HeplerBroom, LLC

HeplerBroom LLC provides comprehensive representation for its business clients, from entity selection and formation to day-to-day management and employment issues, tax planning, contract preparation, real estate matters, environmental compliance, succession planning, and representation in mergers, acquisitions, and sales.

Website: https://www.heplerbroom.com
Follow:

Latest from HeplerBroom, LLC - Page 18

With what many have described as a historic Illinois legislative session having recently concluded, and with the focus having been on the budget, gaming, cannabis, and infrastructure, you’d be forgiven for thinking that there weren’t many significant changes to Illinois’ environmental laws. But you would be wrong. Several environmental bills of interest to the regulated community made it to Governor JB Pritzker’s desk and have either already been signed by the Governor or will be in the next few weeks. A quick recap of that legislation follows.

Ethylene Oxide: This issue received a great deal of media and legislative attention…
Continue Reading Illinois Passes New Environmental Legislation in Spring 2019 Session

The Illinois First District Court of Appeals recently decided Babich v. Copernicus Foundation, 2019 IL App (1st) 181537-U (April 26, 2019). Babich is yet another chapter in the long line of slip-and-fall cases litigated in Illinois. This particular chapter concluded in favor of the premises owner, who was found to have fulfilled the duty owed to an invitee. Although not formally reported, Babich provides guidance to premises owners that might encounter this relatively common situation.
In Babich, an event attendee slipped on spilled wine which caused him to fall and resulted in a fractured fibula in his right ankle. The…
Continue Reading Don’t Cry Over Spilled Wine

The question of what constitutes “apparent agency” in the context of alleged medical malpractice continues to be analyzed by the Illinois appellate courts. The issue was first addressed by the Illinois Supreme Court in the case of Gilbert v. Sycamore Municipal Hospital. 156 Ill.2d 511 (1993). In Gilbert, the Court set forth a multi-factor test to determine whether a hospital could be held vicariously liable for the alleged acts of its independent contractor physicians. Id. at 525. Specifically, in order to hold a hospital liable under the theory of “apparent agency,” a plaintiff must show that:
“(1) The hospital, or…
Continue Reading The Antiquity of “Apparent Agency” in the Modern Health Care System

The Illinois Supreme Court recently decided Sienna Court Condominium Ass’n v. Champion Aluminum Corp., 2018 IL 122022 (December 28, 2018). The case raised a rather straightforward question: May the purchaser of a newly constructed home assert a claim for breach of an implied warranty of habitability against a subcontractor who had no contractual relationship with the purchaser? The Court held that the purchaser could not assert such a cause of action, regardless of the general contractor’s insolvency or the unavailability of recourse against the general contractor. This ruling overturned the decades-long rule established in Minton v. The Richards Group of…
Continue Reading Illinois Supreme Court Holds that Implied Warranty of Habitability Inapplicable to Sub-Contractors Absent Contractual Relationship with Purchaser

The Nursing Home Care Act (“Act”) was born of concerns about reports of inadequate or improper treatment of residents in such facilities and provided residents with a cause of action against those facilities. To encourage residents, residents’ families, and attorneys to bring claims against nursing homes, the Act originally provided that a resident whose rights were violated could recover “3 times the actual damages . . . and costs and attorney’s fees.” 210 ILCS 45/3-602. That rather draconian remedy was subsequently challenged as being unconstitutional but was ultimately upheld by the Illinois Supreme Court in Harris v. Manor Healthcare Corp.,…
Continue Reading Shifting Attorney’s Fees Under Illinois’ Nursing Home Care Act: Another Form of Abuse

The United States Environmental Protection Agency (“Agency”) issued guidance on April 15, 2019, “clarifying” that releases of pollutants from point sources to groundwater are not subject to the Clean Water Act’s permitting requirements. The Agency, however, announced that its interpretation only applies to states outside the Fourth and Ninth Circuits, because those Courts of Appeal have ruled exactly the opposite on this issue. Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018) (“Kinder Morgan”); Hawai’i Wildlife Fund v. County of Maui, 881 F.3d 754 (9th Cir. 2018) (“County of Maui”).
The Fourth Circuit in Kinder…
Continue Reading New USEPA Clean Water Act Guidance on Groundwater Previews Supreme Court Position and Applies in Illinois, Missouri, and 34 Other States

