The Illinois Supreme Court returns to session for the November Term, with oral arguments scheduled for November 14-16 and November 21.  A total of 11 cases will be heard this Term: 4 criminal and 7 civil.  The civil cases will be heard on the following dates:

November 15, 2023

127464, 127487 (cons.) – Kopf v. Kelly

128763 – The State of Illinois v. Elite Staffing, Inc.

128767 – The State of Illinois v. Colony Display LLC

November 16, 2023

129155 – In re Marriage of Arjmand

129164 – City of Rock Falls v. Aims Industrial Services, LLC

November 21, 2023

129263 – Cammacho v. City of Joliet

129471 – Arlington Heights Police Pension Fund v. Pritzker

The Court will hear several cases of interest this term, including In re Marriage of Arjmand and The State of Illinois v. Elite Staffing and Colony Display, which will be argued separately. Below are abbreviated summaries for these cases.  Full summaries for these cases, as well as criminal and disciplinary cases pending before the Court, can be accessed by ALA members on our website: www.applawyers.org/casespending. 

In re Marriage of Arjmand

This Petition raises the question of whether the denial of a petition for substitution of judge for cause can be reviewed on Rule 304(a) interlocutory appeal from another judgment. This matter arises out of lengthy dissolution of marriage proceedings in which the Petitioner brought claims against certain financial institutions, claiming he suffered damages as a result of their alleged violations of certain orders previously entered in that case. During the pendency of those claims, the Petitioner sought to substitute his trial judge for cause and later sought his recusal, both of which were denied. The trial court subsequently dismissed the Petitioner’s claims against the financial institutions and he appealed that dismissal pursuant to Supreme Court Rule 304(a). On appeal, the Petitioner challenged not only the dismissal of his claims, but also the propriety of court denying his requests for substitution and recusal. The Second District reversed the dismissal of the Petitioner’s claims, but it declined to consider the denial of his petition for substitution of judge and motion for recusal, finding that it lacked jurisdiction to consider such rulings. The Petitioner sought leave to appeal this finding. In his Petition, he argues that the Second District’s ruling creates a split among the appellate districts, noting that both the First and Fourth Districts reached the propriety of the denial of a motion for substitution of judge on interlocutory review in Sarah Bush Lincoln Health Center v. Berlin, 268 Ill. App. 3d 184 (4th Dist. 1994) and Partipilo v. Partipilo, 331 Ill. App. 3d 394 (1st Dist. 2002).

State of Illinois v. Elite Staffing and Colony Display  

The Illinois Attorney General filed this action against three staffing agencies, Elite Staffing, Inc., Metro Staff, Inc., and Midway Staffing, Inc. (the “Agency Defendants”), and their mutual client Colony Display, LLC (“Colony”), alleging that the defendants entered into unlawful conspiracies in violation of the Illinois Antitrust Act (the “Act”) (740 ILCS 10/1 et seq.). The State alleged that Colony hired all three Agency Defendants to recruit, select, hire, supervise, assign and fire employees at its display manufacturing and installation company. The State further alleged that the Agency Defendants “agreed with each other to not recruit, solicit, hire, or ‘poach’ temporary employees from one another at Colony’s facilities,” and that “Colony facilitated the Agency Defendants’ agreement by acting as a go-between to communicate about the agreement among the Agency Defendants and by assisting in enforcing the Agency Defendants’ no-poach conspiracy.” The State also alleged that, at Colony’s request and with its facilitation, the Agency Defendants agreed to fix the wages of their temporary employees at a below-market rate determined by Colony.

The defendants separately moved to dismiss. The Agency Defendants argued that their business of “supplying labor,” which they refer to as “labor services,” is exempt from the Act’s coverage. Colony argued that the alleged facilitation of conspiracies by a vertical non-competitor (Colony) removes them from the ambit of subsection 3(1) of the Act. The circuit court denied their motions to dismiss, but certified two questions for interlocutory appeal under Supreme Court Rule 308:

1. Whether the definition of “Service” under Section 4 of the [Act,] which states that Service “shall not be deemed to include labor which is performed 60 by natural persons as employees of others,” applies to the Act as a whole and thus excludes all labor services from the Act’s coverage.

2. Whether the per se rule under Section 3(a) of the Act, which states that it applies to conspiracies among “competitor[s],” extends to alleged horizontal agreements facilitated by a vertical non-competitor.

The First District Appellate Court answered the two certified questions as follows:

            1. Services provided by staffing agencies are generally not excluded from the Act’s coverage. Modifying the question, the appellate court held that the “Service” exclusion in the Act allows individuals to engage in otherwise anticompetitive behavior regarding their own labor, including by participating in collective bargaining and related conduct, but does not permit temporary staffing agencies to engage in anticompetitive conduct in providing their services.

            2. Yes, the per se rule can apply to horizontal agreements facilitated by vertical non-competitors when such agreements demonstrate naked restraint of competition. The appellate court held that the nature of an agreement and the conduct at issue must be         analyzed to determine whether the violation of the Act can be deemed a per se offense, rather than simply considering the horizontal (i.e. competitors) or vertical (i.e. a non-competitor at a different level of distribution) parties to the agreement.

In their petition for leave to appeal, the Agency Defendants argue that the Act does not apply to alleged wage and hiring coordination because the Act excludes “labor which is performed by natural persons as employees of others” from the “services” it regulates. The Agency Defendants argue that federal courts applying Illinois law have reached that conclusion, which the circuit court declined to follow and the appellate court improperly distinguished. The Agency Defendants also argue that the appellate court improperly changed the focus of the certified question, from whether labor services are excluded from the Act’s coverage to whether the Act applies to labor-related services provided by temporary staffing agencies.

In its petition for leave to appeal, Colony argues that Section 3(1) of the Act does not apply to non-competitors as a matter of law, such that an alleged vertical agreement between and/or among non-competitors cannot constitute a per se violation of the Act. As such, Colony argues that the State’s claim against Colony under Section 3(1) of the Act must be dismissed as a matter of law, as only a claim under Section 3(2) of the Act could be filed against a vertical non-competitor co-conspirator. Section 3(2), under which the State did not bring a claim against the defendants, applies a more stringent rule of reason analysis, taking into consideration facts peculiar to the business and weighing alleged anticompetitive effects against their procompetitive justifications.