COVID-19 Updates on Governmental Offices

The Coronavirus (COVID-19) Outbreak has caused governmental offices and courthouses to cease or alter their services. This Fact Sheet provides an overview of those governmental offices and courthouses that are closed or have altered services. Updates will be made as they become available. If you have questions about how these closures or limitations may affect… Continue reading →

The Coronavirus (COVID-19) Outbreak has caused governmental offices and courthouses to cease or alter their services. This Fact Sheet provides an overview of those governmental offices and courthouses that are closed or have altered services. Updates will be made as they become available. If you have questions about how these closures or limitations may affect you or your business, we stand ready to assist.

Governmental Offices – Federal

United States Patent and Trademark Office

  • Operations will continue as normal without interruption until otherwise notified.
  • The USPTO is waiving petition fees in certain situations for customers impacted by the coronavirus.
  • The Director of the USPTO has extended the filing deadlines of certain items due between March 27, 2020 and April 30, 2020, including:
    • Responses to Office Actions,
    • Statements of Use or extension requests to file a Statement of Use,
    • Notices of Opposition or extension requests to file a Notice of Opposition,
    • Renewal applications, and
    • Affidavits of Use.
  • The deadlines have been extended 30 days from the initial date it was due, provided that the filing is accompanied by a statement that the delay in filing or payment was due to the COVID-19 outbreak.

Internal Revenue Service

  • All Taxpayer Assistance Centers are temporarily closed.
  • The April 15 filing deadline for tax returns has been extended to July 15, 2020.
  • All individual and other non-corporate tax filers are allowed to defer up to $1 million of federal income tax (including self-employment tax) payments due on April 15, 2020, until July 15, 2020, without penalties or interest.
  • Corporate taxpayers are allowed to defer up to $10 million of federal income tax (including self-employment tax) payments due on April 15, 2020, until July 15, 2020, without penalties or interest.

Governmental Offices – Illinois 

Secretary of State

  • Closed to the public through April 7, 2020.
  • Expiration dates for driver’s licenses, identification (ID) cards, vehicle registrations and other transactions and document filings will be extended by 30 days through an emergency rule.
  • Reminder: many transactions may be conducted online – customers are encouraged to take advantage of the online services (i.e. filing Business Services documents)

Department of Revenue

  • The April 15 filing deadline for all taxpayers who file and pay Illinois income taxes is automatically extended to July 15, 2020.
  • Penalties and interest will begin to accrue on any remaining unpaid balances as of July 16, 2020.
  • This does not impact the first and second installments of estimated payments for 2020 taxes that are due April 15 and July 15.
  • Taxpayers who operate eating and drinking establishments that incurred a total Sales Tax liability of less than $75,000 in calendar year 2019 will not be charged penalties or interest on late payments for Sales Tax liabilities reported on Form ST-1, Sales and Use Tax and E911 Surcharge Return, that are due for the February, March, and April 2020 reporting periods.

Governmental Offices – Missouri

  • The Missouri Capitol and state government office buildings will close to the public starting Tuesday, March 24. They will remain closed until at least April 6. The move does not apply to prisons, veterans homes and other state-run facilities.

Department of Revenue:

  • The April 15 filing deadline for tax returns has been extended to July 15, 2020. The deadlines for income tax payments for individual and corporate income returns with a due date of April 15, 2020 has also been extended to July 15, 2020. These extensions are automatic – filers do not need to take any additional steps to qualify.
  • Penalties and interest will begin to accrue on any remaining unpaid balances as of July 16, 2020.

Courthouses – Federal

 Southern District of Illinois

  • The federal courthouses in East St. Louis and Benton remain open to the public, subject to limitations.
  • All civil matters scheduled for an in-court appearance are continued pending further order; judges have discretion to utilize videoconferencing or teleconferencing.

Central District of Illinois

  • The courthouses remain open.
  • All civil and criminal jury trials scheduled to begin before April 3, 2020, are continued and will be rescheduled by the presiding judge to a date after April 3, 2020.
  • All civil hearings, including settlement conferences, will be conducted by telephone or video teleconference.

Eastern District of Missouri

  • The United States Courthouses located within the District will remain open, but office hours for the Clerk of Court will be reduced to 10am to 3pm.
  • All civil and criminal jury trials scheduled to begin before May 31, 2020, are continued and will be rescheduled by the presiding judge to a date after May 31, 2020.
  • All proceedings will be conducted by means other than in-person meetings wherever possible by law and as directed by the presiding judge in the proceeding.
  • Any proceeding not deemed essential by the presiding judge in the proceeding that does require in-person meeting will be continued until further notice by the presiding judge.

7th Circuit Court of Appeals 

  • The court is closely monitoring the progression of COVID-19 to determine possible impact to court operations.

8th Circuit Court of Appeals

  • The 8th Circuit remains open for business. The public is not being admitted to the Eighth Circuit Clerk’s Office at the present time.

Courthouses – Illinois 

Madison County

  • Effective March 23, 2020, the following matters are continued for 30 days:
    •  All jury and non-jury trials in civil, criminal, and traffic divisions.
    • All arbitration, mediation, foreclosure matters, and any hearings or trials associated with such dockets.
  • Effective March 23, 2020, all Plenary Orders of Protection , Emergency Orders of Protection, and Plenary and Emergency Civil Stalking No Contact Orders are extended for 30 days.
    • Parties may seek relief from such Orders only upon filing a motion with the assigned judge.
  • Effective March 20, 2020 and until further order of the court, only essential court matters and proceedings will continue to be heard. All non-essential court matters and proceedings will be continued or, where possible, conducted remotely.
  • All case management and status dockets scheduled for March 2020 will be continued by the assigned judges.
  • All Probate and Landlord-Tenant cases scheduled through April 15 will be continued by the assigned judges.
  • All civil motion dockets or settings scheduled through April 15 will be continued by the assigned judges in the event of an agreement to do so by the parties. If an agreement cannot be obtained, or cannot be conducted by email, video, or telephonic means, such motions will proceed at the discretion of the assigned judge.
  • The court will continue to conduct hearings on essential or timely matters if the presentment of a motion or petition cannot be conducted remotely by email, video, or telephonic means.
  • All arbitration hearings set in March are continued without the necessity of either party filing a motion to continue.
  • All foreclosure settings through April 20 are continued without the necessity of either party filing a motion to continue.

