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Millar v. Lakin Law Firm PC

March 30, 2010


The opinion of the court was delivered by: J. Phil Gilbert District Judge


This matter comes before the Court on Defendants The Lakin Law Firm PC, LakinChapman, LLC, and Bradley Lakin's (these parties will hereinafter be collectively referred to as "Defendants") Motion to Dismiss (Doc. 81) Count IV of the Amended Complaint (Doc. 77), alleging retaliatory discharge under the Employee Retirement Income Security Act. Plaintiff Jeffrey Millar has filed a Response (Doc. 94) in opposition to the motion, to which Defendants have filed a Reply (Doc. 96). For the following reasons, the Court GRANTS the instant motion.


I. Facts

For purposes of a motion to dismiss, courts must accept all factual allegations in the complaint as true and draw all reasonable inferences from those facts in favor of the plaintiff. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Tricontinental Indus., Ltd. v. PricewaterhouseCoopers, LLP, 475 F.3d 824, 833 (7th Cir. 2007). The Court, accepting all of Plaintiff Jeffrey Millar's (hereinafter "Millar") allegations as true and drawing all reasonable inferences in his favor, finds as follows:

Millar, an attorney licensed in the states of Illinois and Missouri, began working for Defendant Lakin Law Firm PC (hereinafter "Lakin Law") in May 2000. On or about January 20, 2004, Millar and Lakin Law entered into a written employment agreement drafted by Lakin Law and executed by its president, Defendant Bradley Lakin (hereinafter "Lakin"). The employment agreement provided that it covered the term "commencing as of January 1, 2004 and ending December 31, 2004... and shall automatically renew annually for an additional twelve-month period unless either party hereunder provides the other party hereunder of written notice of termination at least 90 days prior to the applicable termination date." (Doc. 77, p. 3, ¶ 14). The employment agreement set forth Millar's base salary and provided for a class action bonus of 1 to 1.5 percent of the net fees "for those cases [Millar] has been personally assigned as the responsible attorney." Id. at ¶ 15. This bonus compensation was capped at $200,000 annually. Furthermore, in order to be entitled to the bonus compensation, Millar "must be employed with [Lakin Law] as of December 31st of each year in which [Lakin Law] received the fee." Id. The employment agreement specified Illinois law as the governing law.

In May 2006, a federal indictment was brought against Thomas Lakin, father of Defendant Lakin, on sex and drug charges. Lakin Law thereafter terminated the employment of Richard Burke, supervising attorney of Lakin Law's class action department, following Burke's recommendation that a plan be developed to protect the interests of the department's clients if Defendant Lakin or Lakin Law were indicted, sanctioned by the Illinois Bar, or were adversely impacted by the publicity surrounding the charges against Thomas Lakin. At that point, Millar assumed the duties of supervising attorney of Lakin Law's class action department. In November 2007, Lakin Law increased Millar's base compensation.

During the period of Millar's employment with Lakin Law, the firm offered a group health insurance plan in which Millar participated. In November 2007, Defendants switched the group health insurance provider from Aetna to United HealthCare, which offered reduced coverage. Millar's son has an extremely rare metabolic condition that requires him to take oral neurotransmitter precursor medications six times a day. The medication is expensive and difficult to obtain but necessary to prevent Millar's son from suffering brain damage or death. Defendants have been aware of Millar's son's condition since shortly after his birth in 2003. United HealthCare initially refused to cover Millar's son's medication. In February 2008, after Millar threatened litigation, United HealthCare began covering the medication, at considerable additional expense to the group health plan. Shortly thereafter, Defendants began to falsely accuse Millar of excessive absenteeism and faltering work performance.

On December 19, 2008, Lakin Law reorganized and renamed itself [Defendant] LakinChapman LLC (hereinafter "LakinChapman"). LakinChapman is a successor in interest to Lakin Law. Millar continued to fulfill the duties of supervising attorney of the class litigation department until December 29, 2008, when Defendants terminated his employment. Defendants did not provide Millar with the agreed-upon 90 days written notice prior to terminating his employment. Millar has not received his base compensation since December 29, 2008, nor has he received his full bonus compensation.

II. Relevant Procedural Posture

On February 4, 2009, Millar filed suit in this Court against Defendants, alleging claims of breach of contract, violation of the Illinois Wage Payment and Collection Act, 820 ILL. COMP. STAT. 115/1, et seq., quantum meruit, and violation of 29 U.S.C. § 1140 of the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA").*fn1 With respect to the ERISA claim, Millar alleges that Defendants wrongfully discharged him from his employment because he exercised his rights under the group health plan. In his original Complaint (Doc. 3), Millar's ERISA claim sought damages for humiliation, emotional suffering, and damage to reputation, as well as punitive damages and attorneys' fees.

On June 23, 2009, the Court, inter alia, granted Defendants' Motion to Dismiss (Doc. 21) the ERISA claim because Millar failed to pray for relief allowed by the statute. (See Doc. 36, p. 6) ("[T]he relief requested by Plaintiff [Millar] is in no way equitable in nature."). However, the Court dismissed said claim without prejudice and granted Millar time to re-file the complaint with adequate relief under the ERISA count. Millar ultimately re-filed his Amended Complaint (Doc. 77) on September 28, 2009, which not only amended the relief sought under ERISA but added one count of negligent spoliation of evidence and one count of fraud.

In its current incarnation, Millar's ERISA claim seeks reinstatement with back pay and/or front pay, restitution of forfeited employee benefits, and attorneys' fees. Once more, in the instant motion to dismiss, Defendants argue that the applicable law disallows the relief requested by Millar. Following a general overview of the relevant law and analysis of a preliminary issue presented by Millar, the Court will address the appropriateness of each remedy sought in kind.


As aforementioned, Millar's ERISA claim is one for retaliatory discharge pursuant to 29 U.S.C. § 1140 (hereinafter "§ 510"). Section 510 provides, in relevant part,

It shall be unlawful for any person to discharge... a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan [or] this subchapter..., or for the purpose of interfering with the attainment of any right to which ...

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