Business Litigation

Dealer Termination / Franchise / Securities

DiTommaso Lubin Austermuehle represents clients in all facets of business litigation and complex commercial matters, in cases involving breach of contract, partnership issues, securities, probate, employment, corporate control, copyrights and trademarks, and franchise and dealer termination matters. Our lawyers have extensive trial and appellate experience across a broad spectrum of corporate litigation disputes, for both plaintiffs and defendants, and have successfully represented individuals, small businesses, and large corporations.

Flynn Beverage Inc. v. Joseph E. Seagram & Sons, Inc., United States District Court Central District of Illinois, Rock Island Division, Judge McDade. 1992-1994. Wrongful termination of 27 year liquor distributorship involving statutory and common law franchise claims. Represented Flynn Beverage. Sought over $2 million in damages and recovery of attorney fees. Seagram’s fifty page motion to dismiss denied. See 815 FSupp 1174. Case settled: terms confidential. Opposing counsel: David W. Ichel (Simpson Thacher & Bartlett) and T. Mark McLaughlin (Mayer Brown Rowe & Maw).

Flynn Beverage Inc. v. Jim Beam Brands Inc., Circuit Court of Rock Island County, Judge Conway. 1993-1995. Similar claims to those discussed above except claimed over $2.5 million in claimed damages. Beam’s motion to dismiss denied in a 5-page memorandum opinion. Case settled: terms confidential. Opposing counsel: Kimball R. Anderson and Scott Szala (Winston & Strawn).

Dedicated v. Volkswagen, United States District Court Northern District of Illinois, Judge Kennelly. 2001. Termination of Volkswagen parts carrier. Represented Dedicated. Volkswagen’s motion to dismiss, asserting lack of written evidence of a contract, denied. See 201 FRD 337. Case settled: terms confidential. Opposing Counsel: Randall Oyler (Barrack Ferrazzano).

McVicker v. John Doe Corp., Texas Arbitration through American Arbitration Association. 1990-1992. Wrongful termination of and fraudulent inducement to purchase franchises for entire New York City area. Represented former franchisee. At outset of case defendant, a multi-billion dollar international conglomerate, offered $10,000 to settle. After extensive discovery and shortly before the start of the hearing, defendants agreed to a settlement whereby they returned the entire purchase price of the franchises of $300,000 along with an additional $50,000. Opposing counsel: David Butler (DLA Piper).

Trademark / Copyright / Trade Secrets

Berthold v. FKPT, United States District Court Northern District of Illinois, Judge Andersen. 1999. Represented plaintiff who terminated its German licensee of trademarked typeface fonts for use in computer software. The fonts were part of a large German font library that was over 140 years old. Claims and counter-claims included claims under German and American law, and international discovery issues. Settlement permitted plaintiff to terminate German licensee and licensee waived all claims to rights in fonts. Opposing Counsel: Caroline Clark (Pennie & Edmonds); Chuck McGirdy (DLA Piper).

Virtual Realty Group v. Virtual Realty Network, United States District Court Northern District of Illinois, Eastern Division, Judge Nordberg, 1995. Represented owner of “Virtual Realty” mark in trademark infringement action. Defendant and its partner Intel had invested hundreds of thousands of dollars in advertising and promoting the “Virtual Realty” mark that did not belong to them. They claimed there was no possibility of consumer confusion between their computerized home loan mortgage brokerage services, and plaintiff’s Internet based real-estate brokerage services. Case settled before injunction hearing. Defendant agreed to immediately discontinue using the mark, and to pay money damages and plaintiff’s attorneys fees. Opposing Counsel: Russell Pelton (Oppenheimer Wolff & Donnelly).

DevTech v. Rolfes, Circuit Court of DuPage County, Judge Wheaton. 1992. Claim that computer software designer/former employee stole trade secrets and acted in a manner that damaged plaintiff and defendant's joint copyright in certain software. Represented defendant (software designer/former employee). Plaintiff dismissed all claims on the verge of a preliminary injunction trial when judge indicated that she intended to rule in defendant’s favor on a motion to exclude key witnesses for plaintiff. Plaintiff agreed to divide equally with defendant all profits from jointly owned software. Opposing counsel: Edward Ruberry (Bolinger Ruberry & Garvey).

