In just eight weeks, McKenna Storer attorney Alex Sweis delivers an expedient settlement with optimal results for his insurance client. An early settlement, with limited discovery, saves the carrier a tremendous amount of litigation expenses, and keeps premiums lower for the insureds. An early settlement is not just, we will pay, but we will pay a certain amount and not a penny more. If this certain amount is not accepted, it will not go up after years of litigation.
A Scenario for Early Settlement
Recently, Alex was assigned a new insurance defense case. The case was a “he said vs she said red light” accident. The plaintiff and Alex’s insured both told the reporting police officer that the other ran the red light. Both parties were cited by the investigating officer. The plaintiff’s motor vehicle was flipped over as a result of the impact. When the paramedics arrived on the scene and saw the plaintiff’s car flipped over, they initiated the trauma protocol. He was taken to a local hospital and admitted to the trauma level.
While in the hospital, the plaintiff complained of concussive symptoms and underwent numerous tests. After his discharge, the plaintiff followed up with his primary care doctor complaining of continued headaches and trouble concentrating. His primary care doctor diagnosed him with Post Concussive Syndrome and referred him to a psychologist. The psychologist diagnosed him with Post-Traumatic Stress Disorder(PSTD) and anxiety. The plaintiff was still in treatment when his attorney made a $125,000 settlement demand based on $25,000 in medical bills.
Negotiating an Effective and Expedient Settlement
Alex was able to settle the case for only $30,000 before written discovery or before any depositions took place. He closed the file in eight weeks. He did not give up on liability, nor the curious nature of plaintiff’s PTSD diagnosis, as plaintiff himself worked as a paramedic.
Alex’s intent with any new case assignment is to seek a quick, economical settlement if the opportunity presents itself. Two months after this assignment, this claim was closed.
Alex Sweis is a trial attorney at McKenna Storer and focuses his practice on Insurance Claims and Insurance Defense. Please contact him with questions about this article or similar matters.
THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://www.mckenna-law.com/blog/insurance-defense-case-expedient-settlement/
Illinois has a new law protecting Illinois service members’ employment rights while they are serving and protecting our country. Effective on January 1, 2019, this new law, called the Illinois Service Member Employment and Reemployment Rights Act (ISERRA) is the state version of the Federal Uniform Services Employment & Reemployment Rights Act (USERRA) and grants greater protection to our service members who leave civilian employment to serve our Nation and the State of Illinois.
Purpose of ISERRA
The purpose of ISERRA is to simplify and consolidate existing Illinois laws making it easier for employers and service members to understand as well as expand upon the federal USERRA act to provide greater protections to service members. The law is designed to protect the public interest in both safeguarding and promoting military service. The Act’s focus is to:
Protected Persons under ISERRA
The persons protected under ISERRA are greater than the persons protected under USERRA and extend to State of Illinois service members as well. There are three categories of protected persons under the ISERRA definition of “Military service”:
Rights Protected Under ISERRA
Protections under ISERRA include all basic protections provided under USERRA but also expand on those rights. The major protections are discussed below:
An ISERRA Notice must be posted. ISERRA requires that each employer provides to employees a notice of rights, benefits and obligations for service member employees under the statute where the employer customarily places notices for employees. See Illinois Attorney General Notice of ISERRA rights.
ISERRA creates a private right of action for enforcement of a violation of the statute. The Illinois may award actual damages “or any other relief that the court deems proper.” Punitive damages are not permitted except for cases involving discrimination against service member employees, and may not exceed $50,000 per violation. Reasonable attorney’s fees are available.
The Attorney General may also bring a civil action based upon violations of ISERRA.
Employers Best Practices Related to ISERRA and other Illinois LawsWhile ISERRA is an Illinois law, all employers should familiarize themselves with USERRA as well as state laws designed for the support and protection of the military and update your company policies and procedures accordingly. The purpose of these laws is to support employees so that they may serve and protect.
Contact Kristin Tauras if you have any questions related to ISERRA or USERRA protections.
THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://www.mckenna-law.com/blog/iserra-illinois-military-leave-law-now-in-effect/
Illinois State Legislature Passes Bill That May Allow Increased Civil Claims Against Illinois Employers
On March 14, 2019, the Illinois House passed Senate Bill 1596 by a vote of 70-40-1. The Bill creates a statutory exception to the workers’ compensation exclusive remedy provision for occupational injuries otherwise barred due to the Acts’ repose provisions. The legislation would amend the Illinois Workers’ Compensation Act and the Workers’ Occupational Diseases Act (the “Acts”) and allow employees to sue their employer in civil tort actions for a latent injury if they are time-barred from bringing a Workers’ Compensation or Occupational Disease claim. This is likely to result in increased civil claims against employers. The Bill had earlier passed the Senate on March 6 in a 41-16-1 vote. It appears that Governor Pritzker will sign the bill. It would take effect immediately.
Bill 1596 adds Section 1.2 as follows:
Sec. 1.2. Permitted civil actions. Subsection (a) of Section 5 and Section 11 do not apply to any injury or death sustained by an employee as to which the recovery of compensation benefits under this Act would be precluded due to the operation of any period of repose or repose provision. As to any such injury or death, the employee, the employee’s heirs, and any person having standing under the law to bring a civil action at law, including an action for wrongful death and an action pursuant to Section 27-6 of the Probate Act of 1975, has the non-waivable right to bring such an action against any employer or employers.
The New Bill Overrides a Previous Supreme Court Decision Related to Worker’s Compensation Act and Occupational Diseases Act
This new legislation will essentially override the Illinois Supreme Court’s decision in Folta v. Ferro Engineering, 2015 IL 118070 (2015), where the Court held that the Worker’s Compensation Act and Occupational Diseases Act provided the exclusive remedy to Illinois employees who suffered latent occupational injuries. In that case, James Folta was employed by Ferro Engineering from 1966-1970. He was allegedly exposed to asbestos during the time of this employment. Forty-one years later in 2011, Folta was diagnosed with mesothelioma (an asbestos related disease). Since he was time-barred in making a workers’ compensation claim by the Acts’ 25-year statute of repose, Folta filed a civil tort claim against his former employer Ferro Engineering. The circuit court granted Ferro’s motion to dismiss but was reversed by the appellate court.
On appeal to the Illinois Supreme Court, Folta argued that the exclusive remedy of the Acts should not apply to him, as his injury did not manifest until after the expiration ofthe 25-year statute of repose. The court found that even though the Acts barred Folta’s claim before it had accrued, that this wasactually consistent with the purpose of the repose provision of the Acts. The purpose of a statute of repose period is to terminate the possibility of liability after a defined period. The fact that Folta was not at fault for failing to file a claim sooner due to the nature of his disease was irrelevant. Further, the court determined that Folta’s interpretation would directly contradict the plain language of the exclusive-remedy provision which provides that the employer’s liability is “exclusive and in place of any and all other civil liability whatsoever, at common law or otherwise.” 820 ILCS 310/11. The Acts were designed to provide certain financial protection for employees for accidental injuries arising out of and in the course of employment. The Court found that the exclusive remedy provision was a vital part of the workers’ compensation framework, and allowing an employee such as Mr. Folta to have a civil law claim against his employer would undermine the framework of that system.
With the New Bill, Employee Latent Injuries Could Lead to increased Civil Claims Against Illinois Employers
Current Illinois law imposes liability without fault on the employer and in return prohibits common law suits by employees against their employer. It balances the sacrifices and gains of the employees and employers under the workers’ compensation system. If Governor Pritzker signs Senate Bill 1596 into law, Illinois employers will find that they are most likely uninsured for the civil claims brought by employees with latent diseases. General Liability Insurance policies have a standard exclusion for claims by an employee, and Worker’s Compensation policies have a standard exclusion for any civil claims against the employer. Illinois employers could have unlimited liability for an employee’s latent injury claims, and in many cases no insurance to cover these claims.
