Effective September 19, 2014, the Supreme Court has amended Rules 12 and 373. Rule 12 governs proof of service in the trial court and reviewing courts. The amendment pertains to subsection (4), which now provides that "in the case of service by mail by a pro se petitioner from a correctional institution," proof of service may be established by an affidavit or "by certification as provided in section 1-109 of the Code of Civil Procedure" of the person who deposited the document in the institutional mail. The certification should state the time and place of deposit, as well as the complete address to where the document was delivered. 

Rule 373 governs filing papers in reviewing courts. The Rule specifies that proof of mailing or delivery to a third-party commercial carrier shall be as provided in Rule 12(b)(3). The amendment added language providing that the rule applies to "a motion directed against the judgment" as well as to the notice of appeal filed in the trial court. 

Recommended Citation: Charlie Ingrassia, Supreme Court Amends Rules 12 and 373, (October 16, 2014), The Brief, http://applawyers-thebrief.blogspot.com/2014/10/supreme-court-amends-rules-12-and-373.html.

The Appellate Lawyers Association is pleased to support The Chicago Bar Association and The Chicago Bar Foundation's 10th Anniversary Celebration: 2014 Pro Bono Week "Lifting Lives, Strengthening Access," which will take place during the week of October 20, 2014 through October 24, 2014. For more information, please visit The Chicago Bar Association by clicking here.

Judge Frank H. Easterbrook of the United States Court of Appeals for the Seventh Circuit recently commented that replacing page limits with word limits in all Rules of Appellate Procedure was sensible. Nonetheless, the remaining question was what the limit should be. He recounts the process that led to the 14,000-word limit for principal briefs that currently exists. He further shares his opinion that a reduction of the word limit to 12,500 at the intermediate appellate level while, at the same time, the United States Supreme Court replaced the 50-page brief limit with a 15,000-word limit "would create an unjustified difference."

You can read his comments by clicking here. Via How Appealing.

Professor Geoffrey Stone of the University of Chicago Law School was the feature speaker at our September 22 meeting. He provided us with a fascinating look at his work as a member of a five-member Review Group appointed by President Obamato advise him on the activities of the National Security Agency. Professor Stone is the former Dean of the University of Chicago Law School, a former provost of the entire University, and the Edward H. Levi Distinguished Service Professor of Law.

Among other matters examined by the Review Group was the controversial surveillance program of the NSA authorized by section 215 of the Patriot Act of 2001. Under this program, the NSA on a daily basis collects metadata -- consisting of phone numbers and connections but no identities of callers or conversations -- on millions of American's phone calls from telephone providers. Professor Stone explained that the NSA holds and processes the metadata on its own computers. When NSA analysts determine that a particular phone number is associated with terrorism, the agency "queries" the database to find out related phone numbers from the database.

In 2012, according to Professor Stone, the NSA queried the database for 288 different numbers. In 16 instances the suspect number was found to be in touch with another suspect number in the United States. Those 16 instances were turned over to the FBI for further investigation. In the seven years since the program was created, however, it has not provided any link that has proved critical in preventing a pending terrorist attack.

Despite the lack of measurable success to date, Professor Stone said that the Review Group was of the view that the program should continue. But at the same time it recognized the danger of government abuse. Ultimately, the Review Group recommended to the President that the metadata should be held, not by the government, but by private parties -- either the telephone providers or a newly created private entity charged with overseeing the database. In addition, the Review Group recommended that no one should be able to access the database without a court order.

Following the making of these recommendations, President Obama accepted them and directed that steps be taken to transition to the new model. Professor Stone, who is a card-carrying member of the ACLU, regarded this as a huge step forward.

The presentation provided a rare glimpse into some of the workings of the NSA. The ALA and those attending the presentation are very grateful to Professor Stone both for his service on the Review Committee and for taking time to share his experience with our group.

Recommended Citation: Don Sampen, Professor Geoffrey Stone Provides the Association With a Glimpse Into the NSA, The Brief, (October 7, 2014), http://applawyers-thebrief.blogspot.com/2014/10/professor-geoffrey-stone-provides.html.  