St. Clair County

  • Effective March 24, 2020, all civil matters are continued for sixty days, and all arbitration, mediation, and foreclosure matters are continued.

Macoupin County

5th District Appellate Court

  • Until further notice, the court will remain open and all filing deadlines will remain in effect.
  • The clerk’s office will remain open for business during its regular business hours, but the building will be closed to the general public.

Courthouses – Missouri

  • On March 22, the Supreme Court of Missouri issued an order in response to the COVID-19 pandemic. Among other directives, the order suspends – with certain listed exceptions – all in-person proceedings, as well as grand jury proceedings in all state courts through April 17.

COVID-19 Update on Relief for Small Businesses

Goldenberg Heller & Antognoli, P.C., is monitoring the fluid developments with respect to COVID-19, including the relief programs available to small businesses.  Below is a summary of such programs available through the federal government and the state of Illinois. Federal The Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) The CARES Act provides… Continue reading →

Goldenberg Heller & Antognoli, P.C., is monitoring the fluid developments with respect to COVID-19, including the relief programs available to small businesses.  Below is a summary of such programs available through the federal government and the state of Illinois.

Federal

The Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”)

  • The CARES Act provides relief to businesses affected by COVID-19 in the following ways:
  • The Small Business Administration’s Economic Injury Disaster Loan Program (the “Disaster Loan Program”)
    • The Disaster Loan Program provides qualifying small businesses with working capital loans of up to $2 million to help overcome the temporary loss of revenue they are experiencing as a result of COVID-19.
    • Eligibility depends on a number of factors, including the industry in which the business operates, the business’s annual revenue, and/or the number of people employed by the business.
    • These loans may be used to pay fixed debts, payroll, accounts payable and other bills that can’t be paid because of the impact of COVID-19.
    • Eligible small businesses that apply for an economic injury disaster loan may obtain a $10,000 advance that will not need to be repaid, even if the loan application is ultimately denied.
    • Loans are offered with long-term repayments, up to a maximum of 30 years, and with interest rates of 4% or less. Terms are determined on a case-by-case basis, based upon each borrower’s ability to repay.
    • Applications may be submitted via the following link: https://disasterloan.sba.gov/apply-for-disaster-loan/index.html.
    • Loans under the Disaster Loan Program may be converted to Payroll Protection Program loans (see below).
  • Payroll Protection Program – Forgivable Loans
    • The CARES Act makes $377 billion in funds available to small businesses through the Small Business Administration’s § 7(a) loan program.
    • These loans will be available from participating private lenders and may be used for certain purposes, including the payment of payroll, rent, and utilities.
    • These loans may be forgiven to the extent they are used to cover payroll or to pay other specified expenses, including rent, interest on certain mortgage obligations (but not principal), and utilities. Layoffs or salary reductions may affect the amount of loan forgiveness that a business is eligible to receive under the Payroll Protection Program.
    • These loans will be available at interest rates of 4% or less, and the amount of the loan cannot exceed an amount equal to 250% of a business’s average monthly payments for payroll costs during the 1-year period before the date on which the loan is made.
    • The SBA will issue regulations implementing the Payroll Protection Program.

SBA Express Bridge Loans

  • The Express Bridge Loan Pilot Program allows small businesses that currently have a business relationship with an SBA Express Lender to access up to $25,000 with less paperwork.
  • These loans can provide economic support to small businesses to help overcome the temporary loss of revenue they are experiencing and can be a term loan or used to bridge the gap while applying for an SBA Economic Injury Disaster loan.
  • To find an Express Bridge Loan Lender, visit https://www.sba.gov/funding-programs/loans/lender-match.

Illinois

Hospitality Emergency Grant Program

  • Eligibility:
    • Bars and restaurants with a valid license to serve food or liquor and with revenue between 500K and $1 million in 2019 are eligible for up to $25K.
    • Bars and restaurants with a valid license to serve food or liquor and with revenue of less than 500K in 2019 are eligible for up to $10K.
    • Hotels that generated revenue of less than $8 million in 2019 are eligible for up to $50K.
  • Permitted Uses of Grant Funds
    • For bars and restaurants, based on the businesses needs identified in the grant application, funds can be used to support working capital (rent, payroll, and other accounts payable), job training (such as new practices related to take out, delivery and sanitation) and technology enabling new operations as well as other costs to implement that technology.
    • For hotels, funds can be used as working capital to support the retention of employees.
  • Application Process and Deadline
    • Applications are submitted online through the following website: https://us.accion.org/news/covid-19-hospitality-business-grant-program/.
    • Applications must be submitted by 5:00 pm on April 1, 2020.
    • A total of $14 million is available under this program, and grant recipients will be chosen via lottery.
    • Grant recipients will be notified on April 4, 2020, and funds may be available as soon two days after banking information is received from a grantee.

