Friday, February 10, 2012

Illinois Legislative Update

The Weekly Posner shall return next week. In the meantime, an important new bill has been introduced in the Illinois General Assembly.

Unlike most of the hair-brained pieces of legislation we see coming out of Springfield, this one actually makes some sense.

House Bill 5198, introduced by Rep. Daniel Biss (D-Skokie), would amend the Code of Civil Procedure to allow a circuit court to shift attorneys' fees to a prevailing defendant if a contract under which a plaintiff sues allows for the plaintiff to recover fees.

These one-way fee-shifting clauses are prevalent in many employment non-compete contracts (they are also common in leases and loan documents, which probably is what prompted the bill). If the bill passes, a prevailing employee would have a path to recover fees. Right now, unless a claim is made in bad faith or a fee clause is mutual, that path is exceedingly narrow, if it exists at all.

I wrote last year about one-way fee-shifting clauses. Rep. Biss' bill is similar to general legislation found in California, Montana, and Washington.

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