The Docket - September 2022

DOCKET THE The Official Publication of the Lake County Bar Association • Vol. 29 • No. 9 • September 2022 2022-2023 Lake County Bar Association Board of Directors

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A publication of the 300 Grand Avenue, Suite A Waukegan, Illinois 60085 (847) 244-3143 • Fax: (847) 244-8259 www.lakebar.org • info@lakebar.org A. Co-Editor D. Co-Editor C. J. L. Jasica K. J. McKoski

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The Docket is the official publication of the Lake County Bar Association, 300 Grand Avenue, Suite A, Waukegan, Illinois 60085 (847) 2443143, and is published monthly. Subscriptions for non-members are $45.00 per year. Reproduction in whole or part without permis sion is prohibited. The opinions and positions stated in signed material are those of the au thors and not necessarily those of the Associa tion or its members.

THE DOCKET EDITORIAL COMMITTEE Jeffrey

Tracy Hon.StephenPoulakidasJ.RiceNealA.SimonJamesK.SimonianRebeccaJ.WhitcombeAlexZagor STAFF Greg Weider Executive Director Jose Gonzalez Assistant Executive Director Nancy Rodriguez Receptionist Contents THE DOCKET • Vol. 29 • No. 9 • September 2022

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Hon. Charles

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Classified Advertising StandardTextBoldText Classified Advertisement may contain as many words, numbers, symbols and boldface type. $650 per issue $800 per issueBack Cover Inside Front or Inside Back Cover Full Page 1/2 Page 1/4 Page 1/8SIZEADPage ISSUEONE 6 ISSUES ISSUES12 $325$195$145$85 $295$185$135$80 $275$175$125$75 Advertising Rates FEATURES10 Advice for Attorneys with Clients with Security Clearances BY BRIAN G. SMITH 14 Coverage, What Coverage? BY JEFFREY BERMAN 20 In vin 9o veritas BY JEFFREY BERMAN AND HON. CHARLES JOHNSON 24 Does Increased Freedom Buy Increased Litigation? BY DIANA C. SERVOS COLUMNS2President’s Page Five More Tips for Young and New Lawyers BY TARA R. DEVINE, PRESIDENT 6 The Chief Judge’s Page As the Seasons Change This Year, so Too Will Courthouse Operations BY CHIEF JUDGE MARK L. LEVITT 28 The Meeting Minutes July 21, 2022 BY JEFFREY BERMAN, SECRETARY 30 In the Director’s Chair We the people. BY GREG EXECUTIVEWEIDER,DIRECTOR LCBA EVENTS IFC Office Rental Pricing 4 Calendar of Events 4 New LCBA Members 7 Grapevine 7 Fall Criminal Law Seminar 8 Trust & Estates Fall Seminar 8 Chili Cooking Competition & Food Drve 17 Young & New Lawyers Cubs Game 19 Fall Luncheon Series 23 Save the Date Family Law GAL Training 27 Ask a Lawyer Clinic 29 Shred Event 31 Lawyer Referral Service 32 Monthly MeetingsCommittee BC Member SponsorshipReceptionOpportunities

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The Docket2 My next top five tips to young and new lawyers are not listed in any particular or der, and just because these weren’t within the first five tips doesn’t mean they are any less important. I’m sure everyone has been waiting with bated breath for my next five suggestions, tips, and advice to young and new lawyers, so without further ado: 1. BE YOURSELF. When I first started out as a clerk and then a young lawyer, I was fortu nate to get the opportu nity to tag along and see Attorneys Pat Salvi and Michael Schostok in trial, and I would sit in with Pat when he took depositions and I really soaked up and learned a lot from him. I would see firsthand how Pat would interact with certain witnesses, the tenor of his opening statements, and the undertones of his closings. (Important note: I got to sit in these depo sitions because I would prepare the exhibits and outlines, and I got to tag along at trials because I had helped prepare the motions in limine and jury instructions—again, a good reference back to tip number #2, which was work hard, and opportuni ties will come.)

Five More Tips for Young and New Lawyers

In the very beginning of my career, I realized there is so much to learn from other lawyers, and although you can copy/ mirror certain aspects of a lawyer’s skills, at the end of the day, you cannot copy or try to act like somebody else. You need to be true to your personality and your lawyering style, and to fig ure out what works best for you in creating a connec tion with a witness, jury, or judge. I had grand aspira tions of being just like Pat when I did my first trial, but as I prepared for it, and I started to type and copy some of Pat’s statements and phrases, some of it just didn’t feel right and fit my personality. I realized that I wouldn’t be able to discuss the sanctity of being a juror and the Constitution like Pat did, because that just didn’t sound right coming from a fresh-faced, 26-yearold lawyer. If you simply repeat the statements of others, but you don’t have the experience or feeling behind it, there will be a lack of genuineness to it. When in front of a jury or a judge, the last thing that a lawyer wants is to appear inauthentic, fake, or that you don’t believe in the words you are saying. Again, it is okay to adopt and learn from others about the strategies and preparation that works for them, and then use it to bolster your own manner isms, arguments, and the way you present evidence. But in the end, you need to do things in a way and in a fashion that feels comfort able and genuine to you. So, learn from the best and

President’sPage

The BY TARA R. PRESIDENTDEVINE

Tara Devine President Katherine Hatch First Vice President Danny Hodgkinson Second Vice President Kevin Berrill Treasurer Jeffrey Berman Secretary Joseph Fusz Immediate Past President Hon. Jacquelyn Melius Craig

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As a trial lawyer I can tell you that I have become a better a lawyer from learning from the cases that I have lost compared to the cases I have won (and for the record, I have won more than I have lost—and yes, it appears I even like to compete with myself). After I lost a trial (and found my way back from the deep dark hole that swallows you when you lose a case), I reflect ed, analyzed, and looked to see where it was that the case was lost. Was it lost in the beginning? Was it a strong case to begin with? Was it lost during experts? Did I not answer questions that maybe the jury had? Did we lose in jury selection? It is in the losses and the failures that you reexamine what transpired and then make the changes that you need to try to avoid them from happening again. One time I was pre senting an expert who had not given a deposition before. It was my first time using an expert who had not previously given a deposition, but in my mind, it wasn’t a very big deal because this expert was board certified in mul tiple areas, with extensive credentials and qualifica tions, and the person really knew the medical issues of the case inside and out. Prior to the expert’s deposition, I spent very little time going through the nuances of the legal terms that would be used liberally during the depo sition. It became readily apparent within the first hour of the deposition that my physician had a different definition for what the legal ‘standard of care’ definition was here in Illinois; he did not have a good grasp of what ‘more probably true than not true’ meant. I spent the entirety of my time clean ing up his testimony. On my flight back, what did I think to my self? From here on out, I told myself, if I have a new expert, I will devote quality time with the person, ex plaining to the expert the nuances of legal definitions and terms that are going to be liberally used through out a deposition, and how opposing counsel may try to use those terms to con fuse the expert. This is just one example of learning from mistakes, growing as an attorney, and doing your best not to repeat them in the future.

3. PREPARE PRIORITIZE.AND

3September 2022 then take that knowledge and do it your own way or, as my daughter tells me: “you do you.”

One of the most important tips that I learned from Pat Salvi is preparation (I assure you that all of my tips relate back to Pat Salvi, but a lot of them do because that’s who I worked closely with as a younger lawyer). Being prepared, whether it be for a deposition or for a hearing—or even for a status in front of the judge—is essential to being a great lawyer. Sometimes when a lawyer wins, it is not because she had the better case; it is because the lawyer was simply more prepared than opposing counsel. What goes hand-inhand with preparation is prioritizing. For young lawyers, work means being pulled in a multitude of different directions, and you need to prioritize. You need to be organized, know what needs to get done, who asked for it to get done, and when it needs to be done by. Be smart when you prioritize and recognize who has priority over others. Know when you need to speak up, whether it is to a part ner or to an associate, if you have too much on your plate and it cannot get completed within the time period expected. You need to speak up and let others know that. Telling some one on the day that they are expecting a memo, or an outline, is not the day to tell them that you’ve been too busy in the last week with other projects. You need to be able to

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2. LEARN FROM YOUR MISTAKES. No one likes to make mistakes, and no one likes to fail. I have a feeling this probably applies even more so to lawyers than it does to others (since many of us are known for our competitive nature). You will learn more from your failures than your success es. Real growth as a lawyer comes from recognizing your mistakes and learn ing from your failures. Your failures are where you learn how to prevent that mistake or failure from happening again. Your failures are where you learn how to change what you were doing before so that what happened doesn’t happen again.

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The Docket4 prioritize your workload, but you also need to speak up when necessary and provide your colleague a heads up that something will be delayed, and pro vide an explanation why. As it relates to speak ing up, use this tip sparing ly. You don’t want to be that lawyer who consistently is saying you have too much to do and can’t get some thing done on time. Be efficient with your time. In law, oftentimes, you do not need to reinvent the wheel. If someone else has a template or an identical motion or outline that can be used as a starting point, use it. There clearly will be times when you must start research and other projects from scratch. But for many tasks, be an efficient work er and don’t spend time reinventing the wheel if it does not need to be done.

