The Rookery Cornice

Firm News and Recent Decisions

TDR Obtains Dismissal of Alleged Employment Misclassification Claims

FSLA, TILA and IRS Code Claims Against Motor Carrier Denied

April 28, 2017

On April 21, 2017, the United States District Court for the Central District of Illinois granted our clients’ motion to dismiss a putative class action brought on behalf of hundreds of potential class members under the Fair Labor Standards Act, the IRS Code, the Truth in Leasing Act and various Illinois and Indiana statutes.  Derolf et al. v. Risinger Bros. Transfer, Inc., et al., 16-cv-1298 (ILCD, April 21, 2017).

Plaintiffs were former owner-operators who provided driving services for a motor carrier headquartered in Morton, Illinois, pursuant to Independent Contractor Operating Agreements.  Plaintiffs alleged that they were improperly classified as independent contractors and that they should have been considered “employees” under the Fair Labor Standards Act and the Internal Revenue Code.  Plaintiffs also alleged that the lease provisions of their Operating Agreements violated federal Truth in Leasing Act regulations. 

The Federal District Court found that plaintiffs were independent contractors as a matter of law under the terms of the Operating Agreements.  Accordingly, the Court dismissed plaintiffs’ FLSA claims.  The Court also dismissed plaintiffs’ claims under the Internal Revenue Code, holding that a private right of action existed only when the Form 1099 fraudulently represented the amount paid to the taxpayer.  Finally, the Court considered the vehicle lease and found no actionable claim under the TILA regulations.  The Court noted that none of the alleged violations caused any actual damage to plaintiffs.

Given the widespread use of the owner-operator business model, misclassification claims are rising in the trucking industry, this case will have significant ramifications for similar businesses around the country.

TDR lawyers Caesar Tabet, Daniel Stanner, Amanda Catalano, and Kelly O’Neill secured this important opinion.

TDR Wins Reversal in Patent Case before the Federal Circuit Related to the F-35 Joint Strike Fighter

March 8, 2017

TDR partners Meredith Martin Addy and Daniel Konieczny and TDR associate Ashley Crettol Insalaco, members of TDR’s patent litigation and Federal Circuit practice, won an impressive victory before the U.S. Court of Appeals for the Federal Circuit.  The court reversed an adverse lower court decision in Thales Visionix, Inc. v. United States and Elbit Systems of America, 2015-5150 (Fed. Cir. 2017). TDR represented Thales Visionix, the patent holder.  Thales Visionix’s patent relates to relative navigation tracking used on the pilot helmets designed for the F-35 Joint Strike Fighter.

The Court of Federal Claims had dismissed Thales Visionix's patent infringement litigation, ruling on the pleadings that Thales Visionix’s patent did not cover patent eligible subject matter as defined in 35 U.S.C. § 101.  The Federal Circuit reversed, applying a two-step test set out by the Supreme Court in Alice Corp. Int’l. v. CLS Bank Int’l, 134 S.Ct. 2437 (2014).  Thales Visionix’s case is noteworthy because it is one of only 7 cases, out of close to 100, upholding patent eligibility since the Supreme Court’s decision in Alice in 2014.

TDR Files U.S. Supreme Court Amicus Brief on Behalf of AIPLA

Interprets patent venue statute 28 U.S.C. ยง 1400(b)

February 6, 2017

TDR partner Meredith Martin Addy and associates Ashley Crettol Insalaco and Kelly O’Neil filed an amicus brief at the U.S. Supreme Court on behalf of the American Intellectual Property Law Association (AIPLA) in TC Heartland LLC v. Kraft Foods Group Brands LLC, U.S., No. 16-341 (2017). 

The American Intellectual Property Law Association (AIPLA) brief argues that the Federal Circuit correctly interpreted the general venue statute at 28 U.S.C. 1391(b) as providing a definition of "resides" applicable to the patent venue statute at 28 U.S.C. 1400(b).  Although the Supreme Court in 1957 held the two statutes worked independently, Congress changed the law in 1988 by adding to the general venue statute "for purposes of venue under this chapter." And, Congress rewrote section 1391(b) in 2011 to provide a definition of "resides" specifically applicable "for all venue purposes." 

The Supreme Court will hold argument in Heartland on May 27, 2017.

The TDR attorneys who filed this brief are part of TDR's patent litigation and appellate practice areas.

