Firm News and Recent Decisions
TDR Wins Appeal for Insured in Coverage Dispute
April 29, 2013
TDR attorneys Caesar Tabet, Mark Horwitch and John Fitzgerald followed a trial court victory with a win on appeal in the Illinois Appellate Court (Third District).
TDR’s client, the owner and operator of multiple special events facilities in the Chicagoland area, was sued by its commercial general liability insurer in the Circuit Court for the Twelfth Judicial Circuit in Will County, Illinois. The insurer sought a declaratory judgment that it did not owe a duty to defend our client from claims in an underlying lawsuit. On December 12, 2011, the Circuit Court granted our motion for summary judgment on all claims and denied the insurer's cross-motion for summary judgment. The decision provided a substantial amount of insurance coverage to assist in defending claims against TDR’s client. The insurer appealed the Circuit Court’s summary judgment award. The Appellate Court affirmed the Circuit Court’s judgment, adopting our argument that the policy exclusions on which the insurer relied did not defeat the insurer’s duty to defend TDR’s client in the underlying lawsuit.
American Economy Insurance Co. v. Haley Mansion, Inc.
2013 IL App (3d) 120368-U
TDR obtains dismissal of state and local tax controversy case involving sales tax on Internet sales
March 12, 2013
On March 12, 2013, Judge Thomas R. Mulroy of the Circuit Court of Cook County, Law Division, dismissed with prejudice a state and local tax controversy case alleging that TDR’s client incorrectly calculated tax on sales made through the client’s website.
The lawsuit was one of over 100 individual suits filed against Internet retailers from around the nation and consolidated before Judge Mulroy. In each suit, a private law firm alleged on behalf of the State of Illinois that the business violated the Illinois False Claims Act by improperly calculating the Illinois state and local sales tax due on sales made over the Internet that included shipping and handling charges. These tax controversy cases involve a disputed and controversial area of Illinois state and local tax law relating to taxation of Internet sales.
On March 12, Judge Mulroy dismissed the case with prejudice, ending the lawsuit at the trial level. The case against TDR's client was the first of the consolidated lawsuits to be dismissed with prejudice without a settlement. TDR partners Caesar Tabet, Daniel Konieczny, and Jack Barber represented TDR's client in this matter.
TDR Prevails in Insurance Coverage Dispute
March 5, 2013
TDR’s leading insurance coverage practice for policyholders achieved yet another significant victory. This latest victory was on behalf of the National Association of Women Business Owners-Chicago Chapter. NAWBO Chicago’s former president recently sued the organization for slander and libel, and NAWBO Chicago tendered the defense of the defamation suit to its insurer. The insurer, however, responded to NAWBO Chicago’s tender by denying coverage based on the insurance policy’s two intentional acts exclusions and sued NAWBO Chicago in the Circuit Court of Cook County seeking a declaration that it had no obligation to defend NAWBO Chicago in connection with the defamation lawsuit. After briefing and oral argument, Circuit Court Judge Rodolfo Garcia granted NAWBO Chicago summary judgment on the insurer’s declaratory judgment action and held that NAWBO Chicago’s insurer owed NAWBO Chicago a duty to provide a defense. Judge Garcia rejected the insurer’s argument that the insurance policy’s intentional acts exclusions applied to bar coverage of the defamation claims. NAWBO Chicago was represented in this matter by TDR partner Mark Horwitch and associate Mili Smith.
TDR Obtains Complete Defense Victory
March 5, 2013
TDR recently secured a dismissal with prejudice of all claims brought against its clients in a hotly contested seven-figure breach of fiduciary duty case pending in the Circuit Court of Cook County.
TDR’s clients were sued for breach of fiduciary and related claims by their purported joint venture partner. The purported partner alleged that TDR’s clients failed to distribute profits in accordance with the parties’ allegedly agreed-upon formula.
TDR’s filed counterclaims on behalf of their clients for a declaratory judgment and for defamation. After defeating the other side’s motion to dismiss the defamation claim, the plaintiff paid TDR’s clients to settle that claim. Circuit Court Judge Thomas Allen then granted TDR’s clients’ motion to dismiss the plaintiff’s claims with prejudice and granted TDR’s clients summary judgment on their declaratory judgment action. TDR’s clients were represented by partners Gino DiVito and Mark Horwitch and associate Brent Ryan.
Michael Rothstein Named to Judicial Screening Committee
February 15, 2013
Supreme Court Justice Mary Jane Theis announced Friday the formation of a bipartisan screening committee to assist her in selecting Circuit Court judges for appointment to fill interim vacancies on the Cook County Circuit Court. TDR is proud that founding member Michael I. Rothstein is a member of this committee.
The screening committee will be made up of 13 lawyers and one non-lawyer and will be co-chaired by retired U.S. District Court Judge Wayne R. Andersen and retired Illinois Appellate Court Judge Michael J. Gallagher.
Under the Illinois Constitution, the Supreme Court has the authority to fill judicial vacancies by interim appointment until they are filled for the full term by voters' choice in the next election. Traditionally, the three justices from the First Judicial District in Cook County rotate in recommending a candidate to the Court for the appointment.
The committee is expected to screen applicants for judgeships after the candidates have been evaluated by bar associations. The committee then will forward recommendations to Justice Theis.
"The committee is composed of top-notch people—diverse and highly qualified," said Justice Theis. "I thank them in advance for their willingness to serve and help me discharge a very important, constitutional duty. I am sure their dedication and insight will be invaluable to me."