Paul S. Steinhofer is an experienced civil litigator who devotes his practice to defending businesses with complex civil tort matters. Please contact Paul for questions about this topic or any other commercial defense matters.
THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://www.mckenna-law.com/blog/il-bill-1596-may-increase-civil-claims-against-illinois-employers-for-latent-injuries/
The Illinois Supreme Court’s recent decision in Rosenbach v. Six Flags Entertainment Corp. is a blow to businesses that collect biometric information and identifiers (biometric data), and will likely lead to a flood of litigation under Illinois’ Biometric Information Privacy Act (BIPA). The decision, which was handed down on January 25, 2019, held that plaintiffs are not required to demonstrate actual injury to pursue a claim for violation of the BIPA.
The BIPA addresses the collection and storage of biometric data by private entities. The Act requires that these entities:
a) Develop a written policy concerning the storage and destruction of biometricdata;
b) Provide notice and obtain consent from an individual to collect biometric data;
c) May not sell, lease, trade, or otherwise profit from the biometric data;
d) May not disclose biometric data without consent, or under certain specified circumstances; and
e) Must safely store, transmit and protect biometric data.
Read our previous blog on this topic to learn more details about the Illinois BIPA requirements on businesses.
BIPA Provides a Private Right of Action for Violations of the Act
In Rosenbach, Stacy Rosenbach, on behalf of her son (Plaintiff), sued Six Flags Entertainment Corp. for various violations of BIPA that occurred at its Six Flags Great America amusement park in Gurnee, Illinois. Rosenbach alleged that Six Flags violated BIPA during the process of selling her son a season pass to its amusement park by collecting biometric information from him without notifying him that this information was being collected or stored, without notifying him of the purpose for which the information was collected or how it would be stored, and without obtaining written authorization to collect the information. Six Flags sought dismissal of the suit on numerous grounds, including that Plaintiff had suffered no actual injury and therefore lacked standing to sue.
Whether an individual must suffer some actual harm, apart from the statutory violation of BIPA itself, to sue under the Act, is the issue that was addressed by the Illinois Supreme Court. The Court analyzed the plain meaning of the statute, along with the intent of the legislature, and held that a statutory violation alone was sufficient to sue under BIPA.
How Does this Decision Impact Illinois Businesses and Lead to an Increase in BIPA Litigation?
This decision is important for businesses operating in Illinois in a couple of ways.
If you have additional questions regarding BIPA litigation and/or BIPA compliance contact Tim Hayes at McKenna Storer. Tim Hayes devotes his practice to helping businesses anticipate or address data security and privacy matters.
THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://www.mckenna-law.com/blog/increase-in-bipa-litigation-due-to-il-supreme-court-decision/
Plaintiff’s 213F disclosures will contain the treating physicians that plaintiff intends to call at trial. These “treaters” are the physicians who treated the plaintiff for his alleged injuries. These can range from emergency room physicians, primary care doctors, chiropractors, surgeons, pain doctors and physical therapists. These treaters do charge a deposition fee that can range from $300 per hour to over $2,000 per hour. Adding attorneys’ fees and costs for these depositions, they might end up costing more than the value of the case, depending on how many are disclosed. This analysis can be seen in most soft tissue cases. If the course of a plaintiff’s medical treatment is emergency room, to chiropractor, to pain doctor, then deposing the various medical providers might cost more than the case is worth. Is deposing a plaintiff’s treating physicians worth it for the defense attorney? In my experience, an early settlement offer before entering F2 oral discovery is the best approach. Let’s discuss why.
How Does Deposing a Plaintiff’s Treaters Work?
Before entering this phase of oral discovery, the defense attorney will have all of the records for the treaters. These records are instrumental to whether a treater’s deposition is even warranted. First, some of the treaters in Cook County are well known to all defense counsel and insurance carriers. Deposing these well known, flagged, treaters would simply increase litigation costs and not accomplish anything for defense counsel. The treater is going to testify that the occurrence caused the injury, that there was no pre-existing injury and the injury is permanent.
