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A Real Class Act

Monday, October 16th, 2017

The field of law surrounding class action lawsuits, and collective litigation generally, consistently makes waves in the legal community, but in many cases it can seem a bit dry to those not actively involved in the litigation. Many of us have received notices indicating that we are or may be a class member of a class action, and oftentimes think little of it again until a check comes in the mail. A recent, although contentious, example of this type of litigation is the claim against Subway restaurants that their Footlong sandwiches were not, in fact, a foot long. The federal Seventh Circuit of Appeals rejected a proposed settlement of that case this August, when it determined that the class members of the suit wouldn’t really be receiving much of a benefit from the result of the suit.
However, collective action and class actions can arise in many, more personal circumstances. One of the cases that the United States Supreme court is considering this term, Epic Systems Corp. v. Lewis, in large part concerns whether employees can waive their right to participate in or receive benefit from any class, collective, or representative proceedings as a requirement of their employment, or whether such waivers violate the National Labor Relations Act protecting the ability of employees to engage in “concerted activities.”
Which brings us to a class action lawsuit filed earlier this week in Cook County against the Mastro’s restaurant chain, a group of high-end steakhouses based in Arizona. The claim, filed by a busboy, alleges that the chain illegally retains a portion of the tips paid to its employees, causing the actual wages paid to some staff to violate the Illinois Minimum Wage Law and the Illinois Wage Payment and Collection Act.
This isn’t actually the first time that this claim has been brought against the chain. In 2015 an action was brought on behalf of the class in federal court in Illinois, and similarly claimed that Mastro’s was paying some employees less than the minimum wage by taking an illegal proportion of the employees’ collective tips before redistributing the money to them.
Class actions can be an important tool in ensuring that companies are held accountable for small wrongdoings that add up to serious problems, and also act as a means of carrying out justice in an efficient and cost-effective manner. Individually, the cases against Mastro’s may not have been economical to file in court given the amounts of money involved, but acting on behalf of the entirety of the “tip pool” in the restaurant allows the actions to move forward, and hopefully for all of the members of the class to benefit.

– Travis J. Dunn, Attorney


NO STALKING ALLOWED

Friday, September 29th, 2017

Although it is not well known, or widely used, in 2010 the Illinois Legislature found that stalking, is a serious crime in Illinois.

For statutory purposes, stalking includes conducting surveillance of the person, appearing at the person’s home, work or school, making unwanted phone calls, sending unwanted emails or text messages, leaving objects for the person, vandalizing the person’s property, or injuring a pet.

Unlike the Domestic Violence Act, which requires some form of familial relationship with the offender for that act to apply, the anti-stalking law does not even require that the victim and offender know one another.

While statistics suggest that 70% of victims know the individuals stalking them, only 30% of victims have dated or been in intimate relationships with their stalkers.

Stalking includes any course of conduct that causes emotional distress. If the victim is elderly, disabled or otherwise able to seek redress on their own, the Act allows pursuant of a no stalking/no contact order on that person’s behalf.

The Clerks of the various circuit courts throughout the state are instructed to accept petitions for no stalking/no contact orders without a filing fee and the Sheriff of every Illinois county is instructed to serve those orders and any related summons, without fee.

No contact orders can be issued on an emergency basis without notice for up to a month and to issue such orders for a period of up to two years after notice and a hearing.

Violation of a no contact order may be prosecuted as a criminal offense and while the Act does not create a civil remedy it does provided for an award of attorney’s fees to a successful petitioner.

Although a violation of the Act does not create a new civil remedy, the offender’s actions may otherwise allow for a civil action for damages for emotional distress or physical injury.

The Act intends to create a streamlined system to allow victims to file petitions seeking no contact orders on their own, as with any legal action self-representation is not recommended.

Knowledge of the rules regarding civil procedure and evidence are imperative to a successful outcome in any litigation and it is always advisable to seek assistance from an attorney.

