                                    2017 IL App (1st) 152668


                                                                             FOURTH DIVISION
                                                                             June 15, 2017



No. 1-15-2668

THE PEOPLE ex rel. SCHAD, DIAMOND &                           )      Appeal from the
SHEDDEN, P.C.,                                                )      Circuit Court of
                                                              )      Cook County
       Plaintiff-Appellee,                                    )
                                                              )      Nos.    12 L 7874, cons. with
v.                                                            )              12 L 6782
                                                              )
MY PILLOW, INC.,                                              )      Honorable
                                                              )      Thomas R. Mulroy
       Defendant-Appellant.                                   )      Judge Presiding.


       PRESIDING JUSTICE ELLIS delivered the judgment of the court, with opinion.
       Justices McBride and Burke concurred in the judgment and opinion.

                                            OPINION

¶1     This case requires us to consider matters of first impression arising under the Illinois

False Claims Act, including whether damages paid by defendant prior to final judgment should

be included in, or credited against, the amount of “damages” to be trebled under the Act and

whether a law firm serving both as client and attorney may recover statutory attorney fees under

the Act.

¶2     Relator, Stephen B. Diamond, P.C., formerly Schad, Diamond & Shedden, P.C. (relator),

brought this qui tam action, on behalf of the State of Illinois, under the Illinois False Claims Act.

740 ILCS 175/1 et seq. (West 2012). Relator alleged that defendant, My Pillow, Inc. (My

Pillow), knowingly failed to collect and remit use taxes on merchandise sold at craft shows in

Illinois and on Internet and telephone sales to Illinois customers, as required by State law.
No. 1-15-2668

¶3       After a bench trial, the circuit court found in favor of relator as to the claims regarding

Internet and telephone sales. The court awarded relator treble damages and attorney fees totaling

$1,383,627.

¶4       We affirm the judgment in favor of relator. The evidence was sufficient to demonstrate

that My Pillow acted in reckless disregard of its obligation to collect and remit use taxes on its

Internet and telephone sales. The damages found by the trial court were supported by the

evidence, and the trial court properly included, within the amount of damages to be trebled, those

tax payments made by My Pillow before final judgment. We reverse that portion of the attorney-

fee award that granted fees to relator for legal work performed by its own attorneys but otherwise

affirm the fee award. We remand to the circuit court only for a recalculation of the attorney-fee

award.



¶5                                    I. FALSE CLAIMS ACT

¶6       The Illinois False Claims Act (Act), formerly known as the Whistleblower Reward and

Protection Act, allows the Attorney General or a private individual to bring a civil action on

behalf of the State for false claims. See, e.g., State ex rel. Pusateri v. Peoples Gas Light & Coke

Co., 2014 IL 116844, ¶ 16; see also 740 ILCS 175/1, 4 (West 2008). The Act closely mirrors the

federal False Claims Act originally enacted in 1863. Scachitti v. UBS Financial Services, 215 Ill.

2d 484, 506 (2005); see also 31 U.S.C. §§ 3729 through 3733 (2000). Both acts provide for qui

tam actions brought by citizens seeking to reveal fraud against the government. People ex rel.

Schad, Diamond & Shedden, P.C. v. QVC, Inc., 2015 IL App (1st) 132999, ¶ 30.

¶7       Thus, in construing the Act, Illinois courts have relied on federal courts’ interpretation of

the Federal False Claims Act for guidance. See id. (and cases cited therein); accord United States


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No. 1-15-2668

ex rel. Geschrey v. Generations Healthcare, LLC, 922 F. Supp. 2d 695, 702 n.4 (N.D. Ill. 2012)

(court’s reasoning on false claim under Federal False Claims Act applied equally to state act,

because “Illinois courts interpreting the state act look to interpretations of the similarly worded

federal [act]”).

¶8      Relator’s claim is based on section 3 of the Act. 740 ILCS 175/3 (West 2012). Section 3

states, in relevant part, that a person is liable under the Act when he

        “knowingly makes, uses, or causes to be made or used, a false record or statement

        material to an obligation to pay or transmit money or property to the State, or knowingly

        conceals or knowingly and improperly avoids or decreases an obligation to pay or

        transmit money or property to the State.” 740 ILCS 175/3(a)(1)(G) (West 2012).

For purposes of section 3, the term “knowingly” means that a person, “with respect to

information: (i) has actual knowledge of the information; (ii) acts in deliberate ignorance of the

truth or falsity of the information; or (iii) acts in reckless disregard of the truth or falsity of the

information.” 740 ILCS 175/3(b)(1)(A) (West 2012). “[N]o proof of specific intent to defraud” is

required. 740 ILCS 175/3(b)(1)(B) (West 2012).

¶9      This case concerns a unique form of false claim involving the failure to collect and remit

use taxes on the sale of merchandise in Illinois under the Retailer’s Occupation Tax Act (ROTA)

(35 ILCS 120/1 et seq. (West 2012)) and the Use Tax Act (35 ILCS 105/1 et seq. (West 2012)).

“ROTA and the Use Tax Act are complementary, interlocking statutes that comprise the taxation

scheme commonly referred to as the Illinois ‘sales tax.’ ” Kean v. Wal-Mart Stores, Inc., 235 Ill.

2d 351, 362 (2009). “[B]ecause of the impracticality of collecting the tax from individual

purchasers, the burden of its collection is imposed upon the out-of-state vendor.” Brown’s

Furniture, Inc. v. Wagner, 171 Ill. 2d 410, 418 (1996).


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¶ 10   The gist of relator’s complaint is that My Pillow was required to collect and remit use

taxes to the State but failed to do so. This specimen of false claim is known as a “reverse false

claim,” in that the defendant is not alleged to have obtained money fraudulently from the

government but, rather, to have failed to pay money duly owed. See, e.g., People ex rel. Beeler,

Schad & Diamond, P.C. v. Relax the Back Corp., 2016 IL App (1st) 151580, ¶ 19 (reverse false

claim is where material misrepresentation is made to avoid paying money owed to government);

State ex rel. Beeler Schad & Diamond, P.C. v. Ritz Camera Centers, Inc., 377 Ill. App. 3d 990,

996 (2007) (“[t]he reverse false claims provision was added to provide that an individual who

makes a material misrepresentation to avoid paying money owed to the Government would be

equally liable under the Act as if he had submitted a false claim to receive money” (internal

quotation marks omitted)).



¶ 11                                   II. BACKGROUND

¶ 12   My Pillow is a Minnesota corporation involved in the sales, marketing, and distribution

of pillows. The company was founded in 2004 by Mike Lindell, who is the company’s chief

executive officer. Lindell says he sewed the first pillows himself by hand. By 2009, the company

had between 5 and 20 employees.

¶ 13   Beginning in 2010, independent contractors began selling My Pillow’s products at craft

shows in Illinois and throughout the country. Between April 2010 and July 2012, My Pillow sold

its products at 44 craft shows in Illinois. It is no longer disputed that My Pillow collected use tax

on its craft show sales and remitted all the tax to the Illinois Department of Revenue (IDOR).

(Relator alleged otherwise at trial, but the court ruled in favor of My Pillow on the craft-show

use taxes, and relator does not challenge that ruling on appeal.)


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¶ 14   In June 2010, My Pillow began selling its products through the Internet. My Pillow did

not collect sales or use tax on Internet or telephone sales to Illinois purchasers. Relator began its

investigation of My Pillow in August 2011.

¶ 15   In October 2011, Lindell created and launched a detailed infomercial, for which he paid a

marketing company close to $200,000. In 2011, as a result of the infomercial, the company

expanded impressively. Monthly sales increased from $200,000 to $10 million. The number of

employees grew from 20 in October 2011 to 500 in a very short period of time. By February

2013, My Pillow had 650 employees.

¶ 16   My Pillow registered to do business in Illinois in July 2012. On July 13, 2012, relator

filed its initial complaint under the Act, claiming that My Pillow failed to collect and remit

Illinois use tax on merchandise sold at craft shows in Illinois and on its Internet sales and

telephone sales to Illinois customers. Relator filed an amended complaint on October 31, 2012.

The State declined to intervene, and the amended complaint was unsealed on January 15, 2013.

¶ 17   Relator filed a second amended complaint on February 26, 2013. My Pillow was served

with process in March 2013.

¶ 18   In November 2013, My Pillow began to collect and remit use tax on Internet and

telephone sales. My Pillow amended its sales and use tax returns, i.e., the IDOR Form ST-1s, and

paid a total of $106,970 in taxes it owed to Illinois on Internet and telephone sales for 2012

($61,218) and 2013 ($45,752).