Illinois Small Business Emergency Loan Fund

  • Eligibility:
    • Small businesses located outside of the City of Chicago with fewer than 50 workers and less than $3 million in revenue in 2019 can apply.
  • Loan Terms and Permitted Uses:
    • Businesses can receive a low interest loan of up to $50,000 with a 5 year repayment period with no payments due for the first six months.
    • Loan funds must be used to support working capital.
  • Application Process:

Downstate Small Business Stabilization Program

  • Eligibility:
    • Eligible local governmental units can apply on behalf of businesses with 50 employees or less.
    • Madison County, St. Clair County, and the municipalities contained therein are not eligible governmental units.
  • Grant Amounts and Permissible Uses
    • Grants of up to $25K are available for use in supporting working capital.
  • Application Process:
    • Businesses in eligible areas must work with their local governmental units to submit applications.

Small Business COVID-19 Relief Program

Tax Deadline Relief

Federal

  • The April 15 filing deadline for federal income tax returns has been extended to July 15, 2020. All individual and other non-corporate tax filers are allowed to defer up to $1 million of federal income tax (including self-employment tax) payments due on April 15, 2020, until July 15, 2020, without penalties or interest.
  • Corporate taxpayers are allowed to defer up to $10 million of federal income tax (including self-employment tax) payments due on April 15, 2020, until July 15, 2020, without penalties or interest.

Illinois

  • The deadline to file individual and corporate income tax returns has been extended from April 15, 2020, to July 15, 2020.
  • This does NOT impact the first and second installments of estimated payments for 2020 taxes that are due April 15 and June 15. Taxpayers are required to estimate their tax liability for the year and make four equal installments.

 Missouri

  • The deadline to file individual and corporate income tax returns has been extended from April 15, 2020, to July 15, 2020.
  • Income tax payment deadlines for individual and corporate income returns with a due date of April 15, 2020, are extended until July 15, 2020. This payment relief applies to all individual income tax returns, income tax returns filed by C Corporations, and income tax returns filed by trusts or estates. The Missouri Department of Revenue will automatically provide this relief, so filers do not need to take any additional steps to qualify.
  • This relief for individuals and corporations will also include estimated tax payments for tax year 2020 that are due on April 15, 2020.

 

Message from GHA regarding COVID-19

Dear Clients, Colleagues and Friends: Goldenberg Heller & Antognoli, P.C. is monitoring the fluid developments with respect to COVID-19, including information and guidance published by the Center for Disease Control and Prevention. We are also monitoring legal developments and the status of government offices, federal and state courthouses, and business closures that impact the firm’s… Continue reading →

cropped image of Goldenberg Heller logo

Dear Clients, Colleagues and Friends:

Goldenberg Heller & Antognoli, P.C. is monitoring the fluid developments with respect to COVID-19, including information and guidance published by the Center for Disease Control and Prevention. We are also monitoring legal developments and the status of government offices, federal and state courthouses, and business closures that impact the firm’s practice areas and services. We will endeavor to provide updates on these items on the Firm’s web site through our Coronavirus Fact-Sheet and our Governmental Offices and Courthouses Fact-Sheet. We encourage you to continue to check our web site for updated information and to contact us directly with any questions or concerns you may have.

COVID-19 has not impacted the firm’s ability to deliver legal services at this time. Goldenberg Heller & Antognoli’s primary interest is continuing to provide services to our clients without interruption or disruption, while ensuring the health and safety of our employees and community.

Thank you for your business and continued confidence in our firm as the nation deals with the challenges faced by the COVID-19 pandemic. We are focused on supporting our valued clients and are prepared to respond to these challenges in the coming days and weeks. We will move through this together.

Thank you again,

Goldenberg Heller & Antognoli, P.C.

Big Changes Coming For Illinois Limited Liability Companies

When forming a business, using a limited liability company, or LLC, can have several advantages. For many years, Illinois courts had maintained that an LLC member or manager could not be held liable for torts he or she personally committed while acting pursuant to his or her role within the business. On January 1, 2020,… Continue reading →

caution tape

When forming a business, using a limited liability company, or LLC, can have several advantages. For many years, Illinois courts had maintained that an LLC member or manager could not be held liable for torts he or she personally committed while acting pursuant to his or her role within the business.

On January 1, 2020, however, this protection evaporated when the Illinois General Assembly amended the State’s Limited Liability Company Act. This change has eliminated the legal indemnity previously offered to Illinois LLC members and managers.

LLC Member Tort Liability Before January 1, 2020

Prior to the beginning of this year, Illinois LLC members and managers were shielded from civil liability for their tortious acts. This protection stemmed from two state appellate opinions, Dass v. Yale and Carollo v. Irwin, both of which interpreted the Limited Liability Company Act as it was written at the time. Looking at the statute’s pre-amendment language, the courts in both cases determined that an LLC member or manager, when acting on behalf of the business, could not be held personally liable for his or her wrongful acts, including fraudulent conduct. This result came from a reading of section 10-10 of the Act, which stated that:

the debts, obligations, and liabilities of a limited liability company, whether arising in contract, tort, or otherwise, are solely the debts, obligations, and liabilities of the company. A member or manager is not personally liable for a debt, obligation, or liability of the company solely by reason of being or acting as a member or manager.

Based upon this language, the status quo for Illinois LLC members and managers was a guarantee of broad, wide-reaching protections that shielded them from liability, provided that they were acting on behalf of their businesses.

LLC Member Tort Liability After The Amendment

As of January 1, 2020, the legal indemnity that LLC members and managers enjoyed vanished, with the amendment of the Illinois Limited Liability Company Act. The amended language specifically overruled Dass and Carollo, clarifying section 10-10 of the Act to clearly state that members and managers of an LLC may be liable for tortious conduct, despite the fact that their wrongful acts or omissions may have been carried out on their LLC’s behalf.

As a result of the amended Limited Liability Company Act, LLC members and managers should carefully police their conduct when acting on behalf of their businesses. The safety net they were once able to utilize has been legislatively cut.

