Page 6 - John Hundley 2013

Late last month, the Supreme Court overturned the Appellate Court in Bjork. The Supreme Court
said the will-contest bar of § 8-1(a) was immaterial where the plaintiff’s tortious interference suit claimed
defendant had interfered with the decedent’s plan to make a bank account pass to the plaintiff through a
payable-on-death beneficiary designation. Noting that neither the suit nor the plaintiff’s role in the probate
proceedings had sought to invalidate the will, the court distinguished Robinson, reversed the Appellate
Court and sent the tort suit back to the trial court for further proceedings. Bjork v. O’Meara, 2013 IL
114044.

Fraud Not Required Under Consumer Fraud Act

Further demonstrating fraud is not required for a claim under Illinois’ so-called Consumer Fraud Act
(see Sharp Thinking No. 19 (April 2009)), a panel in the Appellate Court’s First District has held that
misrepresentation, omission and all the other acts specifically listed in 815 ILCS 505/2 “are merely
nonexclusive examples of a broad range of ‘[u]nfair or deceptive acts or practices,’ which are what section
2 specifically prohibits.” While the court said the plaintiff must plead “the intent element” under § 2, it said
intent generally is not required under the “nearly 70 different ways to violate the Act” set forth in 815 ILCS
505/2A to 815 ILCS 505/2III. It also said that although private individuals may sue only if they have actual
damage, the Attorney General may sue for injunctive and other relief without proof that actual damage
has occurred. People ex rel. Madigan v. United Constr. of Am., Inc., 2012 IL App (1st) 120308.

Supreme Court To Review Employee Classification Act

The Illinois Supreme Court has agreed to review whether appellate courts have correctly and properly
reinterpreted the Illinois Employee Classification Act (820 ILCS 185) so as to avoid holding it
unconstitutional. See Sharp Thinking No. 77 (Nov. 2012). After Bartlow v. Shannon, 399 Ill. App. 3d 560
(5th Dist. 2010), initially held the act to violate due process for failing to provide appropriate notice and
hearing rights (see also Sharp Thinking No. 38 (Oct. 2010)), the Illinois Department of Labor convinced
another appellate court to engage in a creative construction of the act in ways so that it would not be
unconstitutional. World Painting Co. v. Costigan, 2012 IL App (4th) 110869. The 5th District then agreed
in Bartlow v. Costigan, 2012 IL App (5th) 110519, which the Supreme Court has agreed to review. No.
115152 (Jan. 30, 2013). In addition to its due process issues, the Act is applicable only to the
construction industry, raising equal protection and special legislation issues. See Sharp Thinking No. 11
(Aug. 2008).

Promissory Fraud Claim Allowed to Proceed

Where the trial court finds that a party promised to do something benefitting plaintiff but “never
intended to do so”, that supports a cause of action for promissory fraud, a panel in the Appellate Court’s
First District held recently.

Although Gagnon v. Schickel, 2012 IL App (1st) 120645, failed to include the cogent reasoning of
federal appellate Judge Richard Posner in BPI Energy Holdings, Inc. v. IEC (Montgomery), LLC, 664 F.3d
131 (7th Cir. 2011) (see Sharp Thinking No. 59 (March 2012)), it demonstrates that fraud sometimes can
properly be asserted in contractual cases.

- John T. Hundley, Jhundley@lotsharp.com, 618-242-0246

John/SharpThinking/#84.doc
●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●●
THE SHARP LAW FIRM, P.C.

1115 Harrison, P.O. Box 906, Mt. Vernon, IL 62864 • Telephone 618-242-0246 • Facsimile 618-242-1170 • www.thesharpfirm.com

Business Transactions • Litigation • Financial Law • Problem Finances • Real Estate • Corporate • Commercial Disputes • Creditors’ Rights •
Arbitration • Administrative Law • Employment Matters • Estate Planning • Probate • Family Matters

Terry Sharp: Tsharp@lotsharp.com; John T. Hundley: Jhundley@lotsharp.com; Rebecca L. Reinhardt: Rreinhardt@lotsharp.com

Advertising Material