ALS is a progressive neurodegenerative disease that affects nerve cells in the brain and the spinal cord. Also known as Lou Gehrig's disease, ALS is a crippling and fatal disease that quickly and systematically eliminates the body's ability to use its muscles. The disease has received worldwide attention in recent months with the ALS Ice Bucket Challenge.

Sadly, a member of the Illinois legal community has been inflicted with the disease. John Rooney, a longtime reporter for the Chicago Law Bulletin who has covered state and federal appeals, was diagnosed with ALS in March. A "Let's Roon ALS" fundraiser will be held on Sunday, October 19, 2014, in Merrionette Park, IL. The fundraiser will take place during a Chicago Bears game and, among other features, will include a buffet lunch, live entertainment, auction, and raffles. The proceeds will go towards John's medical costs, which given the nature of ALS, are likely to be high. 

For more information on the fundraiser and to purchase tickets, please click here.  

The Association will present the following seminars and luncheons during the month of October.

• October 8, 2014: Fourth District Appellate Seminar and Reception. 
• • Held at the University of Illinois College of Law in Champaign, the event will feature a panel discussion by justices from the Third, Fourth, and Fifth districts of the Appellate Court; an ethics discussion featuring Association President Steve Pflaum and ARDC Litigation Chief Peter Rotskoff; and former Illinois Solicitor General and Association Vice President Michael Scodro discussing tips for presenting oral arguments. The seminar will also include a roundtable luncheon with the Appellate Court justices and an informal gathering following the event. The seminar will run from 10:30 a.m. until 4:15 p.m. and offer 3.5 MCLE hours, including 1 hour of ethics. 

• October 29, 2014: Third Annual SIU/ALA Seminar. Writing Tips and Professionalism for the Appellate Practitioner.
• • Held at the Southern Illinois University School of Law in Carbondale, the event will feature justices from the Illinois Supreme Court and Illinois Appellate Court, Fifth District; Professor Cheryl L. Anderson of SIU School of Law presenting “Zombie Nouns and Other Impediments to Persuasive Written Advocacy”; and Association President Steve Pflaum presenting “Professional Responsibility for Appellate Lawyers.” The event starts at 1 p.m. and ends at 4:20 p.m., and will offer 3 MCLE hours.

• October 30, 2014: First District Luncheon Learn from the Press: Honing Writing Skills Under Pressure.
• • Pat Milhizer, the editor and a former reporter for the Chicago Daily Law Bulletin, and Teddy Greenstein, a longtime sports columnist for the Chicago Tribune, will offer the view from a different writing perspective. They will discuss how journalists gather relevant facts, think of a plan of attack, and then generate a concise discussion with a point, all the time under critical review by editors and a vocal public. The luncheon will be at the Union League Club in Chicago from 12 p.m. until 1:45 p.m. and offer 1 MCLE hour. 

For more information on these events and to register, click here.

In re Marriage of Sheth, 2014 IL App (1st) 132611, examines the technical requirements for filing a notice of appeal by mail. Respondent, Sushil Sheth, was a cardiologist in the Chicago area who had been federally charged with healthcare fraud on January 28, 2009, and sentenced to 60 months' imprisonment in the federal corrections center on August 10, 2010. His wife, Anita Sheth, filed a petition for dissolution of marriage approximately six months after Sushil was charged. Sushil was originally represented by an attorney in the dissolution proceedings, but eventually proceeded pro se. During the dissolution proceedings, a dispute regarding disbursement of monies to their children arose. On May 13, 2013, and while incarcerated, Sushil filed a motion by mail resisting the disbursement of funds and seeking a continuance. Sushil’s motion went ignored, and on May 15, 2013, the trial court granted Anita’s motion to disburse the children’s funds into a trust administered by her brother. On June 4, 2013, Sushil filed a motion to reconsider by mail. On June 28, 2013, the trial court denied the motion to reconsider. 

