Show me the money…because I prevailed on my FOIA action? It Depends.

By Stacy K Shelly on May 29, 2014 | Posted in Blog

The Illinois appellate courts have recently split on their interpretation of the Illinois legislature’s 2010 amendment to the Freedom of Information Act’s (FOIA) fee-shifting provision that allows “prevailing” requesters to seek payment of their attorney fees from public bodies.  In 2012, the Second District held that the change to the law makes it harder for a requester to get attorney fees, while a 2014 decision by the First District recently found that not only was the change intended to make it easier to get attorney fees, but that the Second District was just plain wrong about the meaning of “prevail.”  So, what does this split about FOIA mean for requesters and public bodies?  Well, it depends…

Remind me what FOIA is again?

2302651444_00fc119685_zMost people think of FOIA as “like, that thing that makes people give you public records, right??”  Of course, if you asked them what they could do if the public body declines to offer up its treasure-trove of documents, you would get a lot of blank stares.

Under the Illinois FOIA, all public records are presumed to be open and accessible –unless they aren’t.  Like most things, there are numerous exceptions to FOIA.  If the public body declines to comply with a FOIA request and the requester thinks they’re wrong, a requester has two options to contest the response:  utilize the Public Access Counselor (through the Attorney General’s office) or file an action in circuit court.  For more information on making and responding to a FOIA request, as well as contesting a FOIA response, click here.

So, if I have to file a lawsuit against a public body to get a document, can I make them pay my attorneys’ fees?  It depends.

If the requester chooses to contest the denial in circuit court, Section 11 of the Illinois FOIA allows requesters to seek attorney fees incurred in circuit court. FOIA now mandates they be awarded if the requester “prevails” in court.  An earlier version of Section 11 made discretionary an award of attorney fees to the requester where they “substantially prevailed” under the “catalyst” theory – i.e., you, the requester, could recover attorneys’ fees despite the fact that a court had not yet rendered a judgment in your favor if the litigation caused the public body to change its position.  The federal FOIA, amended in 2007, explicitly adopted the catalyst theory.  By contrast, the Illinois FOIA, amended in 2010, specifically changed its language to leave out “substantially” before “prevails”, but made the award mandatory by the circuit court (changing “may award” to “shall award”). Read More…

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Can a Guardian Ad Litem Be Appointed to Facilitate a Minor’s Settlement?

By Michelle M Paveza on May 22, 2014 | Posted in Blog

13808443545_80d8a868b2_zYour client has just made a final offer of settlement in a case involving a disabled child, but the minor’s legal representative remains recalcitrant towards the final settlement offer.  You think that the offer is fair and reasonable given the uncertainties of the case.  What can you do to overcome this obstacle if settlement is your goal?

One possible option is to request that a guardian ad litem (GAL) be appointed to review the settlement offer and make a recommendation on settlement to the court.

Pursuant to the Illinois Probate Act, every minor is considered a ward of the court when litigation is involved.  As a result, all proposed settlements involving minors must be approved by the court, as only the court overseeing the child’s case has the authority to approve or reject a proposed settlement agreement.

Though in usual practice, a plaintiff will make up his own mind whether to accept an offer of settlement or face the risks of a trial, when a minor’s estate is involved, a parent, legal representative or guardian may only present a proposal of settlement to the court.  It is actually up to the court to accept or reject the settlement offer based on the best interests of the child.  The goal of vesting this settlement authority in the court is to see that the rights of the child are protected.

Therefore, if you feel that your final settlement offer is fair and reasonable based on the risks of the case, and the minor’s representative is reluctant to settle, then the case may call for the appointment of a GAL.

Does the judge have the authority to appoint a GAL under these circumstances? Read More…

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Planning for the brave new world of cyber risk management—Why you should assess your vulnerabilities and evaluate the cost/benefit of adopting cyber risk management best practices, including cyber liability insurance

By Steven R Johnson on May 15, 2014 | Posted in Blog

3383538729_6a817a8cfb_zIn 1984, the computers used in business were, for the most part, non-networked mainframe computers running a limited number of programs.  In 2004, networking of computers was becoming more common and the internet had opened an entire new world of data that could be mined (legally or illegally).  In 2014, businesses are confronted with an even wider set of risks presented by the ubiquitous nature of the smart phones carried by their employees.  These devices often contain sensitive business information or are merely a few clicks away from accessing company secrets saved in the cloud or on company computers.

Almost every business today uses a computer system to manage its finances and billing, store customer information, communicate with clients, store confidential client data, and manage human resources information.  Some businesses, like law firms and medical care providers, even store medical records that are subject to heightened security standards.