One of the best things about being a member of the LCBA is getting involved with lawyers that you do not see on a dayto-day basis, and getting to meet other lawyers who practice in areas com pletely different from your own, and finding ways to work together to help the community. For many of us, we not only work in Lake County, but we also live and raise our children in Lake County. Although I practice all over Illinois and Wisconsin, what I have found very unique about the LCBA compared to other counties and associations is the judicia ry’s active role and partic ipation with the Associa tion. At many events and seminars, our members get to hear from and talk with the judges whom we appear in front of, and the judges whose rulings im pact the public we serve. The purpose of the LCBA is to serve our members, so that they can better serve the public. Get in volved, give back, and feel connected. #WeareLCBA.

4. GIVE LAWYERS A GOOD NAME.

Calendar of Events

Be the type of lawyer that gives lawyers a good name, because the general public has been told for decades that most law yers are evil. Tell people what you do (and not just clients, but friends and family too), and explain to them what you do, who it helps, and what type of law is Sometimesapplied. I just have a general discussion with people about all of the dif ferent types of lawyers that exist. I explain that various lawyers fill various roles, and that just like doctors, lawyers tend to focus on particular practice areas and specialize in different ways. I explain why lawyers are often needed and how they help the community in which the person I’m speaking with lives. Attorney Jennifer Ashley and I participated in a career day at the grade school our kids attend. There was some stiff ca reer competition: veteri narians, firefighters, pastry bakers, and scientists all signed up as well. Each student could only attend a limited number of pre sentations, so we needed to bring our “A” game if we were to get asked back the nextForyear.our career presen tation, we did a mock trial and brought in a gavel and a British head wig for the judge, then we assigned out parts for lawyers, witnesses, and the jury. We then conducted a trial of the “Three Little Pigs vs. The Big Bad Wolf,” and the kids loved it! It didn’t hurt that we also handed out big chocolate bars to every student who attend ed (we are lawyers, by the way, and we know what works), but year after year, our presentation filled up because so many students wanted to participate in a mock trial, and the students left feeling good about what it meant to be a lawyer. (For anyone read ing this and judging our chocolate bars: a veteri narian brought in a golden retriever—hard to com pete with that!) Back to my original point: be the lawyer that gives lawyers a good name. 5. GET INVOLVED IN YOUR COMMUNITY.LEGAL Steve Rice would have told me that this should have been my number one tip, but alas, I did get it in my top ten. Get involved in your community, and what is your community? It is the Lake County Bar Association & Foundation. As many of you know, I’ve been on the Board of the LCBA for many years; I attend events and LCBF fundraisers; my firm Salvi Schostok & Pritchard sponsors events and made a hefty contribution to the LCBA/LCBF offices; and, of course, I’m currently President of the LCBA, so it would be crazy if I didn’t make the recommenda tion for everyone to get in volved in the Association!

The 2 2 2 2 Cybersecurity for Lawyers: Is Your Firm Safe From Cyber Attacks?

September 7, 2022 12:15 - 1:15 PM Virtual – Zoom Annual Shred Event September 9, 2022 8 - 11 AM LCBA Office Waukegan, IL Young & New Lawyers Social Event September 16, 2022 12 - 5 PM Chicago, IL Lake County LuncehonUpdate September 20, 2022 12:15 PM - 1:15 PM City of 2ndWaukeganFloor Ask A Lawyer Clinic September 22, 2022 5:30 PM- 7:00 PM Waukegan Public Library Waukegan, IL Community Outreach & Diversity Chili Kick Off Event October 6, 2022 4:30 PM - 6:30 PM LCBA Office Waukegan, IL Criminal Law Seminar October 13 - 14, 2022 Milwaukee, WI Trusts & Estates Seminar November 17, 2022 11:00 AM - 5:30 PM Glen Flora Country Club Waukegan, IL NewMembersLCBA Welcome LAW STUDENT Maria E. Topacio

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The Docket6 T he beginning of September and the celebration of Labor Day marks the unofficial end of summer. I hope that all of you have either had or are planning to have some time off with friends and family. It’s hard to believe that kids are returning to school and fall routines will soon be upon us. To be honest, I’m not quite ready for summer to end. It’s my favorite time of year! As all of us make the transition from summer to fall in our personal lives, things are constant ly changing in the court house as well. Several key members of our 19th Judicial Circuit family have recently announced their retirements. Judges Mitchell Hoffman and David Brodsky will be leaving us. Judge Hoff man will be leaving us at the end of September and Judge Brodsky at the beginning of the new year. While we are excited for each of them as they move on to greater things, we are certainly going to miss them dearly! I know that you all will join me in wishing them all the best in retirement! It will certainly be a challenge for our circuit to move on without two of our most experienced friends and colleagues on the bench to relyWhileon. the Civil Di vision is going through changes, the Criminal Division is preparing to experience generational change as the “SAFE-T Act” takes full effect. Beginning January 1, Illinois will eliminate cash bail. This will present a monumental challenge as circuits statewide devise plans to implement the statute’s requirements. In the 19th, we have been planning for implemen tation for the past year. I chair a committee of stakeholders, which includes representatives from the State’s Attor ney’s Office, the Public Defender’s Office, Adult Probation, court admin istration, and the private bar. In addition, Lake County Board members Michael Danforth and Gina Roberts have been participating, along with county administration, as we work through the ways in which we will proceed in January.Taking the place of bond hearings will be an initial chargeeatednewwillable,”Ifchargingimmediatelyproceedingappearancethatoccursafterthedecisionismade.thechargeis“detainadetentionhearingoccurwithalloftheprocedures,asdelininthestatute.Iftheisnotdetainable, or if detention is denied by the court, a “conditions hearing” will occur where conditions of release will be set. Although there will inevitably be some grow ing pains, I am confident that the work we have been doing will result in Lake County leading the state in the andAttorney,thetativesourphaseishlyhavemanagementthealsoisn’tofvanceavailableofceduresstatute.implementationeffectiveoftheRulesandprofortheconducthearingswillbemadetoallwellinadoftheeffectivedatethenewlaw.Andifthatenoughchange,wearelookingforwardtogo-liveofournewcasesystem.Allthejusticepartnersbeenworkingfevertocompletethelastofdevelopmentfornewsystem.RepresenfromtheofficesofCircuitClerk,State’sPublicDefender,courtadministrationBYCHIEFJUDGEMARKL.LEVITT

As the OperationsWillYear,ChangeSeasonsThissoTooCourthouse

ChiefPageJudge’s The

Grapevine

have been putting the finishing touches on what will be an exciting new tool that will retire our antiquated systems. The new system will provide interfaces from each of the justice partners to the court and to each other. Because we are developing three independent systems simultaneously, testing and fine-tuning have re quired a great deal of time and intensive effort. As such, a definitive go-live date has been elusive. I look forward to providing you with the final details, as well as information about training, which will be made available in the not-too-distant future. While I’m still a bit sad about the end of the summer season, I am cer tainly very excited about the times that lie ahead. 7

The namesake of the “Law Office of Patrick A. Salvi, P.C.” founded his firm in 1982, and this year Salvi, Schostok & Pritchard celebrates its 40th anniversary. The firm today has 18 lawyers and is supported by more than 30 staff members.

The

David Kerpel has created a not-for-profit dog sanctuary, The Furever Home Dog Sanctuary. The Sanctuary will rescue dogs who, because of breed, age, or health, are considered “unadoptable.” These dogs will enjoy acres of land to live out the rest of their lives socializing and playing with other dogs and volunteers. David will still be practicing divorce law, but his true passion will be focused on rescuing as many dogs as possible. If you want to volunteer or donate to help the FHDS, please visit the website at fureverhomedogsanctuary.org

LAKE COUNTY BAR ASSOCIATION SAVE THE DATE M I L W A U K E E M A R R I O T T D O W N T O W N M I L W A U K E E , W I S C O N S I N OCTOBER 13-14, 2022 Fall Criminal Law Seminar We would like to hear from you! Send your ideas to: jose@lakebar.org Do you have a speaker idea or suggestion for our business meetings?

The Docket8 LCBA Office w w w . l a k e b a r . c o m FALL KICK OFF EVENT THURSDAY NOVEMBER 17, 2022 GLEN FLORA COUNTRY CLUB WAUKEGAN, IL W W W . L A K E B A R . O R G Trust & Estates Fall Seminar LAKE COUNTY BAR ASSOCIATION More information coming soon

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BY BRIAN G. SMITH S ecurity clearances are not an issue most people outside of the military and intelligence community think about in their everyday lives, until a major leak of classified information makes the news or there is a discussion of some current or former government official’s security clearance status.