TDR Wins Appeal in Commercial Guaranty Litigation

November 23, 2016

TDR partners Gino L. DiVito and John M. Fitzgerald and TDR associate Ashley Crettol Insalaco, along with their co-counsel, won an impressive victory in the Illinois Appellate Court in Koenig & Strey GMAC Real Estate v. Renaissant 1000 South Michigan I, LP, 2016 IL App (1st) 161783.  TDR represented three individuals who signed a guarantee of a real estate loan.  The lender sued the guarantors and recovered a judgment against them in excess of $18 million. 

Working with co-counsel Kenneth Nemec, William Hrabak and Sara Spitler of Goldstine, Skrodzki, Russian, Nemec & Hoff, Ltd., TDR argued that the judgment should be reversed because it included an enormous amount of statutory post-judgment interest, which was not covered by the guaranty agreement.  The Illinois Appellate Court agreed, vacated the judgment against the guarantors, and remanded the case to the Circuit Court of Cook County for further proceedings.

 

Please see here for additional information about TDR’s appellate practice.

U.S. News Names TDR to Best Law Firms

Singles Out Specialties in Litigation, Patent Law

November 9, 2016

Tabet DiVito & Rothstein has been designated a top-tier law firm by U.S. News and World Report and Best Lawyers in their recently released 2017 “Best Law Firms” rankings. The firm received a Tier 2 designation in the categories of Litigation-Patent and Patent Law.

To be eligible for a Best Law Firms ranking, a firm must have a lawyer listed in The Best Lawyers in America, which recognizes the top four percent of practicing attorneys in the U.S. based on assessments submitted by clients and peers.

Meredith Martin “Mimi” Addy, an accomplished patent litigator and Federal Circuit appellate attorney joined Tabet DiVito & Rothstein as a partner in May 2016. Addy is recognized in the current edition of The Best Lawyers in America for her work in patent law and patent litigation. She has been named to Best Lawyers every year since 2007.

According to Best Lawyers, firms included in the 2017 “Best Law Firms” list are recognized for professional excellence with consistently impressive ratings from clients and peers. The publication notes that achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.

More information about the 2017 “Best Law Firms” rankings is at http://bestlawfirms.usnews.com/.

Chicago Daily Law Bulletin Quotes Tabet on Victory in Internet Sales Tax False Claims Act Case

October 20, 2016

On October 20, 2016, TDR partner Caesar Tabet was quoted by the Chicago Daily Law Bulletin in an article about the Illinois Appellate Court opinion in People ex. rel. Beeler, Schad and Diamond, P.C. v. Relax the Back Corp., 2016 IL App (1st) 151580.  The Appellate Court’s opinion exonerated TDR’s client of all liability under the Illinois False Claims Act in connection with allegations that TDR’s client improperly did not pay sales tax on Internet and mail-order catalog sales.  At trial, the court rejected approximately 95% of the claims against TDR’s client, and on appeal the Appellate Court rejected the remaining 5%, leaving TDR’s client with no liability whatsoever. 

Regarding the Appellate Court’s opinion, Tabet states that it is “thorough, comprehensive and consistent with well‑established federal and state law under the federal False Claims Act and the Illinois False Claims Act and constitutional principles that limit taxation on the internet,” and that it “will be very helpful to the trial courts that are still dealing with potentially hundreds or thousands of similar cases that essentially are tax cases brought by private attorneys under the False Claims Act,” because it will “help those courts substantially narrow and limit these hundreds or thousands of other pending cases.” 

TDR partners Caesar Tabet and Daniel Konieczny tried the case and argued the appeal.

Appellate Court Rules in Favor of TDR Client in False Claims Act Suit Directed to Internet Taxation

October 17, 2016

On October 17, 2016, the Illinois Appellate Court issued an opinion that exonerated TDR’s client of all liability in connection with allegations that TDR’s client violated the Illinois False Claims Act by not collecting sales tax on Internet and mail-order catalog sales.  The lawsuit was one of hundreds filed by an Illinois law firm against out-of-state retailers who did not collect sales tax on Internet and catalog sales.  At trial, the Circuit Court of Cook County found that TDR’s client conducted a reasonable investigation of the relevant law in connection with its tax obligations and was not liable under the False Claims Act for approximately 95% of the contested sales, but the Circuit Court found liability for 5% of the contested sales.  TDR appealed the finding of liability on the remaining 5%.  The Illinois Appellate Court affirmed the trial court’s finding that TDR’s client conducted a reasonable investigation, and it reversed the finding of liability for the remaining 5% of the sales, leaving TDR’s client with no liability whatsoever.

The Appellate Court’s opinion establishes an important precedent for False Claims Act litigation nationwide, and it will make it easier for courts to identify and put an end to future lawsuits that do not meet the basic requirements of the False Claims Act as early as possible.  TDR partners Caesar Tabet and Daniel Konieczny tried the case and argued the appeal.     