¶ 19   Relator filed a third amended complaint on April 28, 2014. In its third amended

complaint, relator alleged in count I that, although My Pillow collected tax on craft show sales, it




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No. 1-15-2668

did not remit the tax to IDOR. In count II, relator alleged that My Pillow failed to collect and

remit use tax on website and telephone sales. 1

¶ 20     A two-day bench trial began on September 22, 2014. Four witnesses testified at trial:

Lindell, Nicole Oestrich, Stephen Diamond, and David Kim.

¶ 21     Lindell testified that, in April or May 2010, he asked an accountant, who had been doing

his tax returns for 30 years, whether he had to charge sales tax on Internet sales. According to

Lindell, it was his understanding that he would have to charge sales tax on Internet purchases

within Minnesota but not on those that were shipped out of state. Lindell, however, never sought

his accountant’s advice or consulted with anyone about the collection, remittance, or payment of

Illinois sales and use tax.

¶ 22     Lindell testified that, in July 2013, he told an employee, David Boyd, to begin collecting

tax on Internet and telephone sales. Boyd did not follow Lindell’s directions, and Lindell fired

him for insubordination in November 2013. Lindell also testified that My Pillow contacted its

customers and collected tax on Internet and telephone sales to Illinois customers for the prior

years.

¶ 23     Nicole Oestrich was the My Pillow employee who filed its Form ST-1 with IDOR. Both

Lindell and Oestrich testified that the independent contractors at the craft shows collected tax on

the products they sold and either remitted the tax at the shows or gave it to My Pillow to remit

with its monthly Form ST-1.

¶ 24     Stephen Diamond testified regarding relator’s investigation of My Pillow and the

discovery obtained from My Pillow.



         1
        In its prior complaints, relator had alleged that My Pillow had failed to “collect” taxes on craft
show sales but dropped this allegation after conducting discovery.

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No. 1-15-2668

¶ 25   Relator’s attorney, David Kim, testified regarding relator’s investigation of My Pillow.

He also testified as to relator’s damages calculations.

¶ 26   The trial court found that My Pillow did not violate the Act with respect to the craft

shows, because relator failed to meet its burden of proving that My Pillow did not remit all of the

taxes it received from the 44 craft shows it attended from April 2010 through July 2012. But the

court found in favor of relator on its claims concerning My Pillow’s Internet and telephone sales.

The court found Lindell was not credible and further found that, “based on all the evidence, My

Pillow knowingly violated [the Act] because it recklessly disregarded its obligation to remit tax

on Internet and telephone sales.”

¶ 27   The court reserved ruling on damages until after the matter had been fully briefed. The

court awarded relator treble damages and attorney fees totaling $1,383,627. This calculation

came from computing the damages, trebling them, and adding penalties, for an amount of

damages—the proceeds of the action—of $889,637. Then the court subtracted the $106,970 in

taxes My Pillow paid prior to trial for a final amount of damages of $782,667. To this number,

the court added attorney fees, expenses, and costs of $600,960 for a total award against My

Pillow of $1,383,627.

¶ 28   Of that amount, relator received $266,891 in damages (30% of the proceeds of the action,

or $889,637) and attorney fees in the amount of $600,960.



¶ 29                                      III. ANALYSIS

¶ 30                                  A. Standard of Review

¶ 31   After a bench trial, our standard of review is whether the order or judgment is against the

manifest weight of the evidence. Reliable Fire Equipment Co. v. Arredondo, 2011 IL 111871,


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No. 1-15-2668

¶ 12. We also review an award of damages made after a bench trial under the manifest-weight

standard. 1472 N. Milwaukee, Ltd. v. Feinerman, 2013 IL App (1st) 121191, ¶ 13. A trial court’s

judgment is against the manifest weight of the evidence “only if the opposite conclusion is

clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence

presented.” Best v. Best, 223 Ill. 2d 342, 350 (2006). Under the manifest-weight standard, we

give deference to the trial court as the finder of fact because it is in the best position to observe

the conduct and demeanor of the parties and witnesses. Id. Accordingly, we will not substitute

our judgment for that of the trial court. Id. at 350-51.



¶ 32                                     B. Issues on Appeal

¶ 33   My Pillow raises several issues on appeal. First, My Pillow challenges the trial court’s

finding that My Pillow violated the Act, claiming that it could not possess the requisite scienter

because the issue of whether My Pillow had an obligation to collect and remit tax on its Internet

and telephone sales is a disputed legal issue. My Pillow next argues that the circuit court erred in

calculating damages where it (1) trebled amounts paid prior to trial and (2) awarded relator

damages for periods prior to its investigation. My Pillow additionally contends that the court

erred in awarding attorney fees because relator is a pro se litigant who cannot recover its own

attorney fees. My Pillow’s final argument is that, because relator did not prevail on any claims

related to craft shows, the trial court erred in awarding attorney fees for legal work related to

craft shows.




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No. 1-15-2668

¶ 34                  1. Whether My Pillow Acted With Reckless Disregard

¶ 35   We first address My Pillow’s argument that it could not possess the requisite culpable

state of mind of “knowingly” violating the Act, because the underlying issue of whether My

Pillow had an obligation to collect use taxes on its Internet and telephone sales was, itself, a

disputed legal issue. To reiterate, section 3, relevant to this lawsuit, defines “knowingly” as

acting “in reckless disregard of the truth or falsity of the information.” 740 ILCS

175/3(b)(1)(A)(iii) (West 2012).

¶ 36   My Pillow is referring to the constitutional requirement that before a state may impose a

sales tax on an out-of-state company’s sale within the state that company must have a

“substantial nexus” with the state. See Quill Corp. v. North Dakota, 504 U.S. 298 (1992);

Brown’s Furniture, Inc. v. Wagner, 171 Ill. 2d 410, 421 (1996). My Pillow is arguing here that

the initial question of whether My Pillow owed a duty to collect and remit use taxes in Illinois at

all—whether a “substantial nexus” existed—is a disputed and complicated legal question, and

thus, My Pillow could not possibly have acted with reckless disregard of its obligation to collect

and pay sales taxes. The reasoning, in essence, is that one cannot recklessly disregard an

obligation when it is debatable whether that obligation exists in the first instance.

¶ 37   We should clarify at the outset that My Pillow does not deny that it had a duty to collect

and remit use taxes on the sales of its products in Illinois. That point was conceded. As we noted

in the factual background, My Pillow began collecting and remitting use taxes in response to

relator’s lawsuit sometime in 2013 (and had intended to start in 2012). My Pillow’s argument is

that this liability was not sufficiently clear, during the relevant time period before it began to

“voluntarily” collect and remit, for My Pillow to be found to have recklessly disregarded its tax

obligations.


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¶ 38   We do not quarrel with the proposition that the “substantial nexus” requirement is far

from a clear requirement, especially in this digital age. We are instructed that the out-of-state

vendor must have a “physical presence” in the taxing state. Quill Corp., 504 U.S. at 317;

Brown’s Furniture, Inc., 171 Ill. 2d at 423. But what, precisely, a “physical presence” means

these days has proven difficult to pin down.

¶ 39   The “ ‘slightest’ physical presence within a state will not establish substantial nexus.”

Brown’s Furniture, Inc., 171 Ill. 2d at 423 (quoting Quill Corp., 504 U.S. at 315 n.8). On the

other hand, the physical presence “ ‘need not be substantial.’ ” Id. at 424 (quoting Orvis Co. v.

Tax Appeals Tribunal, 654 N.E.2d 954, 960-61 (N.Y. 1995)). Ultimately, “[l]eft unclear after

Quill *** is the extent of physical presence in a state needed to establish more than a ‘slight’

physical presence.” Id. at 423; accord Relax the Back Corp., 2016 IL App (1st) 151580, ¶ 22

(“the law on what constitutes sufficient physical nexus to justify collection of the use tax is far

from clear”). It is a decision to be made on a case-by-case basis. Irwin Industrial Tool Co. v.

Department of Revenue, 394 Ill. App. 3d 1002, 1014 (2009), aff’d, 238 Ill. 2d 332 (2010).