Sushil filed a pro se notice of appeal by mail. The notice of appeal was received and filed by the clerk on August 13, 2013. The notice of appeal contained a “Certificate of Service,” which was signed by Sushil and dated July 22, 2013, certifying that he placed the notice of appeal in the prison’s legal mailbox, with United States “First Class Certified Mail, Return Receipt Requested,” postage affixed, addressed to the circuit clerk of Cook County. The Certificate of Service, which was also file-stamped with a date of August 13, 2013, was signed by Sushil but, important to this appeal, not notarized. Also attached to the notice of appeal and Certificate of Service was tracking information showing that documents had been processed through the USPS sort facility in Indianapolis on July 24, 2013, and delivered in Chicago on July 29, 2013.

Before reaching the merits, the reviewing court, as it was required to do, considered whether it had jurisdiction. This inquiry required the court to consider whether Sushil’s pro se notice of appeal received and filed by the clerk on August 13, 2013, was timely. The court noted that, under Illinois Supreme Court Rule 303(a)(1) (eff. May 30, 2008), Sushil’s notice of appeal was required to be filed within 30 days after the entry of the order disposing of the last pending postjudgment motion directed against the judgment or order, which would have made the notice of appeal due on Monday, July 29, 2013. However, Sushil’s notice of appeal was not received and filed by the clerk until August 13, 2013, almost two weeks beyond the due date.

Nonetheless, the reviewing court noted that Illinois Supreme Court Rule 373 (eff. Dec. 29, 2009) provides that, when a notice of appeal is mailed, the time of mailing shall be deemed the time of filing if it is received after the due date. Therefore, the court opined, Sushil had to rely on Rule 373 for his notice of appeal to be considered timely. For a party to rely on Rule 373, it must also file proper proof of mailing or delivery to a third-party commercial carrier as required by Rule 12(b)(3), which provides:

“(3) in case of service by mail or by delivery to a third-party commercial carrier, by certificate of the attorney, or affidavit of a person other than the attorney, who deposited the document in the mail or delivered the document to a third-party commercial carrier, stating the time and place of mailing or delivery, the complete address which appeared on the envelope or package, and the fact that proper postage or the delivery charge was prepaid[.]” Ill. S. Ct. R. 12(b)(3) (eff. Jan. 4, 2013). 

The reviewing court concluded that Sushil’s certificate of service attached to the pro se notice of appeal, which was signed but not notarized, failed to meet the requirement of an “affidavit of a person other than the attorney” under Rule 12(b)(3). Citing Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209, 213 (2009), and People v. Tlatenchi, 391 Ill. App. 3d 705 (2009), the court in Sheth emphasized affidavits must be sworn to by a party before a person who has legal authority to administer oaths. Because the certificate of service was signed but not notarized, the notice of appeal received by mail after the 30-day period was untimely, and the Sheth court dismissed the appeal for lack of jurisdiction.

Recommended Citation: Nate Nieman, You've Got Mail: First District Discusses the Requirements of Rules 373 and 12(b)(3) to Non-Attorneys, The Brief, (October 1, 2014), http://applawyers-thebrief.blogspot.com/2014/10/youve-got-mail-first-district-discusses.html.

In Lake Environmental, Inc. v. Arnold, 2014 IL App (5th) 130109, the Illinois Appellate Court, Fifth District, engaged in a discussion regarding whether appellate jurisdiction is proper when the trial court reverses an administrative agency’s decision and remands the matter for further proceedings by that agency. Although the court’s jurisdictional discussion was brief, the opinion provides valuable insight regarding when such an order is final for purposes of appellate jurisdiction. 

In this case, the plaintiff, Lake Environmental,was working on an asbestos removal project when the Illinois Department of Public Health (IDPH) issued an emergency work stop order. The IDPH eventually issued a final administrative decision that revoked the plaintiff’s license. Thereafter, a complaint for administrative review was filed in the circuit court. 