If you or someone you know has been a victim of stalking, our team of knowledgeable and experienced attorneys can help. We offer free initial consultations, and we’d be happy to set up an appointment through our toll free number at 888-488-4LAW or via email at pferracuti@peterferracuti.com.

– Dennis Both, Attorney


Social Media and Injury Claims

Friday, September 22nd, 2017

Today, social media has become the norm. Social media provides a platform for people to share their thoughts and experiences. Social media allows people to show photos of what they ate and what they did that day. However, social media can play a negative role in your personal injury or worker’s compensation claim especially using social media in the midst of the claims process. I am going to discuss how social media can have an impact on your ongoing personal injury or worker’s compensation claim.

People who are pursuing a personal injury claim or workers compensation claim are doing so because they have suffered a physical injury such as broken leg, soft tissue injury, chronic pain, etc. As such, they are seeking damages for medical expenses incurred because of the injury and in personal injury, the noneconomic damages for pain and suffering that resulted because of the personal injury. The defense attorney’s job is to find evidence that you are not as injured as you claim to be. This can be done by medical testimony or as becoming more common today, your social media profile. For example, if a person is claiming some loss of mobility or chronic pain and thus an inability to enjoy physical activities that he or she once loved, such as hiking. But then that person posts on social media photographic evidence that shows that person on top of a mountain, smiling and with friends – this can cause a negative impact on your personal injury or worker’s compensation case. As a result, the judge may rule that the claimant is not entitled to compensation for these damages as the photograph shows that he or she is enjoying life and is not at the claimed level of disability. The Illinois Worker’s Compensation Commission recently ruled on a case, Morris-Velazquez v. Brightstar Healthcare, that the claimant made several Facebook posts of her posing in a way that were contrary to her claimed level of disability, thus she reached her maximum medical improvement two years prior. Thus, the claimant was not entitled to benefits for two years following the accident.  The Facebook posts showed her engaging in an activity that did not relate to the level of disability she was claiming.

Moreover, social media postings are a part of the public record. Anything that you post publicly on the internet or that others post about you, may be used as evidence and therefore used against you in a personal injury or workers compensation claim.

After you have been in an accident, it is best to temporarily suspend all of your social media accounts. You should also make sure that your account is set to private and that you do not accept any new friend requests during the time period after your accident. In addition, you should your family and friends not to post anything relating to you or the accident and to set their profiles to private as well.

If you have any questions about your personal injury or workers compensation claim, our firm offers free initial consultations, and we’d be happy to set up an appointment through our toll free number at 888-488-4LAW or via email at pferracuti@peterferracuti.com.

– Kendall E. Hodges, Attorney


Written in stone

Friday, September 15th, 2017

One of many important things to keep in mind after suffering a personal injury or a Workers’ Compensation accident is the power of a written statement memorializing what has occurred. Whether it is the report generated by the police after a car accident or a statement of a work injury, its vitally important that the information in these first records are accurate, since they can set the tone going forward. If there are problematic aspects in the early written reports of an injury, it can set up difficulties and disagreements that last for the entirety of an injury claim.
In many circumstances when you are injured, you aren’t the one writing the accident report. In some cases of injury, particularly those with police involvement, you might not even get a chance to see the report until some time after the accident. This doesn’t mean, however, that the initial report isn’t a valuable piece of information, because it lays out a version of events relatively contemporaneously with the injury itself. This is partially why, even if the other party involved in an accident seems to be cooperative, agreeable with you, and provides all of the information you think you need for an accident, it is always a good idea to get police involved from the time of an accident. They will generate that first written documentation that the accident occurred and the facts involved.
In other cases, your employer or the operator of the location where an injury occurs may ask you to sign an accident report or statement. In situations where you are injured at work, there can be lot of pressure to sign whatever your employer asks you to sign. When you are injured on someone else’s property, in the flurry of concern about your injury, it can be tempting to sign whatever is handed to you so that you can focus on obtaining medical treatment or even to continue with your day. It is very, very important that you pay attention to any such documents, however. Seemingly insignificant details such as how long it took you to report the accident in a Workers’ Compensation claim, or whether you noticed anything on the ground in a slip-and-fall injury, can have an impact on a claim going forward. If something gets put down in writing, that initial written document never really goes away, even if it is amended later on. It is imperative that you do not signal agreement with something unless you are confident that it is correct, and can stand by that narrative.