WHAT DOES IT TAKE TO GET AND STAY CLEARED?

The Docket10

Brian Smith is a partner practicesprocess,tyofwithhelpingInSmith,LaLuzernewith&Ltd.additiontoclientsallstagesthesecuriclearanceheinthe area of DUI, traffic, and criminal defense, school law, and police and fire pension litigation. He is an intelligence officer with the United States Navy Reserve.

many attorneys in Lake County likely represent clients in legal matters that could affect their security clearances. Often, the clearance holders aren’t aware of the report ing requirements of various life events, and attorneys either aren’t aware of their client’s clearance status or don’t know how to advise their clients when it comes to resolving a case in a manner favorable to their client’s clearance. This article aims to make practitioners more aware of potential issues and how to give wise counsel to their clients.

Advice for Attorneys with Clients with Security Clearances

There are three levels of nation al security clearances: Confidential, Secret, and Top Secret.2 The higher the clearance, the more tightly con trolled the information is, and thus 2 Executive Order 13526, Sec. 1.2.

There is a perception, probably thanks mostly to TV and movies, that only a few select people have securi ty clearance, and that those elite few all know whether UFOs exist and who was *really* responsible for the Kennedy assassination. The reality is much more mun dane. Approximately 4.2 million people hold a security clearance in the United States,1 in jobs ranging from janitorial staff, public af fairs, program managers, accountants, engineers, IT specialists, and intelli gence analysts, just to name a few. With numerous federal agencies and defense contractors having offices in the Chicagoland area, and 23,000 sailors, recruits, contractors, and ci vilian government employees at Great Lakes Naval Station in North Chicago, 1 Federation of American Scientists, Fiscal Year 2019 Annual Report on Security Clearance Determinations, org/othergov/intel/clear-2019.pdfhttps://sgp.fas.,pg.7.

7 SEAD 4, National Security Adjudicative Guidelines,, ¶ 2(c).

There is a perception, probably thanks mostly to TV and movies, that only a few select people have security clearance, and that those elite few all know whether UFOs exist and who was *really* responsible for the Kennedy assassination.

There are numerous issues that can affect a secu rity clearance. The federal government uses Adjudica tive Guidelines to address ar eas concerning the reliabil ity of a cleared individual. These include allegiance to the United States, ties with foreign countries, criminal offenses, drug and alcohol abuse, financial problems, risky sexual behavior, mis use of computer networks or classified information, and psychological conditions.7 Often, one incident will raise concerns under multiple guidelines. A common issue is a driving under the influence arrest, which will usually invoke Guideline G (alcohol use) and either Guideline E (personal conduct) or Guideline J (criminal conduct). Cleared individuals are required to report issues affecting their clearance to their facility security officer (FSO) or other security manager. These include not only the issues that negatively affect clearance status, but ma jor life changes such as marital status, change of address, new family members, sudden financial status changes, changed employment, and the like.8 Perhaps the worst problem a cleared individual can run into is dishonesty in their clearance application or interview with a back ground investigator. Many issues that would likely not bar someone from getting cleared become exponentially worse when an applicant either lies about an issue or doesn’t fully disclose the extent of a problem. The touch stone of the grant of a clearance is the honesty, integrity, and character of the person being cleared, and once

vestigated periodically; every 5 years for Top Secret, 10 years for Secret, and 15 years for Confidential. While there are still formal reinvestigations at these intervals, the federal government has moved to a new process called Continuous Evaluation (CE).6 Cleared individuals are monitored between report ing periods for things like criminal offenses, unpaid debts and other financial concerns, and any other issues reported by their em ployer’s security office.

September 2022 11 the more arduous the process in obtaining that level of clearance. In the foundational case addressing security clearance litigation, the U.S. Supreme Court held that no one has a right to a security clearance, and that the grant of a clearance must be “clearly consistent with the inter ests of national security.”3 Any doubt concerning an individual’s eligibility for a clearance “must be resolved in favor of the national secu rity.”4 In other words, even a seemingly minor concern with a client’s background, character, or susceptibility to coercion could result in the denial or revocation of a clearance.Asponsoring employer must submit an applicant or employee for a clearance, and the applicant must fill out informational forms about their background (known as the SF-85 and SF86, depending on the level) to allow the government to investigate and determine if they are eligible for a clearance. Applicants must provide detailed informa tion about places they’ve lived, worked, or attended school; any foreign con nections or travel; drug and alcohol use; psychological conditions; financial issues; and legal problems they’ve encountered. Once this is done, applicants submit to an interview with a background investigator who then verifies the information submitted, including talking to neighbors, co-workers, friends, and acquaintances to de termine if the requested level of clearance is appropriate.

8 SEAD 3, Security Requirements for Personnel with Access to Classified Information or Who Hold a Sensitive Position, ¶ F-H.

WHAT NEGATIVELYCAN AFFECT A SECURITY CLEARANCE AND HOW TO ADVISE YOUR CLIENTS

3 Dep’t of Navy v. Egan, 484 U.S. 518, 528 (1988). 4 Security Executive Agent Directive (SEAD) 4, National Security Adjudicative Guidelines, ¶ 2(b).

The length of this process varies depending on numer ous factors, but the main delays are often due to a lack of government manpower to investigate and process the applications, and the number of issues raised in an ap plicant’s history. The more foreign travel or connections, legal issues, debts, substance use, or other concerns that are revealed, the longer the process can take. Currently, the average time for a Secret and Top Secret clearance application being determined is approximately 4 and 5 months,Untilrespectively.5recently,security clearance holders were rein

6 See Executive Orders 13467 and 13764.

5 How Long Does It Take to Get a Security Clearance? – Q2 2022 Update, Clearance Jobs, ance-q2-2022-update/com/2022/04/26/how-long-does-it-take-to-get-a-security-clearhttps://news.clearancejobs.

Any offense that ends up with a jail sentence of more than one year (and the person actually serves more than one year) is disqualifying under the Bond Amendment.10

All arrests, regardless of the charge (or lack thereof) must be reported. Any criminal or traffic charge with a fine of more than $300 must be reported, which includes any misdemeanor offense, including aggravated speed ing, leaving the scene of an accident, or reckless driving.

The Docket12 the government believes a person is untrustworthy, the chance of being granted or retaining a clearance drops to near zero. The main areas of concern are financial prob lems, drug or alcohol misuse, and criminal conduct, with divorce being a major life change that often implicates numerous other areas of concern.

FINANCIAL PROBLEMS

11 See, e.g., United States Department of Energy Office of Hear ings and Appeals Case PSH 21-0051 (July 29, 2021). such as police reports, drug, alcohol, mental health, or behavioral evaluations and treatment, plea documents, court orders, and financial receipts prior to getting a case dismissed or expunged from the record.

12 Department of Defense Directive 5220.6, ¶ 6.2 (requiring an applicant to give “full, frank, and truthful answers to relevant and material questions” and noting that invocation of constitutional grounds to refuse to answer will prevent a clearance determina tion or revoke an existing clearance.).

10 50 U.S.C. §3343(c)(1)(A); SEAD 4, Appendix B, ¶2(b).

DRUG AND ALCOHOL USE

13 H.R. 3617, bill/3617/texthttps://www.congress.gov/bill/117th-congress/house-

Debt, in and of itself, will not raise red flags, espe cially after the housing crash and recession of 20072011, and the currently super-heated housing market, but circumstances that raise concerns about financial mismanagement can often become a problem. If a client has debt that far exceeds his or her ability to pay, has defaulted on any sort of credit arrangement, or declared bankruptcy, that will often cause the government to investigate. The government will not expect someone to immediately pay off all debts, but getting credit counseling and on a regular payment plan can help. A good faith effort to repay is one of the most important mitigating elements that can be applied, where the applicant does not rely on garnishment of wages or a technical legal defense against debt repayment.9 Even if debt has been charged off by a creditor, the government still considers that money owed by the clearance holder and will require documentation that the creditor has canceled the debt before considering it resolved. Large amounts of debt relative to income, a history of late or missed payments, and accounts being sent to collections will all be considered, especially if there is a long history of problems.

One of the thorniest issues for federal employees generally, but especially clearance holders, is marijuana.

While this can be overcome in certain instances,11 it is rare to see an individual with a felony conviction be granted a clearance, unless the conduct was as a juvenile, occurred many years in the past, or there is significant evidence of rehabilitation.Withtheexpansion of expungement and sealing laws, and more widespread use of alternative prosecution programs, there are increasing avenues where criminal defendants can get cases dismissed or hidden from public view. While this is beneficial to many areas of a client’s life, when representing a current or aspiring clearance holder, be sure to request and retain relevant documents, 9 SEAD 4, ¶20(d).

