Class Action Litigation
Lubin Austermuehle has extensive experience prosecuting and defending class action cases. We have acted as counsel in hundreds of class actions. We have successfully defended corporate clients in "bet the company" company cases involving hundreds of millions of dollars in claimed damages and won significant judgments and settlements for consumers in state and nationwide class actions. We have handled many statutory consumer protection cases involving a wide variety of state and federal law claims. including TILA, TCPA, RICO, FCRA, FDCP and state unfair and deceptive practices act claims.
Music v. Beta Electric, et al., Circuit Court of Cook County. 2014-2016. Judge Patrick Sherlock. Represented defendant company and its owner against putative overtime wage class action. Defeated class action by successfully picking off putative class representative. The case settled on an individual basis. Opposing Counsel: Ernest T. Rossiello (Ernest T. Rossiello & Associates).
Ademoye v Austin Highland Development, Circuit Court of Dupage County. 2016-2018. Judge Popejoy. Represented Plaintiff class for claimed violations of Illinois Security deposit statute involving a substantial number of unit owners. Case settled with Defendant making available hundreds of thousands of dollars in refunds of security deposit monies withheld. Opposing counsel Rathje Woodward LLC.
Woodsmoke v. Woodsmoke, United States District Court Northern District of Illinois, Eastern Division, Judge Kocoras, 1992.
Woodsmoke v. Woodsmoke, Circuit Court of La Salle County, Judge Denny, 1993.
Condominium association brought in excess of $10 million claimed for alleged construction defects, fraudulent sale of condominiums, embezzlement and RICO violations against developers. Represented developer defendants. Federal claims dismissed with prejudice for lack of standing. State case dismissed for lack of standing. Co-counsel: Michael Siavelis (Johnson & Bell). Opposing counsel: Marshall Dickler.
Consolidated Dartmouth Class Action Litigation, Circuit Court of Cook County, Chancery Division, Judge Curry. 1990-1993. Consumer fraud, RICO, and Truth in Lending Act: low and middle-income homeowners claimed that money center banks conspired to sell at least half a billion dollars in second mortgages to them at inflated prices. Represented the NBD Banks. In a 32 page opinion, Judge Curry consolidated all the cases to his docket, and then dismissed the class action claims with prejudice. Co-lead defense counsel/Citibank: Craig Varga and John Ledsky (Varga Berger Ledsky & Hayes). Opposing counsel: Lawrence Walner (Walner & Associates), Daniel Edelman and Catherine Combs (Edelman Combs & Latturner).
Downing v. the NBD Banks and Oxford Credit Co., Circuit Court of Cook County, Chancery Division, Judge Hofert. Consumer fraud and Truth in Lending Act: same allegations as above involving a smaller and different loan portfolio. 1991-1992. Represented the NBD Banks. The case settled without any pleadings being filed. Another defendant paid the entire settlement amount. The NBD Banks received a complete release of all claims without contributing any settlement monies. Co-lead counsel/Oxford: Arthur Radke (Hefter & Radke). Opposing counsel: Lawrence Walner (Walner & Associates) and Daniel Edelman (Edelman Combs & Latturner).
EEOC v. Enco, United States District Court Northern District of Illinois, Eastern Division, Judge Norgle. 1987. Race discrimination in hiring practices: EEOC brought a class action alleging over $5 million in actual damages. Represented defendant, a local Chicago manufacturer. Moved to dismiss based on EEOC's inexcusable delay in waiting to file action. EEOC settled for $30,000, without taking any discovery, rather than having to explain its inexcusable delay to the Court. Co-Lead counsel: Bennett Epstein (Foley & Lardner).
Stamos v. Prime Cable of Chicago, Circuit Court Cook County, Chancery Division, Judge Schiller. 1999. Lead counsel against on a class action against one of Chicago cable television providers. We achieved as part of a class-wide settlement return of many millions of dollars in alleged late fee overcharges. Defense counsel: John George (Daley & George); Kevin M. Forde (Kevin M. Forde, Ltd.) Richard Patch (Coblenz Patch Duffy & Bass).
Marszalek v. Mutimedia, Circuit Court of Kane County, Judge Nottolini. Lead counsel in a similar class-action to Stamos against a different cable provider. 1998. Case settled with a large reduction in the late fees assessment and with the class also receiving refunds totaling millions of dollars. Defense counsel: Jack Crowe (Winston & Strawn); Richard Patch (Coblenz Patch Duffy & Bass).