Berthold v. Linotype, United States District Court for the Northern District of Illinois, Eastern Division. 2002. Represented plaintiff. Claim that font software company violated copyright laws in illegally copying software code for its own font software. Case settled. Opposing Counsel: Jim McGurk, Paul Stack and Robert Filpi (Stack & Filpi).

Berthhold v. FKPT, United States District Court for the Northern District of Illinois, Judges Lindberg and Gettleman. 2001. Represented Plaintiff. Obtained default judge and injunctive relief against German Company for trademark infringement and breach of settlement agreement and then enforced such judgment against third-party German corporations and nationals living and doing business here. Case settled with third parties agreeing to injunctive relief protecting plaintiff’s trademarks and discontinuing sale of infringing products here and in Germany. Opposing Counsel: Robert Filpi and Paul Stack (Stack & Filpi) and Robert Joseph (Sonnenschein Nath & Rosenthal).

Breach of Contract / Partnership / Corporate Control

Eastco International Corporation v. Addax Technologies, LLC, Federal Court for the Northern District of Illinois, Magistrate Judge Cole. 2013. Represented Defendant/Counter-Plaintiff in breach of contract action alleging that florescent ballast production units differed from sample units. Plaintiff purported to unilaterally cancel all outstanding contracts with defendant giving rise to a countersuit for breach of those contracts. Case settled with Plaintiff/Counter-Defendant dropping all claims and agreeing to pay Defendant/Counter-Plaintiff a confidential amount. Opposing Counsel: Peter Carey (Carey & Hartman LLC).

Biancos v. Eggert, Freeland and CMR Interiors, United States District Court, Northern District of Illinois, Magistrate-Judge Valdez. Pending. Representing a real estate owner in his breach of contract case against lessees who performed renovations to the leased premises. Plaintiffs allege that defendants failed to obtain proper building permits and that the renovation does not comply with Chicago building codes. Settlement with certain defendants agreeing to increase rental payments and paying a large share of clients’ fees and costs, and other defendants agreeing to pay money damages. Opposing Counsel: Terrance Buehler (Buehler & Williams), Peter Berk (McDonald Hopkins, LLC) and Robert Rosenfeld.

Costello v. Orozen, Circuit Court of DuPage County, Judge Abraham. 2007. Represented construction company defendant in a breach of contract case involving the installation of a practice putting green on the grounds of plaintiff’s mansion. Case settled for a small fraction of money sought after we obtained evidence rebutting plaintiff’s claims from one of his own experts. Opposing Counsel: Greg Adamo and Ken Vanko (Clingen, Callow & McLean, LLC).

BleuChip International Inc. v. Aulds, Circuit Court of DuPage County, Chancery Division, Judge Popejoy. 2009. Represented corporation and its CEO as plaintiffs in a claim against the corporation’s President. Case settled on confidential terms shortly after suit was filed. Opposing Counsel: Bruce Menkes (Mandel, Menkes LLC)

Anderson et al v. Moy-Gregg, Circuit Court of DuPage County, Chancery Division, Judge Popejoy and Judge Sheen. 2010-2011. Represent corporation and alleged majority owners in a corporate control dispute regarding the intent and meaning of stock gift. Opposing Counsel: Louis Bernstein.

IPC v. Edward Gray Corporation, Circuit Court of Peoria County, Judge McDade. 1988-1989. Construction Contract: local Peoria sub-contractor claimed that Chicago based general contractor entered into a $3 million sub-contract from a car telephone. Represented general contractor defendant. Court entered summary judgment in defendant's favor on all of plaintiff's claims based on "smoking gun" documents uncovered by defendant in discovery. Opposing counsel: Stephen Gay (Husch & Eppenberger).