Recreational marijuana use is currently legal in 19 states (including Illinois) and the District of Columbia, but is still illegal under federal law. (The House of Represen tatives recently passed a bill legalizing marijuana, but it remains in committee in the Senate.13) The Intelligence Community has released updated guidance regarding past marijuana use, in that past recreational use, while relevant, should not be a complete bar to a clearance.14

CRIMINAL CONDUCT

It is also important to note that most of the proce dural protections granted to criminal defendants do not apply in the security clearance context. Simply because evidence was suppressed in a criminal case does not mean that it cannot be considered by the government in deciding on a clearance. Also, while a clearance applicant can invoke their right against self-incrimination when asked about certain conduct, doing so will likely result in the denial or revocation of a clearance.12

14 Director of National Intelligence Memorandum ES 2021-01529.

However, use while holding a clearance is almost always fatal. If a client has previously used, whether legally or not, they should be advised to state their understanding that future use would result in a clearance revocation and to disclaim any intention to use in the future.

Unless and until legalization is signed into federal law, and the relevant directives for clearance determi nations are revised, this means that clearance holders cannot cultivate, sell, use, purchase, or transport mar ijuana, even though it may be legal for their uncleared friends and family to do so. One of the mitigating factors

Any use of drugs or alcohol, whether legal or illegal, prescribed or not, where it resulted in adverse social, criminal, financial, or employment consequences is cause for concern for a clearance holder. If any issue of this sort is raised, whether from self-reporting of addiction, criminal charges, or lost work or personal relationships, the government will expect to see an applicant get pro fessionally evaluated and attend a recognized treatment program. Proceeding independently despite such an evaluation will cast doubt on the reliability and judgment of the applicant, and likely result in a denial or revoca tion. Also, while “relapse is part of recovery” is axiomatic in the addiction community, it will likely cut against any mitigation offered in a clearance application.

There are numerous other common issues that fre quently trip up clearance applicants, such as computer systems and social media use, association with groups of concern (Oathkeepers, Antifa, etc.), psychological conditions, and foreign affiliation issues, but the ones discussed above are the most prevalent and likely to be seen by practicing attorneys in other industries. Hopefully this article has given practitioners some insight into the range of concerns facing their clients who hold or wish to apply for a national security clearance. As many issues can raise red flags during the investiga tive process, the best course of action is to make sure the client understands the concern expressed by the govern ment and what to report. That will allow the attorney to counsel the client how to best prepare themselves to present the best possible explanation and documentation for events that might otherwise cause a denial or revoca tion of a clearance.

DIVORCE

While the government does not judge an applicant’s decision to get divorced (even multiple times), the process touches on numerous adjudicative guidelines. First, a change of marital status and home address are reportable events. Divorce is also a financial earthquake, with divided bank accounts, retirement accounts, and pensions, home sales, spousal maintenance, and child support all dramatically affecting an applicant’s finan cial status and often their ability to stay current on obligations. Allegations of domestic or child abuse are not uncommon and must be reported as well.

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is disassociation with those who use drugs,15 which would arguably require clearance holders to end relationships with people who are legally using marijuana under state law. This issue will surely be the subject of much debate in the industry for years to come.

CONCLUSION

Coverage, What Coverage?

1 Humpty Dumpty’s aphorism has been quoted by courts in numerous decisions, including by the United States Supreme Court, and many of those courts have done so in the context of insurance cov erage disputes. See, e.g., Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978); Zschernig v. Miller, 389 U.S. 429 (1968); Larson v. R.W. Borrowdale Co., 53 Ill. App.2d 104, 113 (1st Dist. 1964); see also, e.g., Taylor Morrison Services, Inc. v. HDI-Gerling America Ins. Co., 293 Ga. 456, 460, n.7 (Ga. 2013); County of Sac ramento v. Scottsdale Ins. Co., 2003 WL 21246688, *14, n.86 (Cal. App. May 30, 2003); Garden State Indem. Co. v. Mill er & Pincus, 773 A.2d 1204, 1208 (N.J. Super. 2001); Blue Cross Blue Shield of Mass., Inc. v. BCS Ins. Co., 671 F.3d 635,

In a recent decision, United States District Judge John Z. Lee rejected an effort by American Family Mutual Insurance Company (“American Family”) to open a new avenue to escape its contractual obligation to provide coverage to its insured for an underlying lawsuit alleg ing claims under BIPA. The Court held instead that unrelated policy exclusions for employment practices and for cer tain statutory violations are ineffective to exclude coverage for a claim that an 637 (7th Cir. 2011); Continental West ern Ins. Co. v. Pimentel & Sons Guitar Makers, Inc., 2006 WL 6335399, *3 (D. N.M. June 16, 2006); Zapata Her manos Sucesores, S.A. v. Hearthside Baking Co., Inc., 2001 WL 1000927, * 3, n.3 (N.D. Ill. Aug. 29, 2001); Agroin dustria Nacional, S.A. v. Henry Broch & Co., 976 F.Supp. 758, 760, n.3 (N.D. Ill. 1997).

“The question is,” said Alice, “whether you can make words mean so many different things.”

— Lewis Carroll, Through the Looking Glass (1872).

Jeffrey Berman of the law firm of Anderson + Wanca has experienceextensive federalinerageinsuranceactionslitigation,commercialinclassandcovlitigationstateandcourtsacross the country. He is Co-Editor of the Docket and currently serves as the Secretary of the LCBA Board of Trustees.

BY JEFFREY BERMAN

A Federal District Court holds that although insurers keep trying, they cannot invoke unrelated, general exclusions to avoid coverage obligations for claims asserted under the Illinois Biometric Information Privacy Act.

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean —neither more nor less.”

The Docket14 Yes, of course you can, Alice. Or, once again, we see that you can at least try to do so when you practice in the area of insurance coverage litigation.1

THE CLAIMS.EXISTSCOVERAGEALREADYSUPREMEILLINOISCOURTHELDTHATGENERALLYFORBIPA

• Inform the person in writing of what data is being collected or stored. (e.g., fin gerprint is stored when using TouchID to log into bank account app on phone).

WHAT IS BIPA?

2 American Family Mut. Ins. Co. v. Carnagio Enterprises, Inc., 2022 WL 952533. 3 740 ILCS 14/1, et seq 4 740 ILCS 14/15(b). 5 740 ILCS 14/5. 6 740 ILCS 14/15(c). 7 740 ILCS 14/15(d). 8 740 ILCS 14/20; see Rosenbach v. Six Flags Entm’t Corp., 2019 Therein, as some would say, lies the rub. A veritable tsunami of BIPA class action complaints has ensued in recent years. And, where there are liability claims, insur ance coverage litigation wherein insurance companies seek to avoid their contractual coverage obligations is sure to follow. And it has.

In a 2021 decision titled West Bend Mut. Ins. Co. v. Krishna Schaumburg Tan, Inc., the Illinois Supreme Court addressed the availabil ity of coverage generally and held that coverage exists for BIPA claims under a general liability insurance policy.9 Although the insurance policy language may have varied, virtually all coverage denials prior to that decision rested primarily on two arguments: (1) BIPA claims are not a cov ered “personal injury” where there is no “publication” vio lating a right of privacy; and (2) BIPA is a statutory scheme that falls under a violation of statutes catchall exclusion. For the second argument, West Bend sought to invoke subpart (3) of an exclusion entitled “Distribution Of Mate rials In Violation Of Statutes,” which precluded liability for the following:“Bodilyinjury”, “property damage”, “personal injury” or “advertising injury” arising directly or indirectly out of any action or omission that violates or is alleged to violate: (1) The Telephone Consumer Protection Act (TCPA), including any amendment of or addition to such law; or (2) The CAN-SPAM Act of 2003, including any amendment of or addition to such law; or (3) Any statute, ordinance or regulation, other than the TCPA or CAN-SPAM Act of 2003, that prohibits or limits the sending, transmitting, communicating or distribu tion of material or information. IL 123186. 9 West Bend Mut. Ins. Co. v. Krishna Schaumburg Tan, Inc., 2020 IL 125978 (May 20, 2021).

The Illinois legislature unanimously passed the Bio metric Information Privacy Act, (“BIPA”) in 2008.3 BIPA imposes numerous restric tions on how private entities collect, retain, disclose, and destroy biometric identi fiers. BIPA is intended to ensure that individuals are in control of their own bio metric data and, among oth er things, prohibit private companies from collecting said data unless they:

• Inform the person in writing of the specific purpose and length of time for which the data will be col lected, stored, and used. (e.g., fingerprint is stored for ease of logging into app and only for a duration of six months).

A veritable tsunami of Biometric Information Privacy Act class action complaints has ensued in recent years. And, where there are liability claims, insurance coverage litigation wherein insurance companies seek to avoid their contractual coverage obligations is sure to follow. And it has.