Beckman v. Triax, Circuit Court of Kane County. 2000. Lead counsel in a similar case to Stamos against Triax. The settlement provided a substantial reduction in the late fee charges for the future along with refunding millions of dollars in alleged overcharges to the settlement class. Defense counsel: Jack Crowe (Winston & Strawn); Richard Patch (Coblenz Patch Duffy & Bass).
Chmils v. TCI, Circuit Court of Cook County, Judge Jaffe. 1999. Lead counsel in a similar class action to Stamos against the national cable provider TCI. Illinois wide class settlement after a contested class certification hearing in which we prevailed with over a million Illinois class members ultimately receiving settlement benefits. Directed verdict for TC defendants after 17-day trial. During the pendency of the appeal, we achieved a nationwide settlement against TCI. The settlement resulted in late fees across the country being substantially lowered. Defense counsel: Richard Werder (Jones Day Reavis & Pogue) and Paul E. Freehling (Seyfarth Shaw).
Out of State Cable Late Fee Class-Actions, 2001-2004. The same type of class-action as Stamos. Acted as lead or co-counsel in more than 20 late fee such cases against many different cable providers across the United States. The defendants included: TCI/AT&T, Cox, Time-Warner, Comcast, Charter/Marcus, and Jones Cable. Peter Lubin was in charge of managing these many cases all over the United States and was active in achieving class-wide settlements in these cases. In two cases against TCI, in Washington DC and Maryland, Peter Lubin actively helped lead counsel Philip Friedman (his co-lead counsel in all the cable late fee cases) try those case to verdicts in the tens of millions of dollars with injunctions prohibiting charging excessive late fees in the future. The first Maryland case was ultimately resolved by the highest court in Maryland (the Court of Appeals) where the judgment in favor of the class was affirmed as well as the order requiring TCI to reduce its $5 late fee to 10 cents. Burch v. United Cable Television of Baltimore Ltd., 732 A2d 887 (Md 1999). The trial court and jury verdict in the Washington DC case were affirmed in the appeal. District Cablevision Ltd. Partnership v. Bassin, 2003 WL 21664513 (DC). Since the trial and appellate victories in Maryland and Washington DC, and loss in Illinois at trial, and wins and loses at the appellate levels in other states including wins in Louisiana, Texas and Minnesota (TCI Cablevision of Dallas, Inc. v. Owens, 8 SW3d 837 (Tex 2000) and a loss in Mississippi after certification of the class (Hill v. Galaxy, 184 FRD 82, and 176FSupp2d 636 (ND Miss 1999 and 2001), we achieved two national settlements for in excess of 10 million cable provider consumers of AT&T and Charter/Marcus. These settlements achieved permanent reduced late fee charges all over the United States and payment of vouchers for late fee overcharges which resulted in many millions of dollars in savings and voucher payments on a class-wide basis. We also achieved statewide settlements in class actions against Cox Cable in Nevada and Arizona, and a state-wide settlement against TCI in California. We also actively litigated a class-action against Time Warner in Indiana, following a win in the Indiana Supreme Court on the voluntary payment defense. Time-Warner v. Whiteman, 802 NE2d 886 (Ind Sup Ct. 2004). In December 2003, following the ruling in Dua v. Comcast Cable of Maryland, Inc., 805 A2d 1061 (Md 2002), and the trial court entering judgment on a motion for partial summary judgment and just before trial, Comcast agreed to a settlement of Maisonette v. Comcast a case identical to Dua. Comcast refunded 97% of the class's damages, including prejudgment interest, for a total payment of over $13 million dollars. Co-counsel included: Philip Friedman and Michael Hyman (Much Shelist Freed Denenberg Ament & Rubinstein). Defense counsel on the above cases included: Jones Day Reavis & Pogue, LeBoeuf, Lamb, Greene & MacRae, White & Case, Coblenz Patch Duffy & Bass, and Sullivan & Cromwell.
Oakbrook Terrace Hotel Overcharge Class Actions, Circuit Court of DuPage County. 2000-2004. As lead counsel, Peter Lubin pursued claims against the Oakbrook Terrace Hotels (Hilton, Marriott, La Quinta, Comfort, Wyndham, and Starwood) for including an ordinary vendor charge that was not a tax in the tax section of consumer invoices. Class certification was ordered in the Comfort and Hilton cases following contested certification briefing and hearings. We were appointed lead class counsel. The Second District Appellate court rejected the statutory voluntary payment defense raised by Hilton in an interlocutory appeal. 788 NE2d 789. Comfort, Wyndham, Marriott, Starwood, and La Quinta cases settled. In those cases, 60% and 70% of damages were paid into the settlement fund. Summary judgment entered in favor of the class in the case against Hilton which judgment was affirmed on appeal. We then settled with the class members receiving 100% of their damages and with Hilton being ordered to send a check to each class member. Defense counsel: Howard Foster (Johnson & Bell); Dennis Powers and Sonya Naar (DLA Piper); Mark Blocker (Sidley Austin, Brown & Wood); Ira Helfgot; Peter Ordower.
