Beware the Arbitration Agreement - Mark P. Loftus

duda • September 26, 2025

I remember the excitement that comes with getting the offer letter on that job you really wanted. You can leave that dead-end job you are in, start making some real money and start enjoying life again. Yeah, the Employment Agreement includes an Arbitration Clause. And it’s kinda weird but the Arbitration Clause says the case has to be arbitrated on the other side of the country, but no worries. You aren’t going to have any legal issues with your employer right? Wrong.

I recently represented a nice young man who landed a gig at a large Chicago real estate company. Unbeknownst to him, one of the managers he would be interacting with had an anger management problem. After a particularly hostile outburst where the manager loudly criticized my client’s productivity(in a large meeting with co-workers) my client discreetly asked the manager to refrain from such public criticism. That just made matters worse. The manager then aggressively approached my client and there was some physical contact. My client immediately extracted himself, notified HR and then notified the Police. Days later, my client was fired. The client contacted my firm and asked me to help. I asked him if he had a written employment agreement and he showed it to me. The dreaded Arbitration Clause was there on page 10. I informed him that the Arbitration Clause was clearly written and broad – and likely spelled trouble. But I agreed to file the case and fight the Arbitration Clause. So we filed, bracing for the inevitable Motion to Compel arbitration. And weeks later, as anticipated, I received the Motion to Transfer the compel arbitration.

As a general rule, if you are trying to skirt out from under an arbitration clause in an employment agreement – you are up against it. First, Courts favor arbitration as an alternative to litigation as arbitration is typically faster, more informal and cheaper. Secondly, courts view arbitration clauses as contracts. So when Courts are called upon to determine if an arbitration clause is enforceable, the analysis involves the application of principles governing the formation of contracts. And while there are mechanisms to void a contract, it is an uphill battle. One of the frequent attacks against arbitrations clauses is that they are “unconscionable” – either procedurally or substantively. But convincing a judge the arbitration clause is unconscionable isn’t easy. To show procedural unconscionability the employee typically has to show the employer basically snuck the clause by the employee – by burying the clause deep in the agreement and hiding it behind confusing legalese. But employers have caught on and now take pains to place arbitration clauses in oversize, bold font and in very plain language. My client’s employer had done precisely that – so the procedural unconscionability argument was futile.

Employees can also argue “substantive” unconscionability – which is asserting the actual terms of the agreement are so one sided and oppressive for the employee that fairness dictates the clause be set aside. While there are some Illinois decisions voiding arbitration agreements as oppressive, they are rare, and usually involve ridiculously one-sided terms that are clearly unfair on their face. The terms my client faced were not unfair or oppressive. So he wasn’t going to get any relief with substantive unconscionability either.

Another attack employees frequently use focuses on the scope of the arbitration clause. This argument essentially recognizes there was an arbitration agreement in place, but the dispute in question falls outside that agreement. In my case, my argument was that while my client did agree to arbitrate certain terms of his agreement(such as hours and rate of pay), he did not agree to arbitrate a wrongful retaliatory termination after reporting a physical attack to the police. Scope arguments however, are very dependent on the breadth of the language in the arbitration clause. And, most employers use really broad phrasing, i.e. “any dispute over this agreement or employee’s employment”. My client’s employer certainly did and the Court, while sympathetic, ruled that my client had indeed agreed to arbitrate his firing.

So, what can be done, when looking down the barrel of an arbitration clause? First, ask yourself – do you really want to work for an employer who insists you waive your right to a jury trial and that you agree to arbitrate important legal rights at some far flung location several states away? Maybe not. There are other jobs out there.

If you insist on taking the job, at the very least, request time to review the agreement with an employment lawyer. The lawyer may suggest striking the arbitration clause, or requesting that certain causes of action(like wrongful termination or retaliatory discharge) be specifically excluded. While most employers likely won’t be agreeable, it doesn’t hurt to ask.

Bottom line: when you see that Arbitration Clause, proceed with caution.

MENTAL SUFFERING DAMAGES ALLOWED UNDER NEW LAW - Mark P. Loftus

By duda • September 26, 2025
Illinois Governor Rod Blagojevich recently legislation that will permit successful plaintiffs to receive jury awards for grief, sorrow and mental suffering in Wrongful Death cases. The new law finally allows the surviving spouse and next of kin to recover for their anguish over the loss of their loved one. Prior to passage of the law, family members couldn’t even mention their grief at trial, as any such mention just might be grounds for reversal of the verdict. Illinois has now joined with 23 other states that allow such damages.