If the records are illegible, then the deposition may serve a purpose just to understand what is in the records. If the records are legible, then they may not warrant a deposition. If the treater’s records are detailed with complaints, recommendations and causation, then deposing that treater just to read back his records is not useful. Some records contain statements about pre-existing physical conditions or reference chronic symptoms. Here, the defense counsel can use the plaintiff’s treater as a sword to negate any causation argument. However, the plaintiff can use the treater to obtain aggravation or exacerbation testimony. Some treaters will testify that they cannot answer how the accident affected the pre-existing injury, which is useful to defense counsel.
One treater that is normally deposed is the surgeon. The surgeon’s testimony will be crucial to a plaintiff’s claim for causation and damages. The surgeon is also the treater who will give any future medical treatment testimony or opine to future surgeries. I have deposed various surgeons that I believed would give slam dunk testimony for plaintiff regarding causation and future medical treatment. I have also been surprised by a surgeon that would not give causation testimony and would testify that no future surgeries would be warranted. Surgeons are expensive to depose, but they are probably the star causation witness for a plaintiff.
So, Is Deposing Treaters Worth it or a Waste of Money?
In conclusion, 213F(2) oral discovery is a costly endeavor. Deposing a plaintiff’s treaters should be on a case by case basis. A treater who sees a claimant only once or twice may not be worth the litigation expenses because he is not a significant treater. If the case value warrants treater depositions, then the next step is to review those treaters’ records to ascertain if any favorable testimony is anticipated. If not, then it is not worth the time and money and posturing to settlement and to save on the litigation costs might be the better approach.
Contact Alex Sweis at McKenna Storer about this article or any questions relating to Insurance Defense.
THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://www.mckenna-law.com/blog/deposing-a-plaintiffs-treating-physicians/
Smaller companies often mistakenly believe that the state and federal employment discrimination laws do not apply to them because they are too small to be expected to know the laws or should not be held to th e same standards of a larger company. This incorrect belief leaves both the companies and the management open to claims and damages under the various state and federal anti-discrimination laws that protect employees, even employees of very small companies.Whether federal or state employment anti-discrimination laws apply to a company depends on the number of employees a business has, and the number of employees is smaller than most think. Let us review the basic employment laws small companies need to know and the minimum number of employees for each law.
FEDERAL DISCRIMINATION LAWS SMALL COMPANIES CAN’T IGNORE
Federal Equal Pay Act– One Employee
If you have at least one employee, you are covered by the federal law that requires employers to provide equal pay for equal work to male and female employees. The jobs need not be identical, but they must be substantially equal. Job content (not job titles) determines whether jobs are substantially equal. All forms of pay are covered by this law, including salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits. If there is an inequality in wages between men and women, employers may not reduce the wages of either sex to equalize their pay.
Title VII of the Civil Rights Act of 1964– Fifteen Employees
If you have at least 15 employees, you are covered by the laws that prohibit discrimination based on race, color, religion, sex (including pregnancy and possibly sexual orientation), and national origin.
Race discrimination involves treating someone (an applicant or employee) unfavorably because he/she is of a certain race or because of personal characteristics associated with race (such as hair texture, skin color, or certain facial features). Color discrimination involves treating someone unfavorably because of skin color complexion. Race/color discrimination also can involve treating someone unfavorably because the person is married to (or associated with) a person of a certain race or color.
Religious discrimination involves treating a person (an applicant or employee) unfavorably because of his or her religious beliefs. The law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs.Religious discrimination can also involve treating someone differently because that person is married to (or associated with) an individual of a particular religion.
Gender discrimination is any discrimination based on sex and includes discrimination based on gender as well as "sexual harassment" or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person's sex. Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.
Sexual orientation is discrimination based on the sexual orientation of an employee. It may be covered by Title VII as well. In 2015, the EEOC concluded that Title VII does not allow sexual orientation discrimination in employment because it is a form of sex discrimination. Some federal circuit courts have ruled on this issue but the U.S. Supreme Court has yet to rule on whether sexual orientation is protected against by Title VII.