¶ 40   If the only question were whether this is a nebulous area of the law, My Pillow would

win the debate, hands down. But the question is more subtle. The question is not only whether,

under the facts of a specific case, the existence of a sufficient nexus is difficult or simple, but

also what the company did to try to figure out the answer to that question. After all, if we are to

determine whether a company acted in “reckless disregard” of its obligation to collect and remit

taxes, it stands to reason that our focus, at least in part, must be on that company’s conduct. This

court previously recognized that, given the murky nature of use-tax law in this context, a

company is not automatically deemed to have “knowingly” violated the False Claims Act (then

the Whistleblower Reward and Protection Act) by failing to collect and remit use taxes on its


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No. 1-15-2668

Illinois sales, but rather “necessary factual determinations *** must be made regarding

defendants’ knowledge” in each particular case. Ritz Camera, 377 Ill. App. 3d at 999.

¶ 41    Thus, though we agree with My Pillow that this area of use-tax law is imprecise, we must

also consider My Pillow’s conduct in this case before determining whether it acted in reckless

disregard of its use-tax obligations in Illinois.

¶ 42    “Reckless disregard” under section 3 requires more than “ ‘[i]nnocent mistakes or

negligence.’ ” State ex rel. Schad, Diamond & Sheddon, P.C. v. National Business Furniture,

LLC, 2016 IL App (1st) 150526, ¶ 33 (quoting United States v. King-Vassel, 728 F.3d 707, 712

(7th Cir. 2013)). It refers to “the failure ‘ “to make such inquiry as would be reasonable and

prudent to conduct under the circumstances,” ’ ” a “ ‘ “limited duty to inquire as opposed to a

burdensome obligation.” ’ ” Id. (quoting United States ex rel. Williams v. Renal Care Group,

Inc., 696 F.3d 518, 530 (6th Cir. 2012), quoting S. Rep. No. 99-345, at 20-21 (1986)).

¶ 43    “Reckless disregard” under section 3 has been aptly described as “ ‘the ostrich type

situation where an individual has buried his head in the sand and failed to make simple inquiries

which would alert him that false claims are being submitted.’ ” Relax the Back Corp., 2016 IL

App (1st) 151580, ¶ 27 (quoting National Business Furniture, 2016 IL App (1st) 150526, ¶ 33).

“Thus, one acting in reckless disregard ignores ‘obvious warning signs’ and ‘refus[es] to learn of

information which [it], in the exercise of prudent judgment, should have discovered.’ ” Id.

(quoting United States ex rel. Ervin & Associates, Inc. v. Hamilton Securities Group, Inc., 370 F.

Supp. 2d 18, 42 (D.D.C. 2005)).

¶ 44    For example, in National Business Furniture, 2016 IL App (1st) 150526, ¶ 7, the

defendant was a Wisconsin company that sold furniture by phone, catalog, or the Internet and

shipped its product to customers. Customers selected a shipping method, and a delivery charge


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was calculated at the completion of the purchase. Id. ¶ 8. The defendant did not collect and remit

use tax on the shipping charges, but the relator (the same one as in this case) alleged that the

defendant was in violation of Illinois law. Id. ¶¶ 10-11.

¶ 45    The evidence at trial showed that the defendant collected and remitted taxes on shipping

charges in some states but not others, depending on the defendant’s interpretation of the

applicable state’s laws and regulations, and that the defendant interpreted Illinois’s

administrative rule as not requiring the tax’s imposition. Id. ¶¶ 13-14. The defendant subscribed

to a publication that tracked changes in sales tax rules by state and used software that did the

same. Id. ¶¶ 15-16. In addition, the Illinois Department of Revenue (IDOR) had conducted an

“Illinois Sales Tax audit” for a one-year period, and the defendant opened up its books to IDOR.

Id. ¶ 18. Those records included a document plainly showing that the defendant was collecting

the use tax on the sale of merchandise but not on shipping. Id. ¶ 21. The former chief financial

officer testified that he believed, at all relevant times, that the company was complying with

Illinois tax laws. Id. ¶ 22.

¶ 46    At the close of trial, the circuit court found that the relator had failed to prove that the

defendant acted with reckless disregard, that instead the defendant had reasonably relied on the

IDOR audit and its own interpretation of the applicable Illinois administrative rule to determine

that it owed no duty to collect use tax on shipping charges in Illinois. Id. ¶ 23. We affirmed,

finding that the trial judge’s findings were not against the manifest weight of the evidence. Id.

¶¶ 37-39. We reasoned that the relator failed to “prove that defendant ignored obvious warning

signs, buried its head in the sand, and refused to learn information from which its duty to pay

money to the State would have been obvious.” Id. ¶ 39.




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¶ 47   In Relax the Back, 2016 IL App (1st) 151580, ¶¶ 6-7, another recent case involving the

same relator, the question was whether the defendant was liable for failing to collect and remit

use taxes for catalog and Internet sales for its neck and back care products (chairs, massage

products, books, and videos). The claim regarding Internet sales was rejected because the trial

court determined that no use taxes were owed in the first instance due to a lack of sufficient

nexus. Id. ¶ 13. But as to catalog sales, the trial court found a sufficient nexus to impose tax

liability, based on evidence that defendant’s franchises in Illinois distributed a thousand catalogs

to customers in Illinois every year. Id. Thus, as to catalog sales, the trial court proceeded to the

question relevant here, whether the defendant recklessly disregarded its obligation to collect and

remit those use taxes. Id.

¶ 48   The evidence showed that the defendant’s chief financial officer (CFO) consulted with an

outside tax attorney, who concluded that the defendant lacked a sufficient nexus to Illinois and

owed no duty to collect and remit use taxes. Id. ¶ 8. The CFO likewise consulted with a “sales

tax specialist in accounting” who reached the same conclusion. Id. ¶ 9. The CFO testified that

outside certified public accountants audited the defendant’s financial statements annually, and he

understood that they would not have approved the financial statements had they believed the

company should be collecting use taxes. Id. ¶ 10. Finally, the defendants presented an opinion

witness, a former bureau manager of the audit bureau of IDOR, who testified that the defendant’s

investigation of its Illinois tax obligations was reasonable. Id. ¶ 11.

¶ 49   The trial court found that the defendant’s CFO “ ‘made an honest effort to determine

whether or not any tax liability occurred as a result of its Internet operations.’ ” (Emphasis

added.) Id. ¶ 13. The trial court noted, however, that the defendant’s investigation of its tax

liability concluded in 2004 or 2005, and that its new requirement to Illinois franchises to mail


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catalogs to Illinois residents (the act that gave it a “substantial nexus” and triggered its use-tax

obligation) began in either 2005 or 2006. Id. ¶¶ 14-15. Thus, because the defendant failed to re-

examine its potential tax liability regarding catalog sales after imposing that new “catalog

requirement” on its Illinois stores, the trial court found that the defendant recklessly disregarded

its use-tax obligation as to catalog sales and was liable under the False Claims Act. Id. ¶¶ 15-16.

¶ 50   This court reversed the judgment in the relator’s favor on the catalog sales. Id. ¶ 30. We

reasoned that a mistaken interpretation of a somewhat gray area of the law was not reckless

disregard. Id. Though we acknowledged that the defendant “did not actively seek the opinion of

the IDOR or reevaluate [its] use tax obligation in light of its catalog requirement, this failure to

ensure that [defendant] had no duty to collect Illinois use tax [was] not evidence of reckless

disregard.” Id.

¶ 51   A comparison of the facts in those cases, versus the facts here, shows the weakness of My

Pillow’s position. In National Business Furniture, 2016 IL App (1st) 150526, ¶¶ 13-22, the

evidence showed that the defendant company investigated its potential tax liability under Illinois

law in many ways, including attempts to remain updated on any changes in the law and surviving

an audit from the State, and that instead of flatly denying tax liability throughout the country, the

defendant actually conducted distinct, state-by-state analyses of its obligations, sometimes

concluding that it owed a use-tax obligation and sometimes not.

¶ 52   And in Relax the Back, 2016 IL App (1st) 151580, ¶¶ 8-13, the defendant relied on legal

and sales-tax accounting expertise in determining its lack of Illinois use-tax liability, an expert at

trial opined that its efforts in doing so were reasonable, and even the trial court found that the

defendant had made an honest effort, at least initially, to determine its use-tax liability under

Illinois law, even if it failed to reconsider that liability after imposing the new “catalog


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requirement.” Indeed, in Relax the Back, the defendant continued to deny at trial that it owed a

use-tax obligation in the first place, prevailing on that argument as to Internet sales, though

losing as to catalog sales. Id. ¶¶ 13-15.

