UCC

WAGE PAYMENT AND COLLECTION ACT

CRIMINAL CASES

ASSISTANCE OF COUNSEL

1st Dist. People v. Lake, No. 1-96-3749 (mod. op. 8/18/98). Cook Co. Pet. for rehearing. Den'd. 13 pp.

1st Dist. People v. Valentine, No. 1-96-1946 (8/31/98). Cook Co. Rev'd and rem'd.

D charged with aggravated battery den'd effective assistance of counsel where counsel introduced evidence of D's prior arrests thereby opening door for state to cross-examine D regarding his prior unrelated battery arrests. Outcome of trial depended on jury's credibility determinations; as introduction of inadmissible evidence of D's prior unrelated arrests undermined his credibility, reasonable probability atty.'s error affected outcome of trial. (Dissent filed.) 12 pp.

1st Dist. People v. Wiggins, No. 1-97-0961 (8/17/98). Cook Co. Aff'd.

Failure of D's counsel to request fitness hearing did not support claim of ineffective assistance of counsel; no automatic entitlement to fitness hearing. No indication D's use of psychotropic drugs so affected D's ability to meaningfully participate in defense and cooperate with counsel as to raise bona fide doubt of D's fitness to stand trial. 12 pp.

CEMETERY PROTECTION ACT

2nd Dist. People v. Cline, Nos. 2-97-0972 & 2-97-0973, Cons. (8/12/98). Stephenson Co. Rev'd.

D-cemetery employees exempt from prosecution under 765 ILCS 835/1(c) for removal of gravestone where cemetery regulations prohibited marker from being erected on lot where charges outstanding. 8 pp.

CONFESSIONS

1st Dist. People v. McNeal, Nos. 1-97-1400 & 1-97-1541, Cons. (7/30/98). Cook Co. Aff'd.

Finding D minor's statement voluntary not against manifest weight of evidence where D was admitted gang member who had been arrested several times before; D advised of his rights and in custody less than 3 hrs. when questioning occurred. 28 pp.

2nd Dist. People v. Harbach, No. 2-96-1361 (7/31/98). Lee Co. Rev'd and rem'd.

Tr. Ct.'s den'l of D's motion to suppress inculpatory statements he purportedly made against manifest weight of evidence. During interview where statements made, no one advised D of his impending release or of his right to remain silent; officers asked once to speak with D and he refused. (Dissent filed.) 15 pp.

3rd Dist. Almquist v. Almquist, No. 3-97-0811 (8/26/98). Will Co. Aff'd.

Record contained sufficient evidence to support finding that petitioner ex-spouse committed indirect criminal contempt by playing loud recorded tape during phone visitation between respondent and daughter. Terms of Tr. Ct.'s visitation order implicitly required that respondent be permitted phone visitation free from obnoxious interference by petitioner; record showed petitioner only individual capable of playing loud tape at time of phone calls by respondent. 12 pp.

3rd Dist. In re Marriage of Almquist, No. 3-97-0811 (8/26/98). Will Co. Aff'd.

Respondent did not violate 720 ILCS 5/14-2(a)(1) when he recorded limited phone call between respondent and his daughter in effort to show petitioner ex-spouse attempted to frustrate ct. ordered phone visitation by playing loud "suicide" tape recording of respondent during call to prevent him from talking to daughter. Portion of respondent's recorded tape portraying his unsuccessful efforts to talk to daughter over din of loud tape recording not violative of statute even though recording done without permission of petitioner since petitioner not participating in "conversation" within meaning of statute where she merely played tape recording. Portion of respondent's tape containing actual conversation with daughter violated statute since respondent made no showing that daughter consented to recording. 12 pp.

FORFEITURE

2nd Dist. People ex rel. Waller v. 1996 Saturn, No. 2-97-0570 (8/19/98). Lake Co. Aff'd.

Forfeiture of claimant's vehicle authorized under 720 ILCS 5/36-1 where vehicle "used....in the commission of....an offense." Claimant and his partner used vehicle to drive to scene of burglary notwithstanding fact items stolen barely over $100. (Dissent filed.) 17 pp.

1st Dist. In Interest of E.V., No. 1-98-0764 (8/24/98). Cook Co. Aff'd.

Where Tr. Ct. accepted minor's admissions to delinquency pet. for unlawful use of firearm and unlawful possession of firearm and found minor delinquent and police subsequently arrested minor for murder after tests established same weapon used in murder, minor's request to withdraw guilty plea entered in unlawful use of weapon case properly den'd. Failure to warn minor of possible effect of guilty plea on future criminal liability did not render plea invalid. 15 pp.

HEARSAY

4th Dist. People v. Simpkins, No. 4-97-0632 (mod. op. 8/6/98). McLean Co. Pet. for rehearing. Den'd. 20 pp.

INDICTMENT

2nd Dist. People v. Hunter, No. 2-97-0697 (7/23/98). Lake Co. Aff'd.

State may not seek new indictment after criminal charges dism'd for due process violation where original indictment obtained through use of perjured testimony. 8 pp.

JURISDICTION

3rd Dist. People v. Morrison, No. 3-97-0613 (7/31/98). Rock Island Co. Aff'd as mod. and rem'd.

In appeal of sentence imposed at probation revocation proceedings, App. Ct. lacked jurisdiction to consider propriety of Tr. Ct.'s imposition of reimbursement fee for costs of public defender ordered at original sentence. D failed to appeal imposition of fee after final judgment on original probation sentence. While Tr. Ct.'s failure to conduct hearing prior to ordering reimbursement erroneous, imposition of fee constitutes only voidable order that could not be challenged in subsequent proceeding. 7 pp.

MULTIPLE CONVICTIONS

5th Dist. People v. Lavallier, No. 5-96-0540 (8/10/98). Massac Co. Aff'd.

Although state confessed error, D properly convicted of 2 counts of aggravated DUI because D's single act of driving auto produced separate injuries to 2 different people. 6 pp.

MURDER

5th Dist. People v. Jones, No. 5-94-0813 (7/10/98). Jackson Co. Aff'd.

D proven guilty of murder beyond reasonable doubt where evidence established D acted with knowledge that beatings he inflicted on wife created strong probability of great bodily harm. 8 pp.

OFFICIAL MISCONDUCT

4th Dist. People v. Selby, No. 4-97-0960 (8/11/98). Livingston Co. Rev'd and rem'd.

20 Ill. Adm. Code section 120.50 adequately describes prohibited conduct constituting "socializing" with prison inmates by Dept. of Corrections personnel; sexual intercourse is prohibited conduct. 18 pp.

PROSECUTORIAL MISCONDUCT

1st Dist. People v. Barker, No. 1-96-4115 (8/3/98). Cook Co. Aff'd.

Prosecutor's remarks and direct examination of victim's father regarding victim's background and character, as well as remarks about character of D's associate, improper attempts to appeal to emotions of jurors but D not den'd fair trial in light of overwhelming evidence of guilt. 19 pp.

SEARCH AND SEIZURE

1st Dist. People v. Lawson, No. 1-97-2943 (8/19/98). Cook Co. Aff'd.

Tr. Ct. properly granted D's motion to quash arrest and suppress evidence obtained in search of D's person. While officer who stopped D and performed search did so based on police bulletin received via radio transmission, state failed to establish officer who issued radio bulletin had probable cause to effect arrest. 18 pp.

2nd Dist. People v. Hilt, No. 2-97-0656 (7/23/98). Kane Co. Rev'd and rem'd.

Police possessed probable cause to search D's vehicle for drugs where, in plain view, officer observed knotted corner of baggie. Officer had previous experience in drug arrests where baggies tied in similar fashion constituted "single-purpose containers" which could not have had any purpose other than to carry cocaine. 8 pp.

1st Dist. People v. Shields, Nos. 1-97-1886 & 1-97-2276, Cons. (8/24/98). Cook Co. Aff'd.

Tr. Ct. properly found state negated beyond reasonable doubt claim that Ds' use of force justified. It was within ct.'s discretion to believe witnesses who testified that Ds shot at them without provocation and that witnesses ran for cover between cars when shooting began; only bullets found were in and around car where witnesses took cover. 14 pp.

SENTENCING

2nd Dist. People v. Garza, No. 2-97-0470 (8/12/98). Kane Co. Aff'd in part and rev'd in part.

