T H U R S DAY, OCTOBER 18, 2018
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Two years ago the U.S.Supreme Court ruledthat an
unacceptedtender from a defen-dant doesn’t make alawsuit moot —
because “an un-accepted settlement offer, like anyunaccepted
contract offer, is a legalnullity with no operative
effect,”Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663 (2016) — but the
IllinoisSupreme Court hasn’t reconsideredits 2011 decision, in
Barber v. Amer-ican Airlines, 241 Ill. 2d 450, that anunaccepted
tender can kill a case.
In a new case, Barber admin -istered a coup de gracê to the
classaction Richard and Ann Aldersonpursued against the Lake
Countycourt clerk.
The Aldersons alleged the courtc l e rk ’s office demanded a $50
fee —as authorized by the Clerks ofCourts Act for a petition
seekingrelief from a “final judgment” —when they promptly requested
re-instatement of a lawsuit (referredto as “the arbitration case”)
thatwas dismissed for want of pros-ecution. But because the “DW P
”wa s n’t a final order, they shouldn’thave been charged the $50
fee.
Their class-action complaint —which named the Lake Countycourt
clerk, Erin C. Weinstein, as arepresentative of all of the
othercourt clerks in Illinois — asked for awrit of mandamus
commandingrefunds (Count 1) plus an account-ing (Count 2).
Before the Aldersons’ re q u e s t e dclass certification,
Weinstein sent acheck for $50 to the lawyer whorepresented them in
the arbitrationcase, plus $291 to their new at-torney for the
filing fee in the classaction. But their prior lawyer al-legedly
cashed the $50 check with-out authorization.
Based on (1) the first attorney’sconduct, (2) Barber and (2) an
af-fidavit from Weinstein pledging heroffice would no longer
collect theimproper fee, Circuit Judge Mar-garet J. Mullen moved to
dismissthe class action as moot.
Affirming dismissal of the classaction, the Illinois Appellate
Courtexplained that “this is a simple case”under B a r b e r,
because “the Alder-sons have essentially received all thatthey are
entitled to and then some.”
And “even if Illinois were toadopt the C a m p b e l l - Ew a l
d ap -proach, any distinction between ac-cepted and rejected offers
wouldlikely matter little in this case” —because “their attorney in
the ar-bitration case (i.e., their agent)cashed Weinstein’s $50
refundc h e c k .” Alderson v. Weinstein, 2018IL App (2d) 170498
(July 13, 2018).
Here are highlights of JusticeSusan Fayette Hutchinson’s
opin-ion (with omissions not noted andformatting modified for
clarity):
At present, Illinois law draws nodistinction between an
acceptedoffer of tender and an unacceptedoffer of tender. For
example, inWheatley v. Board of Education ofTownship High School
District 205,99 Ill. 2d 481 (1984), where a class ofteachers sued
the school board thathad dismissed them, the court heldthat the
named plaintiffs’ claimswere mooted when they acceptedthe school
board’s offer of re-em-ployment. However, in Barber v.American
Airlines Inc., 241 Ill. 2d 450(2011), the court held that the
de-fendant airline’s offer to refund the$40 checked-baggage fee
(i.e., theconsumer plaintiff ’s only allegeddamages) mooted the
plaintiff ’sclaims, even where the offer wasrejected by the
plaintiff ’s counsel.
So, for the purpose of evaluating
26 pages in 2 sections
CASE SUMMARIES ........................ 6COURT
CALL.................................... 7NEW
SUITS...................................... 16CLASSIFIEDS
.................................. 18PUBLIC NOTICES
.......................... 19
TRIALNOTEBOOK
COMMERCIALL I T I G AT I O N ,PAGE 4
Tender offerderails class,ends lawsuit
Alderson v. Weinstein
Consult ant’s job wasn’t what was promised
STEVEN P.GARMISAHoey & Farina
NOTEBOOK, Page 4
Judge tosseslawsuit overpolice killingMan shot 13 times inback
in 2014; suit notfiled within two years
Lawyers sanctioned inkitty litter copycat case
BY DAV I D THOMASLaw Bulletin staff writer
A federal judge on Wednesdaythrew out a civil rights lawsuit
filedby the estate of a man who waskilled when he was shot 13 times
inthe back by Chicago police of-f i ce rs .
U.S. District Judge Manish S.Shah tossed the lawsuit
EsperanzaDavila and others filed against thecity of Chicago and the
two officerswho killed her boyfriend.
Davila accused Patrick Kelly andAntonio Corral of killing
HectorHernandez without provocation —according to her amended
com-plaint, other officers already hadtheir Tasers drawn on
Hernandezwhen Kelly and Corral opened fire.The April 7, 2014,
shooting oc-curred in Davila’s kitchen in frontof their 2-year-old
son.
Kelly is a central figure in an-other police misconduct lawsuit
—in October 2017, a federal juryawarded Brian LaPorta $44.7
mil-lion after finding that Kelly shot hisfriend in the back of the
headeither “intentionally or with reck-less indifference.”