– Travis J. Dunn, Attorney


ILLINOIS TOPS ALL STATES FOR NURSING HOME ABUSE

Friday, September 1st, 2017

It is a well documented fact that the population of the Unites states is aging. Sooner or later

every family is faced with the decision on how to best deal with the medical care or even daily living needs for an elderly family member.

It is a truly stressful time as you try to balance the needs of mom, dad, grandparents or others loved ones and their desires to remain independent and viable.

You want what is best and once the decision is made that they require either constant or skilled care that you are unable to provide the search begins for a nursing home or assisted living venter that you know will provide the proper care.

Nothing is more heart wrenching than finding out that the most vulnerable in our families and society have been preyed upon or neglected by the very people we have entrusted their loved ones to.

Federal law mandates that nursing homes must report crimes against residents to local law enforcement. Despite this mandate crimes are frequently not reported, and a recent audit by the federal government found at as many as 1 in 4 cases of physical and sexual abuse against nursing home residents goes unreported.

Illinois leads all states with the most cases of reported incidents of abuse. Even one instance is too many, and as with many services provided by this state, there is a lot of room for improvement.

Luckily there is something you can do. If you suspect abuse report it to the local police and the Illinois Department of Public Health.

After reporting it, contact an attorney. Illinois has done one thing right in that it passed the Nursing Home Care Act creates a cause of action against nursing homes and their employees for abuse and neglect. All nursing home residents have the right to be “free from physical or mental abuse, and if that right has been violated you can file suit. Common forms of abuse and neglect are over-medication, lack of proper hygiene, pressure sores, injuries/falls due to a lack of supervision and failure to provide medical treatment.

If you suspect that your loved one has been abused or neglected, the experienced and knowledgeable attorneys at the Law Offices of Peter F. Ferracuti stand ready. Our firm offers free initial consultations, and we would be happy to set up an appointment through our toll free number at 888-488-4LAW or via email at dboth@peterferracuti.com.

– Dennis Both, Attorney


Right to Yelp

Friday, August 25th, 2017

Last week, Governor Bruce Rauner signed a bill into law that prohibits businesses from including or enforcing nondisparagement clauses in contracts for the sale or lease of consumer goods or services. This meaning that consumers who post negative reviews on sites like Yelp and TripAdvisor have new protections under Illinois law. The new law has been called the “right to Yelp” legislation.

Nondisparagement clauses in contracts for the sale or lease of consumer goods or services are referred to as “gag” clauses and are meant to discourage consumers from posting critical reviews by threatening with fees or a lawsuit if they do. These clauses are typically found in the “terms and conditions” language which consumers usually accept without reading. Some businesses that have these clauses are moving companies, dentists, retailers and hotels.

With the rise of Yelp, TripAdvisor, Facebook, Twitter and other social media platforms, the need for consumer protection has become more prevalent. Last year, a pet-sitting company sued a couple for $1 million after the couple posted a one-star review on Yelp; the case was later dismissed. This new law by Illinois will prohibit businesses from suing over a one-star review on Yelp. However, companies can still sue for defamation if a consumer’s review is not true.

Illinois is not the only state enacting laws to protect consumers. California and Maryland have similar laws. In addition, the Illinois law is similar to the Consumer Review Freedom Act which is a federal law that then-President Barack Obama signed last year. The federal law is enforced by the Federal Trade Commission, so consumers cannot sue a company directly for violating it. The Illinois law provides a distinction and allows consumers to sue companies for damages and attorneys’ fees. This opens up a whole other area of benefit to consumers.

Social media has become the norm now. If you have Facebook, Twitter or Yelp, you have seen the outpouring of people who post complaints on company’s websites for dissatisfied service. Thus, a new law being enacted to protect consumers comes as no surprise to me.