D's conviction for possession of firearm without FOID card rev'd. Penalty for violation of FOID Act, 430 ILCS 65/2(a)(1), when compared to penalty for unlawful use of weapon by felon violates proportionate penalties clause of Ill. Constitution. Armed violence conviction did not violate said clause, thus aff'd. 19 pp.

3rd Dist. People v. Morrison, No. 3-97-0613 (7/31/98). Rock Island Co. Aff'd as mod. and rem'd.

In probation revocation proceeding on conviction for Class 3 attempted aggravated criminal sexual abuse, Tr. Ct. did not impose excessive sentence of 6 yrs. even though ct. originally gave D sentence of 30 mos. probation. Ct. free to impose any sentence appropriate for original sentence; sentence of 6 yrs. incarceration within extended range of Class 3 felony. Minor nature of conduct forming basis of probation revocation (i.e., failure to report to probation officer) did not require ct. to treat D with lenity. 7 pp.

3rd Dist. People v. Patton, No. 3-97-0174 (8/12/98). Tazewell Co. Aff'd.

1. In remand to consider D's amended motion to reconsider sentence under SCR 604(d), Tr. Ct. did not err in den'g D's request to have original judge rule on amended motion. Original judge transferred to different ct. at time amended motion on remand became ripe; language of SCR 604(d) permits different judge to consider motion when transfer has occurred.

2. Dist. Ct. did not err in declining to order D's 14-yr. sentence for burglary to run either concurrently or consecutively to unserved portion of D's Mo. sentence; D escaped from Mo. prison prior to committing Ill burglary. Until D returned to Mo., D not "subject to sentence" in Mo. for purposes of applying concurrent treatment of Ill. sentence under 730 ILCS 5/5-8-4(a). 7 pp.

4th Dist. People v. Dieu, No. 4-97-0329 (7/31/98). Vermilion Co. Rem'd w/dir.

Failure to raise issue of failure of Tr. Ct. to determine statutory right to credit for time served under 730 ILCS 5/5-8-7(b) does not forfeit right to appeal. 8 pp.

4th Dist. People v. McCaskill, No. 5-97-0300 (8/5/98). Macon Co. Aff'd in part and vac'd in part.

Order requiring 80 hrs. of community service in exchange for service of public defender void as being beyond provisions for reimbursement order found in 725 ILCS 5/113-3.1. 12 pp.

VICTIM'S RIGHTS

1st Dist. People v. Robinson, Nos. 1-96-1695, 1-96-2053, 1-96-3757, 1-97-3054 & 1-97-3728, Cons. (8/7/98). Cook Co. Dism'd as moot in part and vac'd ab initio in part.

Where criminal Ds died during pendency of appeals and counsel for Ds brought independent motions seeking to dism. appeals and vac. convictions, arguing cases had become moot upon clients' death, convictions not involving violent crimes vac'd ab initio. Convictions in cases involving violent crimes to stand unabated to allow victims of violent crimes to retain whatever closure may have been brought about by finality of criminal conviction. (Dissent filed.) 23 pp.

CIVIL CASES

ABSTENTION

Int'l College of Surgeons v. City of Chicago, Nos. 95-1293 & 95-1315, Cons. (8/6/98). Appeal, N.D. Ill., E. Div. On remand from U.S. Sup. Ct. Aff'd.

1. In state action removed to Fed. Ct., Dist. Ct. did not err in failing to invoke Burford, 319 U.S. 315, abstention doctrine to dism. P's challenge to D's den'l of demolition permits under local ord. by D's Landmarks Comm'n. While local ord. covering preservation of historical bldg. implicated issues of primary local concern, abstention inappropriate since: applicable state law settled; admin. scheme for review of permit den'l not intended for special expertise of reviewing forum.

2. Dist. Ct. did not err in failing to invoke Pullman, 312 U.S. 496, abstention doctrine since P failed to show any substantial uncertainty as to resolution of state law. P also failed to press any fed. constitutional claim required for Pullman abstention. 15 pp.

Majors v. Engelbrecht, No. 97-2174 (7/23/98). Appeal, S.D. Ind., Indianapolis Div. Aff'd.

1. In section 1983 action seeking to enjoin state nursing bd. from revoking P's license, Dist. Ct. properly dism'd suit under abstention doctrine in favor of state nursing bd. proceeding. State bd. proceeding qualified as "judicial" proceeding, implicated important state interests, and afforded P opportunity to raise constitutional challenges.

2. Ct. also properly abstained from P's section 1983 damage claims against individual state bd. members who voted to suspend P's nursing license. Fed. damage suit fell within ambit of abstention doctrine even though it did not interfere with state bd. proceeding since result in fed. suit could preclude state bd. from consideration of certain issues. Moreover, dism'l (as opposed to stay) of fed. claims appropriate here since damages available in State Ct. proceeding. 8 pp.

SECTION 1983 ACTIONS

Lawson v. Trowbridge, No. 97-3235 (7/28/98). Appeal, W.D. Wisc. Aff'd in part, rev'd in part and rem'd.

In section 1983 action alleging Ds wrongfully arrested P on charges of concealment of knife as dangerous weapon and failed to render med. assistance for P's schizophrenia during his incarceration, record contained sufficient evidence to permit jury to conclude arresting officer had probable cause to believe, in support of charges, that manner in which P intended to use knife likely to cause death or great bodily harm. Prior to arrest, officer knew P had knife concealed in place allowing easy access, and that P asked strange questions about tavern's cash register under circumstances where officer could believe P contemplating burglary. 16 pp.

Moulton v. Vigo Co., No. 97-3938 (8/4/98). Appeal, S.D. Ind., Terre Haute Div. Aff'd.

Dist. Ct. properly granted D-employer's motion for judgment as matter of law in

section 1983 action alleging D's termination of P-county employee violated P's due process rights under 14th Amendment; record showed P only employee at will. Mere fact P may have been entitled to pre-termination hearing did not convert P's at will job into tenured position protected as property right under 14th Amendment. 6 pp.

Schaefer v. Goch, No. 98-1031 (8/28/98). Appeal, W.D. Wisc. Aff'd.

1. Dist. Ct. properly granted summary judgment in favor of Ds in section 1983 action alleging D-police officers killed Ps' daughter as innocent bystander during stand-off between Ds and daughter's husband. Under substantive due process component of 14th Amendment, proper inquiry concerns whether Ds' conduct was enough to "shock the conscience." Facts here show that standard not met where Ds did not intend to harm daughter and Ds faced dangerous and fluid situation with husband threatening others with shotgun.

2. In section 1983 action alleging Ds used excessive force, Ps' daughter, who initially obeyed Ds' request to "get down" on porch of her home, not "seized" under Hodari D., 499 U.S. 621, for purpose of applying 4th as opposed to 14th Amendment analysis. Record showed daughter only temporarily immobilized by Ds' command and that Ds unable to stop movement of daughter who was being pulled forcibly back into home by husband. 9 pp.

AGRICULTURE

Andershock's Fruitland, Inc. v. U.S. Dept. of Agriculture, No. 96-4238 (8/10/98). Pet. for review. Den'd.

Ag secy. did not err in revoking under 7 USC section 499h(a) license of petitioner-dealer in ag commodities where petitioner waited almost 1 yr. after hearing to pay $245,000 to supplier for commodities ordered. Sanction consistent with prior precedent of dept. which provides for revocation of license where failure to pay substantial amount to suppliers has been willful, flagrant and repeated. 6 pp.

AMERICANS WITH DISABILITIES ACT

Haschmann v. Time Warner Entertainment Co., Nos. 97-3333 & 97-3708, Cons. (7/29/98). Appeal, E.D. Wisc. Aff'd.

Record contained sufficient evidence to support jury's verdict in favor of P-employee in 42 USC section 12101 et seq. action alleging her termination, shortly after P notified D of her lupus condition and request for 2nd 2-4 week leave of absence, based upon her handicap. D never asked independent physician to evaluate P's condition and prognosis; requested time off deemed reasonable accommodation in absence of evidence that it would constitute undue hardship. 19 pp.

Malabarba v. Chicago Tribune Co., No. 97-2707 (7/22/98). Appeal, N.D. Ill., E. Div. Aff'd.

1. Dist. Ct. properly granted D-employer's motion for summary judgment in 42 USC section 12101 et seq. action alleging D terminated P based upon P's back injury.

P failed to show he was "qualified individual" under ADA in that P could not perform essential duties of job P hired to do. Under ADA, P's qualifications must be measured against duties of full-time position and not temporary light-duty position P performing at time of termination.