¶ 53   In stark contrast, in the matter before us, the trial court found that the evidence showed

that My Pillow did not make a reasonable and prudent inquiry as to its tax obligations on Internet

and telephone sales to Illinois customers. As the trial court explained, “Lindell testified that My

Pillow did not review Illinois statutes or regulations regarding tax collection on Internet or

telephone sales; did not review [the] IDOR website or IDOR publications and General

Information letters posted on the website; did not review any case law; and never sought advice

from IDOR.”

¶ 54   The trial court also noted that “no one” at My Pillow did these things “even though My

Pillow was participating at craft shows in Illinois and was selling products over the Internet and

through phone sales to Illinois customers.” The court noted that My Pillow paid its marketing

company approximately $200,000 to nationally advertise its products but made no investment

whatsoever in researching its tax obligations nor did it hire any lawyers or accountants.

¶ 55   The trial court further noted that My Pillow registered with IDOR in July 2012 and began

filing Form ST-1s, which required it to report “[s]ales from locations outside of Illinois.” But, as

the trial court found, “[e]ven though the ST-1s clearly informed My Pillow that its Internet and

telephone sales were taxable, My Pillow did no investigation and did not consult with any

professional whether Internet and telephone sales were taxable.”

¶ 56   The trial court noted that “Lindell testified that he thought he spoke to his accountant

about tax collection but could not recall the meeting.” The court found that Lindell was “not

credible” when he testified that he did not act with reckless disregard. “Based on all the


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evidence,” the court found that My Pillow knowingly violated the Act because it recklessly

disregarded its obligation to collect and remit use taxes on Internet and telephone sales in

Illinois.

¶ 57    We would also note that, after being served with relator’s second amended complaint,

My Pillow’s response was not to hold firm to some good-faith conclusion that it had no tax

obligations—rather, My Pillow’s CEO immediately instructed an employee to begin collecting

the tax, which it eventually began to do in 2013, amending its tax submissions to the State and

paying the past-due tax. A rational fact finder might find it difficult to believe that My Pillow

had engaged in a reasonable, thoughtful analysis of its use-tax liability in Illinois when it folded

so quickly in the face of accusations that it had failed to pay the tax.

¶ 58    Having reviewed the record at trial and the trial court’s careful, well-reasoned ruling, we

cannot say that the trial court’s findings are against the manifest weight of the evidence. We

cannot say that the opposite conclusion is clearly evident or that the finding is arbitrary or not

based on the evidence presented. See Best, 223 Ill. 2d at 350.

¶ 59    While My Pillow may be correct that its tax liability under Illinois law was less than

clear, the trial court found that it did nothing to try to comb through the thicket to make a

reasonable judgment about its tax obligations. That is the fatal blow for My Pillow, the fact that

distinguishes this case from the others discussed. In those other cases, the companies undertook

investigations and came to reasonable conclusions, and they could not be held liable under the

False Claims Act for what amounted to nothing more than reasonable differences in legal

opinions. My Pillow cannot altogether ignore any possible tax liability under Illinois law and

then, when called to account for it, claim that it was too confusing to determine, so it never

should have had to try to figure it out in the first place.


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¶ 60   In a case under the federal False Claims Act brought to our attention by relator, a New

York federal court said this:

                “It is true that FCA liability cannot attach where an incorrect submission results

       simply from a misunderstanding concerning what the applicable regulations require of a

       claimant. The record demonstrates, however, that this is not what happened here. While

       confusion apparently existed on the margins concerning the precise requirements of the

       new cost-reporting instructions *** the [defendants] have not pointed to any evidence

       that they tried to comply with the new regulations, and somehow blundered in the

       attempt. Nor do the [defendants] claim at any point that they were confused by the new

       instructions. Instead, the [defendants] attempt to hide behind the general ‘abundance of

       confusion and misdirection’ that they contend surrounded the issuance of [the new cost-

       reporting instructions] to argue, in effect, that the dispute over the meaning and validity

       of [the new cost-reporting instructions] created blanket immunity for everyone ordered to

       comply with the new interpretation.” (Emphasis added.) Visiting Nurse Ass’n of Brooklyn

       v. Thompson, 378 F. Supp. 2d 75, 95 (E.D.N.Y. 2004).

¶ 61   That passage appropriately describes My Pillow’s argument and the correct response. If

My Pillow is correct that the murky nature of this area of use-tax law is enough, by itself, to

avoid liability under the “knowing”/reckless-conduct standard of section 3, then in effect we

would be writing section 3 out of existence, at least as it concerns reverse false claims of use-tax

liability in interstate commerce. It would make no difference whether a company engaged in a

reasonable, thoughtful inquiry as to its use-tax obligations or brazenly ignored any potential

liability—all that would matter is that the question is a thorny one, subject to good-faith dispute,

and thus, as a matter of law no reckless conduct occurred.


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No. 1-15-2668

¶ 62   My Pillow did not demonstrate that it had a good-faith dispute over its use-tax

obligations in Illinois, because it never made any reasonable effort to determine that obligation

one way or the other. The trial court found that My Pillow’s conduct was far removed from a

reasonable, prudent inquiry into its use-tax obligations under Illinois law and was much more

akin to burying its head in the sand and ignoring obvious warning signs. We cannot say that

these findings were against the manifest weight of the evidence. We affirm the trial court’s

judgment on liability.



¶ 63                                       2. Damages

¶ 64   My Pillow next challenges the trial court’s damages award. A person who violates the

Act “is liable to the State for a civil penalty of not less than $5,500 and not more than $11,000,

plus 3 times the amount of damages which the State sustains because of the act of that person.”

740 ILCS 175/3(a)(1) (West 2012). My Pillow claims that the trial court erroneously trebled the

amount that My Pillow remitted prior to trial ($106,970), when it filed its amended Form ST-1s

for 2012 and 2013. My Pillow also challenges the trial court’s decision to award relator damages

(and penalties) for the period prior to its investigation, which began on August 30, 2011. We first

address the “trebling” issue.



¶ 65                        a. Trebling of $106,970 Paid Before Trial

¶ 66   The first issue concerns the $106,970 that My Pillow paid in taxes to the State before

trial. Everyone agrees that My Pillow is entitled to some form of credit against the judgment for

the $106,970 it paid before trial. But the question is whether that money should be included in




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No. 1-15-2668

the amount of “damages” that are trebled, and then credited (as relator argues), or whether it

should be deducted before trebling (as My Pillow argues).

¶ 67    The trial court ruled one way and then reversed itself, so a brief review of the relevant

procedural history and the trial court’s reasoning is in order.

¶ 68    After trial, relator filed a memorandum requesting an award of $1,008,167 ($557,167 in

damages and $451,000 in penalties). In support of its request for $557,167 in damages, relator

claimed that My Pillow’s unpaid tax liability for the period of June 2010 through October 31,

2013, was $221,379. This amount included the $106,970 tax liability that My Pillow had

remitted prior to trial. Relator argued that My Pillow’s untimely compensatory payments should

not be subtracted until after the damages were trebled and claimed that the $221,379 amount had

to be trebled under the Act (for a trebled total of $664,137). After trebling the damages, relator

credited My Pillow for the $106,970, to arrive at the final figure of $557,167. In response, My

Pillow claimed that its remittance of the $106,970 in taxes should be subtracted from the

damages amount prior to trebling.

¶ 69    On February 18, 2015, the court entered its original order. The court agreed with My

Pillow and concluded that the $106,970 that My Pillow remitted to the state in 2013 and 2014

should be subtracted from the damages prior to trebling. The court based its decision on the fact

that My Pillow had timely filed the amended Form ST-1s, which it was allowed to do under

ROTA.

¶ 70    On December 17, 2015, in its second amended final order and judgment, the court

changed its decision and concluded that the $106,970 that My Pillow paid to the State must be

included in the amount to be trebled and must be considered “proceeds” of this action. My




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No. 1-15-2668

Pillow would still get credit for the payment, but it would be deducted from the damages after

trebling.

¶ 71    As the trial court explained, the evidence at trial was that, after being served with the

second amended complaint filed by relator, Lindell instructed an employee to begin collecting

the tax alleged in the complaint and that finally, in 2013, My Pillow began to collect the tax,

amended its Form ST-1s, and paid the delinquent tax. Thus, in the court’s view, “the $106,970

must be considered proceeds of this action because they were remitted after Relator sued [My

Pillow] and in response to the suit and because they were produced or derived from Relator’s

Complaint.” As the court further found: “It is clear from the evidence, in particular the testimony

of [My Pillow]’s CEO [Lindell], that these past due taxes would not have been paid to the State

had Relator not brought this action.”

