Illinois Legislature Passes Bill Allowing for Prejudgment Interest on Personal Injury Claims

Illinois law traditionally has not allowed for prejudgment interest on personal injury claims, but that rule is about to change. On January 13, 2021, the Illinois legislature passed House Bill 3360. The original purpose of the bill was to amend Illinois law relating to mortgage foreclosures and abandoned residential property. However, Senate Floor Amendment No. 1 modified the bill to introduce prejudgment interest for personal injury claims in Illinois.

Prejudgment interest on personal injury actions was not available under the common law, so generally it is only allowed when authorized by a statute. Illinois HB 3360 provides that in all actions for personal injury or wrongful death, the plaintiff shall recover prejudgment interest on all damages set forth in a subsequent judgment at the interest rate of 9% per annum.

Of note is when prejudgment interest begins to accrue under the bill. Among the jurisdictions allowing prejudgment interest on personal injury claims, a plethora of approaches has emerged for determining the starting point. Some states require the rejection of a formal demand with specific requirements (such as Missouri, § 408.040 RSMo.), others from the date of the loss (such as Florida, Fla. Stat. § 687.01), or still others from the date of the filing of the complaint (such as Michigan, Mich. Comp. Laws § 600.6013). Continue reading »

Financial Relief for Your Troubled Small Business Clients

It’s no secret that many small businesses are facing financial troubles these days, not only because of the COVID-19 pandemic, but also because of the rapid and unpredictable twists and turns of the current economy. This article will discuss, in two parts, the various ways in which a financially troubled business can seek financial relief, ranging from informal negotiations and state statutory remedies to filing a Chapter 11 reorganization bankruptcy case, so that attorneys can provide general assistance to their small business clients, or refer them to an insolvency attorney if appropriate.

Part I: Negotiations and State Statutory Remedies

Informal Workouts

If a debtor is on good terms with its creditors, especially its primary lenders, it may be able to earn itself out of its financial troubles. The secured creditors, of course, must be treated with full respect for their security interests in the assets of the debtor. Unsecured suppliers of critical goods and services also must be treated with care, as their cooperation may be needed at some point in the future.

It is often useful for a debtor to obtain an appraisal of its assets, both real and personal, from well-respected appraisers experienced in their fields. The appraisal should value the assets at three levels: forced liquidation value, orderly liquidation value, and fair market value. These values will enable the debtor to intelligently discuss the likelihood of collection in different situations.

Another useful action would be to hire a consultant. Sometimes business owners cannot see opportunities for improvement which are right in front of them, simply because they think that the current practice works well. The consultant can help the owner review the company’s operating procedures, cash flow procedures and pricing structure to look for opportunities to increase profitability.

The consultant also could prepare projections of future profitability for the company, based upon the opportunities which are discovered. Armed with the collateral valuations and projections, the owner can show the company’s creditors a plan for solving its problems.^[1] That is much more effective than simply asking for more time or engaging in stalling tactics.

Statutory Remedies

1. Assignments for the Benefit of Creditors

Continue reading »

CDC Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19

On March 27, 2020, the Coronavirus Aid, Relief, and Economic Security (CARES) Act was signed into law.  This law provided different types of relief to Americans and business entities as a result of financial damage caused COVID-19.  The CARES Act prohibits the filing of eviction lawsuits by a landlord against a tenant to recover possession for nonpayment of rent if the dwelling is a “covered property” as that term is defined in the CARES Act.  Covered properties include a covered housing program (as defined in section 41411(a) of the Violence Against Women Act of 1994), the rural housing voucher program under section 542 of the Housing Act of 1949, federally backed mortgage loans and federally backed multifamily mortgage loans.  After the CARES Act was signed into law, this meant landlords who owned residential properties that were not covered by the two Acts mentioned and were not backed by federal mortgages could proceed with filing eviction lawsuits to evict tenants solely for not paying rent, which typically requires the landlord to state under oath through an affidavit or verified petition that the property they own is not a covered property under the CARES Act.