2. D fulfilled duty to accommodate P in attempting to place P in another position even though P ultimately terminated after failing training course for said position. Although alternative jobs existed, D not required to place P in those jobs where placement would: mean higher grade position than job P hired to perform; conflict with med. restrictions placed on P's back; and create new job outside of demands of D's business needs. 14 pp.

Hendricks-Robinson v. Excel Corp., No. 97-3217 (8/28/98). Appeal, C.D. Ill., Springfield Div. Rev'd and rem'd.

1. Dist. Ct. erred in granting D-employer's motion for summary judgment in class action challenging D's policy of placing production line employees who sustained permanent injuries at work on "medical layoff" and eventually terminating them without automatically considering them for transfer to vacant nonproduction line jobs. While employees could independently discover and apply for nonproduction jobs, ADA requires employers to inform employees of all available vacancies at time of request for accommodation.

2. Employer not required to continue injured employee in "temporary" light-duty job once term of such job expires. Remand required here because record unclear whether light-duty jobs to which class members assigned were truly temporary since said jobs not formally classified as such at time of assignment.

3. D's collective bargaining agreement providing that recalls be considered, inter alia, on basis of "physical fitness" as separate criterion to general qualification standard potentially violated ADA since it could screen out disabled employees for such jobs without considering performance of job with reasonable accommodation.

4. Remand required for consideration of whether employer failed to engage in "interactive process" required under ADA once employee made request for accommodation. Record showed D's efforts at obtaining nurse's evaluation of employee's condition, employee's meeting with nurse and others, showing employee only production line vacancies and laying off employees, merely "directive" efforts rather than interactive efforts with employee. 20 pp.

Leisen v. City of Shelbyville, No. 97-2575 (8/31/98). Appeal, S.D. Ind., Indianapolis Div. Aff'd.

Dist. Ct. properly granted D-employer's motion for summary judgment in action under 42 USC section 12101 et seq. alleging D terminated P from her firefighter position because of her depression. P failed to show condition substantially limited one of life's major activities since P able to work in other jobs and learn other skills. P also not qualified for position due to her repeated failure to pass paramedic course required for position by D. 5 pp.

Skorup v. Modern Door Corp., No. 97-3796 (8/26/98). Appeal, N.D. Ind., S. Bend Div. Aff'd.

Dist. Ct. properly granted D-employer's motion for summary judgment in handicap action under 42 USC section 12101 et seq. alleging D terminated P because of her bicipital tendinitis and fibromyalgia. P failed to show she was "disabled" under ADA by establishing that either condition restricted ability to perform class or broad range of jobs. P failed to show any perception by D concerned P's inability to perform such broad range of jobs even though P produced evidence that D perceived P to have impairment. 6 pp.

ANTITRUST

Blue Cross and Blue Shield United v. Marshfield Clinic, Nos. 97-3219 & 97-3847, Cons. (7/30/98). Appeal, W.D. Wisc. Aff'd in part, vac'd in part and rem'd.

1. Dist. Ct. erred on remand in failing to enter injunction preventing D from dividing med. services market with its competitors as directed on original appeal by Ct. of Appeals. Original holding of App. Ct. established law of case binding Dist. Ct. on remand to decision upholding jury's finding and directing limited trial on damages. Fact ct. granted no monetary damages on remand did not preclude award of injunctive relief.

2. Dist. Ct. properly granted D's motion for summary judgment on damages trial directed by App. Ct. on remand. P failed to establish what damages it had sustained as result of division of med. services markets; 2 experts provided by P failed to correct damages figures generated by comparison between D's prices and prices of competitors by factors unrelated to antitrust practices such as quality of services and differences in med. treatment. 9 pp.

Baltimore and Ohio Chicago Terminal RR Co. v. Wisc. Central Ltd., No. 97-3484 (8/25/98). Appeal, N.D. Ill., E. Div. Aff'd.

1. Dist. Ct. did not lose jurisdiction of case when it dism'd action under 9 USC

section 3 but retained jurisdiction to confirm arbitrator's award. While ct. should have stayed rather than dism'd original complaint under Interstate Commerce Act to permit P to come back to Fed. Ct. if arbitrator failed to award all requested relief, effect of entering dism'l with leave to reinstate same as if case stayed.

2. In action under Interstate Commerce Act seeking payment of RR switching charges and RR car rental fees, Dist. Ct. did not err in permitting P to demand arbitration pursuant to agreement between parties even though P took stance in original complaint that said agreement unenforceable. Record showed no discovery took place prior to P's invocation of arbitration clause; D suffered no harm in P's delay in requesting arbitration. P's tactical decision to seek arbitration precipitated by D who injected contract with arbitration clause into case.

3. Doctrine of primary jurisdiction did not preclude arbitration of claim involving issue of whether P could charge D amounts under interchange agreement not filed with Surface Transp. Bd. (STB). No provision under Interstate Commerce Act expressly forbids arbitration; issue not requiring special expertise of STB; and doctrine of primary jurisdiction waivable by agreement of parties to submit to arbitration issues otherwise assignable to agency. 10 pp.

ATTORNEY FEES

Akrabawi v. Carnes Co., Nos. 97-3266 & 97-3399, Cons. (8/10/98). Appeal, W.D. Wisc. Aff'd.

In nat'l origin discrimination claim where jury found D's decision not to promote P based on mixed motive, failure of Dist. Ct. to award fees to P not erroneous. Record showed evidence of invidious discrimination in form of discriminatory statements minimal while employee misconduct of making misrepresentation on application serious. Ct. also properly den'd D's request for fees since P's claim not baseless; D failed to produce evidence that P acted in subjective bad faith. 12 pp.

Blue Cross and Blue Shield United v. Marshfield Clinic, Nos. 97-3219 & 97-3847, Cons. (7/30/98). Appeal, W.D. Wisc. Aff'd in part, vac'd in part and rem'd.

Dist. Ct. erred in failing to award P any atty. fees or costs under 15 USC section 26, after finding P not entitled to monetary damages in antitrust claim. Although P failed to prevail on series of claims, P "prevailing party" to extent P entitled to entry of injunction, thus entitled to portion of fees and costs assoc'd with injunction claim. 9 pp.

Miller v. Artistic Cleaners, No. 97-3396 (8/27/98). Appeal, N.D. Ind., Hammond Div. Aff'd.

1. Dist. Ct. did not err in awarding atty. fees of only $20,750 in Title VII action out of request of $44,259.10; P won on only 1 of 3 claims of discrimination. Ct. in superior position to observe skills of P's atty. and reduce hourly rate even though fee pet. supported by unopposed affidavits as to such rates from experienced counsel in civil rights area.

2. Ct. did not err in failing to include post-judgment interest in award of atty. fees. Ct. not required to mention such interest in order since prevailing P automatically entitled to it under 28 USC section 1961(a). D did not owe such interest where it paid fees within 7 days of issuance of order and before entry of final judgment. 5 pp.

BANKING

Latimore v. Citibank Fed. Savings Bank, No. 97-3724 (8/10/98). Appeal, N.D. Ill., E. Div. Aff'd.

1. Dist. Ct. properly granted D-bank's motion for summary judgment in action under Equal Credit Opportunity Act, 15 USC section 1691(a)(1) alleging race discrimination in D's failure to approve loan based upon appraisal done by D's employee. Mere fact of discrepancy between appraisal conducted by another bank and appraisal by D-bank insufficient to create reasonable suspicion of racial discrimination; record showed D-bank's employees encouraged P to appeal decision through use of different appraisal.

2. Fact D lost certain records required under 12 CFR section 202.12(b)(1)(i) to be retained did not require ct. to presume that missing records contained evidence adverse to D. D explained disappearance of records inadvertent which is not a violation of regulation.

3. P improperly joined D-bank's appraiser as individual D in cause of action even though 42 USC section 3605(a) imposes liability on individuals and appraiser could potentially qualify as "creditor" under 15 USC section 1691(a)(1) as individual who regularly participated in decision on questions of extending credit. Appraiser had history of appraising property for 69 blacks with only 3 being den'd loans. 6 pp.

BANKRUPTCY

In re Matter of Chavin, No. 97-3085 (7/22/98). Appeal, N.D. Ill., E. Div. Aff'd.

Dist. Ct. did not err in granting trustee's motion for summary judgment seeking den'l of discharge of debtor's debts under 11 USC section 727(a)(2) based upon false statements about assets made by debtor in bankruptcy forms. Records showed debtor's explanation that he failed to understand questions on forms wholly without merit and constituted evidence of deliberate fraud. 4 pp.

