Posts by: Levin Ginsburg

Federal Defend Trade Secrets Act of 2016 Signed into Law

On May 11, 2016, President Obama signed the Federal Defend Trade Secrets Act of 2016 (the “FDTSA”) that establishes federal private cause of action for misappropriation of trade secrets. The FDTSA does not preempt state laws and a plaintiff may bring both federal and state law claims in federal court. For the FDTSA to apply, the trade secret must be related to a product or service used in, or intended for use in, interstate or foreign commerce.

Before passage of the FDTSA, companies seeking civil equitable or monetary remedies for misappropriation of trade secrets were generally limited to state law claims. Plaintiffs were also limited to litigating in state court, unless federal diversity jurisdiction existed. Moreover, while forty-eight (48) of the states, including Illinois, have adopted the Uniform Trade Secrets Act (“UTSA”), there are certain differences in how states have applied the UTSA, leading to inconsistent trade secret protection among the states.

The FDTSA includes similar definitions to the UTSA, but provides for several additional remedies and protections not included in the UTSA.  An important remedy provided for in the FDTSA is the ex parte seizure of property by law enforcement officials where it is necessary to prevent the propagation of dissemination of the trade secret. A seizure order may only be granted in extraordinary circumstances and only after the movant has established specific facts to support the seizure and detailed descriptions of property to be seized. Some other significant provisions include the ability to recover double damages if the trade secret was willfully and maliciously misappropriated, and whistleblower protection for whistleblowers who disclose trade secrets in confidence to a federal, state or local government official for the purpose of reporting or investigating a suspected violation of law.

If you have questions regarding the new Federal Defend Trade Secrets Act, please contact:

Kristen E. O’Neill at:

(312)368-0100 or

Website Accessibility

Most businesses, including banks and financial institutions, have websites.  It would be fair to say that today a business without a website is an anachronism.  Now, most businesses must face a new regulatory framework regarding website accessibility, something that has been on the horizon for years but as of late is coming to forefront.  Not only must websites be easily navigable, simple to operate and robust — for obvious business reasons — now they need to be accessible to people with disabilities.  And, the issues raised here can also be considered in the context of employee use of websites and computer access generally.

What is Web Accessibility?

People who use the web have a growing variety of characteristics. Any business with a website cannot assume that all users are accessing content using the same web browser or operating system or using a typical smartphone, common computer, or traditional monitor, keyboard or mouse. The following circumstances must now be considered:

  • Individuals who are blind may use audible output such as screen readers that read web content using synthesized speech or refreshable Braille devices.
  • Individuals with learning disabilities may use audible output, along with software that highlights words or phrases that are read aloud using synthesized speech.
  • Individuals with physical disabilities that affect the use of their hands may be unable to use a mouse, and instead may rely on the use of assistive technologies such as speech recognition, head pointers, mouth sticks, or eye-gaze tracking systems.
  • Individuals who are deaf or hard of hearing and unable to access audio content may need video output that is captioned or audio that is transcribed.

The U.S. Department of Justice (“DOJ”) recently presented its viewpoint in “Statements of Interest” filed in June 2015 in two lawsuits originally brought by the National Association of the Deaf (NAD) against two universities about the alleged inaccessibility of videos on their websites. DOJ filed Statements of Interest in these lawsuits brought by the NAD against Harvard and MIT under Title III of the ADA and Section 504 of the Rehabilitation Act alleging that they had failed to caption the thousands of videos posted on their websites.  Both of those cases are pending in court, and DOJ stated that a proposed regulation is scheduled for publication in Spring 2016.  There is little doubt that there will be more website accessibility cases across the country.

In the meantime, though, DOJ continues to pressure businesses into making their websites accessible by threatening enforcement actions.  In light of these developments, it may be wise to assume that the obligation to make websites accessible exists now — even prior to the publication of new regulations.

Making Your Website Accessible.

The international website standards organization, World Wide Web Consortium (also known as WC3), has published version 2.0 of the Web Content Accessibility Guidelines, commonly known as WCAG 2.0 AA.  WCAG 2.0 AA has been endorsed by DOJ and federal courts.  It would be wise to review these standards and consult with a web content consultant familiar with these standards and website accessibility generally. As a starting point, there are also free online tools that will check web pages for accessibility.

