The Clinton Law Firm represents businesses and individuals primarily in Chicago and the Greater Chicago area in a wide range of commercial litigation. Our attorneys have successfully prosecuted and defended claims of all sizes in both Illinois and federal courts. Clinton Firm attorneys have extensive experience handling sophisticated business issues at trial, arbitration hearings and on appeal.
These issues include:
- Business collections – Account Stated and Breach of Contract
- Defense of Breach of Contract Claims
- Shareholder and LLC member disputes
- Business Fraud
- Consumer Fraud
- Business tort – including Tortious Inteference with Contract and Tortious Interference with Economic Advantage
- Breach of Fiduciary Duty
- Insurance coverage disputes
A breach of contract occurs when a party fails to perform under the terms of the contract. A breach of contract can cause the non-breaching party significant damages, including the cost of trying to "cover" or find a substitute to fulfill the contract terms. Depending on the terms of the contract and circumstances of the breach, the non-breaching party may have several options for recovery, including:
- Enforcing the contract on its terms (specific performance)
- Canceling the contract and suing for restitution (repayment of money expended)
- Suing to recover compensatory damages
- Suing for liquidated damages as specified in the contract
Clinton Firm attorneys have litigation experience necessary to recover on or defend against contract claims, including claims arising under the Uniform Commercial Code; the statute enacted in all 50 states that governs certain sales of goods, leases of equipment and other financial transactions. For example, our attorneys have successfully prosecuted and collected on cases involving the sale of goods where the opposing party failed to pay for the products that it either resold or used in its business. We have also defended claims against computer software companies alleging defective software, obtaining favorable outcomes for our clients.Back to top Pursuing Business Collections on Your Behalf for Your Continued Profitability
Our firm aggressively pursues delinquent business debtors to obtain the money your business is owed. Recently, both the federal and state governments have enacted substantial regulations, including the federal Fair Debt Collection Practices Act, the Illinois Collection Agency Act, and the Illinois Consumer Fraud and Deceptive Practices Act to protect consumer debtors from overly-aggressive collection practices that can impede on a business's ability to collect on a debt. The Clinton Firm has the experience necessary to effectively and diligently pursue business debtors through litigation.
Please note that the Clinton Law Firm does not handle collection cases against individuals. Nor do we collect consumer debts. We are focused on business debts. We are not subject to the Fair Debt Collection Practices Act.Theories of Collection Cases
A business collection case usually relies on one of two theories Account Stated or Breach of Contract:Account Stated
Account stated is an admission that a person owes a particular amount of money to another. Often an account stated is in the form of an invoice or billing statement that is signed by the person who owes money. An account stated may also be established if a person does not object within a reasonable period of time to an invoice or statement.
There are three elements of account stated.
- First, there is a history of prior transactions between the parties that demonstrate a debtor-creditor relationship.
- Second, there is an agreement between the parties — whether express or implied from the circumstances — on the amount owed.
- Third, there is a promise from the debtor — whether express or implied — that s/he will pay the amount due to the creditor.
Practically speaking, it is important to review financial statements for errors in a timely fashion as creditors.Breach of Contract
A breach of contract occurs when a party in a contract fails to perform any term of a contract. Not every breach of contract, however, gives rise to a legal claim.
Under Illinois law, there are four elements to a breach of contract claim: (1) the existence of a valid and enforceable contract; (2) performance by the plaintiff; (3) breach of contract by the defendant; and (4) resultant injury to the plaintiff. Gallagher Corp. v. Russ, 309 Ill. App. 3d 192, 199, 741 N.E.2d 605, 611 (Ill. App. 1999).
If all these elements are met, the non-breaching party may sue immediately for breach of contract and seek recovery of damages. “In determining damages, it is fundamental that a monetary award should, to the extent possible, put the nonbreaching party in the position he would have been in had the contract been performed.” Ollivier v. Alden, 262 Ill. App. 3d 190, 634 N.E.2d 418 (Ill. App. 1994).