In re Matter of Cult Awareness Network, Inc., Inc., No. 97-3002 (7/30/98). Appeal, N.D. Ill., E. Div. Aff'd.

Dist. Ct. properly held debtor lacked standing to object to sale of its trade name to purchaser which debtor believed would put name to misleading purposes. Debtor had no pecuniary interest in disposal of its estate and failed to show reasonable possibility 2 existing suits would generate surplus after satisfying all debts. 6 pp.

In re Matter of Greenig, No. 97-1907 (8/3/98). Appeal, C.D. Ill., Peoria Div. Aff'd.

Dist. Ct. properly determined Bankr. Ct. barred from granting creditors' motion to file under Fed.R.Bankr.P. 3002(c) claim 11 mos. after deadline set in ch. 12 bankr. proceeding. While creditors' claims listed in approved reorganization plan, such fact does not excuse failure to file timely claims; 11 USC section 502(b)(9) bars untimely proofs of claims where none of R. 3002(c) exceptions apply. 7 pp.

In re Matter of Peachtree Lane Assocs., Ltd., Ltd., Nos. 97-2091 & 97-2092, Cons. (7/31/98). Appeal, N.D. Ill., E. Div. Aff'd.

1. In ch. 11 bankr. proceeding, Dist. Ct. did not err in determining venue properly lodged in Ill. where corp. headquarters of controlling members of debtor located rather than Tex. where only asset of debtor located. Under 28 USC section 1408, "principal place of business" is where most important management decisions made rather than where day-to-day decision of operations of assets made.

2. Bankr. Ct. properly struck jury demand of objectors who filed counterclaim seeking declaration of rights as to disputed easement agreement between objectors and bankrupt debtor since record showed ct. granted objectors' motion to enlarge time to file same claim against estate. Under Langenkamp, 498 U.S. 42, once creditor files claim against bankrupt estate, creditor not entitled to jury trial since claim submitted to equitable jurisdiction of Bankr. Ct. 16 pp.

In re Matter of Snyder, No. 97-3062 (7/30/98). Appeal, C.D. Ill. Aff'd.

Record contained sufficient evidence to support Dist. Ct. finding that certain debts not dischargeable since debtors transferred property to 3rd parties with intent to hinder, delay or defraud creditors under 11 USC section 727(a)(2). Debtors charged corporations owned by relatives rent below fair market on farmland and permitted them to use labor and farm equip. of debtors without cost. 8 pp.

In re Matter of Turner, No. 97-3553 (8/26/98). Appeal, C.D. Ill. Aff'd in part and dism'd in part.

Debtor's unilateral reaffirmation of pre-petition debt does not constitute valid reaffirmation agreement for purposes of 11 USC section 524(c) even though debtor current on pre-petition debt; language of section 524(c) requires "agreement" to reaffirmation by creditor. 11 pp.

Curran v. Kwon, No. 97-2713 (8/20/98). Appeal, N.D. Ill., E. Div. Aff'd.

In action seeking damages for fraudulent misrepresentation, negligence and false arrest arising out of bogus modeling contest and P's arrest in France, Dist. Ct. properly selected French law as operative law in resolving whether P under duress when she signed release of claims in France. Ill. choice of law precedent follows "most significant contacts" standard; French law most appropriate since release executed there. Many of acts upon which P based complaint occurred in France. 11 pp.

CLASS ACTIONS

Whitlock v. Johnson, No. 98-1133 (8/5/98). Appeal, N.D. Ill., E. Div. Aff'd in part and vac'd in part.

Dist. Ct. properly substituted class rep once it determined rep's individual claim invalid in section 1983 action alleging violation of due process in D-prison's blanket policy of prohibiting live testimony of witnesses designated by prisoners in proceedings contemplating revocation of good-time credits. D's proposal of decertification of class inappropriate since ct. had subject matter jurisdiction over rep's individual claim which was at least colorable and would have entitled him to relief had ct. taken different view on merits of case. 12 pp.

COMMODITIES

Damato v. Hermanson, Nos. 97-1975 & 97-1976, Cons. (8/17/98). Appeal, N.D. Ill., E. Div. Aff'd.

1. In action alleging aider and abetter liability under 7 USC section 25(a)(1) in "Ponzi" scheme directed to commodity pool operated by co-D, Dist. Ct. erred in interpreting section 25 as barring Ps (defrauded investors) from bringing private cause of action against D who did not independently satisfy requirements of section 25(a)(1)(A)-(D). Aider and abetter of primary violator can be subject to private suit as long as primary violator participated in 1 of transactions listed in section 5(a)(1)(A)-(D).

2. Ps failed to state viable cause of action of aider and abetter liability under section 25(a) against D even though misrepresentation by primary violator (co-D) to Ps appeared on D's letterhead. Aider and abetter liability under Commodities Exchange Act same as aiding and abetting liability under criminal standard; D entitled to dism'l here where Ps conceded D lacked knowledge of fraudulent scheme used by co-D. 14 pp.

Commodities Futures Trading Comm'n v. Tokheim, No. 97-4120 (8/18/98). Appeal, N.D. Ill., E. Div. Aff'd.

1. In action seeking to enforce admin. subpoena issued by CFTC, CFTC not required to make valid finding of coverage under Commodities Exchange Act, 7 USC sections 1-25 prior to seeking enforcement of subpoena. Fact respondent ultimately may not be covered under Act does not affect authority of CFTC to issue subpoena to investigate activities.

2. CFTC had sufficient cause to seek enforcement of its subpoena requesting customer lists and proprietary documents pertaining to respondent's advice-related services. CFTC need not establish probable cause to support its admin. subpoena; requested documents relevant to inquiry as to whether respondent violated certain provisions of Act. Respondent failed to show CFTC on "wide-ranging fishing expedition." 6 pp.

Ramsavich v. Borislow, No. 98-1207 (8/28/98). Appeal, N.D. Ill., E. Div. Aff'd.

Record contained sufficient evidence to support Dist. Ct.'s judgment finding P forged promissory note upon which P sought payment of $785,000. Note contained misspelling of D's name; document's typeface came from machine other than that used by D; document not original but copy on back of fax cover sheet. Fact judgment may have contained 1 finding of fact not supported by record insufficient to support request for new trial since other facts amply supported ct.'s decision. 5 pp.

CONTRACTS

Chrysler Corp. v. Kolosso Auto Sales, Inc., No. 97-3879 (7/23/98). Appeal, E. D. Wisc. Aff'd.

Dist. Ct. properly granted D-auto dealer's motion for summary judgment in action by P seeking to enjoin D from relocating its dealership pursuant to anti-relocation language in franchise agreement and to declare unconstitutional, under contracts clause of Constitution, Wisc. law allowing D to ask state agency to permit such move. While franchise agreement entered into before enactment of Wisc. law, no violation of contracts clause since subsequent enactment of Wisc. law foreseeable when franchise agreement made. Fact state makes contract more costly to one of parties through subsequent enactment of law does not violate contracts clause. 7 pp.

Kaplan v. Shure Bros., Inc., No. 97-2768 (8/11/98). Appeal, N.D. Ill., E. Div. Aff'd in part, rev'd in part and rem'd.

Dist. Ct. erred in dism'g P's breach of contract action for failure to allege P in privity with party of contract. Facts showing privity need not be specifically pleaded under fed. notice-pleading system. P's allegation of status as beneficiary of land trust and that land trust (as one of parties to subject contract) assigned its interest to P put D on notice of nature of privity claim. 13 pp.

PMC, Inc. v. Sherwin-Williams Co., Nos. 97-2884 & 97-3773, Cons. (7/30/98). Appeal, N.D. Ill., E. Div. Aff'd in part, vac'd in part and rem'd.

Contract between P-buyer and D-seller of polluted land required D to be responsible for environmental harms resulting from toxic waste at site prior to sale even though contract contained "cut-off" of all "representations, warranties, covenants and obligations" 2 yrs. after closing. Cut-off inapplicable to P's statutory rights against D for clean-up obligations and intended to extinguish only obligations created by contract itself. 11 pp.

COSTS

Cosgrove v. Bartolotta, Nos. 97-2903, 97-3023 & 97-3322, Cons. (7/22/98). Appeal, E.D. Wisc. Aff'd in part and rev'd in part w/dir.