The key takeaway for now is that the law is far from fully developed in this new arena, but in order to stay ahead of the curve and avoid potential costly litigation and, more importantly, to adequately serve customers with disabilities, consider web accessibility issues now.

If you have any questions in this area, please contact:

Jonathan M. Weis at: or 312-368-0100.

Borrower May Still Face Foreclosure Even After Making Monthly Payments Following Default

If a borrower has a mortgage, the lender sends a notice of default, the borrower nonetheless makes monthly payments for more than two years thereafter that the lender accepts, can the lender still sue to foreclose?  The issue is whether the lender waived its right to foreclose by accepting the monthly payments.  A recent case answers that question.  The answer is “no”.

In July 2004, Timothy Martin borrowed $140,000 to purchase a residence.  The note was secured by a deed of trust.  Wells Fargo Bank eventually acquired the note and deed of trust.

The deed of trust contained the lender’s right to accelerate the debt upon default and to foreclose, as well as the following non-waiver clause:

“12.  Borrower Not Released;  Forbearance By Lender Not a Waiver.  Extension of time for payment or modification or amortization of the sums secured by this [DOT] granted by Lender to Borrower or any Successor in Interest of Borrower shall not operate to release the liability of Borrower or any Successors in Interest of Borrower…Any forbearance by Lender in exercising any right or remedy including, without limitation, Lender’s acceptance of payment from third person, entities or Successors in Interest of Borrower or in amounts less than the amount then due, shall not be a waiver of or preclude the exercise of any right or remedy.”

In December of 2009 Martin was late with his monthly payment.  But thereafter he made monthly payments through June of 2011.

To his surprise, Wells Fargo returned his May and June 2011 mortgage payments and notified him the property would be sold at a foreclosure sale.  The property was sold for $168,000 at the foreclosure sale held on December 4, 2012.

Martin sued Wells Fargo contending that Wells Fargo waived its right to foreclose by accepting mortgage payments for sixteen months after his initial default and not foreclosing until almost three years after declaring a default.  The court did not see it this way.

The reason the court ruled in favor of Wells Fargo was the non-waiver clause.  It allowed Wells Fargo to accept partial payment of Martin’s debt after his default without waiving its right to foreclose.  A waiver would have occurred if Wells Fargo had declared his entire debt due and payable following his default and thereafter had accepted his monthly payments.  But that did not happen.  Wells Fargo had never declared his entire debt due and payable.

The point is this:  if a borrower is in default, no further payment should be made to the lender unless the lender waives the default in writing.  Otherwise, anytime thereafter, the lender can call for payment of the entire debt and, if not paid in full, can commence foreclosure.

If you have any questions in this area, please contact:

Michael L. Weissman at: or 312-368-0100.

The Truth About Trademark Goods and Services

Many people think if you own a trademark registration with the USPTO, then you can claim trademark rights for that mark in connection with all goods and services under the sun – that the owner of a trademark owns the right to use it however they want.   Conversely, some sophisticated businesspeople believe that they cannot use a particular trademark simply because someone else is using a same or similar trademark.   While that is sometimes true, it is only true if such use would cause confusion amongst consumers in the marketplace.

A somewhat entertaining recent case illustrates this concept.  The owner of a company that sells tackle and other fishing gear and supplies called Land O’Lakes recently sued the well-known dairy company of the same name for trademark infringement alleging that the use of Land O’ Lakes on butter and other products was causing consumer confusion with their use of the trademark in connection with fishing tackle and related products.   The Northern District of Illinois rejected that notion, hook line and sinker (pun intended), stating that it was highly unlikely that anyone would confuse a relatively small tackle company with the large dairy company. See, James G. Hugunin, Land O’ Lakes Outdoors, Inc. et al. v. Land O’Lakes, Inc., Seventh Cir. No. 15-2815, issued March 1, 2016.

While it is not surprising that the court did not find a likelihood of confusion between butter and fishing tackle, it does bring to the light a couple common trademark misconceptions:  (1) I own it for all things and (2) I can successfully stop others from using that trademark for any other good or service, no matter how unrelated.