– Kendall E. Hodges, Attorney


THAT’S THE WAY THE COOKIE CRUMBLES

Friday, August 4th, 2017

Recently, an employee union sued Mondelez International, which manufactures Oreos, Chips Ahoy and other cookies and crackers in federal court regarding an interpretation of Illinois’ wage and hour laws.

The federal judge determined that while Illinois law prohibits from forcing Illinois workers to work 7 days per week, it does not prevent them from doing so voluntarily in order to earn overtime.

In other employment news, an employee of the debt collection firm Harris and Harris, who collects debts for the City of Chicago and others, sued claiming she was not paid for all of the hours she worked. She alleges she was told to clock in early, and regularly worked beyond her scheduled end time and Harris and Harris would improperly round down her time and not compensate her for all hours worked.

Despite efforts to have the suit dismissed, the federal judge has ruled that the case may continue.

These cases are just a few recent examples of the continuing struggles employees face in simply seeking to be paid what the law requires for their efforts.

If you believe your employer has not paid you in accordance with applicable wage and hour laws you should consult an attorney.

The knowledgeable and skilled attorneys at the Law Offices of Peter F. Ferracuti offer free initial consultations, and we’d be happy to set up an appointment through our toll free number at 888-488-4LAW or via email at pferracuti@peterferracuti.com.

 

 

– Dennis Both, Attorney


What Happens After You Are Injured

Friday, July 28th, 2017

If you happen to find yourself in a situation where you are injured whether it is a car accident, slip and fall, or medical malpractice, there are certain things you need to do and certain things you need to know.

The first thing you should do after getting injured in an accident is to get medical treatment. If you are hurt, go to the hospital or doctor. This is the right thing to do for your health. In addition, medical treatment is considered a compensatory damage in personal injury.

The next thing that you will have to do is choose a lawyer. You should choose the lawyer soon after the injury. Our office is equipped with knowledge and experience to help you and your claim. When you first come to the office, we will ask you in detail how the accident happened, your background, and your medical condition and treatment you have received. The more information we know the better we can do our job. In addition, we always ask our clients to bring in as much information for their claim as they have. This not only speeds up the case but also helps us better understand what happened and the treatment involved. Moreover, we always ask our clients to document their treatment in a notebook that is provided to you at the consultation.

After hiring our office, we begin to gather your medical records and medical bills for any treatment that you have ever had relating to the condition at issue in the case. The process of gathering a client’s medical records and bills does take some time.

Once a client is done treating, we gather together a demand. This demand includes all the medical records and bills, pictures, wage loss and an accident report if there is one. With the demand packet, we send a letter summarizing the accident, the medical treatment and the pain and suffering. We send the demand to the other attorney or the other side’s insurance company. If we are unable to settle the claim this way, we will then file the lawsuit in court.

If the lawsuit is filed in court, we then begin the court process. It could potentially take two years before a case goes to trial.  However, we first begin with the discovery phrase of the lawsuit. This involves written questions and depositions. Once discovery is finished, we generally begin to take settlement negotiations or mediation. If this doesn’t settle the case, we schedule it for trial.

Getting injured in an accident is often a very traumatic and stressful time in your life. However, by hiring an attorney, they can take away some of the stress by assisting you throughout the entire process. If you find yourself in the unfortunate situation of a personal injury, our firm offers free initial consultations, and we’d be happy to set up an appointment through our toll free number at 888-488-4LAW or via email at pferracuti@peterferracuti.com.