Dist. Ct. erred in failing to award P costs in diversity action alleging promissory estoppel, misrepresentation, and unjust enrichment on perception that den'l required where total damages awarded failed to reach statutory minimum for diversity jurisdiction. Award of costs discretionary even if damages less than statutory minimum; P ultimately received more than statutory minimum based on rev'l in unrelated issue on appeal. 7 pp.

DAMAGES

Cosgrove v. Bartolotta, Nos. 97-2903, 97-3023 & 97-3322, Cons. (7/22/98). Appeal, E.D. Wisc. Aff'd in part and rev'd in part w/dir.

In diversity action alleging promissory estoppel, misrepresentation and unjust enrichment, jury award of damages on all 3 counts excessive where case stemmed from allegation that D wrongfully failed to follow through on promise to give P percentage of restaurant in exchange for services rendered. P received damages representing value of restaurant as well as award for value of services rendered. 7 pp.

Cosgrove v. Bartolotta, No. 97-3235 (7/28/98). Appeal, W.D. Wisc. Aff'd in part, rev'd in part and rem'd.

In section 1983 action where jury found 2 police officers liable for failing to render appropriate med. care to P while incarcerated, P entitled to new trial on damages where he received only $2 after Ds gave testimony as to their financial distress. Ds gave erroneous impression that they would be financially responsible for any judgment; Dist. Ct. improperly failed to permit P to inform jury that Ds' employer could be responsible for payment once Ds raised financial distress as issue. 16 pp.

To-Am Equip. Co. v. Mitsubishi Caterpillar Forklift America, Inc., No. 97-1395 (8/6/98). Appeal, N.D. Ill., E. Div. Aff'd.

Record contained sufficient evidence to support jury's award of $1.525 million in favor of P resulting from D's termination of franchise agreement subject to 815 ILCS 705/19 requiring terminations be either subject to negotiations or supported by good cause. Fact P's expert opined damages to be substantially higher irrelevant where jury's award mid-way between range of both parties' experts. 10 pp.

Shea v. Galaxie Lumber & Constr. Co., Nos. 97-1379 & 97-1827, Cons. (8/19/98). Appeal, N.D. Ill., E. Div. Rev'd and rem'd.

1. Dist. Ct. erred in vac'g jury award of $9,100 in punitive damages under Fair Labor Standards Act, 29 USC section 216(b), based upon erroneous perception that punitive damages unavailable where jury failed to award compensatory damages. Punitive damages available for FLSA retaliation claim even though compensatory damages not awarded.

2. On sexual harassment claim, Dist. Ct. did not abuse discretion in refusing D-employer's request to reduce $2,500 punitive damages award based on fact jury awarded P only $1 in actual damages. Mathematical ratios not dispositive in punitive damages awards. Amount of award not out of line with other cases; ct. previously sustained punitive damages up to $15,000 where P failed to receive any compensatory damages. 10 pp.

DECLARATORY JUDGMENT ACT

N. Shore Gas Co. v. Salomon, Inc., No. 97-2485 (8/5/98). Appeal, N.D. Ill., E. Div. Aff'd in part, rev'd in part and rem'd.

1. Dist. Ct. did not err in den'g D's motion to dism. action under 28 USC section 2201 seeking to have ct. determine responsibility for environmental clean-up costs under CERCLA, 42 USC section 2201. Ct. has wide discretion to decline to hear declaratory judgment actions where record shows filing of action done to accomplish forum shopping. However, instant filing proper since, prior to filing, P made 11 mo. attempt to settle matter before reaching impasse and afforded D ample opportunity to file similar forum suit.

2. Fact P failed to include 1 former owner of property as D in CERCLA action against another former owner seeking declaration as to responsibility for clean-up costs did not require case be dism'd for failure to name "indispensable party" under Fed.R. Civ.P. 19. Unnamed former owner ceased doing business in 1986 and is bereft of funds while named D assumed responsibility for costs of remediation. Thus, interests of unnamed D and named D identical such that there would be no risk that unnamed D would be unfairly prejudiced if action proceeded without its participation. 21 pp.

DEFAMATION

Frobose v. American Savings and Loan Ass'n of Danville, No. 97-1432 (7/31/98). Appeal, C.D. Ill. Aff'd in part, rev'd in part, vac'd in part and rem'd.

Dist. Ct. properly granted D-employer's motion for summary judgment in action alleging P's supervisor placed P in "false light" in letter critical of P's job performance circulated to members of D's bd. of directors. Letter not "communication to public at large" since circulated only among employees having interest in P's job performance. 22 pp.

EMPLOYMENT DISCRIMINATION

Akrabawi v. Carnes Co., Nos. 97-3266 & 97-3399, Cons. (8/10/98). Appeal, W.D. Wisc. Aff'd.

In action alleging failure to promote based upon P's nat'l origin, Dist. Ct. did not err in permitting D-employer's request to add "but for" affirmative defense under 42 USC

section 2000e-5(g)(2)(B) on last day of trial. P failed to show tardy amendment caused unfair surprise since defense outgrowth of evidence elicited at trial; D's stance that other factors led to decision not to promote known by P prior to trial. 12 pp.

Blackwell v. Cole Taylor Bank, No. 97-3939 (8/7/98). Appeal, N.D. Ill., E. Div. Aff'd.

1. P-branch managers, displaced from old jobs and eventually resigning from newly created positions, failed to establish prima facie case of age discrimination even though some replacement workers who accepted vac'd positions were younger than Ps. Ps had no right to continued employment in old positions and could not base discrimination claim on jobs they voluntarily vac'd.

2. Release signed by P in exchange for severance benefits after D displaced her from old position and created new position from which P resigned served to waive race discrimination claim where record showed waiver knowing and voluntary. P's failure to discuss merits of race claim in reply brief after D argued claim in brief served to waive factual contentions requiring App. Ct. to treat said facts in D's brief as true. 7 pp.

Debs v. Northeastern Ill. University, No. 97-3665 (8/6/98). Appeal, N.D. Ill., E. Div. Aff'd.

Dist. Ct. properly granted D-employer's motion for summary judgment in 29 USC

section 621 et seq. action alleging D's demotion of P based upon age. P, age 55, failed to show D's articulation for demotion, i.e., P's misrepresentation in letter of recommendation to D concerning P's brother-in-law and fact P subject to significant and substantial grievances by subordinates, pretext for age discrimination. Fact P's supervisor repeatedly asked about P's retirement date insufficient to question D's reliance on independent report recommending P's demotion. 9 pp.

Eiland v. Trinity Hospital, No. 97-3165 (7/24/98). Appeal, N.D. Ill., E. Div. Aff'd.

Dist. Ct. properly granted D-employer's motion for summary judgment in Title VII action alleging race discrimination in D's termination of P from her nursing position due to P's negligence in giving patient shot. While P provided evidence that staff physician, who reported incident to P's supervisor, uttered racist statement in workplace, P failed to show D's articulation untrue or pretext for race discrimination. 8 pp.

Adreani v. First Colonial Bankshares Corp., No. 97-2872 (8/24/98). Appeal, N.D. Ill., E. Div. Aff'd.

1. In age discrimination action under 29 USC section 621 et seq. where P-employee terminated pursuant to reduction in force, P need not produce evidence tending to prove D-employer's explanation complete fabrication in order to show pretext. Rather, P must show age "tipped balance" in favor of discharge. P, however, still must show D did not honestly believe reason given by D for termination.

2. Dist. Ct. did not err in granting D's motion for summary judgment since record showed: P's position actually eliminated through restructuring plan; and P failed to present competent evidence disputing D's claims P's job performance relatively deficient. Fact P received pay raises and bonuses prior to termination insufficient to create triable pretext issue where percentages P received lower than average of raises and bonuses given to others. P failed to provide any specific facts to demonstrate P's job duties met D's legitimate expectations. 14 pp.

Bennett v. Schmidt, No. 97-4198 (8/31/98). Appeal, N.D. Ill., E. Div. Vac'd and rem'd.

1. Dist. Ct. improperly dism'd under Fed. R.Civ.P. 8(a)(2) P's complaint alleging race discrimination on grounds 12 page complaint not short and plain statement of claim. While complaint contained approximately 7 pages of surplusage, complaint not so long so as to justify dism'l; language of complaint intelligible so as to give Ds notice of claim.

2. Ct. also improperly dism'd complaint under Fed.R.Civ.P. 12(b)(6) as failing to state claim upon which relief could be granted since complaint essentially alleged P turned down for job due to her race. Failure of complaint to specify any state cause of action where potential state cause of action could lie not defect since complaint need not identify legal theories. 5 pp.

