Page 31 - Sharp-Hundley 2012

New Developments Update

Sharp Thinking

No. 71 Perspectives on Developments in the Law from The Sharp Law Firm, P.C. September 2012

Use of Credit Card Accepts Previously-Communicated Standard Terms

A credit card holder who uses the card after
receipt of original or amended standard terms Special Update Issue
thereby agrees thereto for purposes of that trans- Recognizing that the law is not static and that no
action, an Appellate Court panel ruled recently. analysis can stop further development, Sharp Thinking
from time to time publishes update issues discussing
However, the court in Razor Capital v. Antaal, new developments in areas already covered – develop-
2012 IL App (2d) 110904, said that conclusion was ments which individually do not justify another issue on
“not particularly relevant” to cases holding that credit the topic, but of which we want to make you aware.
card cases are actions upon unwritten contracts for This issue provides such updates on several topics.
statute of limitations purposes. See Sharp Thinking If a topic is of interest and you do not have the
No. 21 (June 2009) and No. 51 (Aug. 2011). original issue to consult for reference, please check it
out on our website, www.thesharpfirm.com, or request it
In affirming dismissal of a Second Amended by e-mailing Brenda@lotsharp.com.
Complaint, the panel said that whether the agree-
ment is written or oral, “It is essential . . . to allege facts sufficient to indicate the terms of the contract.”
To plead that a generic agreement was applicable when the cardholder used the card, the plaintiff “must,
at a minimum, allege facts reflecting that those terms were communicated to defendant, via mail to
defendant’s most recent billing address or in another similar manner by which it would be reasonable to
presume that defendant received them, and that defendant accepted those terms by subsequently using
the card” the panel said (emphasis in original). See also Asset Acceptance, LLC v. Tyler, 2012 IL App
(1st) 093559 (“Consistent with the treatment of each credit card purchase as a separate offer and
acceptance, modifications to credit card terms are binding between the parties when, after notice of the
modifications, the cardholder uses his credit card”).

No Work Product Protection Without Anticipation of Litigation

The conclusion that no work product protection applies to lawyers who are not working in, or in
anticipation of, litigation (Sharp Thinking No. 52 (Sept. 2011)), has been adopted in the bankruptcy
context. In Golden Grove Pecan Farm, 460 B.R. 349 (Bankr. M.D. Ga. 2011), the court refused to allow
the bankrupt’s former attorneys to assert the work product doctrine in opposition to the trustee’s demand
for the law firm’s files. Moreover, the court said that even if the “anticipation of litigation” requirement was
met, it still would reject the firm’s objection because the doctrine should not protect documents from the
firm’s clients, and the trustee stands in the shoes of the client.

Restrictive Covenant Upheld

A 2-year restrictive covenant which prohibited an income-tax preparer from servicing clients for whom
she worked while employed with the covenantee has been upheld by the Appellate Court’s 4th District.

Applying the Illinois Supreme Court’s decision in Reliable Fire Equip. Co. v. Arredondo, 2011 IL
111871 (see Sharp Thinking No. 58 (Feb. 2012)), the court upheld the restriction despite lack of a

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Sharp Thinking is an occasional newsletter of The Sharp Law Firm, P.C. addressing developments in the law which may be of interest. Nothing contained in Sharp
Thinking shall be construed to create an attorney-client relation where none previously has existed, nor with respect to any particular matter. The perspectives herein
constitute educational material on general legal topics and are not legal advice applicable to any particular situation. To establish an attorney-client relation or to obtain legal
advice on your particular situation, contact a Sharp lawyer at the phone number or one of the addresses provided on page 2 of this newsletter.