¶ 72    The court further noted that “damages” under the Act are what the State sustained

because of My Pillow’s acts. The court found that My Pillow “did not pay this tax until it was

sued by Relator; thus, the State was deprived of it. Those are the damages.” The court ordered

that “the $106,970 is considered damages which should be included in the amount which is to be

trebled.”

¶ 73    The trial court found, and My Pillow does not dispute, that “these past due taxes would

not have been paid to the State had Relator not brought this action.” The fact that the

amendments to the Form ST-1s were allowed under ROTA was not the decisive consideration.

The relevant consideration, the trial court reasoned, was the fact that My Pillow made those

amendments and paid the $106,970 in past due taxes as a direct result of this lawsuit.




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No. 1-15-2668

¶ 74   My Pillow argues that the court’s initial ruling was correct and that relator cannot treble

the $106,970 that My Pillow paid with its amended Form ST-1s for 2012 and 2013. For the

reasons that follow, we disagree with My Pillow.

¶ 75   We begin with the analysis by the U.S. Supreme Court, considering the federal false

claims statute, in United States v. Bornstein, 423 U.S. 303 (1976). In Bornstein, the federal

government filed an action against a subcontractor that had knowingly provided falsely-marked

products to the prime contractor, which resulted in the prime contractor presenting false claims

to the government. After the government discovered the fraud, the prime contractor made

payments to the government. Id. at 307. But the government sued the subcontractor under the

False Claims Act and sought, among other things, double damages (before the statute was

amended to provide for treble damages). The subcontractor argued that, before determining the

amount of “damages” that should be doubled, any earlier compensatory payments should be

deducted. The Supreme Court disagreed, holding that “the [g]overnment’s damages should be

doubled before any compensatory payments are deducted, because that method of computation

most faithfully conforms to the language and purpose of the [federal act].” Id. at 314.

¶ 76   The Court first noted that the federal act “speaks of doubling ‘damages’ and not doubling

‘net damages’ or ‘uncompensated damages.’ ” Id. at 314 n.10. It further reasoned that the “make-

whole purpose of the Act is best served by doubling the Government’s damages before any

compensatory payments are deducted.” Id. at 315. The Court gave a detailed discussion of those

reasons:

                “First, this method of computation comports with the congressional

       judgment that double damages are necessary to compensate the Government

       completely for the costs, delays, and inconveniences occasioned by fraudulent


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No. 1-15-2668

       claims. Second, the rule that damages should be doubled prior to any deductions

       fixes the liability of the defrauder without reference to the adventitious actions of

       other persons. The position [advanced by the subcontractor] would mean that two

       subcontractors who committed similar acts and caused similar damage could be

       subjected to widely disparate penalties depending upon whether and to what

       extent their prime contractors had paid the Government in settlement of the

       Government’s claims against them. *** [T]he prime contractor’s fortuitous acts

       should not determine the liability of the subcontractor under the [treble]-damages

       provision. Third, the reasoning [advocated by the subcontractor] would enable

       the subcontractor to avoid the Act’s double-damages provision by tendering the

       amount of the undoubled damages at any time prior to judgment. This possibility

       would make the double-damages provision meaningless. Doubling the

       Government’s actual damages before any deduction is made for payments

       previously received from any source in mitigation of those damages forecloses

       such a result.” (Emphasis added.) Id. at 315-16.

¶ 77    Based on Bornstein, the trial court correctly found that the amount of use tax My Pillow

remitted to the State prior to trial—the amount of $106,970—should not be deducted before

trebling, but should be credited after trebling. First, the Supreme Court noted that the federal act

in effect at the time referred to “doubling ‘damages’ and not doubling ‘net damages’ or

‘uncompensated damages’ ” (id. at 314 n.10), and the same may be said of our state Act. The

federal act at the time provided for “double the amount of damages which the United States may

have sustained by reason of the doing or committing such act” of submitting a false claim.

(Internal quotation marks omitted.) Id. at 305 n.1. Section 3 of our Act provides for penalties for


                                               - 22 -
No. 1-15-2668

violations “plus 3 times the amount of damages which the State sustains because of the act of

that person” submitting the false claim. 740 ILCS 175/3(a)(1) (West 2012). In substance, these

provisions are identical.

¶ 78   Moreover, as Bornstein aptly noted, were it otherwise, a strategic defendant could render

the treble-damages provision meaningless with a preemptive, prejudgment payment of the

original amount sought. See Bornstein, 423 U.S. at 316. A defendant, fearing an adverse

judgment on a False Claim Act count, could wait months or years—or in some cases, until the

eve of a final trial judgment—then pay the entire nontrebled amount of damages sought by the

relator or the government and claim that there was nothing left to treble. Admittedly, that is not

precisely what happened here, but something very close to it did—the trial court specifically

found that the $106,970 My Pillow remitted the State was in direct response to the relator’s

lawsuit.

¶ 79   Similar reasoning has been applied by one court, in a different context. In McGinty v.

State of New York, 193 F.3d 64 (2d Cir. 1999), plaintiffs sued several defendants, including the

State of New York, for wrongfully reducing death or disability benefits based on age, in

violation of the federal Age Discrimination in Employment Act (ADEA) (29 U.S.C. §§ 621-634

(1994)). In an attempt to bring the state in compliance with the ADEA, the state later made

additional death benefit payments to plaintiffs. McGinty, 193 F.3d. at 67-68. But the court

rejected the defendants’ claim that the plaintiffs’ death benefit claims were moot. Id. at 70-71.

The court stated: “[P]laintiffs here unquestionably suffered actual damages at the time that

defendants willfully paid them less in death benefits than ADEA required upon the deaths of

their decedents.” Id. at 71. As the court further explained: “If defendants were correct that

plaintiffs’ consequent statutory right to liquidated damages could be wiped out by defendants’


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No. 1-15-2668

later preemptive distribution of the willfully-caused deficit in those death benefits, any ADEA

defendant could violate the law with impunity, then avoid its statutory obligation to pay

liquidated damages simply by paying off plaintiffs’ compensatory damages claims before

resolution of the suit.” Id. Citing Bornstein, the court in McGinty concluded: “That cannot be and

is not the law.” Id.

¶ 80    My Pillow relies on United States v. Anchor Mortgage Corp., 711 F.3d 745 (7th Cir.

2012), which it claims “requires” that the tax payments that My Pillow made prior to trial be

deducted from the amount of damages prior to trebling. In Anchor Mortgage, the defendants, a

mortgage brokerage corporation and its former president, fraudulently obtained eleven federally-

guaranteed home mortgage loans secured by real property by submitting false certifications with

the loan applications (falsely stating that relatives had provided the down payments for the loans

and that Anchor Mortgage had not paid anyone for referrals). Id. at 747. Before trebling the

amount of damages sustained by the government, the court considered what those damages

actually were. Id. at 748. The government, as the guarantor of those loans, had paid money to the

lenders to compensate them, but later had sold the land securing the loans to recoup some of the

loss. The district court took the amount the government had paid to the lenders, trebled it, and

then deducted the sales proceeds as a credit against the trebled damages award. Id. at 746.

¶ 81    The Seventh Circuit reversed, holding that the sales proceeds should have first been

deducted before trebling—what it called “net trebling.” Id. at 750-51. As the court reasoned:

                “Basing damages on net loss is the norm in civil litigation. If goods

        delivered under a contract are not as promised, damages are the difference

        between the contract price and the value of what arrives. If the buyer has no use

        for them, they must be sold in the market in order to establish that value. If


                                              - 24 -
No. 1-15-2668

          instead the seller fails to deliver, the buyer must cover in the market; damages are

          the difference between the contract price and the price of cover. If a football team

          fires its coach before the contract’s term ends, damages are the difference

          between the promised salary and what the coach makes in some other job (or what

          the coach could have made, had he sought suitable work). Mitigation of damages

          is almost universal.” Id. at 749.

¶ 82      My Pillow contends that this “benefit of the bargain” approach applies to the instant case

involving My Pillow’s failure to pay sales taxes that were due. We disagree. It may be true that

“[i]n most [federal false claims act] cases, damages are measured as they would be in a run-of-

the-mine breach-of-contract case—using a ‘benefit-of-the-bargain’ calculation in which a

determination is made of the difference between the value that the government received and the

amount that it paid.” United States ex rel. Feldman v. van Gorp, 697 F.3d 78, 87 (2d Cir. 2012).