DiMucci v. DiMucci, Circuit Court of Cook County, Chancery Division, Judges Forman, Flynn and Billik. Pending. Corporate control dispute involving real-estate development assets. Represent 50% owner allegedly frozen out of companies. Involves questions of alleged breach of fiduciary duty and issues involving Florida and Illinois corporation law. Opposing Counsel: George Collins and Adrian Vuckovich (Collins, Bargione & Vuckovich), Myron Cherry (Myron Cherry & Associates).

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Leslie Hindman and Salvage I v. Beale, Circuit Court of Cook County, Chancery Division, Judge Siebel. 2003. Represented plaintiffs Hindman and Salvage I in alleged breach of fiduciary duty case involving multi-million dollar damages claims. Case Settled. Terms Confidential. Co-Counsel: Michael Froy (Sonnenschein Nath & Rosenthal). Opposing Counsel: Larry Karlin and Ben Randall (Katz, Radall, Weinberg & Richmond).

Estate of Hudson, Circuit Court of DuPage County, Probate Division. Judge Popejoy. Pending. Complex estate case. Representing guardian of minor child. Dispute over personal and business assets against estate administrator and surviving spouse. Case involves local and overseas proceedings with claims seeking to recover millions of dollars in funds and business assets allegedly owned by the Estate. Opposing Counsel: Douglas Tibble (Brooks Adams & Tarilis) and Richard Cowen (Stahl Cowen).

Heatherly and Newton v. Rodman & Renshaw, NASD Arbitration. 1993-1996. Represented former Sales Managers of Rodman’s Mortgage Backed Securities Department on claims for breach of substantial bonus contracts, and failure to pay finders fees. Two-day hearing. Arbitration award for claimants; claimants awarded all actual damages sought. Heatherly’s appeal on statutory attorneys fees denied with dissent supporting our position. 678 NE2d 591. Opposing Counsel: John Murphy (Baker & McKenzie).

Cusack v. Paul Revere Insurance, United States District Court for the Northern District of Illinois, Eastern Division, Magistrate Judge Guzman. 1995. Represented plaintiff. Paul Revere refused to pay employment disability benefits of over $200,000. Brought declaratory judgment and bad faith failure to pay insurance claims. Case settled immediately after the complaint was filed: terms confidential. Opposing Counsel: Joseph Hasman (Peterson & Ross).

Meade v. VirtualSellers.com, Circuit Court of Cook County Chancery Division, Judge Nowicki. 1999-2000. Represented co-founder of start-up internet company who was allegedly defrauded out of his interest in the company just before it was sold to a publicly traded company. Seeking 1,000,000 shares in publicly traded company worth between 2 and 7.5 million dollars based on then market prices. Settled after an injunction hearing and denials of defendants’ motions to dismiss. Terms confidential. Opposing Counsel: Ceasar Tabet (Tabet, DeVito & Rothstein) and Stephen Voris (Burke Warren Mackay & Serritella).

Asch and Associates v. Churilla, Circuit Court of Cook County, Chancery Division, Judge Foreman. 1993-1994. Former employee charged with stealing a customer list to start a rival insurance agency. Represented former employee defendant. Court denied plaintiff’s motion for a temporary restraining order. Court later granted summary judgment dismissing plaintiff’s claims with prejudice, and awarded defendant sanctions (half the attorneys fees billed to defendant and all of his costs). Defendant later filed claims for malicious prosecution against Asch and his counsel in federal court. That case was settled for $45,000. Opposing counsel: James D. Montgomery (former Corporation Counsel of the City of Chicago).

Employment

Glaser and Sapyta v. Collins, Hamilton and the College of DuPage, United States District Court for the Northern District of Illinois, Eastern Division. Judge Alonso. Pending. Claims for wrongful termination, violation first amendment rights and 1983 as to former Treasurer and Controller of the College of DuPage. Co-Counsel: Shelly Kulwin (Kulwin Masciopinto & Kulwin, LLP). Opposing Counsel: Sidley & Austin; Schiff Hardin & Waite; and Schuyler, Roche & Crisha.