– Kendall E. Hodges, Attorney


Beverage Tax Blues

Friday, July 21st, 2017

It seemed simple enough. On November 10, 2016, the Cook County Board of Commissioners voted to pass the Cook County Beverage Tax Ordinance. The tax, as envisioned, would be a flat one cent per ounce of “sweetened beverage” sold by applicable distributors to consumers in Cook County. In what looked like a fairly straightforward “sin tax,” in the vein of that on cigarettes or gasoline, the county stated that the ordinance might act as something of a deterrent to the consumption of unhealthy sugary drinks and help reduce obesity, and was written to go into effect on July 1st. Of course, the county also estimated that the tax would raise a fairly astonishing $67.5 million dollars by the end November this year.
But the tax never went into effect. On June 27th, a group of stores and grocers, headed by the Illinois Retail Merchants Association, filed a lawsuit alleging that the ordinance was a violation of the Constitution of the State of Illinois. A judge agreed to put the tax on hold until a more full hearing could occur, and that hearing, over a motion by the County to dismiss the lawsuit, is scheduled for today.
The stores attempting to block the tax have two primary arguments. First, they argue on a section of the Illinois constitution that states that, for the purposes of taxation, any discrete “classes” of taxable subjects must be reasonable, and all subjects and objects within each “class” must be uniformly taxed. The purpose of this section would seem to be to guard against arbitrary taxation. Since, by the language of the ordinance, the tax would apply to “ready-to-drink, pre-made sweetened beverages” but not “on-demand, custom sweetened beverages,” the stores argue that the tax applies to an unreasonable class. That is, the argument goes, why should the county tax sweetened ice tea in a bottle or coming out of a machine when it does not tax the same ice tea mixed by a waiter or barista?
A slightly more complicated argument pursued by the Association is that the tax is unconstitutionally vague. This argument actually encompasses several difficulties that the Association points out in the actual implementation of the law itself, ranging from the problem of knowing how much of a sugary drink someone is actually taking out of a soda fountain vs. how much ice they are putting in their drinks (which would, after all potentially have an effect on how much tax they should be charged), to the fact that any food or drink bought with SNAP benefits are actually federally barred from being locally taxed, to problems with the tax being mandated as being included in the selling price of the drinks, not added on as a separate tax.
The County, on the other hand, is now effectively being prevented from collecting income that has been budgeted for nearly a year at this point. The county has already laid off hundreds of workers whose salaries were expected to be paid from the tax money, with the prospect of the total reaching 1100, a significant portion coming from the Cook County Sheriff’s Department. Having millions of dollars of revenue cut off at the last minute has created something of a small crisis itself.
Short of a very generalized tax increase on drinks, it’s difficult to imagine a more straightforward tax on sugary drinks. Opponents of such taxes have not had much luck in other contexts. A similar tax in Philadelphia, Pennsylvania passed during the Summer of 2016 was ultimately upheld in court, although retailers continue to fight it there, too. It’s possible that the Illinois Circuit Court will give Cook County a definitive win here, as well, but ultimately that comes down to the intersection between a legislature’s ability to tax and the ability of the Illinois state constitution (and most people don’t realize it, but the current Illinois state constitution only dates to 1970) to limit that ability.

– Travis J. Dunn, Attorney


Finding the Right Doctor for You

Friday, July 14th, 2017

There are a lot of physicians out there for treatment. They’re all board certified for the most part, and if that’s the case then they are able to perform medical procedures on your person, but does that mean they’re the right doctor or physician for you? Not necessarily.

                Not every doctor is the right doctor for the job. Just like not every attorney is the right attorney for every case that is presented to them. It depends on a lot of factors. Specialty is a huge part of the equation. You cannot treat with a cardiologist for an orthopedic injury just like you can’t go to your primary care physician for an issue with your intestines that requires a specialist’s knowledge in that area.

                It is the job of your family doctor to help you find the doctor who is right for you. Whether that doctor is right for you can depend on how you interact with your family doctor, what your needs are, and what insurance you have, so be sure to ask the right questions when you are speaking to your family doctor regarding your injuries.

                Most importantly, be sure to document thoroughly and consistently with every doctor you treat with how your injury occurred and what treatment you’ve had so far. Make sure to tell them exactly how the accident happened, to walk them through your daily work life, and through the specifics of what your job was at the time of the accident. If you have questions as you continue to treat with your physician about whether you are receiving the proper care, please don’t hesitate to call us at 1-888-4LAW.

 

Best Regards,

 

– Alexis P. Ferracuti, Attorney


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