Articles Posted in Legal Ethics

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Fuery, her friends Sciortino and Tomaskovic, and Chicago police officer Szura were involved in an altercation on the side of the road. The three women were arrested for battery of a police officer; each was acquitted. The women sued the City and Officer Szura under 42 U.S.C. 1983 and 1985. At trial, the defendants objected to various testimony as violating the court’s rulings on motions in limine, moved for a mistrial, and requested dismissal of all claims and attorneys’ fees as a sanction. The judge stated, “[t]here are plenty of options once the trial is concluded to deal with the misconduct … I am not letting it go.” The jury awarded Tomaskovic $260,000 against Szura on her excessive force claim, finding that Szura was acting within the scope of his employment, but found in favor of the defendants on all other claims. The court entered judgment in favor of the City and Szura on all claims but denied the claims for attorneys’ fees. The court found misconduct by plaintiffs’ attorney and that “plaintiffs actively participated.” The Seventh Circuit affirmed, stating that it was apparent, “even from the two-dimensional record, the judge’s patience being tried.” District courts “possess certain inherent powers, not conferred by rule or statute, to manage their own affairs so as to achieve the orderly and expeditious disposition of cases. That authority includes the ability to fashion an appropriate sanction for conduct which abuses the judicial process.” View "Fuery v. City of Chicago" on Justia Law

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A class action stemming from Southwest’s decision to stop honoring drink vouchers for “business select” customers settled with the customers receiving replacement vouchers. The Seventh Circuit affirmed, holding that 28 U.S.C. 1712, the Class Action Fairness Act, allowed the court to award class counsel (Siprut) attorney fees ($1,365,882) based on the lodestar method rather than the value of the redeemed vouchers. On remand, Siprut sought supplemental fees. For its work on the motion to amend the fee award and the prior appeal, The court called the number of hours requested “grossly excessive,” stating that counsel was trying to reach “some of the originally hoped‐for $3,000,000 that Southwest agreed not to oppose.” The court awarded $455,294 plus expenses, then vacated so that the class would receive notice. In exchange for dismissal of an appeal, by objector Markow, Siprut agreed to take $227,647 plus $3,529.68 in expenses; Southwest agreed to issue two additional vouchers for each one claimed. The court was notified that the number of vouchers claimed under the original settlement was less than one-third what the parties earlier indicated and approved the new settlement. Southwest distributed the vouchers and paid Siprut. Markow then unsuccessfully moved for $80,000 in attorney fees and an incentive award of $1,000 from Siprut’s fee award. The Seventh Circuit reversed. Unless the parties to a class action settlement, including objecting parties, expressly agree otherwise, settlement agreements should not be read to bar objectors from requesting fees for their efforts in adding value to a settlement. View "Markow v. Southwest Airlines Co." on Justia Law

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Indiana Child Protective Services removed Swallers’s daughter from his custody. Swallers responded with a deluge of federal filings and filed “Common Law Liens” (each $10,000,000) against all the judges in the Southern District of Indiana except Judge Young. Judge Pratt ordered the Marion County Recorder to expunge any liens that Swallers had filed against Judges Lawrence, Barker, Magnus‐Stinson, Pratt, and Young. Swallers was charged with filing a false lien and encumbrance against a federal judge, 18 U.S.C. 1521, and with possessing ammunition as a felon, 18 U.S.C. 922(g)(1). That case was assigned to Judge Young. Swallers moved for Judge Young’s recusal; 28 U.S.C. 455(a) requires recusal in any proceeding in which a judge's impartiality might reasonably be questioned, Judge Young denied the motion. Swallers pled guilty to the false lien charge; the felon‐in‐possession charge was dismissed. None of the judges named in Swallers’s liens submitted a victim‐impact statement. Judge Young imposed the agreed‐upon "time served" sentence. Swallers sought to vacate his conviction on the ground that Judge Young should have recused himself. The Seventh Circuit affirmed. Judge Young was not a victim of Swallers’s liens; there was little risk that his professional relationship with the victims would interfere with the case because the crime had little effect on them. This is not a case in which a well‐informed observer would perceive a significant risk that Judge Young would decide this case on a basis other than its merits. View "United States v. Swallers" on Justia Law