Clients ask all the time – If I have this “trademarked” (and usually they mean the moment they apply for a trademark registration) then other people cannot use it, right?   Nothing could be farther from the truth.   While unfortunate, the law cannot prevent anyone from doing anything.   At best, though, if you own strong rights in your trademark in your area of goods and services, then if someone uses a similar mark for similar goods or services, you may be successful at stopping them (through an injunction) or otherwise recovering damages (money) from them. A party that has taken the time to protect and use their trademarks correctly is much better suited to enforce their rights against others.

If you have any questions in this area, please contact:

Natalie A. Remein at: or 312-368-0100.

Water Leaks in Condominiums–Who is Responsible for Repairs?

Water leaks are one of the most common causes of disputes between condominium owners. Water can travel between condominium units and cause significant damage to multiple units and association common areas in a short period of time. While common sense may dictate that the owner of the unit the leak originated from is responsible to pay for any resulting water damage, the condominium governing documents and applicable laws often provide otherwise.

Many factors are involved in determining who is liable for water leaks, including the cause of the damage, the association’s declaration and bylaws, and the insurance carried by the association and unit owners.

Generally, a unit owner is not responsible for damage to a neighboring unit unless the owner failed to take reasonable care in maintaining their unit or acted negligently or intentionally. For example, a unit owner would be liable for damage caused by his failure to fix a slow leaking pipe, but would not be responsible for damage caused by major storm that results in a leak from the unit. The condo association declaration, however, can expand a unit owner’s liability and could require that unit owners obtain insurance for damage to another unit caused by the unit owner’s negligence, or regardless of any negligence.

Due to the fact that all association declarations are different and that the situations in which water damage to a unit arise are different, a condominium association or unit owner should contact legal counsel in addition to their insurance carrier to determine how to handle each situation.

If you have any questions regarding your condominium association governing documents or a water leak in your condominium , please contact:

Kristen E. O’Neill at: or 312-368-0100.

Powers of Attorney v. Guardianship: How They Interact

Powers of attorney are an essential piece of the estate planning puzzle.  There are two types of powers of attorney in Illinois.  A “power of attorney for property” appoints an agent to make financial decisions for the principal; meanwhile a “power of attorney for health care” appoints an agent to make day to day living and health care decisions for the principal.  In an estate planning context, powers of attorney are usually used to ensure someone you trust is in place to make the difficult decisions that, due to unfortunate circumstances, you are not capable of making yourself.

But powers of attorney are revocable by the person making the power of attorney, at any time.  755 ILCS 45/3 et seq.  So, what happens when someone slowly loses the ability to make his or her personal and financial decisions and does not realize it?

This is all too common in the case of someone suffering from dementia.  The person executes a power of attorney (let’s call him Steve) while still fully cognizant and appoints an agent (let’s call her Sally) to act for him in the event he becomes disabled.  But now Steve has slowly lost the ability to make decisions, and is unable to recognize the extent of his own decline.  Steve wants to continue living alone but he is unable to safely do so, and Sally finds herself in conflict with Steve over what is in his best interest.  Or alternatively, problems could arise if Sally decides that Steve should continue to live alone, when it is not in his best interest.

Under such circumstances, a guardianship may be necessary.  As noted above, Steve may revoke the power of attorney at any time, even if he no longer as capacity to make his own decisions.  The law provides that any interested person, including the agent under the power of attorney, may petition the court to construe the power of attorney and review the agent’s conduct under the power of attorney.  755 ILCS 45/2-10. Depending upon the court’s findings, the court may uphold the power of attorney or revoke the agency.  If the court revokes the agency and finds that the holder of the power of attorney disabled, upon appropriate petition, the court will likely appoint a guardian.  The guardian will have the authority and responsibility of making the personal and financial decisions for the disabled adult under the watchful eye of the court.

Using our example above, if Steve advised others that he orally revoked his power of attorney and Sally feared for Steve’s safety, Sally could petition the court to have herself appointed as Steve’s guardian. Likewise, if another interested party (including Steve) believed that Sally was not acting in Steve’s best interest under the power of attorney, that party could petition to revoke the powers and appoint a different person as Steve’s guardian.