Cianci v. Pettibone Corp., No. 97-2115 (8/19/98). Appeal, N.D. Ill., E. Div. Aff'd.

1. Dist. Ct. properly granted D-employer's motion for summary judgment in Title VII action alleging D terminated P on basis of gender after D discovered P used courier services for personal items and failed to reimburse D. While P provided evidence that several employees permitted to use such services without reimbursement, records showed no discrimination based on gender since at least 1 other female who used such services improperly not discharged.

2. Ct. properly granted D-employer's motion for summary judgment in action seeking damages stemming from discharge of 47-yr.-old P on basis of age. Statements by direct supervisor that P getting "too old for job" not direct evidence of discrimination since supervisor not decision-maker; 5-yr. difference in age of replacement too short to create prima facie evidence of age discrimination. 9 pp.

Skorup v. Modern Door Corp., No. 97-3796 (8/26/98). Appeal, N.D. Ind., S. Bend Div. Aff'd.

Dist. Ct. properly granted D-employer's motion for summary judgment in Title VII action alleging D terminated P (Catholic) because of her religion. P's subjective belief as to cause of termination insufficient to defeat summary judgment; record showed person responsible for selecting P for termination shared P's religion. 6 pp.

ENVIRONMENTAL LAW

No. Shore Gas Co. v. Salomon, Inc., No. 97-2485 (8/5/98). Appeal, N.D. Ill., E. Div. Aff'd in part, rev'd in part and rem'd.

In declaratory judgment action seeking declaration of responsibility for environmental clean-up costs under CERCLA, 42 USC section 9613(f)(1), Dist. Ct. did not err in finding D potentially liable as successor corp. for said costs. Although language of CERCLA fails to expressly address corp. successor liability, successor corps. fall within definition of "person" in said Act. 21 pp.

PMC, Inc. v. Sherwin-Williams Co., Nos. 97-2884 & 97-3773, Cons. (7/30/98). Appeal, N.D. Ill., E. Div. Aff'd in part, vac'd in part and rem'd.

1. Dist. Ct. did not err in contribution claim under 42 USC section 9607(a)(4)(B) in finding D 100% responsible for costs of cleaning up toxic waste from land sold by D to P even though P conceded it spilled some toxic waste on land during its possession. Ct. entitled to find amount of waste dumped by P too insignificant to affect cost of cleaning it up.

2. P not entitled to contribution under 42 USC section 9613(f)(1) even though P paid more than fair share of prior costs of cleaning up toxic wastes on property since P failed to show compliance with EPA "national contingency plan," requiring P to submit proposed clean-up method for public comment. Moreover, P not entitled to seek such costs under Ill. Contribution Act.

3. Ct. properly granted P's (buyer of land containing toxic waste) request for injunction against D (seller of land) since record showed lead pollution caused by D's occupancy of property created imminent danger to human health. Fact state had taken certain admin. measures short of filing suit did not constitute state "action" for purpose of barring private cause of action under 42 USC section 6972(b)(2)(C). 11 pp.

U.S. v. Navistar Int'l Transp. Corp., No. 97-3829 (8/12/98). Appeal, N.D. Ind., Ft. Wayne Div. Rev'd.

1. In action under 42 USC section 9601 et seq. to recover environmental clean-up costs from Ds, Dist. Ct. erred in den'g Ds' motion to dism. suit on grounds suit filed more than 6 yrs. after initiation of on-site measures to clean up site. While govt. filed similar, prior suit against property owner, instant suit deemed "initial" action (for which 6-yr. limitations period applied) as opposed to "subsequent" action (for which open ended limitations period applied); instant suit constituted 1st attempt by govt. to seek recovery of costs against instant Ds.

2. Where record showed property owner began efforts to place clay cap on subject waste site on 9/18/90 pursuant to orally approved EPA clean-up plan, instant suit, filed on 9/19/96 untimely. Clay placement efforts constituted "initiation of physical on-site construction of remedial action" for purposes of starting 6-yr. limitations period under CERCLA. Fact clay cap proved ineffective irrelevant to question of when limitations period began. (Dissent filed.) 19 pp.

Rhodes v. Johnson, No. 97-3687 (8/27/98). Appeal, S.D. Ill. Rev'd and rem'd.

Dist. Ct. improperly granted D-U.S. Forest Service dist. ranger's motion for summary judgment in action challenging D's authority to burn and remove shrubs from area of nat'l forest without conducting "environmental assessment." "Internal review" conducted by D prior to proposed action insufficient since presence of "extraordinary circumstances" (i.e., endangered Ind. bat in proposed area) required D to conduct environmental assessment under D's own regs. before proceeding with proposed action. 8 pp.

ERISA

Herdrich v. Pegram, No. 97-1070 (8/18/98). Appeal, C.D. Ill., Peoria Div. Rev'd and rem'd.

1. In ERISA action alleging Ds violated fiduciary duties to med. plan participants, Dist. Ct. erred in granting Ds' motion to dism. on grounds Ds not "fiduciaries" under 29 USC section 1002(21)(A). Complaint alleged Ds had exclusive right to decide all disputed and nonroutine claims under plan, as well as managed doctor referral process, nature and duration of patient treatment and required use of facilities. Fact Ds not specifically mentioned in plan instrument irrelevant since Ds mentioned in other portions of plan and otherwise satisfied definition of fiduciary.

2. P's complaint sufficient to establish under 29 USC section 1104(a)(1) requisite breach of fiduciary duty where complaint asserted Ds devised incentive scheme inviting plan fiduciaries (doctors) to place own interests ahead of plan beneficiaries (patients). "Market forces" argument, which encourages doctors to use resources more efficiently, actually exacerbated P's condition by requiring P to wait 8 days before rendering necessary med. care.

3. P, as plan participant, may seek damages against plan fiduciary beyond benefits listed in ERISA med. plan in action resulting from Ds' breach of fiduciary duty. Plan beneficiaries have standing to bring action on behalf of plan itself; fiduciary duties set forth in 29 USC section 1109 run only to plan itself and not to individual beneficiaries. (Dissent filed.) 31 pp.

Met. Chicago Healthcare Council v. UNUM Life Ins. Co. of America, No. 97-4012 (7/28/98). Appeal, N.D. Ill., E. Div. Aff'd.

In 3rd party action seeking reimbursement in suit seeking indemnity from D-insurer for add'l benefits P-insured paid to employee under ERISA plan, Dist. Ct. properly granted D's motion for summary judgment on ground P failed to show original benefits actually paid by D to employee less than what actually owed to employee under terms of policy. Policy between P and D did not obligate D to indemnify P; D discharged its duty to pay particular benefits under policy to P's employees. 4 pp.

Moriarty v. Larry G. Lewis Funeral Directors Ltd., No. 97-3894 (7/29/98). Appeal, N.D. Ill., E. Div. Rev'd and rem'd.

In action under ERISA, 29 USC section 1132(e)(1), seeking to force Ds to fund P's pension and welfare fund on behalf of all Ds' employees within bargaining unit, Dist. Ct. improperly granted Ds' motion to dism. 1st amended complaint as failing to state viable cause of action. Ds failed to establish impossibility of P's prevailing under complaint since: discovery could reveal that contributions paid to P on behalf of only certain employees within bargaining unit could have been paid by agent of employer eligible to participate in pension and welfare plan; and employers participating in plan cannot make payments to plan on only selected employees within given bargaining unit. 6 pp.

Karr v. Nat'l Asbestos Workers Pension Fund, No. 97-4129 (8/21/98). Appeal, S.D. Ind., Terre Haute Div. Aff'd.

Dist. Ct. properly granted D's (administrator of pension fund) motion for summary judgment in ERISA action seeking award of money not distributed by D under certain pension fund. D's payments appropriate under 1 of 2 pension plans selected by decedent. Although record showed some ambiguity as to which plan applied to decedent, D's decision to award benefits pursuant to 1 of 2 funds reasonable given existence of handwritten note specifying wish to be paid under that plan. 3 pp.

Schleibaum v. Kmart Corp., No. 97-2202 (8/25/98). Appeal, S.D. Ind., Indianapolis Div. Aff'd in part, rev'd in part and rem'd.

1. Dist. Ct. properly found in action under 29 USC section 1133(c) that D-employer failed to give adequate notice of den'l of P-decedent's claim for benefits. While record showed D eventually provided all required information as to den'l in series of letters, D failed to impart said information at time P could have used information in appeal of den'l.