The trial court ordered IDPH to reinstate the plaintiff’s license pending its decision on the merits. The court then entered an order reversing the revocation of the plaintiff’s license and remanded the case for further proceedings to determine whether or not the plaintiff’s license “should be suspended or revoked.” Thereafter, the plaintiff filed a motion for sanctions pursuant to Illinois Supreme Court Rule 137 (eff. Feb. 1, 1994), and the court held a hearing on the matter and ultimately entered an order providing, “[p]laintiff’s request for sanctions pursuant to Rule 137 is denied.” The plaintiff appealed. 

The defendants contended that reviewing court did not have jurisdiction because, when a trial court reverses an administrative agency’s decision and remands the matter for further proceedings, the trial court’s order is not final for purposes of appellate jurisdiction. The court noted, however, that if on remand the agency has only to act in accordance with the directions of the court and conduct proceedings on uncontroverted incidental matters, or merely make a mathematical calculation, then the order is final for purposes of an appeal.  Id. ¶ 6 (citing Edmonds v. Illinois Workers' Compensation Comm'n, 2012 IL App (5th) 110118WC  ¶ 19).  

The defendants argued that, in the case at bar, the trial court’s order appeared “patently non-final” by ordering a remand that authorized more than ministerial action. The plaintiff responded that the order fully adjudicated all of the issues, found IDPH’s purported justifications for revoking the plaintiff’s license to be without merit, and therefore left IDPH with no discretion on remand and no choice but to reinstate the plaintiff’s license. The plaintiff further responded that, by the time the trial court ruled on its request for sanctions, the remand had been completed and its license had been reinstated. The reviewing court agreed with the plaintiff on both points and concluded that it had jurisdiction over the appeal. 

The reviewing court ultimately reversed the case and found that, when a trial court rules on a motion for sanctions pursuant to Rule 137, that judge “must provide specific reasons for his or her ruling, regardless of whether sanctions are granted or denied.” 

Recommended Citation: April Connley, Fifth District Appellate Court Explains When Trial Court Order Remanding an Administrative Agency's Decision Is Final for Purposes of Appellate Jurisdiction, The Brief, (September 20, 2014), http://applawyers-thebrief.blogspot.com/2014/09/fifth-district-appellate-court-explains.html.

On Monday, September 22, 2014, the ALA will kick off the bar year with a luncheon at the Union League Club in Chicago featuring University of Chicago Law Professor Geoffrey Stone. Attendees will have the unique opportunity to hear Professor Stone discuss his recent service on President Obama's Review Group concerning the National Security Agency, data collection, and privacy. 

In a case that could easily compete with Jarndyce v. Jarndyce for longevity and complexity, the Seventh Circuit held that the U.S. District Court for the Northern District of Illinois erred by failing to adhere to an earlier ruling in the same case by the Second Circuit. If that sounds unusual, welcome to the long-running Parmalat litigation. As Judge Posner noted in his preface to a summary of the case’s procedural history, “The litigation is highly complex; we’ll simplify ruthlessly.” Parmalat Capital Finance Ltd. v. Grant Thornton Int’l, 756 F.3d 549, 550 (7th Cir. 2014) (decided June 25, 2014).

Parmalat, a food company, entered the Italian bankruptcy system. Parmalat’s “extraordinary commissioner” (which, Judge Posner noted, was the “Italian equivalent of a bankruptcy trustee”) filed two lawsuits. First, he filed a proceeding in the bankruptcy court of the Southern District of New York to enjoin litigation against Parmalat with respect to property involved in the Italian bankruptcy proceedings. Second, he filed a tort suit in the Circuit Court of Cook County, Illinois, against Grant Thornton, an accounting firm that, the commissioner alleged, had performed fraudulent audits of Parmalat. 