What are most businesses doing to protect themselves from data theft or accidental disclosure of confidential information?  Unfortunately, the answer is:  nothing other than maintaining traditional business insurance policies that often do not address these risks and even where they do provide coverage, the limits are insufficient to provide any real protection should the business experience a data breach.

This is why every business needs to consider investing in a specific Cyber Risk Insurance Policy.  In 2011, John Moccia of Innovation Guard identified six areas that any respectable cyber risk policy should address:

  1. Data Loss & System Damage– Your current property policy covers damage to the computer itself – but not the data stored on them.  Doh! Read More…
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Illinois Eavesdropping Law Struck Down—Consent to Record Still Suggested

By Sean G Rohan on May 08, 2014 | Posted in Blog

A voice recording rocked the news when Clippers owner, Donald Sterling, received a lifetime ban from the NBA after racist comments he made in a recording became public. Sterling made the comments in a private telephone call with his alleged mistress that she recorded.

Illinois residents should take note that no Illinois law prohibits a person from recording another’s voice without that person’s consent. Until March 20, 2014, making an audio recording of a conversation without the consent of all parties to the conversation was a crime in Illinois—but not anymore.

Eavesdropping

When it was in force, the Illinois eavesdropping law made it a crime to knowingly and intentionally use an “eavesdropping device” to record any part of a conversation unless the person making the recording obtained the consent of all parties to the conversation. The law defined a “conversation” as any oral communication between two people regardless of whether one person intended for the dialogue to be private. This meant that the statute affected “a general ban on audio recordings of any oral communication whatsoever, absent consent from all parties, except in limited circumstances that mostly apply to law enforcement authorities.”

Illinois Eavesdropping Law Struck Down by Supreme Court

Two Illinois Supreme Court cases decided on March 20, 2014, struck down the eavesdropping law as vague and overly broad.

Read More…

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Mandated Pregnancy Accommodations in Illinois: 4 Things Employers Need To Know About Imminent Changes to the Human Rights Act

By Kristen A Cemate on May 01, 2014 | Posted in Blog

Update (9/10/2014):

As anticipated, the Pregnancy Fairness Bill unanimously passed in the Illinois Senate and was signed into law by Governor Quinn on August 26, 2014. The changes to Sections 1-102, 1-103, 2-101, 2-102, and 6-101 of the Illinois Human Rights Act will become effective on January 1, 2015. Significantly, these changes make it illegal to refuse to provide pregnant employees with “reasonable accommodations,” such as light duty, physical work site modification, and additional or extended breaks, unless it would impose an “undue hardship” on the employer’s ordinary business operations. For a further discussion on how to prepare for the implementation of the provisions of the Pregnancy Fairness Bill, please see the original post below.

Additionally, in the wake of the passage of similar laws in several other states, the E.E.O.C. recently clarified that refusing to provide reasonable accommodations to pregnant employees is also illegal under federal law. The E.E.O.C. issued an Enforcement Guidance on Pregnancy Discrimination and Related Issues on July 14, 2014, which includes a discussion of best practices and specifically addresses how an employer should handle requests for reasonable accommodations. The full text of the Enforcement Guidance is available here.  For additional information about the current state of the federal laws under the Pregnancy Discrimination Act and Americans with Disabilities Act, please also see the E.E.O.C. factsheet.


Your employee has just let you know that she is pregnant and is now rattling off her list of demands to allow her to keep working up until her maternity leave. Although previously you could have legally told your employee “tough luck,” the Illinois legislature is now saying “not so fast.”Under proposed amendments to the Illinois Human Rights Act, known as the “Pregnancy Fairness Bill,” your failure to accommodate your pregnant employee’s requests could soon leave you saddled with a discrimination lawsuit. But, just how far do pregnancy accommodations have to go, and what exactly will be prohibited? Although it could be some time before these questions are fully answered, here is an overview of what to expect:

1) Who is entitled to pregnancy accommodations?

  • Job applicants, probationary, part-time and full-time employees who are pregnant or returning to the workforce after childbirth.

Some of the industries where pregnancy accommodations are expected to have the greatest impact are those where employees engage in sustained physical activity, such as retail sales, food service and deliveries.

Read More…

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LGLJ Blog Coming May 1, 2014

By Kyle S Lewis on March 08, 2014 | Posted in Blog

LGLJ is launching a new blog on May 1, 2014!  All of our attorneys will be posting articles dissecting legal news, trends, and issues to help you more effectively handle your claims or run your business.

Image by Rebecca Wilson licensed under CC BY 2.0