If the principal and the agent are acting harmoniously under the power of attorney, it is a preferable arrangement to guardianship.  If the disabled adult has any assets, Guardianship comes with considerable additional financial burdens, including the entry of a probate bond, guardian ad litem fees and attorney’s fees related to administration of the estate.  However, when the principal under the power of attorney and the agent disagree as to what is in the principal’s best interest, or if an interested party believes that the agent is not acting in the best interest of the principal, then a guardianship proceeding may be necessary to either appoint a guardian or to give the agent the authority he/she needs to keep acting in the best interest of the principal.

If you would like to learn more about the adult guardianship process or if you need assistance preparing an estate plan, please contact:

Robert G. Cooper at: or 312-368-0100.

Employee Bound by Handwritten Note Settling Employment Discrimination Case

People are often encouraged to “put it in writing”.  Generally, that is an excellent idea.  But occasionally it may be a disadvantage, especially if what was thought to be an informed memorandum turns out to be a definitive settlement agreement.

Martina Beverly sued her former employer, Abbott Laboratories, for employment discrimination.  The parties agreed to mediation.

The Mediation session lasted fourteen hours with each party being represented by an attorney.  Toward the end of the mediation, Beverly, as well as an Abbott representative and both parties’ attorneys signed a handwritten memo that read as follows:

I Jon Klinghoffer will commit that my client will communicate to its internal business client the fact that Abbott/AbbVie has offered $200,000 + Abbott/AbbVie pays cost of mediation to resolve this matter and that Martina Beverly has demanded $210,000 + Abbott/AbbVie pays cost of mediation to resolve this matter. Both parties commit [sic] that their offer and demand will remain open until Tuesday, July 22, 2014, 3:00 PM central.

The next day, Abbott’s attorney sent an email to Beverly’s attorney agreeing to accept Abbott’s $210,000 offer and attaching a formal settlement agreement for review.  Almost immediately, Beverly’s attorney emailed an enthusiastic response and, concurrently, sent the settlement agreement to Beverly for her review.

Beverly ultimately refused to sign the formal settlement agreement and Abbott went to court to enforce the hand written agreement.

Abbott asserted the handwritten agreement contained an offer, Abbott’s acceptance and a meeting of the minds.  Beverly claimed the handwritten agreement was simply a preliminary memorandum that a contemplated the drafting and execution of a formal settlement agreement.

The court ruled that Beverly was bound by the handwritten document because it set forth all of the essential terms of the settlement and because both parties and their respective attorneys had signed it.

Although Beverly argued the handwritten agreement omitted a number of material provisions such as identification, future cooperation between the parties, Beverly’s future employment options with Abbott, the allocation of the $210,000 between back pay (which is taxable) and damages, (which was not) and any language regarding waiver and release, that made it unenforceable, the court ruled a contract may be enforced even if some contract terms are missing or are left to be agreed upon at a future date.

This case demonstrates that when parties are engaged in efforts to resolve a disputed matter they should approach with great caution a rush to produce an informal memorandum of understanding.  It may have a legal significance that transcends their expectations when they signed it.

If you have any questions in this area, please contact:

Michael L. Weissman at: or 312-368-0100.

Is Your Condominium Association’s Leasing Restriction Enforceable?

Leasing restrictions are a common issue in condominium associations. Associations have adopted different forms of leasing restrictions, often with the goal of maintaining a certain owner-occupancy rate. Common restrictions include restrictions on the length of leases and a limit on the number of units that may be leased at any one time. A higher owner-occupancy rate is desirable is desirable for a condominium association so that units meet FHA and conventional lender requirements for refinancing and sales.

Condominiums associations are controlled by the association’s governing documents: the condominium association declaration and bylaws which are recorded with the county recorder of deeds; and rules and regulations passed by the association’s board of managers. Leasing restrictions have often been adopted by the board as a rule and regulation rather than by an amendment to the declaration, which requires a vote of the unit owners.

On February 3, 2016, the Illinois Appellate Court for the First District in Stobe v. 842-848 W. Bradley Place Condominium Association, ruled that a condominium association board may not adopt a leasing restriction as a rule or regulation, if the declaration recognizes a unit owner’s right to lease his unit. In Stobe, the association’s declaration and bylaws did not expressly state that unit owners had a right to lease their units, but did include certain restrictions on leasing, including that no unit could be leased for hotel or transient purposes for less than six months, and limitations on the lease or sublease of parking spaces.