• Obtain the person’s written consent. (e.g., user signs their name before sharing their includesBiometricfingerprint).4informationretinaoririsscans, fingerprints, voiceprints, hand scans, facial geometry, DNA, and other unique bio logicalBIPAinformation.5alsoestablishes standards for how companies must handle consumers’ biometric information. In addi tion to its notice and consent requirement, the law prohib its any company from selling or otherwise profiting from consumers’ biometric information.6 It also imposes strict restrictions on disclosure of collected data.7 BIPA provides a private right of action and carries with it the potential for actual damages or statutory liquidated damages of $1,000 for each negligent violation, $5,000 for each reck less or intentional violation, attorney fees and costs, and injunctive relief.8

September 2022 15 insured violated BIPA while handling fingerprints taken from employees for timekeeping purposes.2

Carnagio Enterprises, Inc. (“Carnagio”), is a McDon ald’s franchisee that was insured by both American Family Mutual Insurance Company, S.I. (“American Family”) and Austin Mutual Insurance Company (“Austin Mutual”) (col lectively “Insurers”).11 Each of the relevant policies prom ised coverage for “the sums that the insured becomes legal ly obligated to pay as damages because of ‘bodily injury’, ‘property damage’ or ‘personal and advertising injury’ to which this insurance applies.”12 The policies defined “per sonal and advertising injury” as including, among others, “Oral or written publication, in any manner, of material that violates a person’s right of privacy.”13 The policies also contained identical exclusions, entitled “Employment-Re lated Practices” (“ERP exclusion”) and “Distribution Of Material In Violation Of Statutes” (“Statutory Violation exclusion”).14 The Statutory Violation exclusion was the same standard form, as was addressed in West Bend.15 The ERP exclusion stated, in relevant part: This insurance does not apply to: a. “Bodily injury” or “personal and advertising injury” to: i. A person arising out of any: 1. Refusal to employ that person; 2. Termination of that person’s employ ment; or 3. Employment-related practices, policies, acts or omissions, such as co ercion, demotion, evaluation, reassign ment, discipline, defamation, harass ment, humiliation or discrimination directed at that person.... b. This exclusion applies: i. Whether the insured may be liable as an employer or in any other capacity; and ii. To any obligation to share damages with or repay someone else who must pay damages because of the injury.16

10 See also, e.g., Citizens Ins. Co. of America v. Wynndalco Enter prises LLC, 2022 WL 952534 (N.D. Ill. Mar. 30, 2022) (applying West Bend and rejecting a similar effort by another insurance company to escape its coverage obligations by asserting the catchall subpart of the Violation Of Statutes exclusion).

THE RECENT AMERICAN FAMILY DECISION GOES BEYOND WEST BEND.

11 2022 WL 952533, at *1. 12 Id. 13 Id. at *2. 14 Id. 15 Id. 16 Id. In addition, the Austin Mutual policy contained an additional exclusion for “Access or Disclosure of Confi dential or Personal Information.” This exclusion applied to personal information and data-related liability “arising out of any access to or disclosure of any person’s … confi dential or personal information, including patents, trade secrets [etc.] … or any other type of nonpublic informa tion.”17In early 2019, Angela Karikari (“Karikari”) filed a class action lawsuit against Carnagio, asserting claims based on violations of BIPA (the “Karikari Action”).18 Karikari alleged she worked at a McDonald’s restaurant operated by Carnagio, where Carnagio required her to clock in and out of each shift using a fingerprint scanner.19 Despite its use of fingerprints for timekeeping and identification, Karikari claimed Carnagio never informed “its employees of the complete purposes for which it collects their sensi tive biometric data or to whom the data is disclosed if at all,” never gave its employees “a written, publicly available policy identifying its retention schedule and guidelines for permanently destroying its employees’ fingerprints,” and never had her sign a release allowing Carnagio to collect her Carnagiofingerprints.20tenderedthe Karikari Action to the Insurers seeking coverage and, particularly, a defense. The Insur ers then filed a declaratory action seeking a determina tion of their obligations to defend and indemnify Carnag io for the Karikari Action.21

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Instead, the Insurers relied on the third category, arguing that Carnagio’s practice of requiring employees to clock in and out using their handprints was an “em ployment-related practice” that arose out of the employ

The Supreme Court in West Bend rejected both of those arguments. It found BIPA claims implicate a right of privacy for personal injury coverage. It also held that the pertinent language of the exclusion is ambiguous and thus did not serve to bar coverage of the underlying BIPA suit.10

17 Id. at *7. 18 Id. at *1, 3. 19 Id. at *2. 20 Id. 21 Id. at *3. 22 Id. at *4 and n.3. 23 Id. at *4. 24 Id. at *5.

All parties agreed that a lawsuit arising under BIPA constituted a claim asserting “personal injury” that trig gered coverage under the policies. As the Court observed, in light of the recent Illinois Supreme Court decision on the point in West Bend, they “could not reasonably argue otherwise.”22 The coverage question thus turned on the policies’ exclusions. Deciding cross-motions for summa ry judgment, the District Court addressed the merits of each asserted exclusion and ultimately concluded cover age was not excluded under the American Family policy, but was excluded under the Austin Mutual Policy. With respect to the ERP exclusion, the Court ob served that the case law was mixed regarding its applica bility to BIPA claims.23 The Court noted that Karikari did not allege that Carnagio improperly refused to employ her or wrongfully terminated her, so the first two reasons for exclusion do not apply.24

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The Court rejected that argument because it was not con vinced that the difference in the titles makes these exclu sions substantively different.34 The Court also observed that notwithstanding the different titles, the application of ejusdem generis to the pertinent form of exclusion would yield the same result as in Krishna because only violations of statutes, ordinances, or regulations “like the TCPA and the CAN-SPAM Act” are excluded from cover age, and BIPA is not “like the TCPA and the CAN-SPAM Act, because BIPA protects a different kind of privacy and 25 Id. 26 Id. 27 Id. 28 Id. 29 Id. 30 Id. at *6. 31 Id. 32 Id., citing United Servs. Auto. Ass’n v. Dare, 357 Ill.App.3d 955. 964-65 (1st Dist. 2005). 33 Id. at *6. 34 Id., citing First Mercury Ins. Co. v. Triple Location LLC, 536 F. Supp. 3d 326, 331–32 (N.D. Ill. 2021) (referring to the exclusion at issue in Krishna as “materially identical” to one with the title “Distribution of Material in Violation of Statutes,” at issue, and otherwise identical in substance). uses a different method to do so.”35 At a minimum, there fore, coverage for Karikari’s claims was not unambiguous ly excluded by the Statutory Violation exclusion.36

The Court added, at a minimum,, “there is significant am biguity as to whether the exclusion disavows coverage of Karikari’s claims”31 and, under Illinois law, such ambiguity must be resolved in the insured’s favor.32

35 Id. at *7. 36 Id. 37 Id. 38 Id. 39 Id. at *7-8. 40 Id. at *8. 41 Id. at *9-10.

The Court thus held that the underlying BIPA claims were at least potentially covered by the policies.37 Addi tionally, because American Family raised only the ERP exclusion and Statutory Violation exclusion, neither of which unambiguously excluded coverage, the Court granted Karikari’s cross-motion for summary judgment as to American Family.38

The Court thus concluded that the alleged BIPA claims arising out of Carnagio’s practice of requiring its employees to provide their fingerprints when clocking in and out of work did not fall within the ERP exclusion.30

The Court reached a different ultimate conclusion with respect to the Austin Mutual policy’s Access/Dis closure exclusion. The Court construed that exclusion as making the insurance coverage inapplicable to “any access to or disclosure of any person’s … personal infor mation.”39 Because the Court concluded this language was not ambiguous, the ejusdem generis rule of construction did not apply.40 The exclusion therefore was to be applied as written and when viewed in light of the allegations in the underlying litigation, precluded coverage.41

In sum, the Court found that the Karikari Lawsuit implicated coverage under the American Family policy, and none of the exclusions relied upon by American Family unambiguously precluded coverage. By contrast, because the Austin Mutual policy also included the Access/Disclosure exclusion, coverage was excluded and Austin Mutual had no duty to defend.

The Docket18 er-employee relationship.25 In response, Carnagio and Karikari argued that the fingerprint requirement did not fall within the third clause because it is not the type of “employment-related practice” intended to be encom passed by the ERP exclusion.26 The Court agreed with Carnagio and Karikari, hold ing that the fingerprint requirement did not fall within the employment-related practices language of the exclu sion based on the examples of activity included in the ex clusion. The Court invoked the canon of noscitur a sociis, which holds that the meaning of neighboring words can help guide a particular word’s meaning.27 In this case, the examples of conduct excluded — i.e., coercion, demotion — involved conduct “directed at that person.”28 In the Karikari Action, by contrast, the fingerprinting require ment applied generally to all employees, and did not relate to an employee’s performance and, therefore, it did not fall within the scope of the exclusion.29

The Court also addressed the parties’ arguments concerning the Statutory Violation exclusion, the appli cability of which had been decided in West Bend. The Insurers attempted to distinguish West Bend based on differences in the title of the exclusion, despite the fact that the language of the exclusion itself was identical.33

As with almost all insurance coverage cases, the lan guage of the applicable policy is critical to the outcome. Illinois courts have construed standard coverage grants to include claims alleged under BIPA. Likewise, the Illinois Supreme Court, and others, including in the Carnagio case, have rejected efforts to shoehorn BIPA claims into typical exclusionary language. On the other hand, this decision shows that at least one insurance company has crafted a form of exclusion that will allow it to avoid defending these types of claims. Odds are good that other insurers will soon follow suit and add comparable language to future policies. In the meantime, however, insureds and their tortfeasors should continue to have success at parrying the insurers’ increasingly unattainable attempts to escape coverage.