2. Ct. erred in finding cost of life ins. premiums only appropriate remedy for D's failure to give appropriate notice of claim den'l which caused decedent's life ins. policy with D to lapse. D, rather than P, bore burden of proof as to any mitigation and as to P's ability to obtain substitute life ins. policy. Mitigation defense inappropriate for ERISA claims under section 1133(c) where, as here, wrongful act of employer to provide required information solely within employer's control.

3. Normally, appropriate measure of damages for violation of section 1133(c) is remand to plan administrator for full hearing of claim on facts P prevented from submitting. However, P may be entitled to "substantive" remedy (i.e., face value of ins. policy provided by D) for "procedural" violation here if P able to show on remand P had legitimate claim and would have been covered under plan but for fact D provided inadequate notice of den'l of claim. (Dissent filed.) 14 pp.

EVIDENCE

Eiland v. Trinity Hospital, No. 97-3165 (7/24/98). Appeal, N.D. Ill., E. Div. Aff'd.

In Title VII action alleging race discrimination in D's termination of P from her nursing position, P's citation to racist statements by staff physician who reported P's negligence which led to P's termination did not constitute "direct evidence" of discrimination. Since staff physician not decision-maker, P failed to tie racist statements to decision to terminate P or to link statements to incident report filed by physician. 8 pp.

Bradley v. Work, No. 96-2241 (8/31/98). Appeal, S.D. Ind., Indianapolis Div. Aff'd.

Dist. Ct. did not abuse discretion in striking certain affidavits supporting Ps' response to summary judgment where Ps failed to comply with local R. 56.1 by correlating affidavits to factual proposition. Ps' attempt to make requisite correlation in App. Ct. too late. 10 pp.

EXPERT WITNESS

Bauer v. J.B. Hunt Transport, Inc., No. 97-2701 (7/27/98). Appeal, S.D. Ill. Aff'd.

In tort action alleging injuries occurred when D's truck tipped over into P's lane during rain and wind storm, Dist. Ct. properly excluded expert testimony as to potential factors contributing to truck tipping over on highway. Proposed testimony not helpful to jury since nothing in expert's proffered testimony disclosed basis from which jury could have ascertained whether and to what extent proposed factors came into play in instant accident. 8 pp.

Lawson v. Trowbridge, No. 97-3235 (7/28/98). Appeal, W.D. Wisc. Aff'd in part, rev'd in part and rem'd.

In section 1983 action alleging false arrest stemming from charges of concealment of weapon, Dist. Ct. did not err in admitting expert testimony from police officers regarding police training as to proper approach to citizens bearing concealed knives. While certain portions of expert testimony overlapped jurors' own experiences, such testimony properly admitted since it covered specialized knowledge as to why concealed knives in public places can be lethal. 16 pp.

Salgado v. General Motors Corp., No. 97-2590 (7/23/98). Appeal, N.D. Ill., E. Div. Aff'd.

Dist. Ct. did not abuse discretion in granting D's motion to bar testimony of P's expert witnesses due to failure of P to file timely report under Fed.R.Civ.P. 26(a)(2)(B). Ct. warned P to file timely report or risk losing case; report filed 3 days after deadline for 2nd extension to file. Tendered report also contained only conclusory opinions from experts without factual basis. 11 pp.

Bailey v. Security Nat'l Servicing Corp. No. 97-3437 (8/19/98). Appeal, N.D. Ill., E. Div. Aff'd.

1. In action seeking damages under 15 USC section 1692, Dist. Ct. properly granted Ds' motion for summary judgment where Ds not shown to be "debt collectors" under

section 1692(a)(6)(F) of Act. Although Ps defaulted on original loan, Ds' activities concerned servicing of Ps' forbearance agreement which was not in default and which superceded defaulted loan.

2. Ds' letter to Ps, which listed due dates for payments and cautioned Ps of consequences for failure to make scheduled payments not covered under Act which covers only communications "in connection with the collection of any debt." Instant letter did not "demand" any payment but rather gave status report of current debt. Warnings of adverse consequences for failure to keep debt current not effort to collect on "debt" as contemplated under Act. 6 pp.

FAIR LABOR STANDARDS ACT

Shaw v. Prentice Hall Computer Publishing, Inc., No. 97-3116 (8/4/98). Appeal, S.D. Ind., Indianapolis Div. Aff'd.

Dist. Ct. properly determined P to be "bona fide administrative" employee for purpose of 29 USC section 213(a)(1) to defeat P's cause of action seeking overtime pay under Act. Under Act's "short test," P paid weekly salary more than $250; P's production management position of being responsible for managing entire book editing projects constituted "major assignment" relating to D's publishing operations. 8 pp.

Shea v. Galaxie Lumber & Constr. Co., Nos. 97-1379 & 97-1827, Cons. (8/19/98). Appeal, N.D. Ill., E. Div. Rev'd and rem'd.

Dist. Ct. erred in failing to grant P's request for liquidated damages in 29 USC section 216(b) claim; D-employer failed to establish it acted in good faith in not paying P requisite overtime wages required by Act. D's explanation that it relied on low-level employees, including P herself, to make appropriate wage payments at issue in suit insufficient, in absence of evidence D consulted accountant or atty., to establish reasonable belief of legality of actions. 10 pp.

FAMILY AND MEDICAL LEAVE ACT

Haschmann v. Time Warner Entertainment Co., Nos. 97-3333 & 97-3708, Cons. (7/29/98). Appeal, E.D. Wisc. Aff'd.

In action alleging D-employer terminated P suffering from lupus shortly after requesting med. leave of absence under 29 USC section 2601 et seq., record contained sufficient evidence to support jury's verdict in favor of P. Requested leave only 2-4 weeks in duration; D terminated P without inquiring as to P's med. prognosis and in violation of D's own policy of reinstating P to position if available upon P's return. 19 pp.

Cianci v. Pettibone Corp., No. 97-2115 (8/19/98). Appeal, N.D. Ill., E. Div. Aff'd.

Dist. Ct. properly granted D-employer's motion for summary judgment in 29 USC

section 2601 et seq. action even though D twice den'd P's request for leave to take care of ailing mother. Record showed P suffered no monetary loss resulting from den'l; P failed to allege equitable remedies in complaint. 9 pp.

Podio v. INS, No. 97-4254 (8/25/98). Appeal from Immigration Appeals Bd. Rev'd and rem'd.

Alien entitled to new hearing on request for asylum where immigration judge interrupted alien's testimony and prevented him from presenting testimony from siblings to corroborate claim of well-founded fear of religious prosecution in home country; judge's ruling effectively served to deny alien meaningful access to cts. 7 pp.

FEDERAL DEPOSIT INSURANCE ACT

Frobose v. American Savings and Loan Ass'n of Danville, No. 97-1432 (7/31/98). Appeal, C.D. Ill. Aff'd in part, rev'd in part, vac'd in part and rem'd.

1. In action under whistleblower provisions of 12 USC section 1831j(a) challenging P's termination after reporting certain loan irregularities to state and fed. regulators, Dist. Ct. improperly granted D-employer's motion for summary judgment on ground that P had no vested right to continue as officer of D's bd. of directors for purposes of protection under Act. Fact P had no right to continued service irrelevant; whistleblower provisions provide remedy precluding D from removing P from position in retaliation for P's protected activity.

2. Summary judgment in favor of D also erroneous since question of fact remained, under clear and convincing evidence standard, as to whether P demoted and ultimately terminated from position as result of P's disclosures to authorities. Termination came within 6 mos. of disclosures; record showed letter from pres. of D, drafted shortly after disclosures, mentioned possibility of future management decisions in conjunction with criticism of P's disclosures to authority. 22 pp.

FIRST AMENDMENT

Pearson v. Edgar, No. 97-2667 (8/7/98). Appeal, N.D. Ill., E. Div. Aff'd in part and vac'd in part.

Dist. Ct. properly found Ill. antiblockbusting statute, 720 ILCS 590/1-1(d), banning certain real estate sales practices regarding solicitation of property owners, violated 1st Amendment. Under Discovery Network, 507 U.S. 410, statute cannot, for purposes of protecting residential privacy interests, distinguish real estate from other types of commercial solicitations without presenting logical privacy-based reasons. 11 pp.

Southworth v. Grebe, Nos. 97-3510 & 97-3548, Cons. (8/10/98). Appeal, W.D. Wisc. Aff'd in part, rev'd and vac'd in part.