FILE THOSE RULE 222 AFFADAVITS!!! - Mark P. Loftus

By duda • September 26, 2025
The Fourth District Appellate Court of Illinois[Champaign County] recently came down with an opinon that will make Illinois personal injury attorneys check their complaints a little more closer. In Grady v. Machini[opinion filed on July 31, 2007] the plaintiff filed a complaint to recover damages for injuries she suffered in an auto accident. The complaint did not have an affadavit, as required by Supreme Court Rule 222, stating whether the damages sought did, or did not exceed $50,000. The case went to trial and the jury awarded $97,700. The defendant brought a post-trial motion to reduce the damages to $50,000. The trial court did so and the plaintiff appealed. The Appellate Court felt that Rule 222 was very clear – in effect, it requires that a party to attach an affadavit stating whether the damages sought did or did not exceed $50,000. The rule goes on to say any judgment that exceeds $50,000 shall be reduced to $50,000 if the damages sought do not exceed the $50,000 mark. The court ruled that as plaintiff did not file an affadavit asying she was seeking more than $50,000 she could not recover more than that amount. Ouch.

ILLINOIS HEALTHCARE SERVICES LIEN ACT - Mark P. Loftus

By duda • September 26, 2025
I recently had a situation with an Illinois Healthcare provider that I had managed to avoid for the last twenty years. Represented an older man for injuries he had received in an automobile accident. The client was a very nice guy who had come here from another country decades ago, worked hard and raised his family. Didn’t have much education, but always worked. He got pretty smashed up in the collision and had a fairly substantial hospital bill. He didn’t have any insurance at the time, so the hospital agreed to issue a lien for the outstanding amount, to be paid out of any settlement. Typically, [at least in my experience] the healthcare provider will usually accept a discounted amount in FULL AND FINAL SETTLEMENT OF ANY OUTSTANDING BILL. The reduction is an implicit acknowledgement that but for the efforts of the attorney, the medical bill would not have been paid. Getting back to my client, his bill was outstanding for a long time, so the hospital sent it out to collection. Collection agency contacts me and advises that after payment of the lien, they will pursue the client for any outstanding amount. I call the hospital and speak to personnel in management who agree that normally, after payment of the reduced amount, they forget about the balance. I pass this onto the collection agency, who insists on pursuing the client for any amounts outstanding. So although the hospital has conceded that their custom and practice is to accept the discounted amount in full settlement, the collections bloodsuckers refuse to budge. The inmates have apparently taken over the asylum. My only option is to bring a Motion to Adjudicate the Lien, which isn’t a particularly good option. Under 770 ILCS 23/45, healthcare providers are entitled to go after the entire amount. Hopefully the judge will recognize the unfairness of the collection agency ignoring hospital policy, and give my client a break. To be continued…

SEVENTH CIRCUIT WEIGHS IN ON RETALIATORY DISCHARGE - Mark P. Loftus

By duda • September 26, 2025
The United States Court of Appeals for the Seventh Circuit, located in Chicago, Illinois, recently discussed the proof a plaintiff must offer when prosecuting a retaliatory discharge case. In McCoy v. Maytag, Thomas McCoy brought a retaliatory case against his former employer, Maytag, for firing him after he filed a Workers Compensation Act. The Court, in the course of its opinion, set forth the elements a Illinois plaintiff must prove: 1) that he was the defendant’s employee before the injury; 2) that the employee exercised a right granted by the Illinois Workers’ Compensation Act and 3) that he was discharged from his employment with a causal connection to his filing the Workers’ Compensation claim. The hard part in these cases is the third element – causation. The Court noted that “The element of causation is not met if the employer has a valid basis, which is not pretextual, for discharging the employee.” So what does that mean in English? The Court explained that in order to show pretext, “…a plainitff must offer evidence to indicate that the employer did not honestly believe the reasons it gave for its action and is simply lying to cover its tracks.” Pretext “…means more than a mistake on the part of the employer; pretext means a lie, a specifically a phony reason for some action.” In short, the plaintiff has to show the employer’s reason for discharge was a lie. Not an easy thing to prove, as Mr. McCoy found out. The Seventh Circuit upheld the Trial Court’s decision to grant summary judgment against plaintiff, ruling that the plaintiff’s failure to provide regular updates to justify his absence from work[required under the Collective Bargaining Agreement]was a non-pretextual reason for the termination.

TRENT LOTT HAS AN EPIPHANY ABOUT INSURANCE ABUSES - Mark P. Loftus

By duda • September 26, 2025
Senator Trent Lott, the powerful Republican Senator from Mississippi, has seen the light. Lott, who, until very recently, was a longtime defender of insurance companies, is no longer. Senator Lott lost his home to Hurricane Katrina in 2005. He filed a claim with his insurer, State Farm. The “Like a Good Neighbor” people denied coverage on Lott’s claim, as well as the claims of tens thousands of other homeowners. State Farm claimed Lott’s home, and the other homes, were actually damaged by flooding, a non-covered risk under the policies Lott filed suit, litigated the case over a year, and only recently settled. That experience caused Lott to re-think his allegiance to insurance companies. He has now concluded that the insurance industry needs some reforms[gasp!!!]. To quote Senator Lott: “I’m like a woman scorned. I’m prepared to to continue to kick their fanny until the last day I’m alive on this Earth because they have mistreated too many people.” Better late than never Senator.