Goldenberg Heller & Antognoli, P.C. has a team of skilled business and commercial legal experts who can help navigate the complexities of the law. Feel free to contact us with your legal needs today at (800) 782-8492.

Lawsuit to Protect Citizens’ Private Information Resolved

The Auditor’s Lawsuit and Settlement Protects Private and Confidential Information of County Citizens from Unlawful Disclosure In March 2019, the Madison County Board passed a resolution granting the County Chairman, his unnamed “designee,” the County Administrator, and the County Treasurer the power to access the Madison County Auditor’s software. The resolution would have forced the… Continue reading →

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The Auditor’s Lawsuit and Settlement Protects Private and Confidential Information of County Citizens from Unlawful Disclosure

In March 2019, the Madison County Board passed a resolution granting the County Chairman, his unnamed “designee,” the County Administrator, and the County Treasurer the power to access the Madison County Auditor’s software. The resolution would have forced the elected Auditor, Rick Faccin, to unlawfully disclose the confidential information of county citizens, such as the identities of grand jurors and other non-financial information contained in the Auditor’s files. State and federal law prohibits the disclosure of this confidential information.

In fact, before the Board passed the resolution, the County’s State’s Attorney advised the Board during its meeting that the resolution “would create a massive violation of privacy rights for the citizens whose records are contained in it” and stated: “My legal opinion is that this Board does not have the authority to enforce the resolution.” Despite this advice, the Board passed the resolution on a party-line vote of 13-12.

To prevent the unlawful disclosure of private information required by the resolution, the Auditor sought relief from the court. Because the State’s Attorney already represented the Board, the Chief Judge of Madison County appointed Goldenberg Heller attorneys Tom Rosenfeld and Kevin Green as a Special State’s Attorney to represent the Auditor. The Auditor filed a lawsuit and quickly obtained a Temporary Restraining Order prohibiting the Board from enforcing the resolution.

At the insistence of the Chairman and Administrator, the case was expedited, causing the parties to quickly engage in discovery and motion practice, culminating in the filing of cross-motions for summary judgment two months after the case was filed (most cases take several years to get to that point). While these motions were pending, the Auditor proposed a settlement that would allow Board members and other officials access to a portion of the auditor’s software where they could view financial data that they already received in daily, monthly, and quarterly reports—but without the unlawful disclosure of confidential information that the resolution would have required.

“We wish it had not taken a lawsuit to protect the confidential information of citizens, but we had no other choice once the Board approved the resolution that would have required our office to unlawfully disclose the private information,” said Faccin. “Our office has always been transparent and thorough in providing all the financial information to County officials and citizens, both periodically, and upon request. The settlement gives the Board the same financial information they have always received, but without the disclosure of the non-financial, private data that their resolution would have required.”

Background

In Illinois a county auditor is a separate constitutional officer elected by the people. Illinois law vests the elected Auditor of a county with several powers and duties, including: (1) acting both as the accountant and auditor of the county’s other elected officers, departments, and agents; (2) maintaining a continuous internal audit of the elected officers, agents, and divisions; and (3) having access to all records, documents, and resources necessary to discharge these responsibilities, including confidential information contained in the records of county officers and departments, which is prohibited from disclosure under federal and state law. 55 ILCS 5/3-1005, 1006. To perform these functions, the Auditor is vested with statutory authority to control the internal operations of his office, subject only to the board’s budgetary limitations. 55 ILCS 5/3-1004. Further, “[n]o county board may alter the duties, powers and functions of county officers that are specifically imposed by law.” 55 ILCS 5/5-1087.

To perform his statutory auditing duties, including auditing the claims of the county, auditing the receipts of the elected officers and county departments, and maintaining a continuous internal audit of the operations and financial records of the officers, agents, and divisions of the county, the Auditor utilizes certain computer software in his office. The Auditor utilizes this software to prepare and provide public financial reports and data, though the software contains more than simply financial data. For example, some of the information received by the Auditor and placed in the auditing software includes information of citizens and county employees that is protected from disclosure under the Illinois Code of Criminal Procedure and other state and federal laws including:

  • names, addresses, and dates of payment for citizens who have served on grand juries in the county;
  • references to names and medical procedures for inmates paid by the Sheriff’s Office; and
  • names, addresses, and case number related to individuals, including minors, who have served as witnesses for the State’s Attorney.

Since the Auditor began using the auditing software in 2001, no prior county administration, chairman, board member, or treasurer has had, or requested access to, the software.

The Resolution

On March 20, 2019, the Madison County Board adopted a resolution that purported to give the County Chairman, his unnamed “designee,” the County Administrator, and the County Treasurer access to the auditing software. The resolution also required the installation of the software on these individuals’ computers outside of the Auditor’s office. Although the Board contended that the purpose of the resolution was only to see financial information, because the auditing software contained more than financial information, the resolution would have resulted in the unauthorized disclosure of confidential information of county citizens and employees in violation of Illinois law. During the Board’s debate on the resolution, the State’s Attorney advised the Board that the resolution “would create a massive violation of privacy rights for the citizens whose records are contained in it” and gave his legal opinion “that this Board does not have the authority to enforce the resolution.”  Nonetheless, the Board passed the resolution on a party-line vote.

The Lawsuit and Injunction

To prevent the unlawful disclosure of private information, the Auditor requested the appointment of a special state’s attorney to represent his office because the State’s Attorney was already representing the Board. The Court appointed attorneys Thomas Rosenfeld and Kevin Green as Special State’s Attorney to represent the Auditor.