National origin discrimination involves treating people (applicants or employees) unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background (even if they are not). National origin discrimination also can involve treating people unfavorably because they are married to (or associated with) a person of a certain national origin.
The Pregnancy Discrimination Act– Fifteen Employees
If you have at least fifteen employees, you are covered by the Pregnancy Discrimination Act (PDA). PDA forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.
Americans with Disabilities Act and Rehabilitation Act– Fifteen Employees
If you have at least fifteen employees, you are covered by the Americans with Disabilities Act (ADA) or if a federal employer, the Rehabilitation Act. Disability discrimination occurs when an employer or other entity covered by the Americans with Disabilities Act or the Rehabilitation Act treats a qualified individual with a disability who is an employee or applicant unfavorably or less favorably because she has a disability or a history of disability. The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability,
unless doing so would cause significant difficulty or expense for the employer ("undue hardship"). The law also protects people from discrimination based on their relationship with a person with a disability even if they do not themselves have a disability.
Genetic Information Nondiscrimination Act– Fifteen Employees
If you have at least fifteen employees, Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits genetic information discrimination in employment. Under GINA, it is illegal to discriminate against employees or applicants because of genetic information. It also prohibits the use of genetic information in making employment decisions, restricts employers and other entities covered by Title II (employment agencies, labor organizations and joint labor-management training and apprenticeship programs - referred to as "covered entities") from requesting, requiring or purchasing genetic information, and strictly limits the disclosure of genetic information.
Age Discrimination in Employment Act (ADEA)
If you have twenty or more employees, you are subject to the Age Discrimination in Employment Act (ADEA). Age discrimination involves treating an applicant or employee less favorably because of his or her age. The ADEA forbids age discrimination against people who are age 40 or older. The law prohibits discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment. It is also unlawful to harass a person because of his or her age. Harassment can include, for example, offensive or derogatory remarks about a person's age.
State DISCRIMINATION LAWS
State and/or local employment discrimination laws may also apply to your business. Every state has employment laws that either mimic the federal law or provide even greater protection to employees.
For example, the Illinois Human Rights Act (“IHRA”) provides broader employee protections than the federal anti-discrimination laws. The IHRA prohibits employment practices that discriminate based on race, color, religion, sex, sexual harassment, national origin, ancestry, age (40 years and older), order of protection status, marital status, disability, military status, sexual orientation (including gender-related identity), unfavorable discharge from military service, arrest record, citizenship status, or pregnancy (including childbirth or related medical conditions). The IHRA applies to employers of just one employee, “when a complainant alleges civil rights violation due to unlawful discrimination based upon his or her physical or mental disability unrelated to ability, pregnancy, or sexual harassment” and fifteen employees for all other forms of work place discrimination.
Best Practice for Small Companies Related to Employment Laws
Despite your small size, you should familiarize yourself with the laws that apply to your company.While few companies set out to discriminate, educating yourself on what constitutes employee discrimination and setting policies to avoid engaging in such conduct should be a priority for any business owner.
Kristin Tauras has been advising small businesses on their employment practices for more than twenty years. Please contact Kristin at McKenna Storer if you have any questions regarding your small business.
THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://www.mckenna-law.com/blog/what-employment-laws-small-companies-need-to-know/
Business Owners: You Can Protect Both Yourself in the Workplace and on Social Media with A Workplace Order of Protection
Is Someone Harassing, Intimidating, or Threatening Your Business?
In Illinois, businesses can protect themselves from individuals targeting them with acts of violence, stalking, threats, harassment, and property damage. As a business owner, you can become the target of unwanted and dangerous contact from disgruntled ex-employees, ex-customers, unsuccessful job applicants, debtors, and/or mentally unstable individuals. Under the “Workplace Violence Prevention Act” (820 ILCS 275/et seq.), employers can obtain a court order barring individuals from having any contact with your business, your employees and their families for up to 2 years. In emergency situations, an employer may also be able to obtain an emergency workplace order of protection that can be in effect for 14-21 days and can be entered without notifying the opposing party.In this article, we discuss how a workplace order of protection can help you as a business owner to protect yourself in the workplace and on social media.