Shah dismissed the lawsuit be-cause it wasn’t filed within
twoyears of Hernandez’s death, re-jecting the arguments the
plaintiffsraised for why the timing of thelawsuit should have been
tolled.They first filed suit on Nov. 10, 2017,
more than three years after Her-nandez’s death.
The plaintiffs argued the two-year time limit they had to sue
thedefendants was tolled because thecity refused to disclose
Kelly’s andC o r ra l ’s names in response to aFreedom of
Information Act re-quest they filed.
The plaintiffs also argued thattheir attorneys from Romanucci
&Blandin LLC and the Law Office ofJeffrey Granich had pursued
dis-covery in other lawsuits involvingKelly and the Hernandez
lawsuitwas never disclosed by the city.
But in a 14-page ruling, Shahsaid these two actions — the
FOIArequest and discovery in othercases — were not enough to
showthe plaintiffs exercised “due dili-ge n ce” to discover the
identities ofKelly and Corral prior to suingthem. If the plaintiffs
had showndue diligence, the statute of lim-itations would have been
tolled.
“Plaintiffs here were not sodiligent. Discovery by
plaintiffs’
Purina team waiteduntil day of depo toproduce 1,700 pages
BY PAT R I C I A MANSONLaw Bulletin staff writer
Lawyers who represent a com-pany accused of infringing on
apatent for kitty litter must pay theprice for engaging in
gamesman-ship, a federal judge held.
In a written opinion this week,U.S. Magistrate Judge Sidney I.S
chenkier sanctioned both NestlePurina PetCare Co. and its
lawyersfor trying to gain an unfair ad-vantage during discovery
proceed-ings in a lawsuit brought againstPurina by Oil-Dri
Corporation ofAmerica.
P urina’s lawyers withheld nearly1,700 pages of documents — wh i
c hincluded 1,424 pages that had notpreviously been produced —
untilthe day a witness was deposed inthe case, Schenkier wrote.
He wrote the lawyers then failedto provide Oil-Dri with copies
of allthe documents until seven daysafter the deposition.
“P urina’s behavior warrants sanc-tions to remedy any prejudice
to Oil-Dri and to deter Purina from furtherlike behavior,”
Schenkier wrote.
He directed that the witness bedeposed again by Nov. 16.
And he ordered Purina and itslawyers to pay the reasonable
ex-penses and attorney fees Oil-Driincurs in conducting the
recon-vened deposition.
Purina is represented by attor-neys who include David A.
Rood-man and Nick E. Williamson of theSt. Louis office of Bryan
CaveLeighton Paisner LLP.
In a written statement, Purinaspokeswoman Wendy Vlieks saidthe
company and Bryan Cave “re -spect the court’s decision.”
“While we are disappointed thecourt did not deny the entire
mo-tion, we believe the court’s orderprovides an appropriate
solutionfor both parties,” Vlieks said.
Oil-Dri’s attorneys includeMichael P. Mazza of Michael P.Mazza
LLC in Glen Ellyn.
Mazza declined to comment be-cause the case is pending.
Oil-Dri is based is Chicago. Pu-rina is a St. Louis-based
subsidiaryof Nestle.
In February 2015, Oil-Dri filed asuit in federal court in
Chicagoaccusing Purina of infringing anOil-Dri patent on
litter.
Three years later, Purina serveda subpoena on Jerry Glynn to sit
fora deposition and to produce certaindocuments.
Glynn, who is not a party to thesuit, previously worked as a
sales-man for a Boulder, Colo., companynamed Western
Aggregates.
Glynn is listed as a co-inventor ofWestern Aggregates’ U.S.
PatentNumber 5,458,091.
The Western Aggregates patentis one of the bases for
Purina’scontention that the Oil-Dri patent itis accused of
infringing is invalid.
In March, Glynn was at a formerWestern Aggregates facility in
Col-orado when he discovered two box-es of documents related to
thepatent he co-invented.
About that time, Glynn retainedBryan Cave to represent him at
thedeposition.
Mazza was not aware that BryanCave represented Glynn or
thatGlynn had documents responsiveto the subpoena until Glynn
gavehis deposition on April 16.
When Mazza asked Roodman atthe deposition why he had notmade
copies of the documents forOil-Dri’s attorneys beforehand,Roodman
replied that he had nothad time.
Roodman gave Mazza markedcopies of the exhibits he used
toquestion Glynn as he used them.
LAW FIRM LEADERS
CBA presidentPAGE 3
SPRINGFIELD
Gambling billPAGE 3
Cana rb i t ra t o rs
refuse to approvea settleme nt[?]”L AW Y E R S’ FORUM, PAGE
4
IN THE LAW FIRMS
Reed Smith LLP added Thomas J. Posey as a partner in the labor
and employment practice group.Posey represents companies from a
wide array of industries in all aspects of labor law and
employmentissues, including serving as a chief labor negotiator.He
was previously with Faegre Baker Daniels LLP.
• • • • •Daniel L. Farris, a partner at Fox Rothschild LLP and
chair of the technology practice, presented a
Healthcare Apps and Legal Issues seminar Tuesday at the firm’s
office in New York.The panel discussed how technology has
transformed the health-care industry and the way services are
delivered, in addition to numerous legal issues health-care apps
present, such as privacy concerns.Farris counsels clients on a wide
range of issues, including fiber optic networking, cloud computing,
mobile app
development, information management, privacy and data
security.