On September 4, 2020, the Centers for Disease Control and Prevention (CDC), which is part of the Department of Health and Human Services (HHS), announced the issuance of a CDC Order under Section 361 of the Public Health Service Act (PHSA) to temporarily halt residential evictions to prevent the further spread of COVID-19.  Continue reading »

Your Small Business: Getting Through the Economic Turbulence

Part 1 of a 5-part series: Options for Small Business Owners in Financial Distress

Suppose your small business has been doing fairly well over the last few months in spite of COVID-19 and the many other factors affecting our economy. However, you are worried about the upcoming change of seasons, additional shutdown orders, or other circumstances which might adversely affect it.

Or suppose you expect to do well over the holidays even in the face of (or because of) the pandemic, but dread your normally slow months of January, February, and March.

Or suppose you recently undertook a large project which fell apart and left you owing a ton of money.

Different situations require different responses.

Specific Event

If a specific event led to your problems, but your business is otherwise profitable, you may be able to work out of them.

Equipment Problems

Imagine that your business was doing so well that you bought additional equipment and hired additional employees in order to meet the demand.

Unfortunately, your new equipment didn’t work as promised. Rather than the promised six weeks, the new equipment took a year to get up and running smoothly. In addition to failing to fulfill all of your orders during this time, you paid employees overtime to produce as much as they could despite the distractions caused by the equipment problems. Continue reading »

Is the Arbitration Provision in Your Employment Contract Enforceable?

Many employers require their employees to execute employment agreements, often containing confidentiality and non-compete clauses, which contain provisions requiring arbitration of any claim which an employee might file against the employer.  However, unless these provisions are carefully drafted, the arbitration provisions may be found unenforceable.

In Caldwell v. Unifirst Corp, et al. issued on October 27, 2020, the Missouri Court of Appeals, Eastern District, upheld a decision by an arbitrator holding the arbitration clause at issue there to be unenforceable due to a lack of consideration.  The Court in Caldwell agreed with the arbitrator that the arbitration clause in the employment agreement Caldwell signed with Unifirst was invalid for lack of mutual consideration because the employer had reserved the right to seek injunctive relief in court in the event the employee violated his non-compete obligations.  Thus, while the employee was required to arbitrate all claims he might have, the employer would not be required to arbitrate its claims for breach of the non-compete clause, the type of claim most likely to be pursued by the employer against a former employee.  As a result, the arbitrator (and the Court) held that the consideration offered by the employer was illusory, such that the agreement to arbitrate was void. Continue reading »

Changes to the Missouri Merchandising Practices Act and Claims for Punitive Damages

Governor Mike Parson recently signed Missouri SB 591, which brings significant changes to the Missouri Merchandising Practices Act (MMPA) and claims for punitive damages. The statute also adds new evidentiary and pleading requirements that will make it more difficult to prevail on a claim under the MMPA and to obtain punitive damages generally. The changes apply to lawsuits filed on or after August 28, 2020.

Changes to the Missouri Merchandising Practices Act

The MMPA (Section 407.010 RSMo., et seq.) is a broad consumer protection statute designed to safeguard the public against dishonest business practices. Under the MMPA, it is unlawful to engage in any deception, fraud, misrepresentation, or unfair practice in connection with the sale or advertisement of any merchandise in commerce, or solicitation of funds for a charitable purpose. While the act charges the attorney general to police the marketplace, it also provides for a private cause of action for those who have been victimized. Attorneys’ fees are recoverable under the statute, and it has proven to be a popular tool in suits against businesses. However, SB 591 adds several new requirements that a plaintiff must satisfy to prevail on an MMPA claim.

• Reasonableness is Required

Continue reading »

A Closer Look at Title VII and Sexual Orientation and Gender Identity

Authored by Katherine M. Flett with assistance from Connor P. Lynch

The Supreme Court, in a 6-3 decision, ruled that Title VII of the Civil Right Act, which prohibits employment discrimination on the basis of sex, encompasses sexual orientation and gender identity.

Background

In recent years, federal circuit courts have come to conflicting conclusions when addressing whether Title VII of the Civil Rights Act, prohibiting employment discrimination on the basis of sex, encompasses sexual orientation and gender identity.  In an attempt to resolve the inconsistent holdings across federal appellate courts, the Supreme Court agreed  to hear three cases that dealt with this issue: Altitude Express,  Inc. v. Zarda; Bostock v. Clayton County; and R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C. All three cases involved an employer allegedly firing a long-time employee simply for being homosexual or transgender. Continue reading »

Bankruptcy and Workouts After the CARES Act

As the COVID-19 crisis deepens, it is getting even more difficult for small business owners to plan for the future. It now appears likely that the crisis will not simply end – it will ebb and flow in waves for quite a while, yet another variable for small business owners to consider for an extremely uncertain future.