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Camp Drug Store filed a proposed class action, alleging that Cochran Wholesale had violated the Telephone Consumer Protection Act, 47 U.S.C. 227, by faxing unsolicited advertisements to class members. The parties entered into early mediation and reached a settlement. Cochran would “make up to $700,000.00 available” but was not required to create a separate account to hold the funds or to deposit them with the court. Each class member could submit a claim for $125; if the value of the claims exceeded the total available funds, each timely claim would be subject to a pro‐rata reduction. Any funds that were not claimed by class members were to be kept by Cochran. Each representative plaintiff was entitled to an incentive award of $15,000, and class counsel was to be paid one-third of the Settlement Fund ($233,333.33). The total Cochran actually paid to claimants was $220,625.00. The court approved the settlement but reduced the proposed attorney fee to $73,468.13 and incentive awards to $1,000. Camp argued that the settlement created a common fund against which the reasonableness of the fee award should be assessed. The Seventh Circuit affirmed, rejecting the “common fund” argument.. Given the early stage at which the litigation settled, the reductions in the fee and incentive awards were not an abuse of discretion. View "Camp Drug Store, Inc. v. Cochran Wholesale Pharmaceutic, Inc." on Justia Law

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In 2005, World Outreach, a Christian religious organization, purchased a Chicago building from the YMCA, which had operated a community center and 168 single-room occupancies (SROs) for 80 years. The community center was a “legal nonconforming use,” which, under Chicago’s zoning ordinance, “is not affected by changes of tenancy, ownership, or management.” The city nonetheless insisted that a Special Use Permit was required. While the city was unlawfully withholding licenses, Hurricane Katrina struck New Orleans. Thousands of residents were evacuated and transplanted. WO claimed that it had a verbal agreement with Federal Emergency Management Agency to use the SRO rooms at $750 per room, per month, for one year, but never received any evacuees. The city sued WO for operating the community center without a permit but later voluntarily dismissed. WO then sued the city, citing the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc. In August 2007, the city issued the licenses. Following a remand, the district court granted WO summary judgment on its claim for defending the frivolous lawsuit, awarding $15,000, but rejected all other claims. On remand of the RLUIPA claim regarding the city’s unlawful deprivation of the licenses. WO ultimately reduced its damages claim from $2.44 million to $363,000 in February 2016. In April 2016, the city made an offer of judgment of $25,001 “plus reasonable costs and attorney’s fees.” WO accepted and sought $1,913,929.20 in attorney’s fees. The Seventh Circuit affirmed the district court’s modification of the lodestar to $1,559,991.50, application of a 70% across-the-board reduction, and award of $467,973.45, noting that the award of $40,001 was a “dismal failure” in contrast to the damages sought for nearly nine years. View "World Outreach Conference Center v. City of Chicago" on Justia Law

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In 2011-2012 a million people received phone calls asking them to take political surveys in exchange for a chance to go on a free cruise. Some recipients filed a class action under the Telephone Consumer Protection Act, 47 U.S.C. 227, seeking damages from defendants who had not placed the calls but had directed them. The district court certified a class and later granted plaintiffs partial summary judgment. The parties settled. Plaintiffs agreed to release their claims against all defendants and their agents. Defendants agreed to pay into a fund between $56 million and $76 million, depending on the number of approved claims submitted. Out of the fund will come payments to the class, incentive awards to the named representatives, about $2 million in administrative expenses, and attorneys’ fees. The class will receive payments in two rounds. If some claimants do not cash the checks during the second round, remaining funds will go to “an appropriate cy pres recipient.” Over the objections of a class member, the court approved the settlement, estimating that each claimant will receive $400. Class counsel will receive 36% of the first $10 million, 30% of the next $10 million, 24% of the next $36 million, and 18% of any additional recovery. The Seventh Circuit affirmed, rejecting arguments that the award of fees overcompensates class counsel and that the settlement’s approval was improper. View "McCabe v. Caribbean Cruise Line, Inc." on Justia Law