¶ 83      But this is not the typical false-claims case involving the provision of goods to the

government that were worth less than what the government thought it was getting. As we

mentioned at the outset, this case presents what is known as a “reverse false claim, where a

material misrepresentation is made to avoid paying money owed to the government.” Relax the

Back, 2016 IL App (1st) 151580, ¶ 19. As we have noted, “[t]he reverse false claims provision

was added to provide that an individual who makes a material misrepresentation to avoid paying

money owed to the Government would be equally liable under the Act as if he had submitted a

false claim to receive money.” (Internal quotation marks omitted.) Ritz Camera, 377 Ill. App. 3d

at 996.

¶ 84      My Pillow did not breach a contract. There was no “bargain” or contract in the instant

case. My Pillow simply failed to pay taxes it owed—i.e., it “knowingly conceal[ed] or knowingly


                                                 - 25 -
No. 1-15-2668

and improperly avoid[ed] *** an obligation to pay or transmit money *** to the State.” 740

ILCS 175/3(a)(1)(G) (West 2012).

¶ 85   Anchor Mortgage was a typical false-claims case, where the defendant submitted false

documents to procure government-backed mortgages. Anchor Mortgage, 711 F.3d at 747. Its

holding was grounded, as the court noted, in the contractual concept of “mitigation of damages”

(id. at 149), the notion that if a bad product is delivered, the government should not get all of its

money back, but rather it must first determine the worth of what it did receive and subtract that

from the amount it paid. Id. (“If goods delivered under a contract are not as promised, damages

are the difference between the contract price and the value of what arrives.”). It is difficult to fit

that concept into this reverse false claim, where My Pillow did not “mitigate” its damages in any

reasonable meaning of that phrase. All it did was prepay some of the damages. It should get a

credit on the back end—as it did—but only after its inclusion in the amount of damages that

were trebled. Otherwise, as the trial court correctly noted, My Pillow would be “reward[ed] for

[a] payment made only because My Pillow was found out and sued.”

¶ 86   Bornstein clearly holds that if a wrongdoer is caught in an act of submitting a false claim,

the prepayment of some of the damages should not be deducted from the damages that are

doubled (now trebled). Bornstein, 423 U.S. at 316. That is precisely what happened here. My

Pillow started remitting taxes only after relator sued it for failing to do so. It was a preemptive,

partial payment of the State’s actual damages. If we allowed that to serve as a credit against the

damages award before being trebled, we would render the treble-damages provision

meaningless. See id.

¶ 87   We agree with the trial court that, at the time My Pillow failed to pay the sales tax it

owed, the State was deprived of the sales tax My Pillow owed to Illinois on Internet and


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No. 1-15-2668

telephone sales for 2012 ($61,218) and 2013 ($45,752); thus the State sustained damages totaling

$106,970. Those were actual damages. We agree with the trial court’s conclusion that, although

My Pillow is entitled to a credit for the $106,970 that it paid before judgment, that credit must

come after the damages—including that $106,970—are trebled. We affirm the award of damages

on this question.



¶ 88                 b. Damages for Periods Prior to Relator’s Investigation

¶ 89   It is undisputed that My Pillow failed to collect tax on Internet and telephone sales

beginning in June 2010. Relator claimed it was entitled to damages for 41 months (June 2010 -

October 2013). But My Pillow argues that relator was not entitled to any damages for the period

prior to relator’s investigation, which began on August 30, 2011. My Pillow claims that “[n]o

facts are alleged in the Third Amended Complaint regarding a violation of the Act for earlier

time periods” than August 30, 2011. Thus, My Pillow argues, relator is not entitled to any

damages for false claims that occurred prior to August 30, 2011.

¶ 90   If we are to take this argument literally, My Pillow’s argument that “[n]o facts are alleged

in the Third Amended Complaint regarding a violation of the Act for earlier time periods” than

August 30, 2011, sounds like an argument in a motion to dismiss a complaint for lack of

sufficient fact-pleading. See 735 ILCS 5/2-615 (West 2010). But as relator notes, My Pillow

answered that complaint and thus waived any objection to insufficient factual pleading. See 735

ILCS 5/2-612(c) (West 2010) (“All defects in pleadings, either in form or substance, not objected

to in the trial court are waived.”); see Fox v. Heimann, 375 Ill. App. 3d 35, 41 (2007)

(defendant’s answer to complaint waived any defect in pleading).




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No. 1-15-2668

¶ 91   And regardless of how insufficient the factual pleading may have been, it would have

been cured under the doctrine of aider by verdict. Under that doctrine, “where a defendant allows

an action to proceed to verdict, that verdict will cure not only all formal and purely technical

defects and clerical errors in a complaint, but will also cure any defect in failing to allege or in

alleging defectively or imperfectly any substantial facts which are essential to a right of action.”

(Internal quotation marks omitted.) Adcock v. Brakegate, Ltd., 164 Ill. 2d 54, 60-61 (1994); see

also Swager v. Couri, 77 Ill. 2d 173, 185 (1979); Fox, 375 Ill. App. 3d at 41. This case went to

final judgment before the bench, and the court found that the evidence established that My

Pillow’s failure to collect and remit use taxes reached back to June 2010. That judgment cured

any deficiency, if one existed in the first place, in the third amended complaint.

¶ 92   Another way to read this argument, conceivably, is that My Pillow is claiming surprise at

trial that relator was seeking damages for actions that pre-dated August 30, 2011, which

prejudiced its ability to defend the case. If that is what My Pillow means, it has not said so or

even hinted as much. Absent citation to prevailing law or any development of that argument, My

Pillow has forfeited the argument. Old Second National Bank v. Indiana Insurance Co., 2015 IL

App (1st) 140265, ¶ 35 (failure to cite legal authority results in forfeiture of issue on appeal).

Regardless, our review of the third amended complaint reveals that relator alleged the following

with regard to My Pillow’s obligation to collect and remit use tax on its Internet and phone sales:

                (1) “My Pillow did not begin to collect and remit tax on Website and telephone

       sales until at least July or possibly September, 2013.”

                (2) “My Pillow is liable for making false claims under the Act for six years prior

       to the filing of the initial complaint on July 13, 2012. *** My Pillow is liable under the




                                               - 28 -
No. 1-15-2668

       Act as amended July 27, 2010 because it knowingly concealed or knowingly and

       improperly avoided an obligation to pay money to the State.”

                (3) “Beginning July 27, 2010, My Pillow knowingly concealed or knowingly and

       improperly avoided or decreased its obligation to pay money to the State by failing to

       collect and remit sales tax on its Website and infomercial sales to Illinois purchasers.”

                (4) “The limitations period under the Act is six years. My Pillow is liable for

       making false claims as defined in the False Claims Act for a period of six years prior to

       the filing of the initial complaint on July 13, 2012.”

                (5) “From January 2010 through July 2013, the date My Pillow, Inc. began to

       collect and remit tax on Website and telephone sales, each failure to maintain records

       showing the tax owed constitutes a separate violation for which a mandatory individual

       penalty will be assessed.”

¶ 93   It is not credible to believe, from reading these allegations, that My Pillow was unaware

that relator would be seeking damages pre-dating August 30, 2011.

¶ 94   Finally, to the extent that My Pillow is raising a legal argument here—that, as a matter of

law, relator could not have recovered for any actions that pre-date the commencement of

relator’s investigation on August 30, 2011—that argument is both forfeited and without merit.

Forfeited, because My Pillow has pointed to no language in the Act, or to any case law, that

would suggest that a company that fails to collect and remit use taxes to the State cannot be held

liable for that conduct until the fortuitous moment that either a relator or the State begins to

inquire into the matter. See Old Second National Bank, 2015 IL App (1st) 140265, ¶ 35 (failure

to develop argument or cite to pertinent authority constitutes forfeiture of argument on appeal).




                                               - 29 -
No. 1-15-2668

¶ 95   And without merit, because it would be a perverse interpretation of the Act, indeed, to

suggest that a company has blanket immunity under the Act to avoid collecting and remitting use

taxes until someone begins to realize what the company has been up to. The remedy for a

violation of the Act, besides penalties and fee awards, is an award for “damages which the State

sustains because of the act of” the wrongdoer. 740 ILCS 175/3(a)(1) (West 2012). That language

is unconcerned with when the State, much less a relator, first got wind of the problem. Here, the

evidence showed that the “damages which the State sustain[ed] because of the act[s] of” My

Pillow went back to June 2010. Relator thus proved its case for damages going back to that date.

The date on which relator began its investigation or discovered the problem is irrelevant.