Grant Thornton removed the Cook County lawsuit to the U.S. District Court for the Northern District of Illinois under 28 U.S.C. § 1334(b). That provision, Judge Posner explained, “confers original though not exclusive federal jurisdiction” over civil suits that are related to bankruptcy cases, and the commissioner’s Cook County lawsuit related to the bankruptcy proceeding. Once removed to the U.S. District Court for the Northern District of Illinois, the commissioner’s suit against Grant Thornton was then transferred by the Judicial Panel on Multidistrict Litigation to the U.S. District Court for the Southern District of New York.

Once the Grant Thornton lawsuit was transferred to the Southern District of New York, the commissioner asked the federal district court judge there to abstain from deciding the case pursuant to 28 U.S.C. § 1334(c)(2). Section 1334(c)(2) provides:

“Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction.”

The commissioner argued that the tort suit against Grant Thornton could be “timely adjudicated” in an Illinois state court and met section 1334(c)(2)’s other requirements for federal abstention. 

The federal judge in New York disagreed and awarded summary judgment to Grant Thornton on Illinois tort law grounds. (The substantive basis for that ruling is beyond the scope of this contribution to The Brief, but it is discussed in my law partner John J. Barber’s excellent Law & Accounting column in the August 6th edition of the Chicago Daily Law Bulletin.) On appeal, the U.S. Court of Appeals for the Second Circuit held that the federal district court in the Southern District of New York should have abstained pursuant to 28 U.S.C. § 1334(c)(2), remanded the case, and directed that the case be transferred to the U.S. District Court for the Northern District of Illinois so that it “can be remanded to Illinois state court.” 

Once the case returned to the U.S. District Court for the Northern District of Illinois, however, it took another detour. Despite the Second Circuit’s holding that the tort claims should be decided by an Illinois state court pursuant to section 1334(c)(2), the federal judge in the Northern District of Illinois to whom the case was transferred decided not to remand the case to the Circuit Court of Cook County. “These cases have remained unresolved for nearly ten years, and it is unlikely that a remand back to state court will result in more timely dispositions of the cases,” the Illinois federal district court judge reasoned. Finding that the earlier award of summary judgment to Grant Thornton “should be respected” under the law of the case doctrine, the federal district court judge in Illinois awarded summary judgment to Grant Thornton.

On appeal from that ruling, the Seventh Circuit noted that 28 U.S.C. § 1334(d) expressly provides that “any decision to abstain . . . is not reviewable by appeal or otherwise by the court of appeals . . . or by the Supreme Court of the United States.” Writing for the Seventh Circuit panel, Judge Posner explained: “The statute doesn’t say in so many words that an order to abstain is not reviewable by another district court, but the idea that a district judge has appellate authority denied to the U.S. Supreme Court can’t be taken seriously.” For good measure, Judge Posner added that “[f]ederal district judges have appellate authority over decisions by magistrate judges, bankruptcy judges, and certain administrative law judges (administrative law judges in social security disability cases, for example), but not over decisions by other district judges, let alone by courts of appeals.” 

Moreover, Judge Posner explained, “[n]othing has happened since the Second Circuit’s decision to justify a district court’s reopening and reversing it.” Grant Thornton argued that a recent Seventh Circuit case changed the legal landscape as to its entitlement to summary judgment on the merits, but Judge Posner rejected that argument, since that recent Seventh Circuit case had been brought to the Second Circuit’s attention in a petition for rehearing, which the Second Circuit had denied. That recent Seventh Circuit decision also, in Judge Posner’s estimation, was “not a novel decision.”

Thus, the Seventh Circuit reversed the district court’s “unauthorized . . . exercise of de facto appellate authority” and ordered it to remand the case to the Circuit Court of Cook County. Had the district court done so immediately upon receiving the case from the Second Circuit, Judge Posner noted, “the litigation might well be at an end rather than on the brim of restarting.” And so the Parmalat saga continues!

Recommended Citation: John M. Fitzgerald, Parmalat Capital Finance Ltd. v. Grant Thornton Int’l: Legendarily Complex Litigation Nears Its Conclusion, The Brief, (September 11, 2014), http://applawyers-thebrief.blogspot.com/2014/09/parmalat-capital-finance-ltd-v-grant.html.