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After Indianapolis police officers Anders and Carmack divorced, Anders stalked and threatened Carmack. The police department eventually opened a criminal investigation and placed a GPS tracking device on Anders's car with a warning mechanism to alert Carmack if he passed nearby. Carmack spent nights away from home so Anders could not locate her. Anders eventually discovered the device on his car and called Robinett—his friend and fellow police officer—who examined it and confirmed that the device was a GPS. Robinett did not tell investigators that Anders had discovered the device. Days later Anders drove to Carmack’s house and killed her and himself. She was not alerted to his approach. Carmack’s estate sued the city, Robinett, and others. The judge granted the defendants summary judgment, holding that Robinett was not liable under 42 U.S.C. 1983 because he did not act under color of state law. Robinett requested that the city pay his attorney’s fees and costs under the Indiana public-employee indemnification statute. The judge denied the motion, ruling that the statute applies only when the employee acted within the scope of his employment. The Seventh Circuit affirmed. A mere allegation that the employee acted within the scope of his employment does not trigger the indemnification obligation. View "Robinett v. City of Indianapolis" on Justia Law

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Capps sued six law enforcement officers under 42 U.S.C. 1983, for failure to intervene in an unlawful search and for use of excessive force. The parties attempted to negotiate a settlement: the defendants offered $47,500; Capps countered with $2 million. The defendants then offered $200,000, Capps demanded $3.5 million. Capps’s final settlement demand was for $3.6 million, which the defendants rejected. At trial, Capps succeeded on eight of his 10 claims, including his failure-to-intervene claims against each defendant and on his excessive-force claims against two defendants. A jury awarded Capps $22,000 in compensatory damages and $10,092 in punitive damages. After trial Capps sought to recover attorney’s fees pursuant to section 1988(b). After a failed settlement conference before a magistrate, the trial judge sua sponte “referred” the fee petition Chief Judge Reagan. No party objected. Judge Reagan explained that he was hearing the motion because he has a special interest in attorney’s fees based on his work with the Illinois Attorney Registration and Disciplinary Commission and other experiences. Judge Reagan denied the petition. The Seventh Circuit reversed. Capps was awarded substantial damages and thus should have been awarded attorney’s fees. View "Capps v. Drake" on Justia Law

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Plaintiff filed suit under 42 U.S.C. 1983 and 1985, alleging that several state judges and officials have been unfair to him in divorce and child custody proceedings. The Seventh Circuit affirmed the dismissal of the action and held that, to the extent plaintiff's suit implicated its own subject matter jurisdiction, the court was free to entertain his appeal; the Rooker-Feldman doctrine did not bar this case; even if Rooker‐Feldman applied to interlocutory orders, the doctrine still would have no bearing on plaintiff's appeal because he has not asked the court to reject any such order; and the domestic-relations exception to federal jurisdiction was not applicable. The court held that the district court should not have dismissed plaintiff's complaint before the date it had set for him to respond to the sheriff's motion to dismiss the claims against them, but the error was harmless. On the merits, the court held that Judge Boliker could not claim the protection of judicial immunity where she acted in the clear absence of jurisdiction, but that Judge Dickler's alleged actions fell within its scope; plaintiff has not alleged that he suffered any adverse consequences to his parental (or other) rights as a result of his allegedly prejudiced judge and thus his section 1983 claim failed; and section 1985 did not apply to plaintiff's case. View "Kowalski v. Boliker" on Justia Law

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Kennedy had decades of experience working for Schneider Electric and taught classes, part-time, in electrical and industrial safety at Prairie State community college. Schneider requires its employees to obtain advance approval before they teach classes or submit articles for publication. Without obtaining permission, Kennedy published articles about power-distribution equipment, identifying himself as a Prairie State instructor. When Schneider learned of these articles a manager contacted Prairie State to ask about Kennedy’s course materials, which she worried might contain proprietary information. Weeks later, while reviewing instructors' credentials, Prairie State realized that Kennedy did not possess the qualifications to teach and did not rehire Kennedy as an adjunct instructor. A year later, Kennedy sued Schneider, alleging defamation and malicious interference with an advantageous relationship. The court granted Schneider summary judgment, finding that Prairie State acted solely because Kennedy did not meet its credentialing requirements and not because of Schneider’s telephone call. More than a year later, Kennedy moved to set aside the judgment (Federal Rule of Civil Procedure 60(d)(3)), asserting that Schneider’s lawyers knowingly submitted perjured evidence. The court denied the motion, stating that the cited evidentiary discrepancies were known at the time of summary judgment, and granted Rule 11 sanctions against Kennedy’s lawyer for having to defend against the motion ($10,627.16). The Seventh Circuit affirmed. Kennedy could have challenged the same evidence on summary judgment. If the court made a mistake, Kennedy could have asked for reconsideration or appealed. View "Kennedy v. Schneider Electric" on Justia Law