Class Action Litigation

DiTommaso Lubin Austermuehle represents both plaintiffs and defendants in class action litigation in both state and federal courts. The Firm has done so successfully for over two and half decades, in matters involving consumer fraud, unfair and deceptive business practices, and in a wide variety of state and federal statutory actions, under state consumer frauds acts, the FCRA, FDCPA, TCPA, TILA, and RICO, among others.

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 claim 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. 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 in class-action against cable company for return of millions of dollars in excessive late fees. Case settled with a substantial reduction in late fees and refunds worth millions of dollars paid to the class. Opposing 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 same type of class-action as Stamos against a different cable company. 1998. Case settled with a substantial reduction in late fees and refunds worth millions of dollars paid to the class after class certified in contested proceedings. Opposing counsel: Jack Crowe (Winston & Strawn); Richard Patch (Coblenz Patch Duffy & Bass).

Beckman v. Triax, Circuit Court of Kane County. 2000. Lead counsel in same type of class-action as Stamos against Triax. Case settled with a substantial reduction in late fees and refunds worth millions of dollars paid to the class. Opposing counsel: Jack Crowe (Winston & Strawn); Richard Patch (Coblenz Patch Duffy & Bass).

Chmils v. TCI, Circuit Court of Cook Count, Judge Jaffe. 1999. Lead counsel in same type of class action as Stamos against TCI. Statewide class action with over a million class members certified in contested proceedings. Directed verdict for defendants following 17 day trial. When appeal was pending, case settled as part of nationwide settlement where we were lead counsel. Late fees in Illinois and across the country reduced substantially as a result of settlement. Opposing counsel: Richard Werder (Jones Day Reavis & Pogue) and Paul E. Freehling (Seyfarth Shaw).

Out of State Cable Late Fee Class-Actions, 2001-2004. Same type of class-action as Stamos. Participating as lead or co-counsel in over 20 such cases against various cable companies including TCI/AT&T, Cox, Time-Warner, Comcast, Charter/Marcus and Jones Cable. I was in charge of coordinating all the different cases across the country, and my partner took the lead role in the national settlement negotiations with TCI/AT&T and Charter/Marcus. Two TCI cases in Washington DC and Maryland where we assisted lead counsel Philip Friedman (who is our co-lead counsel in all the cable late fee cases) were tried to multi-million dollar verdicts in plaintiffs’ favor with injunctive relief barring the illegal fees. The first Maryland case went up to the Court of Appeals (Maryland’s highest court) where the judgment in the class’s favor of over $6,000,000 and injunctive relief reducing the $5 late fee to 10 cents was affirmed. Burch v. United Cable Television of Baltimore Ltd., 732 A2d 887 (Md 1999). The judgment in the Washington DC case was also affirmed on appeal. District Cablevision Ltd. Partnership v. Bassin, 2003 WL 21664513 (DC). Since the victories in Maryland and Washington DC, loss in Illinois at the trial level, and appellate victories and losses in other states including victories in Louisiana, Texas and Minnesota (TCI Cablevision of Dallas, Inc. v. Owens, 8 SW3d 837 (Tex 2000) and a loss in Mississippi following class certification (Hill v. Galaxy, 184 FRD 82, and 176FSupp2d 636 (ND Miss 1999 and 2001), we entered in two separate national settlements involving over 10 million cable customers with AT&T and Charter/Marcus, which have resulted in permanent reduction of cable late fees throughout the country, and vouchers paid for overcharges resulting in millions of dollars in savings and voucher payments to the classes. We also reached state wide class-action settlements against Cox Cable in Nevada and Arizona, and a state-wide class-action settlement with TCI in California. We currently have a class-action pending against Time Warner in Indiana, following our victory in the Indiana Supreme Court on the voluntary payment issue. 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 granting the class’s motion for partial summary judgment and on the eve of trial, Comcast entered into a class-wide settlement of Maisonette v. Comcast an identical case to Dua with a larger number of class members. Comcast agreed to refund 97% of the class’s money damages, including prejudgment interest, for a total payment of 13.589 million dollars to the class fund. Co-counsel included: Philip Friedman and Michael Hyman (Much Shelist Freed Denenberg Ament & Rubinstein). Opposing 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. Claims against all Oakbrook Terrace Hotels (Hilton, Marriott, La Quinta, Comfort, Wyndham and Starwood) for including non-tax ordinary vendor charges in the tax line item of customer bills. Class certified in Comfort and Hilton cases following a contested hearings, and appointed lead class counsel in that case; appellate court rejected Hilton’s statutory occupancy tax defense in an interlocutory appeal to the 2nd District Appellate Court. 788 NE2d 789. Comfort, Wyndham, Marriott, Starwood and La Quinta cases settled on a class-wide basis with between 60% and 70% of damages paid into the settlement fund. Summary judgment was entered in the class’s favor in the Hilton case and was affirmed on appeal with the class receiving all of its damages and Hilton being ordered to pay all of class counsel’s fees as additional damages. Opposing 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 plaintiffs in approximately 25 class-actions in state and federal court in Illinois against car dealers, finance companies and car manufacturers regarding alleged misrepresentations in financing documents. All 25 cases have settled following a favorable ruling we received from the 2nd District Appellate Court. See 683 NE2d 1194.

Leiner v. Century, Circuit Court of Dupage County. Lead counsel in certified national class-action against maker of child car seats regarding alleged consumer fraud in misrepresenting the safety of the car seats. Settled following certification of nationwide class in contested proceedings.