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Motorola v. Aderhold, Circuit Court of Cook County, Chancery Division, Judge Arnold. 2009-2010. Represented defendant former Motorola vice-president in covenant not to compete and trade secret case. Case settled on confidential terms, before any discovery, after court granted motion to dismiss and ordered re-pleading of trade secret claims. Opposing Counsel Arthur Howe (Schopf & Weiss).

Karth v. McConnell, Circuit Court of Cook County, Law Division, Judge Goldberg. 2006-2007. Represented defendant in breach of contract, equitable and wage claim dispute involving alleged damages of $700,000. Breach of contract claim dismissed as violating statute of frauds. Case dismissed with prejudice based on motions to dismiss and for summary judgement. Opposing Counsel: Michael D. Gerhardt (Gerhardt, Gomez, and Haskins).

Shelton v. Will County, United States District Court for the Northern District of Illinois, Eastern Division. 1999. Race Discrimination. Client reinstated to his job with full credit towards his pension benefits and received settlement of $50,000 in back pay for the period he was off the job. Opposing Counsel: Michael Condon (Hervas, Sotos, Condon & Bersani).

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Hirst v. Rockwell International, EEOC Charge. 1995-1996. Represented senior executive in breach of contract and sex and age discrimination claims. Rockwell demoted executive based on trumped up conflict of interest charges because her husband worked for a competitor, even though executive/wife had fully disclosed the nature of her husband’s relationship each year during the over 10 years that she worked for Rockwell, and Rockwell had always agreed that there was no conflict. Case settled: terms confidential. Co-Counsel: Holly Hirst (Piper Rudnick).

North American Philips v. Filson et al., United States District Court For the Northern District of Illinois, Eastern Division, Judge Grady. 1996. Represented defendants, former No. 2 and 3 executives at Philips's most profitable American subsidiary in a case charging those executives, and the former president of the subsidiary with what we contended were trumped up charges of wrongdoing. Executives filed counterclaims for libel claiming that Philips had falsely accused them of wrong doing, and retaliatory discharge for reporting alleged antitrust violations and price-fixing. Case settled immediately after counter-claims filed: terms confidential. Co-lead Counsel: Matthew Kennelly (Cotsirilos Stephenson Tighe & Streiker). Opposing Counsel: Robin Cohen (Anderson Kill Olick & Oshinsky).

Duncan v. Baxter Healthcare Corp., Circuit Court of Lake County, Judge Hoogasian. 1990. Wrongful termination: plaintiff claimed that she was fired because she filed a workers' compensation claim and sought over $100,000 in lost wage damages and punitive damages and attorney fees. Represented defendant Baxter. After discovery, plaintiff agreed to dismiss all her claims with prejudice in return for Baxter agreeing not to file a sanctions motion seeking recovery of attorneys fees from plaintiff and her counsel due to plaintiff's fraudulent damages claims. Opposing counsel: Alan Blum.

Appleby v. Mrs. Illinois Pageant, Circuit Court of Cook County, Chancery Division. Judge Hett. 1999. Represented Mrs. Illinois Pageant in suit filed by runner-up to reverse pageant results, and crown her the winner. Plaintiff’s lawsuit thrown out on summary judgment. Plaintiff paid a large portion of defendant’s attorneys fees to settle sanctions claim.

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Jane Doe v. John Doe Corp., United States District Court for the Northern District of Illinois, Eastern Division. 1997. Represented plaintiff, assistant to CEO of a subsidiary of a Fortune 500 company. Sexual battery and hostile environment sex discrimination claims against the President of a subsidiary of the Fortune 500 company that worked at the headquarters. $100,000 settlement for emotional distress without filing suit after executive admitted the crux of the charges in pre-filing mediation.

Jane Doe v. John Doe Car Dealer, United States District Court for the Northern District of Illinois, Eastern Division. 1998. Represented plaintiff, who was top-performing salesperson at car dealership in sex discrimination case. Case settled for $45,000.

