.S. Environmental Protection Agency (EPA) published a final rule restoring the original language of the 2020 Major Source to Area Source rule.[1] The amendments remove the changes adopted in 2024 that required certain sources emitting hazardous air pollutants (HAPs) to continue meeting stricter major source standards even if the source had reclassified as an area source. This action restores the regulatory text from the 2020 rule “Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act” (also known as Major…
Continue Reading U.S. EPA Restores 2020 Language on Rule Allowing Major Sources to Reclassify as Area Sources

Introduction

In January 2026, the Federal Trade Commission (FTC) announced the antitrust agencies’ annual revised filing fees for premerger review of sizable transactions and reporting thresholds for review under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act). The adjusted HSR Act thresholds are based on annual changes in the U.S. GNP (Gross National Product). For 2026, the HSR jurisdictional thresholds and fee bands have increased and apply to transactions closing on or after February 17, 2026.

Currently, the HSR Act requires parties to certain mergers, acquisitions of assets or voting securities, or joint ventures to complete premerger…
Continue Reading New Federal Premerger Filing Thresholds Set

Consumer Opposition

U.S. federal antitrust laws allow consumers to sue over mergers and acquisitions. On December 8, 2025, an HBO Max subscriber, Michelle Fendelander, filed a class-action lawsuit against Netflix claiming that the proposed Netflix/Warner Bros. acquisition would reduce competition in the U.S. video-on-demand market. In the complaint, Fendelander, a resident of Las Vegas and subscriber to WBD’s HBO Max, claims she and other consumers “will bear the brunt of this decreased competition, paying increased prices and receiving degraded and diminished services for their money.” Fendelander v. Netflix, Inc., No. 5:25-cv-10521 (N.D. Cal.)

The complaint also says that if WBD is removed as an…
Continue Reading Stranger Things and Harry Potter Under One Roof: Status of Netflix’s Warner Bros. Acquisition

A recent opinion out of the Northern District of Illinois underscores an often-overlooked risk for retail establishments and their insurers: when an employee voluntarily assists a customer, that assistance may itself create an independent legal duty—even when a premises claim might otherwise fail.

In Swayka v. Menard, Inc., the court denied Menard, Inc.’s (“Menards’”) motion for summary judgment in a lawsuit filed by a customer who was injured while a store employee assisted him in transporting heavy merchandise to his vehicle. Although Menards framed the case as one involving a routine, open-and-obvious parking lot condition, the court focused on…
Continue Reading When Helping Hurts: Illinois Federal Court Finds Retailer May Have Assumed a Legal Duty by Assisting Customer

Changes to FTC’s Non-Compete Rule

In April 2024, the FTC issued a Non-Compete Clause Rule that barred most post-employment non-compete agreements nationwide. However, the ban was immediately challenged in federal court. In August 2024, a federal court enjoined the ban, and appellate litigation ensued. After a year of appellate litigation, in September 2025, the FTC dismissed its appeals in Ryan, LLC v. FTC, No. 24-10951 (5th Cir.) and Properties of the Villages v. FTC, No. 24-13102 (11th Cir.), effectively invalidating the ban on the non-compete rule. The Commission voted 3-1 to dismiss the appeal and accept the vacatur. Chairman Andrew Ferguson, joined by Commissioner…
Continue Reading 5 Keys to Crafting Non-Compete Agreements in Missouri After FTC Abandons Its Nationwide Ban

The State of Asbestos Litigation in Cook County, Illinois

Numerous law firms currently file asbestos cases in Cook County, Illinois—some with a long history of being based there and others based outside Illinois.

In recent years, the County experienced an increase in asbestos injury cases.[1] (Asbestos filings  increased by 33.8% from 2023 to 2024, with 95 filings between July 2023 and July 2024.[2]) This trend is expected to continue in the years ahead.

This jurisdiction has also experienced a high number of high-dollar personal-injury verdicts, a trend that directly affects how parties defend asbestos cases there. (The…
Continue Reading What to Know About Asbestos Litigation in Cook County, Illinois

An Illustrative Case

Earlier this year, Illinois’ Fifth District Court of Appeals upheld a directed verdict for the plaintiff because the defendant violated a witness sequestration order under Illinois Rule of Evidence 615. See Mogensen v. SCF Lewis & Clark Fleeting LLC, 2025 IL App (5th) 230501.