Your humble editors had the opportunity to pa tronize Vin 90 on the occasion of its grand opening on July 21, as well as several other times over the last few weeks. The unique menu is extremely exciting, com bining a diverse array of tradi tional American and tionofBoardfalowerehumblesure:sushi.esAsian-fusionoptionsgolf-friendlyalongwithdishandexcellentFulldisclobothofyoureditorsontheBufGroveVillageatthetimetheconstrucoftheclub house, and have a soft spot in their collective heart for the space. (Ask Judge Johnson about the former water feature that was in the lobby area, or perhaps ask Mr. Berman how happy he might be now that it is gone.) On the night of the opening,grandwe en joyed an ala carte selection from the ample sashimi choices, along with event.pricedwereValleytleshalf-pricesushiindividualrolls,andbotofAlexanderMerlotthatspeciallyfortheOurguests

In vin 9o veritas

Anew, unique dining experience has come to south Lake County with the opening of Vin 90 Kitchen + Bar at the Arboretum Golf Course in Buffalo Grove. Billing them selves as an American Gastropub with an Asian flair, Vin 90 has now opened in newly-renovated space in the William H. Brimm Clubhouse, in partnership with WJ Golf, a cutting-edge indoor golf simulator facility that occupies the former banquet space.

The Docket20

Jeffrey Berman of the law firm of Anderson + Wanca has experienceextensive federalinerageinsuranceactionslitigation,commercialinclassandcovlitigationstateandcourtsacross the country. He is Co-Editor of the Docket and currently serves as the Secretary of the LCBA Board of Trustees. Hon. Charles D. Johnson has been an As sociate Judge for the 19th Judicial Circuit since 2005. He was an assistant Lake County State’s Attorney from 1990 to 1994, and a local prosecutor from 1994 to 2005. He is currently assigned to the Criminal Division.

BY JEFFREY BERMAN AND HON. CHARLES JOHNSON

The patio area features tables for dining, along with fire pits and comfortable couches for relaxation. The view from the patio is spectacular, whether looking inside at the cloud-shaped lighting fixtures, or outside along the 9th fairway. One could easily spend a great deal of time luxuriating (and consuming food and drink) in this place. The staff at Vin 90 also is excellent. Owners Won Cho and Jason Jung are omnipresent, bringing positive energy, shaking hands and amiably attend ing to guests’ needs. Chef Yoon Jae Kim also makes regular appearances out side of the kitchen, wel coming patrons, soliciting feedback and graciously accepting the prolific compliments that come his way. Elizabeth and Mitch are the managers; they are veritable energizer bun nies, constantly monitor ing the operation, making sure everything is running smoothly, and doing so with constant smiles.

One especially unique aspect of Vin 90 is their use of robots, specially produced by LG Corporation

One especially unique aspect of Vin 90 is their use of robots, specially produced by LG Corporation for the owners, as high tech “runners” that bring food from the kitchen to the bar area.

September 2022 21 ordered Chicken Alfredo and Pork Kat Su, and all agreed that the food was wonderful. On several other occasions, we have partaken in the Chicken Wings, Bulgogi Nachos, Chicken Kat Su, Tempura Udon (a huge bowl of vegetable beef soup with noodles), Galbi (Korean BBQ style short ribs), Sirloin steak, Golden Shrimp, and plain old burgers; all of the appetizers and meals were exceptional. The fiesta maki roll was particularly good, as was the fire drag on roll. The restaurant also offers a golfer’s menu, with bratwurst, burgers and tacos, among other traditional golf course fare. The bar is fully stocked, including a large selection of wine and beer. We can also attest that they make a very fine Old Fashioned. One of the greatest aspects of Vin 90 is its am bience. The dining space has been significantly en larged and improved from the prior configuration. One notable enhancement is the addition of a six-panel folding glass wall that opens onto the expanded patio area overlooking the course.

for the owners, as high tech “runners” that bring food from the kitchen to the bar area. They’re a little bit freaky when you first see them, but the addition of their high-tech utility to the overall presentation is tremendous.Adjoining the wonderful restaurant facilities is the high-tech, indoor virtual golf center. Replacing the former banquet room, this is a golfers’ wonderland, complete with eight state of the art golf simulators designed to re-create ball flight to within 99% accura cy and deliver insights on your game. The simulators’ complex camera system, impact sensors, and advanced software provide world-class accuracy and a truly fun experience for novice and advanced players alike. All of this is delivered in a fully automated experience that even changes the turf to reflect different lies (the loca tion of the ball, not the score) and tees the ball up for each shot. In addition to hourly simulator rental, WJ offers lessons and high-end training from local pros and instructors. The space is rentable for group parties and events, and service from the bar is provided to the golf Vinspace.90 is an exceptional addition to the local dining scene, and your humble editors invite you all to join us there any time.

23September 2022 2022 Guardian ad Litem Training SAVE THE DATE WWW LAKEBAR ORG October 27 & 28, 2022 College of Lake County Grayslake,IL HOW MANY INJURY LAWYERS GET THIS KIND OF RESPONSE? We love our clients and referring attorneys. And they love us right back. Contact Brian Lewis directly at 224.706.1112 or brian@lewisinjuryfirm.com to learn about the generous fees we pay to referring attorneys. lewisinjuryfirm.com Brian Lewis LAKE FOREST | CHICAGO | WAUKEGAN

BY DIANA C. SERVOS

Diana C. Servos is locatedLegalattorneymanagingtheofS.T.GroupinDeer field, Illinois. Her practice is focused on em ployment law, where she advises employees and small employers on a wide variety of issues, including in litigation.

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I. GETTING TO TODAY’S ILLINOIS FREEDOM TO WORK ACT

John’s for its use of a non-compete clause.3 The Jimmy John’s non-compete clause prohibited employees during employment and for two years afterward from working at any other business that sells “submarine, hero-type, deli-style, pita, and/or wrapped or rolled sandwiches” within, depending on the year the agreement was entered into, two or three miles of any Jimmy John’s shop.4 In De cember 2016, the litigation was settled with Jimmy John’s agreeing not to enforce that provision.5

3 People v. Jimmy John’s Franchise LLC, Case No. 2016 CH 07746 (Cir. Ct. Cook County). 4 https://www.reuters.com/article/jimmyjohns-settlement/jimmy-johns-settles-illinois-lawsuit-over-non-compete-agreements-idUSL1N1E21BX. 5

ments-idUSL1N1E21BXillinois-lawsuit-over-non-compete-agreejohns-settlement/jimmy-johns-settles-https://www.reuters.com/article/jimmy

O

n January 1, 2022, significant amendments to the Illinois Freedom to Work Act (“IFWA”) went into effect, changing the drafting and litigation landscape.1 This article will examine the legislative and judicial history of restrictive covenants, discuss the recent amendments, and analyze the prospective impact of the amendments on future drafting and litigation.

Does Increased Freedom Buy Increased Litigation?

Prior to any legislative involvement, restrictive covenants were governed solely by case law. There was no statutory regulation. This structure existed for many years, although an analytic framework evolved through judicial interpretation over time. Recent cases governing the application and interpretation of restrictive covenants include Reliable Fire Equipment Co. v. Arredondo1 and Fifield v. Premier Dealer Services Inc.2 In June 2016, restrictive cove nants came under intense scrutiny in the context of low-wage workers. At that time, Attorney General Lisa Madigan filed suit against Jimmy 1 Reliable Fire Equipment Co. v. Arredon do, 2011 IL 111871. 2 Fifield v. Premier Dealer Services, Inc., 2013 IL App (1st) 120327.

Synopsis and Analysis of the Illinois Freedom to Work Act Amendments

II. THE AMENDMENTS2022

Expanded Employee Protection

Review Period Similar to the effect of the Workplace Transparency Act on severance agreements, the 2022 Amendments added a review period. An employee shall be given 14 days to review a restrictive covenant, preferably before commencing work.17 In addition, employers must advise employees of their right to consult with an attorney be fore entering into the agreement.18

In June 2016, restrictive covenants came under intense scrutiny in the context of low-wage workers. At that time, Attorney General Lisa Madigan filed suit against Jimmy John’s for its use of a non-compete clause.

September 2022 25

11 820 ILCS 90/10(c) (2022). 12 820 ILCS 90/5 (2022). 13 820 ILCS 90/7 (2022). 14 Id. 15 Id. 16 Id. 17 820 ILCS 90/20 (2022). 18 Id.