Extended Warranty Class Actions, 1995-2001. Represented consumers in a number of class actions in state court in Illinois. The defendants were car dealers, finance companies and car manufacturers regarding alleged misrepresentations in financing documents. All of the cases settled.
Erickson v. Ameritech, Circuit Court of Cook County. Judge Flynn. 2004. Consumer fraud claims not informing consumers that their voicemail included charges in addition to the monthly fee for incoming calls. The case settled with cash refunds available to members of the class along with an injunction prohibiting the deceptive practices. Appointed co-lead counsel after heading up along with the Citizens Utility Board objections to the first settlement which the Court then rejected. A new and much-improved settlement was then achieved. Crain's Chicago Business listed the new settlement as the 3rd largest settlement/verdict in Illinois for 2004. Co-Counsel Robert Kelter (General Counsel Citizens Utility Board) Defense Counsel: Leslie Smith (Kirkland & Ellis).
See Crain Chicago Business article finding the settlement in this case to be one of the largest in Illinois that year.
Johnson v. US Bank, Circuit Court of Dupage County. Judge Popejoy. 2004. Illinois Consumer Fraud and other statutory claims arising out of repossessing cars but failing to give statutorily required disclosures. Case settled. 541 members of the class members receiving the opportunity to obtain a $400 refund. The class members also had their deficiency balances with US Bank which averaged about $6,600 written off.
Sampson v. Western Sierra, Federal Court for the Northern District of Illinois, Judge Zagel. Represented defendant. 2003-2004. Fair Credit Reporting Act claims against a large nationwide finance company. The case settled on an individual basis. The settlement terms were very favorable to the defendant. We achieved this settlement following court granting our client's motion for summary judgment. See 2004 WL 406992. Opposing Counsel: Daniel Edelman and Adam Berger (Edelman Combs & Latturner).
Ramsell v. Infinity Broadcasting, Circuit Court of Dupage County. Judge Webster. 2002-2004. Consumer Fraud and breach of contract action arising out of Infinity's failure and refusal to refund to concertgoers after it canceled a Doobie Brothers' show. Infinity's summary judgment motion was denied. We achieved class certification after a contested hearing and Peter Lubin was appointed co-lead counsel. The case was then settled with the class members receiving full refunds in cash. Defense Counsel: Peter John and Summer Heil (Williams Montgomery & John)
Dale v. Daimler Chrysler Corporation, Circuit Court of Boone County, Missouri. Judge Roper. Pending. Consumer Fraud and breach of warranty claims arising out defectively designed motors in Durango windows. The class covered a five year time period. Chrysler lost its motion for summary judgment denied. The state-wide class was certified after a contested hearing with Peter Lubin drafting all of the briefs. Appointed lead class counsel. The appeal by Chrysler was rejected by Missouri appeals court. 2006 WL 1792414. Opposing Counsel: John W. Rogers (Bryan Cave)
Hyde v. Aspen Marketing Services, Inc., Federal District Court of Maryland. 2004-2006. Judge Bennett. Settled. We defended this case. Our client was one of the largest direct mail marketing companies in the United States. The class sought over $100,000,000 in damages under the Fair Credit Reporting Act. Class Counsel: Scott Borison (Legg Law Firm)
Crandall v. Mobile Management Co., Inc. et al., Circuit Court Lake County Illinois. 2004. Judge Tonigan. Case settled. Defended one of the biggest mobile home companies in the Mid-West region as to alleged illegal and excessive late fees. Class Counsel: Daniel Edelman (Edelman, Combs & Latturner)
Walsh v. Suisse Bancorp, Circuit Court of DuPage County. Judge Elsner. 2005-2007. Represented the class in a consumer fraud action relating to a lending company illegally taking liens on workers' compensation claims. The case settled with the removal of liens and lowering the amounts of the loan monies due. Cy pres monies paid to Mandel Legal Aid Clinic at the Universtity of Chicago Law School for uncollected claims.
Krey v. Aspen Marketing Services, Inc., Grace v. Aspen Marketing Services, Inc., Connolly v. Aspen Marketing Services, Inc., Federal District Court Northern District of Illinois. 2005-2007. Settled. Judges Kennelly, Coar and Filip. Cases settled. Defended Aspen, a nation-wide direct mail marketing firm. Class-action claims were brought under the Fair Credit Reporting Act. Class Counsel: Edelman, Combs & Latturner.