What Conducts Qualify for a Workplace Order of Protection
Not all situations will qualify for a workplace order of protection. Conduct that may qualify for a workplace order of protection includes obscene communications sent with the intention of causing someone to be offended. This may include not only e-mail and telephone calls, but also posts on Twitter, Facebook or even comments on web pages. Other situations could include in-person conduct, such as an individuals who engage in graphic sexual behavior, make offensive sexual statements, call employees racial slurs, etc.
In addition, you may be able to obtain a workplace order of protection for conduct that causes emotional distress or employee fears for their safety or the safety of others. If an opposing party caused property damage to your business, you may be able to also recover for damages under the Workplace Violence Prevention Act.
Hiring an attorney will significantly help you navigate the procedures for obtaining a workplace order of protection.
For instance, an employer must follow certain procedures under the Workplace Violence Prevention Act when the opposing party is from the household of an employee.
James A. Cook has successfully obtained emergency workplace orders of protection and 2-year workplace orders of protection. In addition, he has obtained successful results for his clients in obtaining orders of protection in domestic violence situations. He can be reached at email@example.com
THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://www.mckenna-law.com/blog/workplace-order-of-protection-and-social-media/
McKenna Storer is pleased to announce that Super Lawyers recently recognized Greg Cochran, Sara Cook, and Alexander Sweis. These exceptional attorneys are recognized by their peers for their outstanding work and commitment to the spirit of the legal profession. Their knowledge of the law, professional work ethic, and advocacy on behalf of their clients allow them to stand out among other attorneys in the field.
Greg Cochran was once again named a Leading Lawyer in Illinois for Toxic Tort and Mass Tort Defense; he has earned this recognition yearly since 2012. In addition, this is his tenth year to be selected a Super Lawyer. A partner in McKenna Storer’s Chicago office, he received this award in 2007 and again in 2011 through 2019. Licensed since 1980, Cochran is a top rated products liability attorney.
His practice areas include Personal Injury - Products: Defense and Personal Injury - General: Defense.
Cochran has been with McKenna Storer for almost 40 years. A leader in the field of toxic tort litigation, he has successfully defended against toxic tort and product liability claims on behalf of manufacturers, distributors, contractors and premises owners in state and federal courts throughout Illinois. Cochran represents clients across different industries including construction, transportation, municipal, medical devices, pharmaceutical, industrial, and consumer products. A past president of the Illinois Association of Defense Trial Council, Cochran is active in many defense related associations. He received his J.D. in 1980 from the University of Michigan.
Sara Cook is the managing partner of McKenna Storer in Woodstock, Illinois. As a highly rated business litigation attorney, she represents local, national, and international clients in a number of areas of law, including transportation law, appellate practice and procedure, professional liability defense, insurance defense, banking, and complex commercial and business litigation. She is also involved in bankruptcy and bankruptcy litigation on behalf of debtors and creditors.She has been selected to Super Lawyers every year since 2014.
Cook also serves as a panel mediator for small claims cases. She has received an AV Preeminent* peer-review rating through Martindale-Hubbell and is admitted to practice in Illinois. She is also admitted to practice before the U.S. Tax Court, the U.S. District Courts for the Northern District of Illinois, the Eastern District of Michigan, and the Eastern District of Wisconsin, and the U.S. Courts of Appeals for the 7th, 10th, and 11th Circuits.
Licensed since 1980, she received her law degree from Loyola University Chicago School of Law. She is a member of the Federal Seventh Circuit Bar Association, McHenry County Bar Association, Small Claims Mediation Program, and the Woodstock Chamber of Commerce and Industry.