¶ 96   That is not to say that a wrongdoer’s liability can extend back into time indefinitely. It

cannot. The Act provides a limitations period for civil actions, generally limiting actions to six

years from the date on which the violation was committed. 740 ILCS 175/5(b)(1) (West 2012).

That is the protection afforded to a company that fails to collect and remit use taxes—the

knowledge that the State cannot go back more than six years from the filing of the complaint—

not some unwritten, judicially-bestowed immunity that allows a company to avoid its tax

obligations with impunity until the day it is caught.

¶ 97   The evidence showed that, by My Pillow’s own admission, My Pillow did not remit tax

on Internet and telephone sales from June 2010 through July 2013. The trial court properly

assessed damages relating back to the relevant date of June 2010. We affirm the damages award.




¶ 98                                     3. Attorney Fees

¶ 99         a. Relator’s Entitlement to Attorney Fees for Work of Its Own Lawyers


                                               - 30 -
No. 1-15-2668

¶ 100 My Pillow next argues that the trial court erred in awarding attorney fees to relator, a law

firm, because a plaintiff who is also an attorney cannot recover his or her own attorney fees. 2

¶ 101 We first address our standard of review. Under Illinois law, a trial court cannot award

attorney fees to a party unless the fees are specifically authorized by statute or by contract

between the parties. Grate v. Grzetich, 373 Ill. App. 3d 228, 231 (2007). Generally, where the

trial court has the authority to award attorney fees, we review its decision to award attorney fees

for an abuse of discretion. Id. But whether a trial court has the authority to grant attorney fees as

an available remedy is a question of law that we review de novo. Id; accord Spencer v. Di Cola,

2014 IL App (1st) 121585, ¶ 35. My Pillow is challenging the trial court’s authority to award

fees under the Act to a relator who is both the litigant and an attorney. So our review is de novo.

¶ 102 The Act provides that, when the State does not intervene in a false claims action, the

person who brings the action:

       “shall receive an amount which the court decides is reasonable for collecting the

       civil penalty and damages. The amount shall be not less than 25% and not more

       than 30% of the proceeds of the action or settlement and shall be paid out of such

       proceeds. Such person shall also receive an amount for reasonable expenses

       which the court finds to have been necessarily incurred, plus reasonable attorneys’

       fees and costs. All such expenses, fees, and costs shall be awarded against the

       defendant.” 740 ILCS 175/4(d)(2) (West 2012).

¶ 103 The plain language of section 4(d)(2) does not explicitly preclude an award of attorney

fees to a law firm that was both the relator and the law firm representing the relator. No reported

Illinois decision has addressed this topic under the Act. Nor, as far as both this court and the

       2
         My Pillow does not contest the attorney fees awarded for services performed by another law firm
that was hired by relator.

                                                 - 31 -
No. 1-15-2668

parties could determine, has any decision, anywhere in the country, discussed whether a relator-

law firm can obtain attorney fees under a false-claim statute for work performed representing

itself in the litigation. Neither party has pointed to any illuminating legislative history on this

question, and we have found none, either.

¶ 104 The parties have cited case law concerning two areas of the law—case law involving an

individual attorney’s attempt to collect attorney fees when that lawyer represents himself pro se

in a proceeding, and case law concerning a plaintiff-law firm’s ability to collect fees for work

performed by its member lawyers in representing the firm in court. Neither of these are perfect

analogies, particularly because none of them concern a fee-shifting provision under a state or

federal false-claims statute, but these decisions are helpful in analyzing this difficult question.

¶ 105     i. Individual Plaintiff-Attorney’s Entitlement to Fees for Self-Representation

¶ 106 In Hamer v. Lentz, 132 Ill. 2d 49, 63 (1989), the Illinois Supreme Court held that an

attorney proceeding pro se in an action brought pursuant to the Illinois Freedom of Information

Act (FOIA) (Ill. Rev. Stat. 1987, ch. 116, ¶ 201 et seq.) was not entitled to fees under that statute.

The FOIA, like the Act in this case, contained a standard fee-shifting provision that did not speak

to the question. The court based its decision on three grounds.

¶ 107 First, the court explained that the purpose of the fee provision was to ensure enforcement

of the FOIA by “removing the burden of legal fees, which might deter litigants from pursuing

legitimate FOIA actions.” Hamer, 132 Ill. 2d at 62. But “[a] lawyer representing himself or

herself simply does not incur legal fees,” so the specter of having to pay an attorney did “not

present a barrier” to the pro se lawyer, as it would to a nonlawyer plaintiff. Id.

¶ 108 Second, the court reasoned that another purpose of the fee-shifting provision was to

“avoid unnecessary litigation by encouraging citizens to seek legal advice before filing suit.” Id.


                                                - 32 -
No. 1-15-2668

The presence of an independent lawyer brought a detached, second set of eyes on the facts and

the law, even if the plaintiff was already a lawyer himself or herself. Id.

¶ 109 Third, the court feared the potential for abusive fee generation if a lawyer were permitted

to represent himself or herself pro se and then collect fees for the self-representation. FOIA

actions, in other words, could become less about vindicating citizen requests for information

from the government and more about a vehicle to generate legal fees. Though the court in Hamer

had no indication that the plaintiff was engaged in such a practice, or that he had an otherwise

“inactive practice,” the court did not “think it advisable to leave the door open for unscrupulous

attorneys.” Id.

¶ 110 Appellate courts have applied the holding in Hamer in contexts beyond the FOIA,

denying attorney fees to individual attorneys representing themselves in litigation. See, e.g.,

Kehoe v. Saltarelli, 337 Ill. App. 3d 669, 677-78 (2003) (individual lawyer not entitled to fees

for self-representation in malpractice action); In re Marriage of Pitulla, 202 Ill. App. 3d 103,

117-18 (1990) (individual attorney representing self in dissolution-of-marriage action not entitled

to recover attorney fees).

¶ 111 Two years after our supreme court decided Hamer, the United States Supreme Court

weighed in on this topic in Kay v. Ehrler, 499 U.S. 432 (1991), holding that a pro se attorney

was not entitled to recover attorney fees under 42 U.S.C. § 1988 (1988), a federal civil-rights

statute. As the Court noted:

                  “A rule that authorizes awards of counsel fees to pro se litigants—even if

       limited to those who are members of the bar—would create a disincentive to

       employ counsel whenever such a plaintiff considered himself competent to litigate

       on his own behalf. The statutory policy of furthering the successful prosecution of


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        meritorious claims is better served by a rule that creates an incentive to retain

        counsel in every such case.” Kay, 499 U.S. at 438.

¶ 112 Kay, then, simply reinforced what our supreme court had cited as its second basis for

denying fees to pro se lawyers under the Illinois FOIA—that the law should encourage even

lawyer-plaintiffs to retain independent counsel, who can provide an objective perspective to both

weed out non-meritorious claims and more effectively prosecute meritorious ones. See Hamer,

132 Ill. 2d at 62.

¶ 113           ii. Plaintiff-Law Firm’s Entitlement to Fees for Self-Representation

¶ 114 Though the U.S. Supreme Court’s decision in Kay was limited to holding that an

individual plaintiff-attorney could not collect fees for self-representation under a fee provision in

a civil-rights statute, the U.S. Supreme Court dropped a footnote in response to the suggestion

that Congress had intended to compensate organizational plaintiffs that represent themselves for

the legal work they performed:

                “Petitioner argues that because Congress intended organizations to receive an

        attorney’s fee even when they represented themselves, an individual attorney should also

        be permitted to receive an attorney’s fee even when he represents himself. However, an

        organization is not comparable to a pro se litigant because the organization is always

        represented by counsel, whether in-house or pro bono, and thus, there is always an

        attorney-client relationship.” Kay, 499 U.S. at 436 n.7.

¶ 115 Thus, though this footnote was not directly central to the Supreme Court’s holding, the

Court clearly signaled that organizational plaintiffs would stand on different ground than

individual plaintiffs engaged in self-representation. The existence of an attorney-client




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relationship between the organization and its lawyer, even if that lawyer were an employee of

that organization, apparently satisfied the Court’s concern about the need for objective counsel.

¶ 116 When one thinks of the Supreme Court’s reference to “organizations” that “represent[ ]

themselves” through “in-house or pro bono” lawyers (id.), included within that category would

be obvious examples of nonprofit organizations devoted to public-policy issues such as

protection of the environment, fair-housing practices, or the like. See, e.g., Lujan v. Defenders of

Wildlife, 504 U.S. 555, 559 (1992) (“organizations dedicated to wildlife conservation and other

environmental causes”); Havens Realty Corp. v. Coleman, 455 U.S. 363, 368 (1982) (nonprofit

corporation whose purpose was “to make equal opportunity in housing a reality in the Richmond

Metropolitan Area” (internal quotation marks omitted)); National Organization for Women, Inc.

v. Scheidler, 510 U.S. 249, 252 (1994) (“national nonprofit organization that supports the legal

availability of abortion”).

