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Liability Minute by Joseph R. Marconi

These messages are a service to our policyholders prepared by Joseph R. Marconi. He is a shareholder of Johnson & Bell, Ltd., the head of the Business Litigation/Transactions group and co-chair of the Employment group. Joe Marconi gratefully acknowledges the assistance of his associates at Johnson & Bell, Ltd. for researching and drafting the below articles.

Joseph R. Marconi

Debt Collectors Beware: Venue Provision of FDCPA Reinterpreted

Neither a borrower nor a lender be …  — Shakespeare

Recent federal court decision reinterprets the Fair Debt Collection Practices Act (FDCPA) and may create venue defense for current or future debtor defendants in debt collection suits.

Not Only Shareholders Get Pierced

Omittance is no quittance. — Shakespeare

How many lawyers assist a client in forming a corporation, but merely assist in filing the annual reports and do nothing else? Failure to advise of the risk associated with this minimal approach may now more likely result in veil-piercing to reach the client for individual liability.

Illinois’ Limited Liability is Unlimited

In a case of first impression, a First District Panel of the Appellate Court of Illinois issued an opinion confirming immunity from liability arising from fraud under the Illinois Limited Liability Company Act (“LLC Act”) (805 ILCS 180/10-10). Careful lawyers must consider the Illinois law before forming an LLC in another state. In Dass v. Yale, 2013 IL App (1st) 122520 (Ill. App. Ct. 1st Dist. 2013), the Court firmly established that a member’s personal immunity for “debts, obligations, and liabilities … whether arising in contract, tort, or otherwise” includes immunity for acts of fraud committed while acting as a member of the LLC.

’Til Death Do Us Impart

Estate planning often involves multiple professionals who must exchange confidential information regarding their clients’ affairs. The Illinois Court of Appeals provides an insightful opinion regarding when such privileges terminate, who can waive them after the client’s death, and what actions, if any, would put confidential information “at issue” and thus make discoverable.

The Contractual Arbitration Limitation Period for Uninsured Motorist Insurance Policies

Even neophyte attorneys understand that their clients’ actions can be barred if they miss a statutory limitations period. However, experienced attorneys may forget that when handling claims against insurance companies under their clients’ uninsured or underinsured motorist coverage a contractual two-year limitation2 will trump any longer statutory period. Failure to adhere to the two-year limitation period will terminate a claim as surely as a blown statute.

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