TDR Wins Appeal in Defamation Case
January 28, 2013
On January 22, 2013, the Illinois Appellate Court (First Judicial District) affirmed the circuit court of Cook County’s dismissal of all defamation claims against TDR’s client, the National Association of Women Business Owners – Chicago Chapter (NAWBO Chicago), in a case that had been filed by a former president of that organization. TDR partners Mark H. Horwitch and John M. Fitzgerald led the successful defense of NAWBO Chicago in the circuit and appellate courts. TDR associates Mili R. Smith and Katherine M. O’Brien also played substantial roles in TDR’s successful defense of NAWBO Chicago.
Text of Appellate Court's opinion.
Coghlan v. Beck
2013 IL App (1st) 120891
Michael Rothstein Named to Supreme Court Rules Committee
December 18, 2012
The Illinois Supreme Court has appointed Michael Rothstein to the Rules Committee. This three-year appointment will become effective on January 1, 2013.
Former Illinois Appellate Court justice Gino DiVito explains, "That committee is regarded as one of the most important of all the committees of the Illinois Supreme Court. Our firm is honored to have one of its attorneys appointed by the Court to serve on such a prestigious committee. Having the Court acknowledge the professionalism and talents of Michael through this appointment is very special indeed."
TDR Wins Appeal in the Illinois Supreme Court
November 29, 2012
TDR secured a significant victory in the Illinois Supreme Court, which today issued an important decision concerning a matter of first impression in Illinois: whether the extrajudicial (i.e., out of court) disclosure to a third party of attorney-client communications waives the attorney-client privilege over private, undisclosed attorney-client communications concerning the same “subject matter.” In a unanimous opinion, the Court answered this question in the negative: “[W]e hold that subject matter waiver does not apply to disclosures made in an extrajudicial context when those disclosures are not thereafter used by the client to gain a tactical advantage in litigation.”
The decision reversed circuit and appellate court rulings that would have required TDR’s clients, Growth Head GP, LLC, Westfield America, Inc., and their affiliates (“Westfield”) to produce to their litigation opponents hundreds of privileged attorney-client communications concerning a 2002 business transaction. Prior to the Supreme Court’s decision, the lower courts had ruled that Westfield’s discussion of legal issues with business counterparties in negotiating the 2002 transaction effected a broad “subject matter waiver” of the attorney-client privilege and required Westfield to turn over its attorney-client communications concerning the transaction. In reversing these decisions, the Supreme Court adopted the rule of law proposed by TDR and its clients and permitted them to protect their privileged attorney-client communications from compelled disclosure.
The ruling represents the first ruling from any state’s supreme court on this important issue.
TDR attorneys Gino L. DiVito, Brian C. Haussmann, Karina Zabicki DeHayes and John M. Fitzgerald, together with their co-counsel at the New York firm Debevoise & Plimpton LLP, were responsible for briefing the appeal. TDR partner Gino L. DiVito argued the case on September 18, 2012 before the Supreme Court.
The case is Center Partners, Ltd. v. Growth Head GP, LLC, 2012 IL 113107. A copy of the opinion is available here.
TDR obtains favorable judgment on behalf of trustee in family trust dispute following bench trial
October 22, 2012
On July 20, 2012, TDR partners Caesar Tabet and Daniel Konieczny obtained judgment on the merits in favor of their client, a trustee of several interrelated trusts, in a contentious family dispute over the management of the trusts. The judgment is the culmination of four years of litigation that began when a co-trustee and a beneficiary sued TDR’s client in the Circuit Court of Cook County, Illinois, alleging breach of fiduciary duty and seeking her removal as trustee.
After obtaining dismissal of several claims as a matter of law, Mr. Tabet and Mr. Konieczny conducted a four-day bench trial on the remaining claims before Judge Franklin Valderrama of the Circuit Court of Cook County, Chancery Division in early June 2012. The Court ruled in favor of TDR’s client on all four remaining claims brought against the trustee in the litigation, exonerating her of all allegations of wrongdoing and confirming her continuing authority to make trust decisions.
Tim Hudson Named as One of 40 Illinois Attorneys under Forty to Watch
Supplement to Chicago Daily Law Bulletin and Chicago Lawyer
October 19, 2012
TDR partner Timothy Hudson was named as one of the top 40 lawyers under forty years of age in Illinois. Judges, clients, and professional colleagues nominated Mr. Hudson for the honor. More than 1250 lawyers were nominated for the award. Mr. Hudson was recognized for, among other things, his work as lead counsel in one of the very first claims brought under the Illinois State Officials and Employees Ethics Act.
The article quotes Julie Goldweitz, General Counsel of the Reed Exhibition division of Reed Elsevier Inc., as saying that “Tim’s style was always a perfect balance of gracious and relentless.” Another client stated: “As a businessman and entrepreneur, I have worked closely with dozens of the best lawyers in the country over the past four decades, including disputes and deals involving hundreds of millions of dollars. Tim is among the best.”
According to a former opposing counsel, Tim was “vested with responsibility for representing several of the highest officers of state government and more than one state agency, and for marshaling a cast of difficult clients with divergent personalities under highly trying circumstances and during periods of governmental turbulence and transition that were without precedent in Illinois history;” and “command[ed] the respect and allegiance of these clients and of a large contingent of private and official counsel representing and advising them.” Moreover, Tim “was a model of civility and professionalism” and won “the respect and, perhaps even more important, the trust, of opposing counsel; his word, when given, was good.”