On March 29, 2019, the Auditor filed a lawsuit asking the court to declare the resolution invalid and enjoin its enforcement. The Auditor maintained that the Board, Chairman, and Administrator were improperly equating the right to obtain financial information (which the Auditor already provided), with the right to access all of the data—including confidential non-financial data—contained in the Auditor’s software.   For example, to audit the Chief Judge’s grand jury service payments, data about grand jurors is uploaded into the software directly from a file provided to the Auditor by the Chief Judge’s Jury Commission. This information is not provided to the Board or anyone else outside the Jury Commission because the Illinois Code of Criminal Procedure prohibits the disclosure of information that reveals grand juror identities. See 725 ILCS 5/112-6(b); Better Gov’t Ass’n v. Office of the Special Prosecutor, 2019 IL 122949, ¶ 36 (quoting Lopez v. Department of Justice, 393 F.3d 1345, 1349 (D.C. Cir. 2005)). See also Sherman v. Ryan, 392 Ill. App. 3d 712, 737-38 (1st Dist. 2009) (finding confidentiality and privileges are preserved when disclosure of such information are made to auditors). See also 5 ILCS 140/7(m) (prohibiting disclosure of “materials prepared or compiled with respect to internal audits of public bodies”).

On April 1, 2019, after an extensive hearing, the Court issued a Temporary Restraining Order that prohibited the Board, Chairman, Administrator, Treasurer, and their agents from implementing the resolution or otherwise accessing the Auditor’s software. The Court found that there was a likelihood that the Auditor would succeed on the merits and that the Auditor would suffer irreparable harm without the injunction, namely, the invasion of his constitutional office and the unauthorized disclosure of the private and protected information contained the auditing software, “which could expose the Auditor and the County to significant liability under federal and state law.”

The Counterclaim

On April 22, 2019, the County Chairman and County Administrator, who had also requested the appointment of a Special State’s Attorney to represent them, filed a Counterclaim against the Auditor. They argued they had the unfettered right to access the Auditor’s software and view all the data contained therein.

As the case progressed, the defendants’ arguments supporting their need for the information and the resolution changed.

Argument 1: Access to Financial Data

The defendants initially argued that they needed access to the auditing software because the Auditor was purportedly keeping the financial books of the County a secret. After the lawsuit was filed, the parties proceeded with discovery, seeking documents and taking depositions to test this assertion. On May 28, 2019, the Auditor filed a motion for summary judgment, accompanied by deposition transcripts, affidavits, and 580 pages of exhibits showing that the Auditor routinely provided any and all financial information of the County to the Board, Chairman, Administrator, Treasurer, (both periodically and upon request), and to anyone else who requested it.

For example, the Auditor provided, among other things, daily financial reports to the Treasurer, monthly budget variance reports and budget expenditure reports to the Board’s Finance Committee, monthly comparative financial statements showing revenues and expenditures to the County Administrator, quarterly financial statements to the Board showing actual and projected revenues, expenditures, and conditions of all funds and appropriations, numerous other reports, documents and information upon request, and a Microsoft Excel file containing requested portions of the general ledger that could easily be searched, filtered, or otherwise manipulated using the countless accounting functions provided by Excel. In fact, the former Republican Chair of the Board’s Finance Committee for the current administration stated under oath that the Auditor’s office is “extremely cooperative” in providing information and documents requested, and never withheld from the Chair or Finance Committee financial information necessary to: (a) track the financial performance of the various Offices and Departments; and (b) establish their budgets.

Consistent with Ms. Ciampoli’s testimony, the Board’s sworn discovery responses showed that the Board could not identify a single document “evidencing a denial by the Auditor within the past 24 months for information or records requested by” the Board, Chairman, Administrator, or Treasurer.

None of these facts were disputed by the Board, Chairman, Administrator, or Treasurer. In fact, the Board explained to the Court that the information it purportedly needed from the Auditor “has already been provided.” These facts supported the Auditor’s view that the resolution was not about accessing financial information—it was about access to the auditing software and the confidential, non-financial information it contained.

Argument 2: Board Entitled to Any Private Information Held by Any County Official

Acknowledging that the Board already had the financial data, the Board next argued that it had a right to access all confidential information held by any county office, and, therefore, a county officer could not restrict information to other county government units.

This argument presented a slippery slope. Following this argument to its logical conclusion meant that any Board Member or County Administrator (or any government official?) could, with or without a resolution, obtain access to the software of other constitutional officers, such as the State’s Attorney, Sheriff’s Department, Circuit Court, or Chief Judge’s offices, and view private information that was prohibited from disclosure. Per the Board’s argument, if the Board Members or other county officials came across confidential information in these software programs, they “would be under the same obligation to protect the CI and PII as the [officer].” Essentially, no harm, no foul.

The Board’s position ignored the protections afforded to the privacy rights of county citizens. For instance, if the Board wants information about criminal investigations or proceedings, it has to ask for it from the State’s Attorney or Sherriff, and it may not be entitled to get what it wants. The Board cannot simply grant itself the power to access their software systems. This is because, like the Auditor’s system, there is certain information protected from disclosure within the software used by these separate constitutional officers. The Board acknowledged this reality, explaining: “[T]here is some information within those Departments that is so important and/or confidential” that is not “subject to invasion and scrutiny” and that is protected “from ever being disseminated.”

The Board’s own reasoning for why it could not freely access the software of the State’s Attorney and Sheriff’s Department, however, applied equally to the Auditor and the confidential non-financial information contained in the Auditor’s software. Just as state law prohibits the disclosure of certain information held by the State’s Attorney and Sheriff’s Department, so too does it prohibit the disclosure of certain information contained in the auditing software, including the identities of grand jurors and materials prepared or compiled during internal audits. See 725 ILCS 5/112-6(b); 5 ILCS 140/7(m).