TDR Prevails on Key Patent Claims in Inter Partes Review Before the Patent Trial and Appeal Board

October 14, 2016

TDR partners Meredith Martin Addy and Daniel Konieczny successfully defended key patent claims against an invalidity challenge in an inter partes review proceeding concerning motion tracking technology with applications to the helmet mounted displays used in military aircraft.  On October 14, 2016, the Patent Trial and Appeal Board (“PTAB”) of the U.S. Patent and Trademark Office issued its final written decision in Elbit Systems of America, LLC v. Thales Visionix, Inc., Case IPR2015-01095.  In the decision, the PTAB held that TDR client Thales Visionix, Inc. overcame Elbit Systems of America’s contentions that several claims of Thales Visionix’s patent were invalid based on obviousness. 

The claims on which Thales Visionix prevailed cover systems and methods for tracking the orientation or position of an object, such as a pilot's helmet, relative to a moving reference frame, such as an aircraft.  Thales Visionix has brought an action in the U.S. Court of Federal Claims, asserting that Elbit incorporated this patented technology as part of the helmet mounted displays supplied to the United States Government for the F-35 fighter aircraft.  That action was stayed pending the PTAB’s ruling, and it was independently dismissed based on Elbit’s contention that Thales Visionix’s patent was not directed to patent-eligible subject matter under 35 U.S.C. § 101.  Thales Visionix has appealed  the § 101 decision to the United States Court of Appeals for the Federal Circuit, and on November 2, 2016, TDR partner Meredith Martin Addy argued that case before the Federal Circuit.

Meredith Martin Addy Honored Twice

Chambers (Band 1 Ranking) and Best Lawyers Rocognize Addy's Accomplishments

August 24, 2016

Chambers USA, an annual guide to the legal market in the United States, has again ranked Tabet DiVito & Rothstein partner Meredith Martin “Mimi” Addy as a Leading Individual in Band 1 for her accomplishments in intellectual property law in Illinois. Band 1 is Chambers’ highest designation for an individual attorney.

Chambers noted that Addy is “praised for her federal circuit appeals practice” and that she has “become a favorite of clients in the pharmaceutical and electrical engineering sectors.” The publication has recognized Addy each year since 2006.

Chambers bases its rankings on a combination of extensive interviews with clients and peers and a comprehensive assessment of recently completed deals and cases. Its researchers evaluate individual attorneys on their technical legal ability, professional conduct, client service, commercial astuteness, diligence, commitment, and other qualities valued by clients. You can find more information at www.ChambersandPartners.com.

In addition, Addy was recently selected by her peers for inclusion in the 23rd edition of The Best Lawyers in America for her work in patent law and patent litigation.

Best Lawyers is the oldest peer-review publication in the legal profession. It employs a survey process designed to elicit meaningful and substantive evaluations from leading lawyers about the professional abilities of their colleagues within the same geographical and legal practice areas. More information is at www.BestLawyers.com.

Addy has two decades of experience in complex litigation on behalf of entrepreneurial and innovative companies in sectors ranging from software to pharmaceuticals. She has served as first- or second-chair trial counsel in nearly 30 cases in federal district court, and has handled more than 40 appeals to the U.S. Court of Appeals for the Federal Circuit. 

Addy is a member of the Federal Circuit Bar Association’s board of directors, and she has been a member of the Federal Circuit’s Advisory Council for more than a decade. Because of her knowledge of patent litigation and the Federal Circuit, she has also testified before Congress on the state of the Federal Circuit and patent appeals. Addy writes the blog BusinessDeNovo on issues relating to innovation, business, and patent law.

TDR Successfully Defends Accounting Firm From Claims By Former Client

August 17, 2016

TDR partners Caesar Tabet, Mark Horwitch and John Fitzgerald recently obtained the dismissal of an accounting malpractice suit in Indiana state court filed against one of the country’s largest public accounting firms. 

The plaintiffs were seeking millions of dollars in damages, and the lawsuit had been pending for about two years when TDR stepped in as counsel for the accounting firm.  TDR immediately filed a motion to dismiss the plaintiffs’ entire amended complaint with prejudice.  Following briefing and oral argument, the Indiana trial court dismissed the claims against TDR’s client with prejudice, thus ending long-running litigation against TDR’s client. 

This dismissal came only five months after TDR became involved in the matter.

TDR has an impressive track record of successfully representing public accounting firms accused of professional malpractice.

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