Most significantly, the amendments eliminate the concept of low wage workers, i.e. the minimum wage or $13/hour concept. Instead, the statute applies statutory compensation thresholds for the application of both non-competes and non-solicits.8 Under the 2022 Amend ments, allowable non-competes are limited to employees whose “actual or expected annualized rate of earnings exceeds” $75,000/year and allowable non-solicits are lim ited to employees whose “actual or expected annualized rate of earnings exceeds” $45,000/year.9 Compensation thresholds will increase over time.10

COVID-19 Protection Perhaps reflective of the times, but with likely little future application, agreements cannot be enforced against 6 820 ILCS 90/1 (2016). 7 820 ILCS 90/10 (2022). 8 Id. 9 Id. 10 Id. employees laid off or furloughed because of COVID-19 or “under circumstances that are similar to the COVID-19 pandemic” unless the covenant provides for payment of employee’s base salary for a specified period of time.11

The thought that such a restrictive covenant might be enforced, however, also irked the legislature. Effective January 1, 2017, Illinois enacted the Illinois Freedom to Work Act (the “Act”). This Act centered on the concept of “low wage workers,”6 defined as those earning the applica ble federal, state, or local hourly minimum wage, or $13.00/ hour, whichever is greater. The Act declared that non-com pete agreements with low wage workers are illegal and void. The Act only focused on non-competes. No limitations were placed on non-solicitation, non-disclo sure, non-disparagement, or confidentiality agreements. Non-competes were consid ered to be any limitation on work for another employer for a specified time peri od, any work in a specified geographical area, or work for another employer that is engaged in similar services or products.

In 2021, substantial changes were made to the Act (the “2022 Amendments”). The result is a statute that, al though using the same title, bears almost no resemblance to its predecessor. The 2022 Amendments apply to all employ ment agreements entered into after January 1, 2022.7 The following concepts are addressed in the 2022 Amendments:

The Act codifies two recent, seminal cases in restric tive covenant jurisprudence: Fifield and Reliance Fire Specifically, as addressed by Fifield, the concept of “adequate consideration” is codified to mean either (1) an employee has worked for the employer for at least two years after signing a restric tive covenant agreement; or (2) employer has provided the employee with profes sional and financial benefits that constitute independent consideration.12Asaddressed in Reliable Fire, the principle of “le gitimate business interest” is codified to consider an employee’s exposure to the employer’s customer rela tionships or other employ ees; employee’s acquisition, use, or knowledge of confi dential information through the employee’s employment; time restrictions; geographic restrictions; and scope of the activity restrictions.13 The statute adds “[e]ach situ ation must be determined on its own particular facts.”14 It further adds, “[r]easonableness is gauged not just by some, but by all of its circumstances.”15 To make clear that this will be interesting, it ends with: “[t]he same identical contract and restraint may be reasonable and valid under one set of circumstances and unreasonable and invalid under another set of circumstances.”16

Requirements for Enforcement

III. DRAFTING RESPONSE TO THE 2022 AMENDMENTS

In addition to compliance, we must analyze where the amendments fall short. The first area of concern is the definition of “earnings.” Earnings means “compensation, including earned salary, earned bonuses, earned com missions, and any other form of taxable compensation earned.”21 The word “earned” is reminiscent of the Illinois Wage Payment and Collection Act (“IWPCA”), which focuses extensively on when compensation is earned.22

Cross-referencing statutes, the definition of earnings would prohibit inclusion of a discretionary bonus because it is not an earned bonus.23 However, substantial litigation exists regarding earned bonuses and earned commissions under the IWPCA. With those definitions infiltrating the IFWA, it is likely that those arguments will now permeate restrictive covenant litigation.

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So what should you do when drafting such employ ment contracts? The bare minimum is to revise agree ments for compliance if entered after January 1, 2022. To the extent that the compensation paid to employees cur rently does not justify or support a non-solicit or non-com pete, a review or modification of compensation structure to meet thresholds still may be necessary. The next step would be to train management, supervisory staff, human resources, and other individuals with agreement presen tation responsibilities about the amendments, especially with respect to earnings thresholds and attorney review. Since implementation, and modifications made to support 19 820 ILCS 90/25 (2022). 20 Id.

A second shortcoming is the language that “[e]ach situation must be determined on its own particular facts” and “[t]he same identical contract and restraint may be reasonable and valid under one set of circumstances and unreasonable and invalid under another set of circum stances.” This open-ended language is at odds with the practical aspect of non-competes and non-solicits, but particularly non-competes. If an employee is bound by a non-compete and is presented a potentially compet itive activity, that employee must make his or her own analysis of whether the potentially competitive activity would breach the non-compete clause. Without provid ing clear guidance on enforcement, it creates a practical burden on employees because employees will be forced to decide how risk-averse they want to be. This may keep particularly anxious employees from non-violating opportunities based on their capacity for risk.

IV. SHORTCOMINGS IN THE AMENDMENTS

V. CONCLUSION

With this wave of amendments, employers need to review, revise, and retrain in order to ensure agreement compliance with statutory regulations for agreements entered into after January 1, 2022. Beyond, the field of restrictive covenant litigation remains factually depen dent, and ripe for disputes. This capacity is increased with imposition of “earned wages” into statutory regulation.

21 820 ILCS 90/5 (2022).

22 820 ILCS 115/1, et seq. (2015) (final compensation defined as “wages, salaries, earned commissions, earned bonuses, and the monetary equivalent of earned vacation and earned holidays, and any other compensation owed the employee by the employer pursuant to an employment contract or agreement between the 2 parties.”).

Attorneys’ Fees in Enforcement Actions Enforcement actions on restrictive covenants have fol lowed the common law rule that each party is responsible for its own attorneys’ fees unless the parties have contract ed otherwise. To address the concern of employer-favor able fee-shifting provisions, by statute, employees can now recover attorneys’ fees and costs from employers in unsuc cessful enforcement actions.19 No fee-shifting provisions are applied to employers, although there is no prohibition on employers contracting for such provisions.20

implementation, may create a “before and after” culture either with agreements or compensation, best practice would be to review the company application of restrictive covenants and compensation structure for fairness and consistency with pre-amendment employees.

23 See 56 Ill. Admin. Code §300.500 (2014).

27September 2022 Ask A Lawyer Clinic Volunteers Needed Areas of Law: Eviction, Employment, Guardianship, Immigration, Family September 22, 2022 From 5:30pm to 7:00pm Waukegan Public Library

July 21, 2022

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Theme for the Year: Member Engagement Executive Director Weider and President Devine led a discussion re garding the theme for the upcoming year – Member Engagement. Members are encouraged to share sug gestions of ideas for ways to get younger lawyers to join and become involved in the LCBA.

The Draft minutes from the June meeting of the Board of Directors was included in the agen da packet. There were no requests for additions, corrections, or changes to the draft minutes. June New Members The June new member report was included in the agenda packet. A motion was made and seconded to approve the Consent Agenda. Upon unanimous voice vote, the motion was de clared carried. The Con sent Agenda is approved.

DIRECTORS

Treasurer’s Report

ACTION

ROLL CALL Roll call indicated a quorum was established, with the following individ uals present: Tara Devine, President; Katherine Hatch, First Vice President; Daniel Hodgkinson, Sec ond Vice President; Kevin Berrill, Treasurer; Joe Fusz, Immediate Past President; Judy Maldonado, Director; Craig Mandell, Director; Hon. Jacquelyn Melius, Director; Jeffrey O’Kelley, Director; Greg Weider, Executive Director. Jeffrey Berman, Secretary, joined by telephone.

Volunteer Lawyer Program- Partnership with PSLS Executive Director Weider and President

The Treasurer present ed the June 2022 Financial Report, for which support ing materials were includ ed in the Agenda packet. Discussion followed. Total revenue and expense num bers are expected to both show positive variances to budget for Fiscal Year 21-22. A motion was made and seconded to approve the Treasurers Report. Upon unanimous voice vote, the motion was de clared carried. The Trea surer’s Report is approved.

President Devine called the meeting to order at 12:11 p.m.

Board MeetingDirectors’of

MeetingMinutes

The BY JEFFREY A. SECRETARYBERMAN

Tara Devine President Katharine Hatch First Vice President Daniel Hodgkinson Second Vice President Kevin Berrill Treasurer Jeffrey Berman Secretary Joseph Fusz Past President Hon. Jacquelyn Melius Director Craig Mandell Director Jeffrey O’Kelley Director Sarah Raisch Director Jeremy Harter Director Judy Maldonado Director Greg Weider Executive Director

CALL TO ORDER

torsItemsConsentITEMSAgendaJuneBoardofDirecMinutes

BOARD OF

NEWLCBABUSINESSHR/Employ ee Handbook Review Executive Director Weider and President Devine made a presen tation regarding the LCBA Human Resources / Employee Handbook. It is recommended that the handbook, be reviewed and updated, and that spe cialty counsel be engaged to provide assistance for that effort. Discussion followed. Board Members are encouraged to share with the Executive Director names of appropriate attor neys who are experienced in the area so that he can request cost proposals.