Argument 3: Format of Financial Data

As the case progressed, the Board and other defendants shifted to a third argument. Although the defendants now acknowledged the Auditor was providing all the financial information requested and needed, they began arguing that the format of the information was unworkable. Again, the Auditor was providing daily, weekly, and monthly reports, along with Excel spreadsheets of the financial data that could be searched, filtered, or manipulated.

The Settlement

With the complaint about the format in mind, the Auditor began working toward a solution that would allow the defendants to see all the same financial information the Auditor had been providing, but within the auditing software. To resolve the lawsuit, the Auditor offered to work with the software vendor to create a program that would allow for financial information in the software to be exported to a separate database within the software, with the confidential non-financial information redacted. The Auditor offered to provide a separate computer terminal in his office at which the Board members, Chairman, Administrator, and other designated county officials could view the redacted general ledger within the auditing software. The Auditor also offered to post Excel sheets from the redacted general ledger (similar to what it had previously been providing) on its website on a monthly basis.

After back-and-forth with the defendants, the Auditor, Chairman, and Administrator reached a tentative agreement. But the Board still needed to approve the deal. In the Auditor’s view, this solution gave the defendants what they said they wanted—access to the financial data within the specific software, but without the overbroad scope of the resolution that would have compromised the privacy rights of county citizens and employees and exposed the county to significant liability.

At the first Board meeting to vote on the proposed settlement, the Board postpone the vote, which meant the lawsuit continued for another month. At the Board meeting the following month, the Board resolution to approve the settlement passed by a narrow 2-vote margin. Pursuant to the Settlement, the court dismissed the lawsuit and counterclaims on September 27, 2019.

Illinois Supreme Court Hears Argument on Guardian Ad Litem Immunity

On March 13, 2019, Kevin Green of Goldenberg Heller argued before the Illinois Supreme Court in Nichols v. Fahrenkamp, Case No. 123990. This case presents the issue of whether a guardian ad litem acting within the scope of his appointment in a probate proceeding is an agent of the Court and, therefore, entitled to quasi-judicial… Continue reading →

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On March 13, 2019, Kevin Green of Goldenberg Heller argued before the Illinois Supreme Court in Nichols v. Fahrenkamp, Case No. 123990.

This case presents the issue of whether a guardian ad litem acting within the scope of his appointment in a probate proceeding is an agent of the Court and, therefore, entitled to quasi-judicial immunity from claims of negligence.

This is a matter of first impression for the high court, and the Court’s ruling is expected to provide much-needed clarity about the duties and immunities for individuals appointed as guardians ad litem in probate proceedings.

A video of the argument can be viewed here.

Background

The underlying case involved the personal injury settlement fund created for plaintiff when she was a minor.  The plaintiff’s mother was appointed as the guardian of her person and her estate, and the court was required to approve any disbursements of the settlement fund until the plaintiff turned 18.  The court also appointed a guardian ad litem.  Over the next few years, the mother made requests for disbursements to pay for expenses related to the minor, the guardian ad litem recommended approval of several of these requests, and the probate court approved the disbursements.

After she turned 18, the plaintiff claimed that her mother dissipated the settlement funds, essentially by lying in the disbursement requests about what the money would be used for or how much was needed.  The plaintiff sued her mother, but did not recover everything she thought she should, largely because the court would not reexamine or go behind the probate court orders approving each disbursement.  Plaintiff did not appeal the decision.  She did, however, then sue the guardian ad litem for negligence.

The Trial Court Grants Summary Judgment

The guardian ad litem moved for summary judgment, arguing he was subject to quasi-judicial immunity as an agent of the court.  Although this was a matter of first impression for the court, the appellate courts for the First and Second District have each held that a “child representative” in divorce or custody proceedings (who performs more functions than a guardian ad litem in such proceedings) is entitled to quasi-judicial immunity.  The trial court followed these and other decisions to find that the immunity applied.  The plaintiff appealed the decision.

The Appellate Court Reverses the Trial Court

On appeal, a divided panel of the Fifth District reversed, finding guardians ad litem may have immunity in divorce or custody proceedings, but not in probate proceedings.  See Nichols v. Fahrenkamp, 2018 IL App (5th) 160316.

The Appellate Court held that the guardian ad litem “owed a duty to plaintiff to render advice and to protect plaintiff’s assets and interests arising out of the underlying personal injury settlement.”  Id. ¶ 14.  This meant that the guardian ad litem “had a duty to act as an advocate on behalf of plaintiff.”  Id.  In light of this duty, summary judgment was inappropriate because a question of fact remained as to whether the guardian ad litem “fulfill[ed] his role as plaintiff’s advisor, advocate, negotiator, or evaluator.”  Id. 

Thus, the Appellate Court held that the guardian ad litem had no immunity whatsoever because he “was not simply a neutral party *** [but] was a licensed attorney, an officer of the court, who should have understood the need to protect the assets of his ward,” and he had a duty “independent of merely acting as an arm of the court.”  Id. ¶¶15, 17.

Finally, the Appellate Court acknowledged that guardians ad litem are afforded absolute immunity in dissolution of marriage and child custody proceedings.  Id. ¶ 16.  Relying on Vlastelica v. Brend, 2011 IL App (1st) 102587, ¶ 23, however, the Appellate Court explained that the only rationale for such immunity was to allow guardians ad litem to fulfill their obligations without worry of harassment or intimidation from dissatisfied parents—and this rationale did not apply in this case.  Id.