Despite the payroll protection program and all of the other government support programs being enacted in an effort to support the economy[1], it is a virtual certainty that hundreds of thousands of small businesses will need to file Chapter 11 bankruptcy reorganizations or enter into out of court workout agreements with their creditors during the next few years.

Several changes to a debtor’s ability to survive this chaos have occurred in recent months:

• The enactment of Subchapter V of Chapter 11 of the Bankruptcy Code;
• The enactment of the CARES Act; and
• The practical results of so many businesses teetering on the brink of failure.

Before getting into the details, I am repeating my basic plea to all small business owners facing potential troubles. PLEASE: Continue reading »

Business Interruption Insurance Coverage and COVID-19

In this time of massive economic downturn, stay-at-home orders and required closures of non-essential businesses, business owners are looking to their commercial insurance policies to provide coverage for their losses. Specifically, insureds are looking to apply the business interruption coverage of their policies. Of course, each specific policy must be read and applied to the insured’s specific situation, but the pandemic certainly raises issues that will need to be addressed by many insurers and their policy holders.

Business interruption coverage provides insureds with protection for a reduction in income resulting from a necessary suspension in operations. Often, this coverage applies when a business sustains loss of income due to physical damage to the property, such as from a fire or flood. Business owners filing claims arising out of the COVID-19 crisis are finding that their insurers do not interpret “physical damage” to include damage caused by the pandemic. Insureds have already begun filing lawsuits across the country, challenging this interpretation. They argue that possible COVID-19 contamination constitutes physical damage triggering coverage.

Some policies specifically address loss and damage from a virus, either in their exclusions to coverage or in their endorsements expanding coverage. Although many commercial policies contain coverage exclusions for damage caused by a virus or bacteria, insureds are examining these exclusions for ambiguities that may be construed in their favor. Disputes are also occurring over the interpretation of endorsements referencing losses caused by a virus. In one such case, SCGM v. Certain Underwriters at Lloyd’s, a theater chain filed a declaratory judgment action in The U.S. District Court for the Southern District of Texas against its insurer Lloyd’s of London, for its anticipated refusal to provide coverage under a “Pandemic Event Endorsement.” Lloyd’s has asserted that COVID-19 is not specifically listed as a covered disease on the endorsement while SCGM argues it is a variation of SARS-CoV, which is listed.

Another coverage contained in many policies is “civil authority” coverage. This coverage typically applies when a civil authority (i.e., a state or local government) issues an order prohibiting access to a business due to direct physical damage or loss to a property other than the insured premises. Continue reading »

Video Depositions – the New Normal for the Age of Social Distancing

The Circuit Courts for St. Louis City and County have both issued Administrative Orders that approve of taking of depositions by video conference.  Both of these orders require that a party opposing the taking of a deposition by video conference, for that reason alone, has the burden to prove that the deposition not go forward (i.e., that the deposition notice be quashed).

At a Town Hall videoconference on April 16, Judge Rex Burlison, the presiding judge of the St. Louis City Circuit Court, made clear that, at least in the city, a party opposing the taking of a deposition by videoconference will have a difficult time convincing the court not to permit such deposition to go forward.  For now, at least, in the age of social distancing amidst fear of the COVID-19 virus, it appears that videoconference depositions will be the new normal.

However, there are real issues that need to be addressed concerning depositions by videoconference.  Perhaps the most important has to do with the security of the videoconference platforms used by court reporting services.  In a survey of several large national court reporting services and one smaller service, they all reported using Zoom for depositions, despite recent reports by credible sources that Zoom has been hacked and is not secure.  Unless and until these security concerns are addressed, I will oppose taking of depositions over Zoom (although other services may be more secure).  The security of depositions is of particular concern when depositions involve businesses’ confidential information or otherwise will address sensitive information.

There are also questions regarding the preservation of video and audio of depositions, including how this will be done, how parties can access any recordings, and whether storage of any such video and/or audio is secure.  Again, the security of recordings of Zoom conferences has also been reported to be an issue. Continue reading »