Alexander Sweis was named a Super Lawyer Rising Star for a third consecutive year. Rising Stars must be either 40 years old or younger or in practice for 10 years or less. While up to five percent of the lawyers in the state are named to Super Lawyers, no more than 2.5 percent are named to the Rising Stars list. Sweis is a top rated personal injury attorney in Chicago. His practice focuses on a broad spectrum of practice areas, including business and personal injury, insurance defense, professional liability, medical malpractice, and business services. He is a certified arbitrator with the Cook County Mandatory Arbitration. He is also a member of the Defense Research Institute and the Illinois Association of Defense Trial Counsel. Licensed since 2009, Sweis is a Cum Laude graduate of The John Marshall Law School.
“We are grateful for this recognition,” said Cook. “We take pride in the fact that all of our partners are AV-rated preeminent attorneys bringing great experience and skill to bear on all our client’s legal issues.”
Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. This selection process includes independent research, peer nominations, and peer evaluations.
Named one of the top-ranked law firms In the United States by Martindale-Hubbell and Fortune Magazine, McKenna Storer is a full-service law firm that has over 60 years of experience and expertise in a wide variety of practice areas. With offices in Chicago and Woodstock, their attorneys offer a wealth of experience in major practice areas, skilled support personnel, and state of the art technology. From bankruptcy and estate planning to insurance and commercial litigation, their team’s depth of expertise helps navigate tough situations with creative, real-world solutions.
THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://www.mckenna-law.com/blog/mckenna-storer-attorneys-recognized-top-lawyers-2019-awards/
Chicago’s minimum wage is already the highest in the state and due to increase on July 1, 2019. Employers need to be ready for not only the overall increase in minimum wage, but also the commensurate increase in employee expectations and overtime that will go along with the Chicago minimum wage increase.
The 2019 Chicago Worker Minimum Wage Increase will be Greater than 9%
For the majority of Illinois, the minimum wage is$8.25 for employees ages 18 and over, and $7.75 for employees 17 and under, while the federal minimum wage is $7.75.
In Cook County, which geographically includes Chicago as well as the near suburbs, the minimum wage for employees working in non-Chicago companies, is $11.00 an hour and the minimum wage for workers in Chicago is $12.00.
Starting July 1, 2019, the minimum wage for Chicago workers will increase to $13.00 per hour. That is greater than a 9% increase in minimum wage.
How can Chicago Employers Plan for the Chicago Minimum Wage Increase?
Employers need to start planning now for how this will affect the pay scale for hourly employees, especially those making a lower hourly income. Employees who began at minimum wage or slightly higher and received merit increases in their hourly wages will have the expectation that their salary will increase as well.
Employers also need to plan for how this pay increase will affect overtime. An increase in the hourly wage will mean an increase in overtime wages.Even though the minimum wage exceeds federal standards, the federal law mandates that employees receive overtime in an amount that is 1.5 times the employee’s regular rate. This means that the overtime rate for a minimum wage employee in Chicago will increase from $18.00 to $19.50 an hour.
Employers also need to verify that their non-exempt salaried employees are paid a high enough salary to meet or exceed the minimum wage increase. For a non-exempt salaried employee in Chicago, the employee’s current salary must be $24,960.00 before overtime. Starting July 1, 2019, the salary must be $27,040.00 before overtime.
How Will Our Change in Governor Affect Statewide Minimum Wages?
During his campaign, the now sitting Governor Pritzker promised to raise the Illinois Minimum Wage from $8.25 to $15.00. He reaffirmed that desire to raise the Illinois Minimum Wage during his inaugural speech wherein he stated:
“Working men and women deserve to have a governor and a Department of Labor that will enforce laws protecting workers’ wages and workers’ rights. And they deserve a $15 minimum wage. It’s good for the working families of Illinois and good for our economy.”
Illinois employers should be prepared for changes in Illinois’ minimum wage.
McKenna Storer attorneys have extensive experience in defending employers in wage and hour matters. Contact Kristin Tauras for information about the Chicago minimum wage increase or any other wage related questions.
THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://www.mckenna-law.com/blog/chicago-ninimum-wage-increase-in-2019/
In commercial lending, obtaining a personal guaranty or corporate guaranty falls under the routine everyday standard best practices of any lender. The need and usefulness of the guaranty often becomes more evident when lenders take on the risks involved with helping small businesses and start-ups that have inadequate revenues and/or inadequate collateral to provide as security for conventional and/or government back loans. I ideal guaranty is unlimited and unconditional. A guaranty provides a lender with a source of repayment in case the borrower defaults on repayment or otherwise fails to perform under the loan agreement. The guaranties can be either unlimited or limited, and can be conditional or unconditional (absolute). Let us examine the unlimited and unconditional guaranty and how small business lenders can maximize their ability to collect on defaulted loan agreements.
What is an Unlimited Guaranty and Why it is Important to Business Financing?
An “unlimited guaranty” will make the guarantor liable for any debt owed now, or arising later, between the lender and borrower. A guarantor’s exposure to liability can be restricted to a specific debt, or a specific dollar amount, owed by the borrower which creates a “limited guaranty”.
Whether a guaranty is limited or unlimited, for enforcement purposes, the guaranty will be construed under the same conditions of any other contract and require careful attention paid to the explicit terms of the guarantor’s obligations. Courts generally construe guaranties in the most favorable light of a guarantor when there is dispute with a lender, and this is even more so when the guarantor is an individual and not a business entity. A guaranty will be strictly construed based on the terms in the agreement which presumably should be narrow in scope and reflect the intention of the parties. See McGinley Partners, Ltd. liability Co. v. Royalty Properties, Ltd. liability Co., 2018 IL App (1st) 171317 at P52 citations omitted.
The terms of a guaranty also should be free of legal jargon especially when the guarantor is an individual versus a corporate guarantor. The terms of a guaranty should explicitly outline the duties of the lender and borrower, and the obligations of the guarantor. The duties of the lender and borrower usually consist of conditions precedent that need to occur prior to requiring payment from the guarantor. The most obvious conditions precedent are default by the borrower and the lender providing a written notice of default to the guarantor. Another condition precedent may require the lender to make or exhaust collection efforts against the borrower before seeking payment from the guarantor.
What is an Unconditional Guaranty and Why it is Important Business Financing?
The prerequisite of a lender attempting to collect from a borrower before collecting from a guarantor creates a “conditional guaranty” or a “guaranty of collectability”. A “conditional guaranty” greatly benefits a guarantor by potentially requiring a lender to file a lawsuit against a borrower or ultimately a lender needing to liquidate the assets of the borrower. The requirement of the lender to collect against the borrower first may significantly reduce the amount owed by a guarantor. While the “conditional guaranty” benefits the guarantor, a lender will suffer the consequences by not being able to immediately seek payment from the guarantor.
A lender may seek immediate payment from a guarantor when there is a “guaranty of payment”. The “guaranty of payment” allows a lender to pursue collection efforts against the guarantor without needing to first seek payment from the borrower. The parties also can agree to have a “guaranty of performance” that allows the lender to look to the guarantor to complete other obligations of the borrower such has supplying goods and/or services.
Key Takeaway for Lenders for Unlimited and Conditional Guaranty
A lender should seek to have clear language in an agreement that establishes the immediate obligation of payment and/or performance by the guarantor if the borrower defaults under the loan agreement. The immediate obligation for payment or performance also should not be limited to any specific amount and/or any specific debt owed by the borrower. It is crucial that lenders make certain that their guaranty agreements fully and clearly explain that the guarantor is signing an “unlimited guaranty of payment” or an “unlimited guaranty of performance”, to alleviate any ambiguity as to what is expected from the guarantor, thereby requiring a court to resolve any dispute in favor of the lender.
McKenna Storer attorneys have deep expertise in supporting small business lenders with government guaranteed and conventional loan products. Contact Jaime Dowel with questions about unlimited and unconditional guaranty or other small business loan matters.
THIS ARTICLE WAS PREVIOUSLY PUBLISHED AT: https://www.mckenna-law.com/blog/ideal-unlimited-and-unconditional-guaranty/
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