The Appellate Court Dissent

 The Appellate Court included a dissent by Justice Goldenhersh, who argued that the majority’s determination that the guardian ad litem was not entitled to qualified or absolute immunity “runs contrary both to sound authority and is impractical in practice in our trial courts.”  Id. ¶ 23.  Further, the dissent explained that the majority’s decision would have consequences “adverse to the effective administration of justice in such an important area,” such as:

  • requiring trial judges “to provide specificity in directions to the guardian ad litem, which may or may not be effective, may or may not cover the factual situation at issue, and may very likely be premature in the development of the litigation in which the guardian ad litem is acting, since the guardian ad litem’s appointment would likely be early in the litigation and prior to development of facts and issues”; and
  • imposing upon the guardian ad litem “duties and requirements, not well defined,” increasing the likelihood “that future guardians ad litem be blindsided by duties not specific or implied in the trial judge’s appointment and subsequent orders,” and deterring attorneys from accepting appointments to be guardians ad litem.

Id. ¶ 27.

The Supreme Court Reviews the Case

Following the appellate court’s decision here, the guardian ad litem petitioned the Illinois Supreme Court to review the appellate court’s decision.  The Illinois Supreme Court is not required to review every decision from a court of appeals (this Illinois Bar Journal article estimates that the Supreme Court grants 2 to 4% of the petitions filed).

In the Petition, the guardian ad litem argued that the Supreme Court should address the issue because the Appellate Court’s ruling conflicted with prior rulings of the First and Second Districts, as well as the Seventh Circuit Court of Appeals and District Courts applying Illinois law.  See Davidson v. Gurewitz, 2015 IL App (2d) 150171, ¶ 11, appeal denied, Davidson v. Gurewitz, 2016 Ill. LEXIS 195, 48 N.E.3d 672 (Jan. 20, 2016) (“[W]e hold that the common law affords defendant absolute immunity from suit related to his court-appointed duties as child representative.”); Vlastelica v. Brend, 2011 IL App (1st) 102587, ¶ 36, appeal denied, Vlastelica v. Brend, 2011 Ill. LEXIS 2102, 962 N.E.2d 490 (Nov. 30, 2011)) (same); Heisterkamp v. Pacheco, 2016 IL App (2d) 150229, ¶ 11, appeal denied, Heisterkamp v. Pacheco, 2016 Ill. LEXIS 1013, 60 N.E.3d 873 (Sept. 28, 2016) (finding court-appointed experts asked to advise on the best interests of a child are entitled to absolute immunity); Cooney v. Rossiter, 583 F.3d 967, 970 (7th Cir. 2009) (“Guardians ad litem . . . are absolutely immune from liability for damages when they act at the court’s discretion.  They are arms of the court, much like special masters, and deserve protection from harassment by disappointed litigants just as judges do.”); Scheib v. Grant, 22 F.3d 149, 157 (7th Cir. 1994) (“We believe that the Illinois Supreme Court would find this reasoning persuasive and grant a court-appointed GAL absolute immunity from lawsuits arising out of statements or conduct intimately associated with the GAL’s judicial duties.”).

The guardian ad litem further argued that the Appellate Court’s decision disregarded the important public policies for providing absolute immunity to guardians ad litem acting within the scope of their duties, and if left undisturbed, would create a confusing and uncertain standard, imply unknown duties upon guardians ad litem, deter the acceptance of guardian ad litem appointments, and hinder the effective administration of justice in cases involving minors.

The Supreme Court granted the petition.  After the parties submitted additional briefs (including a brief amicus curiae by the Illinois Trial Lawyers Association), the Supreme Court heard oral arguments on March 13, 2019.

The parties, along with the bench and bar, now await the Court’s decision.

To learn more about our litigation and appellate practice, please contact us today at (800) 782-8492.

Monsanto’s Roundup Can Cause Cancer?

Goldenberg Heller & Antognoli, P.C. represents farmers and landscapers who have used Roundup Weed Killer over the years and are now suffering from non-Hodgkin’s lymphoma. Since the 1970s, farmers and landscapers alike have been using Roundup, a product made by agricultural and chemical giant Monsanto. Today, Roundup is one of the most commonly used weed… Continue reading →

Goldenberg Heller & Antognoli, P.C. represents farmers and landscapers who have used Roundup Weed Killer over the years and are now suffering from non-Hodgkin’s lymphoma.

Since the 1970s, farmers and landscapers alike have been using Roundup, a product made by agricultural and chemical giant Monsanto. Today, Roundup is one of the most commonly used weed killer’s in the world.

As reported by Bloomberg News, the New York Times, CBS, and other news outlets, IARC or the International Agency for Research on Cancer (a division of the World Health Organization) found Roundup’s main ingredient, glyphosate, to be “probably carcinogenic.” Probably carcinogenic is defined by IARC as strong evidence that a substance can cause cancer in humans, but at present it is not conclusive. Additionally, lawsuits have been filed across the country alleging that exposure to glyphosate, along with the other chemicals in Roundup, increases the risk of non-Hodgkin’s lymphoma and has caused cancer in farm workers, landscapers, and others exposed to the chemicals. The lawsuits further allege that Monsanto manipulated the research to hide the dangers of Roundup.

Monsanto denies the allegations and points to the Environmental Protection Agency, which has had internal disagreement over the safety of glyphosate, and has yet to agree with IARC’s findings that glyphosate is a probable carcinogen. However, recently revealed correspondence between the former EPA Deputy Director, Jess Rowland, and Monsanto call into question the EPA’s assessment. According to court documents, Mr. Rowland, who was in charge of evaluating the cancer risk of Roundup, allegedly bragged to a company executive that he deserved a medal if he could kill another agency’s investigation into glyphosate. A Monsanto executive wrote, “I doubt EPA and Jess can kill this, but it’s good to know they are going to actually make the effort.” The New York Times recently reported that “The [EPA’s] Office of Research and Development raised some concern about the robustness of an assessment carried out by the agency’s Office of Pesticide Programs, where Mr. Rowland was a senior official at the time, and recommended in December 2015 that it take steps to ‘strengthen’ its ‘human health assessment.’”