Erickson v. Ameritech, Circuit Court of Cook County. Judge Flynn. 2004. Consumer fraud claims for failure to disclose that voice mail includes phone charges in addition to the monthly fee. Case settled on class-wide basis with refunds available to all class members along with injunctive relief barring the deceptive practices. Appointed co-lead counsel after spear heading efforts with the Citizens Utility Board to have a class-wide settlement (providing unsatisfactory relief) rejected by the Court. Crain’s Chicago Business listed the new settlement we helped achieve as the 3rd highest settlement/verdict in Illinois in 2004. Co-Counsel Robert Kelter (General Counsel Citizens Utility Board) Opposing Counsel: Leslie Smith (Kirkland & Ellis).

Johnson v. US Bank, Circuit Court of Dupage County. Judge Popejoy. 2004. Consumer fraud and Illinois statutory claims relating to repossessing cars without providing statutorily mandated disclosures. Case settled with 541 class members receiving the right to collect a $400 refund, and to have their substantial deficiency balances with US Bank averaging approximately $6,600 each written off.

Sampson v. Western Sierra, Federal Court for the Northern District of Illinois, Judge Zagel. Represented defendant. 2003-2004. Fair Credit Reporting Act class-action claims against national finance company. Case settled on individual basis on terms favorable to defendant following court granting Western Sierra’s motion for summary judgment rendering judgment in Western Sierra’s favor dismissing the class-action claims with prejudice. 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 claims relating to Infinity refusing to provide a refund to concert goers after it cancelled a Doobie Brothers’s concert. Defense summary judgment motions denied. Class certified in contested proceedings. We were appointed lead class counsel. Case settled with full cash refunds to class members. Opposing 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 relating to defective window motors in Durangos for a five year period. Chrysler’s motion for summary judgment denied. State-wide class certified. We were appointed lead class counsel. Chrysler’s appeal of class certification 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. Represented defendant, one of the largest marketing companies in the country. Plaintiff sought $100,000,000 in damages in a Fair Credit Reporting Act putative class action. Opposing Counsel: Scott Borison (Legg Law Firm)

Crandall v. Mobile Management Co., Inc. et al., Circuit Court Lake County Illinois. 2004. Judge Tonigan. Case settled. Represented defendant one of the largest mobile home companies in the Mid-West regarding alleged illegal late fees. Opposing Counsel: Daniel Edelman (Edelman, Combs and Latturner)

Walsh v. Suisse Bancorp, Circuit Court of DuPage County. Judge Elsner. 2005-2007. Represented plaintiff class in consumer fraud action concerning improper liening of workers’ compensation claims by loan and finance company. Case settled for removal of liens and reductions in the amounts due on the loans. Cy pres monies for uncollected class claims paid to Mandel Legal Aid Clinic.

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 national marketing firm, in Fair Credit Reporting Act Class Actions. Opposing Counsel: Edelman, Combs and Latturner.

Boundas v. Abercrombie & Fitch, Federal Court for the Northern District of Illinois, Judge Feinerman. Pending. Representing plaintiffs that received a $25 purchase reward card that did not contain an expiration date but which defendant claimed should have contained an expiration date and will no longer honor. Class certified and request for appeal of class certification denied by the 7th Circuit. 2011 WL 1676053. Opposing Counsel: Brian J. Murray (Jones Day).

Jane Doe v Modeling School, Circuit Court of Cook County, Chancery Division. Represented plaintiff putative class representative/student who took a modeling and acting course. Plaintiff alleged 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. Case settled on a class wide basis with class members being able to claim a partial refund on their tuition.

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 prevailed in motions to appeal class certification to the Appellate Court and Illinois Supreme Court. 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 received a $500 gas and grocery card that retailer allegedly would not honor. Class certified. Case settled on a class-wide basis with approximately 7,000 class members being able to claim up to $1000 depending on the number of claimants who participate in the settlement.

Takova v. S37, Circuit Court of Cook County, Chancery Division, Judge Riley and Judge Mikva. Represented defendant landlords in putative class action claiming violations of Illinois security deposit statutes. Case settled on an individual non-class basis following motion to dismiss for mootness. Opposing Counsel: Aaron Krolik and Mark Silverman.

Junk Fax Class Actions, Circuit Courts of Cook, McHenry and DuPage Counties. Pending. Representing plaintiffs in a number of 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. Case settled for $1.4 million to the class. Each class member had a right to claim $225.

Walczak v Onyx Acceptance Corporation, Circuit Court of Lake County, Chancery Division, Judge Hoffman. Pending. Class Certified. Class certification order affirmed by the Appellate Court. 365 IllApp3d 664. Represent class with co-counsel in claims involving alleged violations of Illinois automobile repossession laws. Case settled with each of the over 7,600 class members able to claim up to $2000, forgiveness of automobile debt totaling $11.5 million and credit repair for each class member 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 are prosecuting a number of class actions against various Chicago area towns for charging arrested persons with a booking fee and then not providing for hearing to contest the right to charge the fee. Two of the cases settled on a class wide basis. We obtained class certification and defeated motions to dismiss in some of these cases. We are appealing dismissal of one case to the 7th Circuit.

Daniels v. Hollister Co., Superior Court of New Jersey. Pending. Representing plaintiff who received a promotional gift card that contained words “No Expiration Date” on the card but which defendant voided claiming the expiration date for the gift card was stated on promotional materials and in-store signs. Superior Court certified a nationwide class. Defendant appealed class certification arguing that the class was not ascertainable. Plaintiff argued that New Jersey law does not require level of ascertainability argued by defendant and that class was sufficiently ascertainable. Appellate court agreed with plaintiff’s arguments and rejected defendant’s arguments. 113 A.3d 796 (N.J. App. 2015). Opposing Counsel: Brian J. Murray (Jones Day) and Richard A. Grossman (Grossman, Heavey & Halpin).