HOW LOW CAN PROGRESSIVE INSURANCE GO? - Mark P. Loftus

By duda • September 26, 2025
Pretty low, if the allegations made by an Atlanta couple prove to be true. Bill and Leandra Pitts, the couple in question, were injured in a 2004 auto accident. According to an recent article in the Atlanta Journal-Constitution, the insurance company involved, Progressive Insurance, established a new low while “investigating” the claims made by Mr. and Mrs. Pitts. According to the article, investigators for Progressive snuck into the Pitts’ church in August of 2005, posing as prospective members. Then they slimed their way into a private confessional meeting at a church member’s home, hoping to overhear a damaging admission from the Pitts about the auto case. After the Pitts learned of Progressive’s tactics, they filed a lawsuit claiming invasion of privacy and fraud. Progressive’s President and CEO, Glenn Renwick issued a statement acknowledging that the story appeared to have merit and apologizing for the actions of the investigators. Interestingly, Renwick’s statement didn’t mention what disciplinary action, if any, were taken against the investigators in question.

CHICAGO HEAVYWEIGHT BEING SUED - Mark P. Loftus

By duda • September 26, 2025
According to a recent article in the Chicago Sun-Times, the next fight for Chicago heavyweight Andrew Golota might take place in a Chicago courtroom. Golota is being sued by a Chicago woman after a traffic accident in April, 2007. The woman, Juliet Mendez, is claiming that Golota blew a stop sign and slammed into her car. The lawsuit claims that Mendez suffered permanent injuries to her back and neck. Golota’s wife, attorney Mariola Golota, claimed that the accident was a simple fender bender. According to the Sun-Times article, no ambulance was called to the scene, and the accident report referred only to property damage.

LORD OF THE DANCE STAR PREVAILS AFTER RAPE ACCUSATION - Mark P. Loftus

By duda • September 26, 2025
According to a recent Chicago Sun-Times article by Bill Bird, Michael Flatley, the Irish dancer, also known as the Lord of the Dance, has prevailed in his lawsuit against a Joliet woman and her attorney. The woman, Tyna M. Robertson had accused Flatley of raping her in Las Vegas in October of 2002. No criminal charges were ever filed. Some five months later, Robertson filed a lawsuit against Flatley in Lake County, Illinois, seeking $35 million dollars in damages. Dean Mauro acted as her attorney. Mauro directed a letter to Flatley demanding millions of dollars to settle the case and accused Flatley of rape. Flatley then countersued Mauro and Robertson for extortion and defamation. The case was concluded several weeks ago, with Mauro paying Flatley more than $400,000. A default judgment has been entered against Robertson. Robertson subsequently had a son with Chicago Bears star linebacker Brian Urlacher and was involved in litigation involving visitation rights in October of 2006.

ILLINOIS TEEN SETTLES WITH POLICE AFTER GETTING TASERED - Mark P. Loftus

By duda • September 26, 2025
A south suburban teenager, Travis Alexander, has agreed to settle his lawsuit against a south suburban Chicago Police Department. Alexander sued the Riverdale Police Department after he was tasered and attacked by a police dog. Alexander was 17 at the time of the incident. He and a friend were walking home from a store when they were stopped by a police officer. The police maintained they had received a tip that Alexander’s friend was involved in a drug deal. Alexander and his friend ran, claiming that they were scared of the Police. Alexander was only two doors from his house when caught. He was then handcuffed and tasered. In addition, the plaintiff alleged that the police allowed a German Shepherd Police dog to attack Alexander, causing him injuries on the leg and head. Although no contraband was found on Alexander, he was charged with resisting arrest and trespassing. He was ultimately exonerated of those charges. As a result of the incident, Alexander suffers from post-traumatic stress disorder. The Riverdale Police department agreed to pay Alexander $345,000 to dismiss the case.

MORE DETAILS ON CHICAGO PRIEST ACCUSED OF SEXUAL MISCONDUCT - Mark P. Loftus

By duda • September 26, 2025
More details are emerging about precisely how early Church authorities were aware of alleged sexual misconduct on the part of Rev. Donald J. McGuire. McGuire was a teacher at Loyola Academy in the late 1960’s. In 1969, Rev. Charles Schlax contacted the the president of Loyola, Rev. John Reinke, to complain about McGuire. A young man had complained to Fr. Schlax that McGuire was a “pervert”. The youth had apparently been staying at Loyola for as much as a week at a time, including nights. Schlax had requested an investigation into McGuire. Shortly thereafter McGuire was informed he was going to take a sabbatical. Then in 2000, several families who had sons working as aides to McGuire expressed more concern about McGuire’s behavior. One family reported that their son told them McGuire was overwhelming him with pornography and sexual discussions. Another family complained that McGuire was pressuring their son to avoid college, family and friends – and instead spend more time with McGuire. McGuire apparently encouraged the kid to sleep on the floor in his room, or in his bed. Shockingly, McGuire’s superiors have indicated as recently as 2005 that they had no knowledge of McGuire’s proclivities. Turns out they had plenty of notice and allowed this guy to terrorize kids for 40 years.