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Millar v. Lakin Law Firm PC

June 17, 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 for Partial Summary Judgment (Doc. 83).*fn1 Plaintiff Jeffrey Millar (hereinafter "Millar") filed a Response (Doc. 110), to which Defendants filed a Reply (Doc. 115). In this memorandum and order, the Court also considers Defendants' Motion to Strike (Doc. 111), to which Millar filed a Response (Doc. 119), as well as Defendants' Motion for Sanctions (Doc. 113), to which Millar also filed a Response (Doc. 120).

For the following reasons, the Court, inter alia, GRANTS Defendants' summary judgment motion.


I. Facts

In analyzing a motion for summary judgment, the reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The Court, construing the evidence in the light most favorable to Millar 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" or "the firm") in May 2000. On or about January 15, 2004, Millar met with Bradley Lakin (hereinafter "Lakin), the managing partner of the firm, and Steven Schweizer (hereinafter "Schweizer"), the chief operating officer of the firm. At Lakin's initiative, the three discussed the possibility of Millar entering into a written employment agreement with the firm. Schweizer and Lakin provided Millar with a standard copy of the firm's contract for attorneys,*fn2 which he took under consideration for approximately one week due to concerns regarding the contract's 90-day termination provision.

Millar signed the contract*fn3 on or about January 20, thereafter making some handwritten changes in front of either Lakin or Schweizer.*fn4 That same day, Millar gave the contract to Schweizer, who indicated that he would have Lakin sign it because he was the only individual authorized to execute employment contracts for attorneys on behalf of the firm. Millar had no reason to believe that Schweizer would not give the contract to Lakin or that Schweizer would mislead him in that regard; rather, Millar was of the understanding that Lakin would be signing the contract. Likewise, Millar never requested nor received a fully executed copy of said contract, again relying on his trust in Schweizer and Lakin.

However, Lakin outright denies seeing a version of the contract with Millar's signature. He maintains that he did not sign the contract and did not authorize anyone to sign it on his behalf. Both Schweizer and Marilyn Leuty (hereinafter "Leuty"), the office manager of Lakin Law, deny ever seeing a fully executed contract or copy thereof. Meanwhile, Lakin does acknowledge that he signed employment contracts for other attorneys in September 2003 (Richard Burke and Gary Peel) and August 2004 (Paul Marks). Further, it is undisputed that Millar received six annual salary increases during his tenure with the firm, two of which came after 2006. Millar also received bonus checks signed by Lakin within the 1-1.5% range provided in the contract that he signed.

In August 2005, Millar and his then-wife, Amber Millar (hereinafter "Amber"), instituted divorce proceedings. In response to discovery requests from Amber, Millar approached Leuty in mid-February 2006 and requested information relating to his employment with the firm. After searching Millar's personnel file, Leuty informed him that there was no written contract regarding his employment with Lakin Law. Around the same time, Millar asked Schweizer for a copy of his contract. Unable to locate the contract, Schweizer told Millar that "we'll go forward as if there's no contract, from that point going forward." (Doc. 83-1, p. 32). Believing that Schweizer had authority to act on behalf of Lakin and the firm, Millar responded, "okay," as that was "fine with [him]." Id. at p. 33-34, 60. Millar's understanding was that this exchange lifted the terms of the 2004 contract, including his bonus range.*fn5 Millar subsequently authorized in writing the release of employment information to Amber. Upon receiving the discovery requests, Leuty informed Amber, in a letter dated August 1, 2006, that no employment contract existed between Millar and the firm. In fact, throughout his divorce, Millar did not represent that a written contract existed between him and the Lakin law firm, instead explaining "what Mr. Schweizer told [him],... that [Schweizer ] tried to find [the contract], and he couldn't locate it." Id. at 60.

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,*fn6 supervising attorney of the firm's class action department, and named Robert Schmeider as his successor. Millar holds that he became the de facto supervisor or lead of the firm's class action department around the same time, a position neither the firm nor Lakin formally recognized. Specifically, Millar maintains that, in light of the firm's numerous troubles, he took on the important role of "marshalling [sic] and firing up the [class action] cases... [a]nd would also have -- sort of the colloquialism of the go-to guy [or] would [advise] many attorneys of how to do things in certain cases." (Doc. 83-1, p. 22). However, Millar performed very few, if any, administrative functions for the firm's class department.

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 additional expense to the group health plan. Shortly thereafter, Defendants began to accuse Millar of excessive absenteeism and faltering work performance.

On October 2, 2008, or 91 days before Millar's termination from the firm, Schweizer sent an e-mail to Millar, wherein he stated as follows:

Brad [Lakin] told me that you and he discussed the fact that the class action bonus computation would be changing at the beginning of the year.... I had this down on my follow ups to officially notify you that the current bonus computation system or agreement we have will be terminated as of the end of the year. I also understand that Brad is working on a revised system on a going forward basis.

(Doc. 83-2, p. 6). Then, on December 29, Millar was called into a meeting with Lakin, Schweizer, and Charles Chapman, and he was told that his employment was terminated. The last payment of Millar's base salary was made on December 30, 2008, which represented his last two weeks of work.

On December 19, 2008, [Defendant] LakinChapman LLC (hereinafter "LakinChapman"), which Millar contends to be the successor-in-interest to Lakin Law, received its articles of incorporation; however, LakinChapman did not begin providing legal services until January 1, 2009. Millar never filled out an application or governmental withholding form as an employee of LakinChapman, although, again, Charles Chapman was present when he was officially notified of his termination.

On February 1, 2009, Millar rebounded from his termination at Lakin Law by taking a co-managing attorney position with the law firm of Brent Coon & Associates (hereinafter "Brent Coon"), where he remains employed. At Brent Coon, Millar's annual salary is $125,000, and he is eligible for a bonus of 10% of legal fees on cases that he brings to the firm. He also enjoys healthcare benefits and potential profit sharing beyond his other compensation. This is not to say that Millar's departure from Lakin Law did not bring financial difficulty alongside. Specifically, from November to December 2008, Millar was denied insurance benefits by Defendants' insurer, resulting in unpaid medical claims that totaled approximately $1,600. Millar's requests for reimbursement for medication would continue to be denied in January and February 2009, despite paying $1,508.08 in monthly COBRA premiums. Millar also has not received full payment from his current insurance company for March 2009 through present. Although these payments have begun, they do not account for any outstanding interest, which stands at about $5,000. Finally, Millar believes that he is owed class action bonus compensation for all cases on which he was personally assigned that settled after his departure from the firm.

II. Relevant Procedural Posture

On February 4, 2009, Millar filed suit in this Court against Defendants, alleging claims of breach of contract (Count I), violation of the Illinois Wage Payment and Collection Act, 820 ILCS 115/1, et seq.(Count II), quantum meruit (Count III), and violation of 29 U.S.C. § 1140 of the Employee Retirement Income Security Act of 1974 (hereinafter "ERISA") (Count IV).*fn7

Millar filed an 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 (Count V) and one count of fraud (Count VI).

Upon motion by Defendants, the Court ultimately dismissed Count IV, Millar's ERISA claim, with prejudice. (See Doc. 121). As directed by the Court, Millar filed a second Amended Complaint (Doc. 124) on April 8, 2010, which made no substantive additions or deletions to the previous complaint. The five remaining counts are therefore still at issue and are the target of the instant summary judgment motion.

Following a general overview of summary judgment, the Court will address the merits of disposition of each claim, as well as the merits of Defendants' ...

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