Boundas v. Abercrombie & Fitch, Federal Court for the Northern District of Illinois, Judge Feinerman. Represented consumers who were given a $25 purchase reward card. The card lacked an expiration date. The class was certified and the Defendant's request for an appeal of class certification denied by the 7th Circuit. 2011 WL 1676053. The case settled on a class-wide basis after Defendant prevailed on summary judgment. Defense Counsell: Brian J. Murray (Jones Day).
Jane Doe v Modeling School, Circuit Court of Cook County, Chancery Division. We represented a class of modeling school students regarding alleged violations of the Illinois vocational schools and consumer fraud acts. Our clients claimed that the school misrepresented and concealed that few graduates ever receiving modeling or acting work. The case was resolved on a class-wide settlement. Class members had the opportunity to collect a partial refund.
Jane Doe et al v. Trade School, Circuit Court of DuPage County, Chancery Division. Class Certified in contested proceedings. We represented a class of students who took a medical sonography course for claimed violations of the Illinois vocational schools and consumer fraud acts involving alleged misrepresentations concealing that the course would not lead to work in the field. The Class was certified after a contested hearing with all briefs in support of certification drafted by Peter Lubin and Patrick Austermuehle. The Class prevailed in motions to appeal class certification to the Appellate Court and Illinois Supreme Court. The case settled on a class-wide basis with class members receiving a substantial tuition refund.
Jane Doe et al v. Electronics Retailer, Circuit Court of Cook County, Chancery Division. Represented Plaintiffs who provided as part of a promotion with a $500 gas and grocery card which the retailer allegedly would not honor. The class was certified based on briefs drafted by Patrick Austermuehle and our co-counsel. We settled this case with 7,000 class members given the opportunity to claim up to $1000 contingent on how many claimants participated in the settlement.
Takova v. S37, Circuit Court of Cook County, Chancery Division, Judge Riley and Judge Mikva. Represented the landlord defendants in a class action where the plaintiffs alleged that our client violated Illinois security deposit statutes. This case was settled on an individual non-class basis after we filed a motion to dismiss for mootness. Opposing Counsel: Aaron Krolik and Mark Silverman.
Junk Fax Class Actions, Circuit Courts of Cook, McHenry and DuPage Counties. As lead counsel, we represented a number of different plaintiffs in class actions involving alleged violations of the Telephone Consumer Protection Act. Cases include Dembo v. McAssey Corporation, Circuit Court of Cook County, Chancery Division, Judge McGann. The case settled for a $1.4 million fund made available to the class. Each class member could claim $225.
Walczak v Onyx Acceptance Corporation, Circuit Court of Lake County, Chancery Division, Judge Hoffman. Class Certified. The Appellate Court affirmed the class certification. 365 IllApp3d 664. The Illinois Supreme Court declined to hear the case. The case involved alleged violations of Illinois automobile repossession laws. In the settlement over 7,600 class members were able to claim up to $2000. The Defendant also forgave automobile debt totaling $11.5 million and provided credit repair services for each class member represented to be worth $1500 per class member. Opposing Counsel: Joshua Threadcraft and Rik Tozzi (Burr & Forman)
Booking Fee Class Actions, Federal Court for the Northern District of Illinois. We litigated class actions against Chicago area towns for charging arrested persons with a booking fee and then not providing hearing to contest the right to charge the fee. We settled two of the cases a class actions We obtained class certification and defeated motions to dismiss in some of these cases. We appealed the dismissal of one case Markadonatos v Vil. of Woodridge to the 7th Circuit. An en banc rehearing of the appellate ruling against our client was granted. We lost the rehearing based on a tie vote. Our co-counsel Daniel Burnham of Jones Day in Washington D.C. argued at the en banc rehearing. Peter Lubin provided extensive assistance on the appeal and in preparing the appellate briefs. 760 F.3d 545.
See news coverage of the appeal in Markadonatos v Vil. of Woodridge.
Daniels v. Hollister Co., Superior Court of New Jersey. Pending. Represented the class plaintiffs who promotional gift cards with the phrase "No Expiration Date" on the card, the Defendant claimed in-store signs and other materials voided these words on the gift card. Superior Court approved certification of a nationwide class. Defendant appealed arguing that the class was not ascertainable. Plaintiff responded that New Jersey law does not require the level of ascertainability Defendant claimed was required and that the class was in fact sufficiently ascertainable. The appellate concurred with our position. 113 A.3d 796 (N.J. App. 2015). Defense Counsel: Brian J. Murray (Jones Day) and Richard A. Grossman (Grossman, Heavey & Halpin).