FRIDAY,SEPTEMBER9,2022 OLD FILES CLUTTERING UP THE OFFICE? COME TO THE LCBA ANNUAL SHRED EVENT! SECURELY DESTROY ALL YOUR OLD CONFIDENTIAL FILES 1-5 BOXES - $15 6-15 BOXES - $30 16 + BOXES - $60 LCBA OFFICE PARKING LOT. 300 GRAND AVE., WAUKEGAN SHRED EVENT2022 LCBAANNUAL8:00A.M.-11:00 A.M.

29September 2022 Devine made a presenta tion regarding the Volun teer Lawyer Program and potential partnership with Prairie State Legal Ser vices. Discussion followed. Lifetime Membership A motion to approve a lifetime membership ap plication for Tom Gurewitz was made and seconded. Discussion followed. Upon voice vote, the motion was declared carried. The application is approved.

Foundation Board of Trustees The Board was in formed that Foundation Vice President Carey Schiever has resigned that position (but he will contin ue to serve as a Foundation Trustee for the remainder of his term). A motion was made and seconded to ap prove the request by Foun dation President Douglas Dorando to appoint Kristie Fingerhut to serve as Vice President for the remainder of Carey Schiever’s term. A motion was made and seconded to approve the re quest. Discussion followed. Upon unanimous voice vote, the motion was de clared carried. The request is approved. OTHERCommitteeMATTERSReports Board members pro vided Committee updates. Executive Director Report Executive Director Weider presented his Executive Director Report for July. ADJOURNMENT A motion was made to adjourn. Upon unan imous voice vote, the motion was declared car ried. The meeting con cluded at 12:58 p.m. The next Board of Directors Meeting is scheduled to take place on Thursday, August 18, 2022.

Director’sChair In the BY GREG WEIDER EXECUTIVE DIRECTOR

We people.the

On the day of the signing, only 41 delegates were present and three chose not to sign what they believed to be a flawed document. An 81-year-old Benjamin Franklin encouraged dele gates to support the signing of the Constitution even though he did not fully ap prove of every aspect of the new plan. Franklin is cred ited for saying “Our new Constitution is now estab lished, everything seems to promise it will be durable; but, in this world, nothing is certain except death and taxes.” The Constitution was not ratified nationally until 1790 when Rhode Island finally approved the document. Ironically Rhode Island was the only State to not send a delegation to the Constitutional Convention. In recent years our national identity of “We the People” has started to feel more like “Me the People,” as self-interest and power grabs appear to dominate our national stage. These tensions have drifted down to local communities, where polarization and anger have often divided neighbors, damaged friend ship, and washed away civility in our day-to-day interactions.Sowhere does that leave us? Maybe right back to where this article started: the preamble. For me, the preamble signifies the unfulfilled promise of America. It is a never-end ing journey for a constantly evolving nation, striving towards a more perfect Union. It is a nation work ing to establish justice and provide avenues for each of its citizens to access that justice. It is a continuing effort to “insure domestic tranquility” and “promote the general welfare” in a diverse country of 332 mil lion people. It is an effort to provide for the common defense, without com prising our principles or values. It strives to secure the blessings of liberty, with the understanding that my liberty is not more or less important than my neighbor’s.TheDeclaration of Independence may have laid it out best: a govern ment is instituted among its people, and it derives powers from the consent of the governed. A radical idea in 1776, but one that endures today. Thus, the responsibility for fulfilling the promise of America belongs to its people. On Friday, September 23, the Nineteenth Judicial Circuit will hold its annual Consti tution Day program. I look forward to attending the event and, if your schedule permits, I hope you will consider joining me. It is an opportunity to not only celebrate our history, but revisit that which contin ues to bind us together as a people.Have a wonderful Con stitution Day!

The Docket30 September is the month in which we celebrate National Constitution Day. Septem ber 17 is a day to reflect on our history and cele brate the document that helps guide the enduring grand experiment we call American Democracy. I am not sure if it was my eighth grade social studies teacher Mrs. Gordon, or hours of watching School House Rock, but I can still recite the preamble to the Constitution at a moment’s notice. Given a minute to process, I can also gener ally work my way through all seven of its articles but struggle to name the amendments past the fif teenth without referring to my pocket Constitution. The United States Constitution is the world’s longest surviving written charter of government. Two hundred and thirty-five years after its signing, the Constitution has seen our nation through a Civil War, two World Wars, the Great Depression, and multiple global pandemics. The Constitutional Convention originally had 70 delegates of which only 55 attended.

CATEGORIESFOLLOWINGINNEEDEDATTORNEYSTHE • Administrative • Bankruptcy • Commercial • Consumer • Employment • Environmental • Estate Planning, Wills, Trusts and Probate Visit lakecountylawyer.info for a complete list of available categories.

The LRS program is designed to assist persons who are able to pay normal attorney fees but whose ability to locate legal representation is frustrated by a lack of experience with the legal system, a lack of information about the type of services needed, or a fear of the potential costs of seeing a lawyer. is only $200 annually for a Standard listing or $350 for a Premium listing. Download the application at www.lakebar.org/page/LRS or contact the LCBA office for more information.

LAWYER REFERRAL LAKECOUNTYLAWYER.INFOSERVICE CONTACT THE LCBA AT 847.244.3143 OR INFO@LAKEBAR.ORG

WHY SHOULD YOU JOIN?

The LCBA Lawyer Referral Service (LRS) is a valuable member benefit as well as a public service. LRS provides member attorneys with an opportunity to build business through client referrals. The service benefits the public by helping callers quickly find an attorney in the area of law in which they need help.

Cost

The Docket32 CommitteeMeetings Monthly • RSVP to a meeting at www.lakebar.org. • Meetings subject to change. Please check your weekly e-news, the on-line calendar at www.lakebar.org or call the LCBA Office @ (847) 244-3143. • Please feel free to bring your lunch to the LCBA office for any noon meetings. Food and beverages at restaurants are purchased on a individual basis. DAY MEETING LOCATION TIME 1st Tuesday Diversity & Community Outreach Virtual Until Further Notice 12:15-1:15 1st Thursday Real Estate VUFN 5:30-6:30 1st Thursday (Even Mo.) DocketCommitteeEditorial VUFN 12:15-1:15 2nd Tuesday Criminal Law VUFN 12:15-1:15 2nd Tuesday (Odd Mo.) Immigration VUFN 4:30-5:30 2nd Wednesday Family Law Advisory Group (FLAG) VUFN 12:00-1:00 2nd Wednesday Civil Trial and Appeals VUFN 4:00-5:00 2nd Thursday Young & New Lawyers VUFN 12:15-1:15 2nd Thursday Trusts and Estates VUFN 12:15-1:15 3rd Monday (Odd Mo.) Solo & Small Firms VUFN 12:00 noon 3rd Tuesday Local Government VUFN 12:15-1:15 3rd Tuesday LCBF Board of Trustees VUFN 4:00 3rd Wednesday Family Law VUFN 12:00-1:00 3rd Thursday LCBA Board of Directors VUFN 12:00 noon 3rd Thursday Debtor/Creditor Rights VUFN 5:30-6:30 As Needed Employment Law VUFN 5:15-6:15 BulletinBoardBar To place an ad or for information onrates,advertisingcall (847) 244-3143 GO WWW.LAKEBAR.ORGTOFORTHEMOSTUP-TO-DATECALENDARINFORMATION ANNOUNCING OUR NEW NAME! TWO SOUTH WHITNEY, GRAYSLAKE, IL 60030 • (847) 223-1500 • WWW.GRAYSLAKELAW.COM ROBERT W. CHURCHILL WILLIAM A. CHURCHILL JOHN W. QUINN MARK T. HAMILTON MARK VAN DONSELAAR JOHN L. QUINN LEO J. DELANEY AMBER L. DESSELLES MARY LEE BERRESHEIMSTILL IN THE SAME LOCATION, CONTINUING TO PRACTICE IN LITIGATION & APPEALS, RESIDENTIAL & COMMERCIAL REAL ESTATE, BUSINESS LAW, ESTATE PLANNING, & TRUST ADMINISTRATION

33September 2022

The Docket34 Your $500 sponsorship includes: • Recognition in advertising before the event and on signage at the event •Reception from 4:30 – 6:30 p.m. • Complimentary beer and wine. Upgrades available for additional fee. MEMBER RECEPTION SPONSORSHIP OPPORTUNITIES LCBA Member Receptions will generally be held on the 4th Thursday of every month. Contact info@lakebar.org to add your name to a MEMBERreception.RECEPTION 300 Grand Avenue, Suite A Waukegan, IL 60085 Tel: 847-244-3143 Fax: 847-244-8259