To determine whether you have a breach of contract claim, an experienced attorney can provide advice on presenting your case.Back to top Efficiently Resolving Shareholder and LLC Member Disputes
When a business or its owner has a dispute with a business partner, it is important that the business and its owners obtain legal representation to protect their interests. Frequently, due to the allegations raised, the business requires separate representation from the owner to protect its interest. We handle all aspects of shareholder, LLC member and partnership disputes. Clinton Firm lawyers have experience in defending and prosecuting claims involving:
- Breach of fiduciary duty
- Conflicts of interest and self-dealing
- Shareholder derivative actions
- Minority shareholder, LLC and partnership rights
- Excessive management compensation
- Unfair buy-out agreements
- Failure to pay dividends or distributions
- Deadlocks and freeze-out disputes
- Appraisal rights
Whether through litigation, arbitration or mediation, the attorneys at the Clinton Law Firm aggressively pursues each client's case.Back to top Prosecuting Business Tort Claims on Behalf of Clients
Our firm has represented clients facing business torts, including fraud and fraudulent conveyance, unfair business practices, and breach of fiduciary duty allegations. In general, corporate officers, directors, high-level employees, agents, and brokers all owe fiduciary duties to their principals, or to the corporation and its shareholders. Cases alleging breach of fiduciary duty may involve allegations of conflicts of interest, insider trading, fraudulent conduct, or breach of the duties of care and loyalty.
The most important business tort is common law fraud. The elements of common-law fraud are: (1) a false statement of a material fact; (2) the defendant's knowledge that the statement was false; (3) the defendant's intent that the statement induce the plaintiff to act; (4) the plaintiff's reliance upon the truth of the statement; and (5) the plaintiff's damages resulting from reliance on the statement. Capiccioni v. Brennan Naperville, Inc., 339 Ill. App. 3d 927, 933 (2003).
Illinois also allows a plaintiff, in certain situations, to file a claim for consumer fraud. As the Illinois Supreme Court noted, “The elements of a claim under the Illinois Consumer Fraud Act (815 ILCS 505/2 (West 1994)) are: (1) a deceptive act or practice by defendant; (2) defendant's intent that plaintiff rely on the deception; and (3) that the deception occurred in the course of conduct involving trade and commerce. Siegel v. Levy Organization Development Co., 153 Ill.2d 534, 542, 180 Ill.Dec. 300, 607 N.E.2d 194 (1992). Plaintiff's reliance is not an element of statutory consumer fraud (see Harkala v. Wildwood Realty, Inc., 200 Ill.App.3d 447, 453, 146 Ill.Dec. 232, 558 N.E.2d 195 (1990)), but a valid claim must show that the consumer fraud proximately caused plaintiff's injury (see Wheeler v. Sunbelt Tool Co., 181 Ill.App.3d 1088, 1109, 130 Ill.Dec. 863, 537 N.E.2d 1332 (1989)). Furthermore, a complaint alleging a violation of consumer fraud must be pled with the same particularity and specificity as that required under common law fraud. People ex rel. Hartigan v. E&E Hauling, Inc., 153 Ill.2d 473, 492,180 Ill.Dec. 271, 607 N.E.2d 165 (1992).” Connick v. Suzuki Motor, 174 Ill. 2d 482 (1997). Generally, a plaintiff must demonstrate that he or she was a “consumer” or that the transaction raised “consumer protection concerns.”
Another common business tort is the intentional or tortious interference with business contracts or business relationships. This tort recognizes that business relationships are, under certain circumstances, a protected property interest that should be free from a third party's unjustified interference and that any losses caused by this interference may be recoverable. Our firm has recovered from attorneys who interfered with the business relationship between another firm and its clients. We have also prosecuted claims that one business wrongfully and intentionally interfered with the business relationships of another business.
To succeed in proving that the defendant committed tortious interference with contract, the plaintiff must plead and prove: (1) the existence of a valid and enforceable contract between the plaintiff and another; (2) the defendant's awareness of the contractual relationship between the plaintiff and another; (3) the defendant's intentional and unjustifiable inducement of a breach of the contract; (4) a breach of contract by the other caused by the defendant's wrongful acts; and (5) damage to the plaintiff. Grund v. Donegan, 298 Ill. App. 3d 1034, 1038 (1998).
Where there was no contract between the parties, there may sometimes be a claim for tortious interference with prospective economic advantage. To state a cause of action for tortious interference with prospective economic advantage, a plaintiff must allege: (1) a reasonable expectancy of entering into a valid business relationship; (2) the defendant's knowledge of the expectancy; (3) an intentional and unjustified interference by the defendant that induced or caused a breach or termination of the expectancy; and (4) damage to the plaintiff resulting from the defendant's interference. Voyles v. Sandia Mortgage Corp., 196 Ill. 2d 288, 300-01 (2001).