Bark v. Emsco, United States District Court for the Northern District Of Illinois, Eastern Division. Judge Kokoras. 1994. Represented plaintiff, doctor who had headed emergency room of large Chicago Hospital in sex discrimination, libel and retaliatory discharge claim seeking over $1 million in damages and attorneys fees. Defendants' motion to dismiss denied. Case settled for a confidential sum following several written opinions by the Court adopting plaintiff's positions. See 1994 WL 502786; 1994 WL 280077. Defendants provided written retraction. Opposing Counsel: Donald C. Shine (Nisen & Elliott).

Antitrust

Will v. Comprehensive Accounting Corp., United States District Court Northern District of Illinois, Eastern Division, Judge Plunkett. 1983-1985. Antitrust tying and breach of franchise contracts. Claim that franchisor improperly forced 13 of its accounting practice franchisees to purchase unwanted and overpriced data processing services. Represented all 13 franchisees. Six week jury trial. Not guilty on antitrust tying count. Six plaintiffs won and six plaintiffs lost on breach of contract claims. See 775 F2d 665. Opposing counsel: Edward Foote and Duane Kelly (Winston & Strawn).

Fontana Aviation v. Cessna Aircraft, United States District Court Northern District of Illinois, Eastern Division, Judge Bua. 1983-1984. Antitrust: claimed that Cessna acted in restraint of trade when it destroyed a custom avionics dealership. Represented plaintiff. Three week jury trial. Not guilty. See 617 F2d 478. Opposing counsel: Alan Becker (Kirkland & Ellis).

Corrugated Container Antitrust Litigation, United States District Court Houston, Texas, Judge Singleton. 1983-1985. Antitrust: price fixing conspiracy. Represented opt-out corporate plaintiffs, Pillsbury, Green Giant, U.S. Gypsum and Dean Foods Company. Settled as to all defendants except CCA. Pillsbury earned half its corporate profits for one year from the settlements. Settlement amounts: Pillsbury ($8.5 million); U.S. Gypsum ($1 million); Dean ($850,000). Twelve week jury trial as to CCA. Jury found price fixing conspiracy, but no damages. See 756 F2d 411. Opposing counsel: CCA-Sanford Litvak (former head of the Antitrust Division of the United States Department of Justice and former General Counsel of the Walt Disney Company).

ROI v. Translogic, United States District Court Northern District of Illinois, Eastern Division, Judge Norgle. 1988. Attempted Monopolization Claims. Represented defendant Translogic. Motion to dismiss half of plaintiff's antitrust claims granted. Case settled. See 702 FSupp 677. Co-counsel: Arnold & Porter. Opposing counsel: Paul Slater (Sperling Slater & Spitz).

Vinegar Antitrust Litigation, United States District Court Northern District of Illinois, Western Division, Judge Roszowski. 1989-1992. Antitrust price fixing case. Represented plaintiff class. Settlement achieved prior to trial worth at least $6 million to the class. Lead Counsel: Perry Goldberg (Altheimer & Gray). Opposing counsel: Howery & Simon; Whitman & Ransom; Jones Day Reavis & Pogue; and Caldwalader Wickersham & Taft.

Glass Containers Antitrust Litigation, United States District Court Northern District of Illinois, Eastern Division, Judge Will. 1989-1982. Antitrust price fixing case. Represented plaintiff class. Settlement achieved prior to trial worth at least $70 million to the class. Lead counsel: Gig Specks (Altheimer & Gray). Opposing counsel: Sonnenschein Nath & Rosenthal; Kirkland & Ellis; Brown & Bain; Sidley Austin, Brown & Wood.

Constitutional Law

Pillsbury v. Conboy, United States Supreme Court. 1983. Constitutional Law/Fifth Amendment Privilege: Whether prior grant of immunity extends to a civil deposition? See 459 US 248. Represented Pillsbury. Supreme Court upheld assertion of privilege. Opposing counsel: Michael Coffield (Michael Coffield & Associates).

Dean Foods Company v. Clinton, State Court Arkansas. 1984. State Constitutional Law/Interference With Property Rights: Whether Arkansas minimum milk pricing statute was an unconstitutional infringement on property rights? Represented Dean Foods Company. Court found statute unconstitutional. Attorney General's office did not appeal court's finding.