• • • • •Newton C. Marshall, a member at Karbal, Cohen,
Economou, Silk & Dunne LLC, will speak on “D e fe n d i n g
the Professional at Trial” at the 2018 DRI Professional
Liability Seminar on Nov. 30 in New York.The seminar will discuss
myriad issues currently impacting licensed professionals, such as
attorneys,
accountants, architects, engineers and real estate brokers.
IN THE NEWS
Robert P. Walsh, partner at Clifford Law Offices, spoke on liens
at the Illinois Trial Lawyers Association Update and Review
Seminaron Friday at the Westin Chicago River North, 320 N. Dearborn
St. Photo by Bill Richert
BY SARAH MANSUR
T URNINSIDE
4th Amendment suit over teens’ car can proceedBY ANDREW MA L O N
EYLaw Bulletin staff writer
A federal judge has declined totoss claims that a police search
inthe south suburbs violated theFourth Amendment.
U.S. Judge Manish S. Shah thisweek denied summary judgmentfor
the village of Orland Hills aftertwo minors claimed they were
sub-jected to an unconstitutional stop.
S h a h’s ruling involved the vil-l age’s request to drop the
suit. Thecase was allowed to continue.
The officers claimed the 15- and17-year-old teens drew their
at-tention when they parked theirVolkswagen in what police
de-scribed as “a high-crime area” atnight and made “f u r t i ve”
move -ments in the vehicle. They claimedlater they saw cannabis
residuenear the car but didn’t photographor collect the alleged
evidence be-cause there were only traceamounts.
The minors claimed they werewaiting for a friend who would
lendthem a basketball. The youths saidthe friend lived in the
area.
In a 19-page decision Monday,Shah wrote that, besides the
fact
the police officers believed theywere parked in a high-crime
area,there wasn’t much evidence to bol-ster their claims they had
rea-sonable suspicion to ultimatelyconfront the boys and search
theirve h i c l e.
“If they had more, they struggleto point to it,” he wrote,
noting thatthe “furtive movement” claim —that the officers saw one
of the boysmotion as if he was sticking some-thing in his
sweatpants — wa sdisputed, and a nonsuspicious in-ference could be
drawn from it.
“A jury could conclude that anofficer who did not see a
suspiciousgesture had no constitutional rea-son to detain two young
men wait-ing in a running car in a high-crimearea. There are many
noncriminalthings that can be waited for in arunning car. One is a
basketball,”Shah added.
“Defendants point to no authoritythat justifies detention and
inves-tigation of every person sitting in arunning car in this
apartment com-plex parking lot, without some addedsuspicious
activity,” he wrote.
The events transpired on Feb. 3,2017, around 6 p.m. The
minors,identified as A.A. and D.M. in the
complaint, parked among 50 or soother vehicles at an
apartmentcomplex, leaving the lights and en-gine running. The car
got the at-tention of two officers, identifiedonly as Scully and
Miller in theopinion, driving an unmarkedCrown Victoria down the
street.
The teens filed suit in federalcourt on Feb. 28, 2017.
They pulled into the parking lotbehind the Volkswagen and,
claim-ing one of the occupants made agesture toward his
waistband,pulled up behind the car and boxedit in so the pair
couldn’t leave.They got out of their car andapproached the
Volkswagen withflashlights illuminated.
They would both testify they saw“s h a ke,” small bits of
marijuana, inthe driver’s lap and on the floor-boards of the car,
but didn’t collectevidence of it, with one officerclaiming it was
too little to filecharges and there was no reason tothink either
occupant was underthe influence or carrying more.
Both teens showed the officersidentification and were
submittedto pat-downs. Miller then searchedthe car for several
minutes with thedriver at one point offering to help
him open up the center console.However, there was
conflicting
testimony about whether consentto the search was actually
given.Both boys testified the driver saidhe did not consent to a
search withMiller saying he didn’t need theb oy s ’ permission.
The passenger additionally tes-tified that he suggested the
officerscould “go ahead and search the carall you want.” Scully
testified theconsent discussion didn’t occur.Miller was not asked
the samequestion during deposition.
Shah noted in the opinion thisweek that increasingly
invasivesearches must be justified by in-creasing levels of
suspicion. Policed o n’t really need suspicion to askbystanders
questions or peer insideof cars parked in public places.T h at’s
essentially what they weredoing as they parked near theteens’
Volkswagen, he wrote.
However, once they boxed thevehicle in, the teens were
“seized”and basically conducting a Te r r ystop. Such a maneuver
requires“re a s o n a b l e” suspicion, or, “spe -cific,
articulable facts” giving riseto that suspicion.
‘‘
Thomas J.Po s ey
Daniel L.Fa r r i s
Michael G.DiDomenico
Alan J.To b ac k
IN THE NEWS, Page 2
SANCTIONS, Page 6S E A RC H , Page 6
Manish S. Shah
L I M I TAT I O N S , Page 6
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