A plaintiff may also bring a claim for breach of fiduciary duty. Such a claim is based on the allegation that one party acted as a fiduciary to the other. A fiduciary duty is a heightened duty. To establish a fiduciary duty, the plaintiff must show that there is a special or fiduciary relationship between the parties. For example, a trustee of a trust is a fiduciary as a matter of law. The agent who holds a power of attorney for an elderly or disabled person is a fiduciary as a matter of law. Once the fiduciary duty is established, the plaintiff must show that the defendant breached his duty to the plaintiff.
"[I]n order to state a claim for breach of fiduciary duty, it must be alleged that a fiduciary duty exists, that the fiduciary duty was breached, and that such breach proximately caused the injury of which the plaintiff complains. Martin v. Heinold Commodities, Inc., 163 Ill.2d 33, 53, 205 Ill.Dec. 443, 643 N.E.2d 734 (1994); see also Chicago City Bank & Trust Co. v. Lesman, 186 Ill.App.3d 697, 701, 134 Ill. Dec. 478, 542 N.E.2d 824 (1989) (`[a] cause of action for breach of fiduciary duty must set forth * * * that a fiduciary relationship existed between the parties, that the trustee owed certain, specific duties to the plaintiff, that the trustee breached those duties, and that there were resulting damages')." Neade v. Portes, 193 Ill.2d 433, 444, 250 Ill.Dec. 733, 739 N.E.2d 496 (2000).
As the court in Prine Leasing v. Kendig, 773 N.E.2d 84, 332 Ill. App. 3d 300 stated: "[a] fiduciary duty may arise as a matter of law from the existence of a particular relationship, such as an attorney-client or principal-agent relationship. Ransom v. A.B. Dick Co., 289 Ill.App.3d 663, 672, 224 Ill.Dec. 753, 682 N.E.2d 314 (1997). A fiduciary relationship and the attendant duties may also arise as the result of special circumstances of the parties' relationship, where one party places trust in another so that the latter gains superiority and influence over the former. Ransom, 289 Ill.App.3d at 672, 224 Ill.Dec. 753, 682 N.E.2d 314. When the relationship between the parties is not one that gives rise to a fiduciary relationship as a matter of law, the party asserting the existence of the relationship has the burden of establishing such by clear and convincing evidence. Ransom, 289 Ill.App.3d at 672, 224 Ill.Dec. 753, 682 N.E.2d 314. The relevant factors in determining whether a fiduciary relationship exists include: the degree of kinship between the parties; the disparity in age, health, mental condition and education and business experience between the parties; and the extent to which the `servient' party entrusted the handling of its business affairs to the `dominant party' and placed trust and confidence in it. Ransom, 289 Ill.App.3d at 673, 224 Ill.Dec. 753, 682 N.E.2d 314." Gonzalzles v. American Express Credit Corp., 315 Ill.App.3d 199, 210, 247 Ill.Dec. 881, 733 N.E.2d 345 (2000).Back to top Insurance Coverage Dispute Resolution Benefits from Experienced Legal Representation
Clinton Law Firm attorneys have handled many coverage disputes with insurance companies on behalf of policyholders, including claims against property casualty insurers, directors and officers' liability insurers, and professional liability insurers. In some circumstances, you may be able to make a claim for bad faith and failure to provide insurance coverage, pursuant to the Illinois Insurance Act, 215 ILCS ¶ 5/155. If you have a dispute with your insurance carrier, it is essential that you quickly obtain competent representation, such as The Clinton Firm, to advocate for your interests. Insurance companies often withhold payment as a negotiating tool or until they have received sufficient information to evaluate the claim. We recommend you have effective representation in any dispute with an insurance company.
Please note that we do not handle disputes with automobile insurers.Back to top Contact Us to Resolve Your Commercial Litigation Issue
The Clinton Law Firm assists Illinois businesses in resolving their disputes efficiently and effectively through mediation, arbitration or litigation, depending on the specific circumstances. Call us today at 312.357.1515 or contact us online today to schedule your free initial consultation.
We discuss recent commercial cases of interest on our blog.