Illinois law provides specific rules that nursing homes must follow when discharging or transferring a resident when the resident does not agree to the discharge/transfer (an “involuntary discharge/transfer”). 210 ILCS 45/3-401 et seq. If the resident requests a hearing on the discharge/transfer, an attorney must represent the nursing home during the hearing/appeal process if the nursing home is operated by a corporate entity or limited liability company. Stone Street Partners, LLC v. The City of Chicago Dept. of Admin. Hearings, 2014 IL App (1st) 123654. Before the hearing, however, the nursing home must follow specific rules to facilitate the resident’s…
Continue Reading Involuntary Discharges and Transfers in Illinois: A Guide for Nursing Homes in the Pre-Hearing Stage

Under certain circumstances, Missouri nursing homes may discharge or transfer a resident even when the resident does not agree to the discharge/transfer (an “involuntary discharge/transfer”). If the resident appeals the discharge/transfer, Missouri law requires that an attorney represent the nursing home during the hearing/appeal process if the nursing home is operated by a corporate entity. 19 CSR 30-82.050(12). Before the hearing, however, the nursing home must follow specific rules to facilitate the resident’s discharge/transfer.
Missouri Rules on the Pre-Appeal Process
Missouri nursing homes may involuntarily discharge/transfer residents for the following reasons: 1) the nursing home cannot meet the resident’s health…
Continue Reading Navigating the Rules for Nursing Home Involuntary Discharges/Transfers in Missouri: Steps to Follow Before the Resident Appeals

On November 4, 2015, the Illinois Supreme Court reversed the decision of the Appellate Court of Illinois, for the First District in Folta v. Ferro Engineering. The Supreme Court held that the Workers’ Compensation Act and Workers’ Occupational Diseases Act provides the exclusive remedy for an employee’s injury arising out of and in the course of his or her employment, even when the employee first learns of the injury after the expiration of the applicable statutes of repose. Folta v. Ferro Eng’g, 2015 IL 118070, ¶ 52, 43 N.E.3d 108, 120
In Folta, the plaintiff’s decedent was allegedly exposed to…
Continue Reading Illinois Senate Bill 1596—Employers’ Civil Liability to Employees

The federal Resource Conservation and Recovery Act (“RCRA”) authorizes a citizen suit against “any person” who has violated “any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter,” or “who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1). Disputes between private parties regarding environmental contamination at a property sometimes result in one side threatening to bring a citizen suit under the…
Continue Reading Seventh Circuit Draws a Line on Awards of Injunctive Relief Under RCRA

This is not about restrictions on how you cook your eggs or hunt game out of season.
But read on if you are an employer and want to know about a serious and growing antitrust risk, heightened by federal and state antitrust enforcement as well as private litigation. Agreements to refrain from soliciting another company’s employees (“no poaching” agreements) face increased scrutiny — with potential criminal consequences. In close alignment, there is a spate of new “wage-fixing” cases, a variant of price fixing.
It all started with three cases brought by antitrust enforcement agencies against several major high-tech companies, including…
Continue Reading No Poaching—New Meaning for Employers At the Intersection of Employment Practices and Antitrust

February 20, 2019 – On February 15, the Federal Trade Commission (FTC) published increased reporting thresholds under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act). The new thresholds represent an approximate 6.6 percent increase over last year’s thresholds. They are expected to be published in the Federal Register during the week of February 18, 2019, and they will become effective 30 days after the date of their publication. This year’s revised thresholds were delayed due to the government shutdown in January. The revised thresholds will remain in effect until the FTC’s next annual adjustment expected in the…
Continue Reading Contemplating a Sizable Merger, Acquisition or Joint Venture?–Updated HSR Merger Notification Threshold Tests for Federal Antitrust Review Apply in March 2019

The Biometric Information Privacy Act (BIPA) establishes safeguards and procedures relating to the retention, collection, disclosure, and destruction of biometric data. Passed in October 2008, BIPA is intended to protect a person’s unique biological traits—the data encompassed in a person’s fingerprint, voice print, retinal scan, or facial geometry. This information is the most sensitive data belonging to an individual. Unlike a PIN code or a social security number, once biometric data is compromised, “the individual has no recourse, is at [a] heightened risk for identity theft, and is likely to withdraw from biometric-facilitated transactions.” 740 ILCS 14/5(c). For this reason,…
Continue Reading Get Ready for a Wild Ride: The Illinois Supreme Court Decides that a Bare Violation of BIPA Supports a Cause of Action, with No Actual Injury Required