As the battles continue in the courtroom, our attorneys have the experience, resources, and dedication to take on Monsanto, get to the bottom of their failure to disclose, and obtain justice for our clients.

If you or anyone you know has been diagnosed with non-Hodgkin’s lymphoma, please contact  our firm to discuss your situation. We can be reached at  1-800-782-8492.

Do You Have An Asbestos Claim?

For many, the legal system can seem both intimidating and overwhelming. These feelings are only magnified when you or a loved one are struggling with an asbestos-related disease, or mourning the loss of a loved one from an asbestos–related disease. These asbestos-related diseases often strike long after the exposure occurred and the evidence has gone… Continue reading →

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For many, the legal system can seem both intimidating and overwhelming. These feelings are only magnified when you or a loved one are struggling with an asbestos-related disease, or mourning the loss of a loved one from an asbestos–related disease. These asbestos-related diseases often strike long after the exposure occurred and the evidence has gone cold, and the victims of these diseases often get them through no fault of their own, sometimes without knowing they were ever exposed. That is why it is so important to work with an experienced, compassionate law firm like Goldenberg Heller & Antognoli, P.C. that not only understands what you are going through and will support you throughout the process, but can also help you achieve the best possible result as proven by our over 30 years in this field.

However, before you can begin to find that compassionate, experienced law firm, you first have to know if you or your loved one might have a legal claim. You have probably seen some of the commercials on T.V. about mesothelioma, a cancer linked to asbestos exposure, but you may not know that there are a number of other cancers and respiratory diseases that have also been linked to asbestos exposure. These diseases include, but are not limited to, lung cancer, colon cancer, and asbestosis. I will discuss these diseases in greater detail in later blog posts, but for now it is important to understand that mesothelioma is not the only asbestos-related disease for which you may be able to file a claim. I will also discuss how you or a loved one might have been exposed to asbestos, and whether things like having a history of smoking affects your case.

In the meantime, please do not hesitate to contact us here at Goldenberg Heller & Antognoli, P.C. if you do have any questions. We are a firm that prides ourselves not only on the results we achieve for our clients, but also the care and compassion we have for those suffering from these terrible diseases. We have been doing this now for over 30 years, and we are only a phone call away for a free consultation.

5 Reasons You May Contest a Will

When dealing with the final wishes of a loved one who has recently passed, it can be difficult to separate emotions from what needs to be done. Fortunately, you can seek the aid of a skilled and empathetic St. Louis estate planning attorney who can act as an objective third party. Additionally, an attorney can… Continue reading →

When dealing with the final wishes of a loved one who has recently passed, it can be difficult to separate emotions from what needs to be done. Fortunately, you can seek the aid of a skilled and empathetic St. Louis estate planning attorney who can act as an objective third party. Additionally, an attorney can help advise you on the possibility of contesting a will, in the event that you believe executing a will would not be in the best interest of the deceased or the friends, family, and/or business partners left behind. Here are five reasons to contest a will that may shed light on your current situation.

  1. In order to be valid, a will must be written, witnessed, and executed in the state where the testator had legal residence (owned property, conducted business, paid taxes, etc.). Each state has different requirements both for legal residency and execution of wills.
  2. Mental Capacity. A will can be declared invalid if a person can prove that the creator of the will was suffering from mental illness, dementia, or was under the influence of a mind-altering substance when enacting their will.
  3. Under most state laws, a person must be at least 18 to create a legally valid will. Some states make exceptions for minors who are married or in the military.
  4. If a person creates a valid will, and then several months later drafts another signed, dated, and witnessed will, the newer document will supersede the older one in a court of law.
  5. A will must be signed in the presence of at least two (more in some states) witnesses. Often, those witnesses must not be named as beneficiaries in the will.

These are just some of the reasons behind everyday estate disputes. Are you considering the possibility of contesting a relative or partner’s will? A St. Louis estate planning lawyer from Goldenberg Heller & Antognoli, P.C., can help. Fill out our contact form here to schedule your free legal consultation today.

How a St. Louis Personal Injury Attorney Can Help You

Unlike many different kinds of legal cases, a personal injury suit is one you can never prepare for. After all, no one plans to get into a car accident or be injured on the job. However, if disaster strikes and you find yourself unable to work, or inundated with spiraling medical expenses, know that you… Continue reading →

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Unlike many different kinds of legal cases, a personal injury suit is one you can never prepare for. After all, no one plans to get into a car accident or be injured on the job. However, if disaster strikes and you find yourself unable to work, or inundated with spiraling medical expenses, know that you do not have to shoulder this burden alone. By hiring a competent St. Louis personal injury attorney, you can align yourself with a lawyer who will use every weapon in their arsenal to make sure you and your loved ones receive fair and generous compensation. No one deserves to be injured while at the workplace or in a public space. If you feel that you may have grounds for a personal injury lawsuit, read on to learn more about how a St. Louis personal injury attorney can help you get back on your feet financially.

St. Louis personal injury attorneys work by assessing the details of your case, and then coming up with a plan of action to either settle out of court with the responsible parties, or by bringing your case in front of a judge. The right attorney will counsel you as to your options and the likeliest outcomes for each. Then, depending on your priorities, he or she will walk you through the steps of enacting your plan. In many instances, your attorney will take over the burden of interacting directly with those responsible for your injury, which can be a great relief for those who are suffering. No matter the outcome, your attorney will always be on your side, defending your rights and representing your interests to the end.

Are you ready to hire an experienced St. Louis personal injury attorney? Call the legal team at Goldenberg Heller & Antognoli, P.C., today. Our team is waiting to hear from you so we can begin working your case and getting you the benefits to which you are entitled. Call toll-free at (800) 782-8492.