The Appellate Court held that the board lacked the authority to pass a rule restricting leasing because the association’s declaration expressed certain limitations on leasing and, therefore, any restriction of an owner’s right to lease their unit conflicted with the declaration’s intent and must instead be done through an amendment to the declaration. In its decision, the Court rejected the association’s reliance on Apple II Condominium Association v. Worth Bank and Trust Co., in which the Court held that an association may prohibit the leasing of units either by a board rule or amendment to the declaration. Since the Apple II case involved whether an amendment restricting leasing was valid, and not a rule adopted by the board, the Court in Stobe found that the Apple II holding with respect to leasing restrictions through a board rule was merely dicta and not controlling law.

As a result of the Stobe decision, if a condominium association’s declaration indicates an intention that owners have the right to lease their units, any leasing restriction must be done through an amendment to the association’s declaration, rather than the adoption of a board rule.

If you have any questions regarding leasing restrictions in your condominium association governing documents, or how this case may impact your association, please contact:

Kristen E. O’Neill at: or 312-368-0100.

The New Illinois Pregnancy Accommodation Act: What Employers Need to Know

The Illinois Pregnancy Accommodation Act (“IPAA”), which became a law on January 1, 2015, amended the Illinois Human Rights Act and heightened the duty of all Illinois employers to reasonably accommodate job applicants and employees affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth including probationary and part-time employees.

It is now a civil rights violation for Illinois employers to: (i) not make reasonable accommodations for any medical or common condition of an applicant or employee related to pregnancy or childbirth; (ii) deny employment opportunities or deny medical benefits to or take adverse action against an otherwise qualified job applicant or employee if the denial adverse action is based on the need of the employer to make reasonable accommodations to the known medical or common conditions related to the pregnancy or childbirth of the applicant or employee; (iii) require a job applicant or employee to accept an accommodation when she did not request and chooses not to accept one; (iv) require a job applicant or employee to take leave under any leave law or policy of the employer if another reasonable accommodation can be provided; or (v) refuse to reinstate employee affected by pregnancy, childbirth, or medical or common conditions related to pregnancy or childbirth to her original job or to an equivalent position with equivalent pay and benefits upon her signifying her attempt to return or when her need for reasonable accommodation ceases.

The IPAA sets forth an extensive list of possible accommodations for pregnant employees including (without limitation): more frequent or longer bathroom breaks; breaks for increased water intake and periodic rest; private non bathroom space for expressing breastmilk and breast feeding; feeding; assistance with manual labor; light duty; temporary transfer to a less strenuous or hazardous position; provision of an accessible worksite; acquisition or modification of equipment; job restructuring; part-time or modified work schedules; appropriate adjustment or modifications of examinations, training materials, or policies; reassignment to a vacant position; time off to recover from conditions related to childbirth; and leave necessitated by pregnancy, childbirth, or medical or common conditions resulting from pregnancy or childbirth.  Prior to the IPAA, employees affected by pregnancy would not otherwise be entitled to many of the statutes list of possible accommodations.

The IPAA permits an employer to deny a request for pregnancy accommodations only where granting it would present an undue hardship.  To succeed with the undue hardship defense under the IPAA, an employer must demonstrate that the nature and cost of the accommodation, the overall financial resources and size of the employer, the type of operations the employer is engaged in, and the impact the accommodation would have upon overall operations are such that the accommodations substantially impacts the ordinary operations of the business.  Significantly, the IPAA provides for a rebuttable presumption that an accommodation will not impose an undue hardship if the employer provides or must provide a similar accommodation to non-pregnant employees otherwise entitled to an accommodation.

Similar to the Americans with Disability Act, the IPAA mandates that the employee and employer engage in an “interactive process”, which requires, at a minimum, that the employer and employee “engage in a timely, good faith, meaningful exchange to determine the effective reasonable accommodation.”

We help businesses navigate the complications and confusing interactive process to ensure compliance with the IPAA when dealing with employees affected by pregnancy, childbirth or medical or common conditions related to pregnancy or childbirth.

If you have any questions in this area, please contact:

Mitchell S. Chaban at: or 312-368-0100.


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