Dist. Ct. properly determined that under 1st Amendment D-school regents cannot use allocable portion of objecting students' mandatory student fees to fund private organizations engaging in political or ideological activities. 27 pp.

FRANCHISES

To-Am Equip. Co. v. Mitsubishi Caterpillar Forklift America, Inc., No. 97-1395 (8/6/98). Appeal, N.D. Ill., E. Div. Aff'd.

Record contained sufficient evidence to show P paid D more than minimum $500 in indirect franchise fees to support cause of action under 815 ILCS 705/1 et seq.; P paid more than $1,600 over period of time for operations manuals required by D to train P's employees to service forklifts to be sold and serviced under franchise agreement between parties. Ill. statute and regulations did not require agreement to expressly identify what constituted franchise fees. Although D characterized purchase of operations manual as ordinary business expense, nothing in Ill. statute contained requirement that indirect franchise fee be limited to "unrecoverable investments." 10 pp.

IMMUNITY

Armstrong v. Squadrito, No. 97-2569 (7/24/98). Appeal, N.D. Ind., Ft. Wayne Div. Rev'd and rem'd.

1. In section 1983 action seeking damages where P held in jail 57 days before getting opportunity to make ct. appearance due to Ds' misfiling of records, Dist. Ct. improperly granted D-members of sheriff's office motion for summary judgment after concluding Ds did not violate deliberate indifference standard and entitled to qualified immunity. Ds' conduct offended standards of substantive due process in ignoring P's repeated valid requests for release and in failing to have backup system to correct Ds' mistakes.

2. Ct. improperly found Ds, sued in both official and individual capacities, entitled to qualified immunity since: P's suit in official capacity is suit against municipality which does not enjoy qualified immunity defense in section 1983 damage claim; and instant Ds, sued in individual capacity, cannot have qualified immunity where Ds violated clearly established right of P to prompt appearance before ct. after arrest pursuant to warrant. 23 pp.

Copus v. City of Edgerton, No. 97-2112 (8/4/98). Appeal, W.D. Wisc. Aff'd in part, rev'd in part and rem'd.

Dist. Ct. properly dism'd D-parole officer from P's section 1983 claim alleging D wrongfully issued probation detainer based upon illegally seized evidence. Under Walrath, 35 F.3d 277, parole officer enjoys absolute immunity for issuing warrant against parolee where, as here, officer did not participate in gathering of evidence forming basis of warrant. 6 pp.

DuFour-Dowell v. Cogger, Nos. 97-2928 & 97-2934, Cons. (8/10/98). Appeal, N.D. Ill., E. Div. Dism'd.

In interlocutory appeal from order den'g D-police officers' claim of qualified immunity in section 1983 action alleging Ds used excessive force in effectuating P's arrest, factual issue of use of excessive force disputed thereby precluding review of den'l by App. Ct. 4 pp.

IN FORMA PAUPERIS

Evans v. Ill. Dept. of Corrections, Nos. 98-1461 & 98-2050, Cons. (8/5/98). Appeals, S.D. Ill. and S.D. Ind., Indianapolis Div. Den'd in part and rem'd in part.

When den'g prisoner's request to file either civil action or appeal civil judgment in forma pauperis under "three strikes" provision in 28 USC section 1915(g), ct. must identify in den'l order case names, docket numbers, dists. in which actions filed and dates of 3 prior cases dism'd as either frivolous, malicious or failing to state viable claim used to form basis of den'l. 3 pp.

INDIVIDUALS WITH DISABILITIES EDUCATION ACT

Morton Comm. Unit School Dist. No. 709 v. J.M., No. 97-3962 (7/27/98). Appeal, C.D. Ill., Peoria Div. Aff'd.

Dist. Ct. did not err in confirming hearing officers' decisions that school bd.'s providing of full-time nurse to perform tracheostomy services on handicapped student required under 20 USC section 1400(d)(1)(A) and did not fall within "medical services" exception of Act. Although services time-consuming, they do not require high degree of expertise or expense of med. treatment. 7 pp.

INJUNCTION

Southworth v. Grebe, Nos. 97-3510 & 97-3548, Cons. (8/10/98). Appeal, W.D. Wisc. Aff'd in part, rev'd and vac'd in part.

Dist. Ct. erred in issuing mandatory injunction prior to evidence that Ds had yet to comply with ct. order striking down Ds' system of collecting student fees; mandatory injunctions can only be used as last resort. Ds, however, cannot employ system of temporarily collecting from objecting students portion of fees used to fund private organizations and then require those students to apply for rebate. 27 pp.

JUDICIAL ESTOPPEL

Haschmann v. Time Warner Entertainment Co., Nos. 97-3333 & 97-3708, Cons. (7/29/98). Appeal, E.D. Wisc. Aff'd.

In handicap discrimination claim under ADA, 42 USC section 12101 et seq., Dist. Ct. properly refused to apply doctrine of judicial estoppel based upon P's application and receipt of Social Security disability benefits to bar ADA claim. P qualified individual under ADA where record showed P's lupus condition episodic such that P incapacitated at time Social Security evaluated P's condition. However, P able to perform job functions when lupus in remission; P attempted to return benefits once condition went into remission. 19 pp.

JURISDICTION

Cosgrove v. Bartolotta, Nos. 97-2903, 97-3023 & 97-3322, Cons. (7/22/98). Appeal, E.D. Wisc Aff'd in part and rev'd in part w/dir.

In diversity action alleging damages under theory of promissory estoppel, misrepresentation and unjust enrichment, Dist. Ct. had subject matter jurisdiction over D- "limited liability company." For purposes of diversity jurisdiction, citizenship of "limited liability company" is citizenship of all its members. 7 pp.

Friedlander v. Friedlander, No. 98-1391 (7/27/98). Appeal, N.D. Ill., E. Div. Rev'd.

Dist. Ct. erred in dism'g under "domestic relations" exception to diversity jurisdiction instant diversity suit for intentional infliction of emotional distress arising out of allegations that D threatened father of ex-wife to expose fact that father not natural father if ex-wife did not drop suit for arrears in alimony. Domestic relations exception to diversity jurisdiction does not extend to proceedings that merely arise out of domestic relations dispute and only applies to suit seeking relief associated with granting divorce, award of child custody, decree of alimony or child support and ancillary proceedings. 3 pp.

Herdrich v. Pegram, No. 97-1070 (8/18/98). Appeal, C.D. Ill., Peoria Div. Rev'd and rem'd.

App. Ct. had jurisdiction to consider Dist. Ct. order granting Ds' motion to dism. ERISA action alleging Ds violated fiduciary duties to plan participants even though notice of appeal filed more than 30 days after entry of dism'l order. Dism'l order not "final" here where other counts in complaint remained after entry of order; appeal timely where notice of appeal filed within 30 days of final order dispensing all counts of case. (Dissent filed.) 31 pp.

Kaplan v. Shure Bros., Inc., No. 97-2768 (8/11/98). Appeal, N.D. Ill., E. Div. Aff'd in part, rev'd in part and rem'd.

Fact record contained no judgment document did not deprive App. Ct. of jurisdiction even though minute order reflected only that Dist. Ct. granted motion to dism. contract action "without prejudice." Dism'l order "final" where, as here, order dism'd all relevant counts of P's suit with prejudice and record showed clear intent by Dist. Ct. to end entire case. 13 pp.

Bradley v. Work, No. 96-2241 (8/31/98). Appeal, S.D. Ind., Indianapolis Div. Aff'd.

In action under 42 USC section 1973, failure of P-appellants to name in notice of appeal appropriate ct. to which appeal taken not fatal to jurisdiction even though language of Fed.R.App.P. 3(c) makes naming proper ct. mandatory. Mere technical defect insufficient to defeat jurisdiction where notice as whole not misleading and Ps' docketing statement listed correct ct. 10 pp.

JURY INSTRUCTION

Akrabawi v. Carnes Co., Nos. 97-3266 & 97-3399, Cons. (8/10/98). Appeal, W.D. Wisc. Aff'd.

In action alleging failure to promote P based upon P's nat'l origin, Dist. Ct. did not err in submitting separate jury question based upon "but for" defense rather than asking combined question covering discrimination and other possible reasons for D's decision not to promote. 42 USC section 2000e-5(g)(2)(B) permits employers to make decisions based on mixed motives; combined jury question potentially appropriate only where P fails to seek monetary remedy on discrimination claim. 12 pp.