At the final pre-trial hearing in this personal injury case, defense counsel invoked Illinois Rule of Evidence 615. This Rule allows a party to request that the court exclude witnesses from the courtroom so they can’t hear other witnesses’ testimony. However, over the course of trial, defendant’s attorneys discussed prior witness testimony…
Continue Reading Sequestration Slip-Ups: Why Illinois’ Rule of Evidence 615 Matters in Medical Malpractice Trials

Case Background

Plaintiff Amanda Wright visited her brother at his home in Gurnee to play badminton. The two set up the net in a lightly wooded, grassy area adjacent to her brother’s home. That property was owned by Gurnee Park District, the defendant. Before the game, her brother warned her to be careful because there was an area with tall grass. Plaintiff thought she needed to be wary of a shrub. However, when she went to retrieve the shuttlecock that landed near the shrub, the shrub was in fact a tree stump covered by tall grass. Plaintiff fell over the…
Continue Reading Tort Immunity Act Protects Illinois Park District in Badminton Injury Appeal

AI Can Be Quite Helpful – Until It’s Not

Many of us have embraced ChatGPT as a useful tool in our everyday lives to promote efficiency or spark creativity. And the more you use ChatGPT, the more it learns your preferences. For instance, ChatGPT knows that our families prefer certain foods when we ask for dinner suggestions. If we ask for Halloween costume suggestions, it immediately understands we’re looking for coordinating costumes for kids of certain ages—without needing a reminder about our families’ demographics.

When it comes to using AI in the legal profession, some may think it’s just as easy.
Continue Reading Fake Law, Real Trouble: How One Illinois Court is Responding to Chat GPT’s Hallucinated Cases

Introduction to Cyber Insurance Subrogation

Traditional subrogation principles allow a party (the subrogee) who pays the debt or loss of another (the subrogor) to assert the subrogor’s rights against third parties regarding a loss. An insurer who pays losses an insured incurs can generally use subrogation to pursue the insured’s rights against any third party responsible for the losses. The insurer stands in the insured’s shoes and has the same rights as the insured.

Notably, an insurer’s right to pursue subrogation against third parties can be contractually waived by an insured’s waiver of the right to pursue claims against those…
Continue Reading Cyber Insurance Subrogation Claims: Understanding a Growing Risk Management Imperative

Introduction

Revolutionary technology can carry significant consequences. Artificial Intelligence (AI) is no exception.

Before AI, fraudsters needed sophisticated technical skills to execute their schemes. It was common to see photoshopped receipts, doctored videos, and other manipulated “evidence” used to support a deceptive claim. Now, swindlers no longer need sophisticated technical skills. With a few keystrokes in a generative AI system, fraudsters can generate professional-quality fake receipts, videos, photographs, or audio recordings.

The Rise in Insurance Fraud

Property and casualty insurance fraud costs an estimated $45 billion annually (including home, auto, and business insurance). In addition, between 10% and 20% of…
Continue Reading Artificial Intelligence: An Unlikely Culprit in Insurance Fraud

Two Factors Driving the Concerns

Nuclear Verdicts. The industry is clearly concerned about the increase in nuclear verdicts against trucking industry defendants—and for good reason. As the report notes, in recent years, some verdicts against trucking industry defendants have exceeded $100 million. And “thermonuclear” verdicts (exceeding $100 million) against corporate defendants are on the rise.[ii]

Third-Party Litigation Funding. Another factor driving the need for lawsuit abuse reform is the increase in third-party litigation funding (TPLF). This form of financing allows plaintiffs to cover litigation costs through a third party in exchange for a right to recover part of the lawsuit’s…
Continue Reading Why the Trucking Industry Is More Concerned Than Ever About Lawsuit Abuse—and Why That Concern Is Justified

by George Kiser
Recently, I was talking with colleagues about overly broad discovery orders entered against defendants and the options for appealing those orders. Wouldn’t it be nice to be able to appeal these orders before the case is over, to prevent a costly search of a client’s records? However, a party is generally not able to appeal a trial court order issued in the middle of a case, before final verdict is entered. Generally, a party can appeal from a final judgement in a case, but not before it. The trial court can grant permission to appeal a decision, but…
Continue Reading Can a Discovery Dispute Lead to Extraordinary Intervention by the Illinois Supreme Court? Usually Not; That’s Why it is Extraordinary