¶ 117 Does it also include law firms, who are party-plaintiffs and whose member attorneys

represent the firm in court? Several federal circuit courts of appeals have considered this

question and have unanimously answered: “Yes.”

¶ 118 These courts, relying heavily on this footnote in Kay, have held that a prevailing plaintiff-

law firm may collect attorney fees for the work performed by its member lawyers under a

statutory fee-shifting provision—that a law firm is one of the “organizations” referenced in the

Kay footnote. See, e.g., Gold, Weems, Bruser, Sues & Rundell v. Metal Sales Manufacturing

Corp., 236 F.3d 214, 218-19 (5th Cir. 2000) (“when an organization is represented by an

attorney employed by the organization, the attorney has a status separate from the client” and

thus, plaintiff law firm could collect attorney fees under Louisiana statute for work performed by

member lawyers on plaintiff law firm’s behalf); Bond v. Blum, 317 F.3d 385, 400 (4th Cir.


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2003), abrogated on other grounds by Kirtsaeng v. John Wiley & Sons, Inc., ___ U.S. ___, 136

S. Ct. 1979 (2016) (appellate court allowed fees to plaintiff law firm for work of its member

lawyers in copyright lawsuit, because “[w]hen a member of an entity who is also an attorney

represents the entity, he is in an attorney-client relationship with the entity and, even though

interested in the affairs of the entity, he would not be so emotionally involved in the issues of the

case so as to distort the rationality and competence that comes from independent

representation”).

¶ 119 Following these holdings in Gold and Bond, the D.C. Circuit Court of Appeals held that a

plaintiff law firm could seek fees under the federal FOIA for work performed by its member

lawyers. Baker & Hofstetler LLP v. United States Department of Commerce, 473 F.3d 312, 326

(D.C. Cir. 2006). The court reasoned that the Kay footnote had made a “crystal clear” distinction

between organizational plaintiffs and individual plaintiffs (id. at 325), and it could find no

“principled basis” to distinguish law firms from other organizational plaintiffs employing in-

house counsel. Id. The court wrote that Kay’s footnote “suggests that an in-house counsel for a

corporation is sufficiently independent to ensure effective prosecution of claims,” and “[a]n

attorney who works for a law firm certainly is no less independent.” Id.

¶ 120 The Eighth Circuit relied on these three decisions (and the Kay footnote) to hold that a

successful defendant-law firm in an ERISA action could recover legal fees for the work of its

member associate. Treasurer, Trustees of Drury Industries, Inc. Health Care Plan & Trust v.

Goding, 692 F.3d 888, 898 (8th Cir. 2012). The court found “no meaningful distinction between

a law firm and any other organization on the issue of whether there exists an attorney-client

relationship between the organization and its attorney.” Id. Last year, the First Circuit agreed,

holding that a successful defendant-law firm could recover attorney fees for the work performed


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by one of the law firm’s salaried associates. Fontanillas-Lopez v. Morell Bauzá Cartagena &

Dapena, LLC, 832 F.3d 50, 61 (1st Cir. 2016).

¶ 121 But My Pillow cites a recent decision of the Michigan Supreme Court that reached the

opposite conclusion under that state’s law. In Fraser Trebilcock Davis & Dunlap PC v. Boyce

Trust 2350, 870 N.W.2d 494, 501 (Mich. 2015), the court denied a plaintiff-law firm fees for

legal work its member attorneys performed in a suit to collect unpaid fees from a client. The

court considered the Kay footnote to be “nonbinding dictum” and reasoned that, whatever else

that footnote may have meant, it was not intended to “affirmatively distinguish an individual

attorney-litigant from a law firm seeking fees for the representation it provided to itself through

its member lawyers—a distinction we particularly hesitate to read into Kay’s footnote, given the

overall thrust of the opinion.” Id. Ultimately, the court saw no meaningful distinction between an

individual lawyer’s self-representation and a law firm’s self-representation. Id.

¶ 122 While that holding supports My Pillow’s position that relator should be denied fees, this

passage in the court’s opinion does not:

       “Kay’s footnote spoke to the attorney-client relationship that may arise between an

       organization and its in-house or pro bono counsel. Hoping to duck under Kay’s umbrella,

       Fraser Trebilcock likens the member lawyers who appeared on its behalf to such in-house

       counsel, but we find this characterization inapt. As Kay’s dictum reflects, the relationship

       between an organization and its in-house counsel is typically one of attorney and

       singular client; the attorney is employed by the organization in order to provide legal

       services to the organization. There is no indication, however, that Fraser Trebilcock

       enjoyed this same type of relationship with its member lawyers in the instant suit—

       namely, that these lawyers were employed by and affiliated with the firm to provide legal


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       services to the firm as a distinct and exclusive client, rather than to provide such services

       on behalf of the firm to its clients. Whether and under what circumstances a law firm may

       recover fees for representation provided to it by in-house counsel is not before us, and we

       decline to reach that question here.” (Emphasis added.) Id.

¶ 123 This language is helpful to relator, as the record demonstrates that virtually all of relator’s

legal work consists of filing false-claims cases as a party-plaintiff. My Pillow does not dispute

that fact and, in fact, has gone to great lengths to characterize relator as a professional relator, a

characterization relator does not dispute (and which the record amply supports). Thus, while in

Fraser Trebilcock, the law firm was a traditional law firm with an assortment of clients and that

one-off collection case was an anomaly where the firm was representing itself, in this case

relator’s member lawyers routinely, and nearly exclusively, represent the firm—a singular client.

Thus, relator could plausibly argue that the associates and shareholders of its law firm are more

akin to “in-house” counsel, falling under Kay’s footnote, than they are a traditional law firm.

¶ 124 We now turn to Illinois law on this topic. This court recently considered whether a

plaintiff-organization that provided legal services to prisoners could collect fees for the work

performed by its in-house, salaried lawyers for the successful prosecution of a FOIA claim.

Uptown People’s Law Center v. Department of Corrections, 2014 IL App (1st) 130161. This

court ruled that it could not. The court first noted that Uptown People’s Law Center (Uptown), as

a corporate entity, could not proceed pro se but, rather, was represented by two of its in-house

lawyers, Mr. Mills and Ms. Schult. Id. ¶ 25. The court reasoned, however, that “the purpose of

the attorney fee provision would not be furthered by awarding attorney fees in this instance”

because, given that the lawyers were already salaried employees of Uptown:




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       “Uptown was not required to spend additional funds specifically for the purpose of

       pursuing FOIA requests. [Citation.] Thus, legal fees were never a burden that Uptown

       was required to overcome in order to pursue its FOIA requests. In addition, Mills and

       Schult had no expectation of receiving additional fees from Uptown for performing this

       work. [Citation.] As a result, providing Uptown with legal fees for pursuing FOIA

       requests would not compensate Uptown. On the contrary, an award of fees would reward

       Uptown. Moreover, it would encourage salaried employees working for a not-for-profit

       organization to engage in fee generation for the organization’s behalf. Accordingly, we

       hold that the reasoning of Hamer prohibits a not-for-profit legal organization from being

       awarded legal fees [for work performed by its member lawyers].” Id.

¶ 125 Notably, Uptown does not merely present the example of a nonprofit organization whose

in-house lawyers provided the representation—it was a nonprofit legal entity that “represent[ed]

prisoners regarding conditions of confinement.” Id. ¶ 3.

¶ 126 For understandable reasons, the court in Uptown did not discuss Kay or these federal

cases but instead focused on Hamer—understandable because Uptown considered the same

statutory fee provision interpreted in Hamer, the FOIA fee provision. Still, we are not construing

FOIA, and so in taking Uptown into account, it is fair to note that it runs directly counter to

Kay—at least to Kay’s footnote—as well as the federal circuit court decisions we have discussed

above. Even the Michigan Supreme Court, distinguishing those cases and reading the Kay

footnote differently, conceded that the Supreme Court was clearly talking, approvingly, about in-

house counsel’s work for an organizational plaintiff in that footnote. See Fraser Trebilcock, 870

N.W.2d at 279-80. The organizational plaintiff in Uptown would fall, at least arguably, within

the Kay footnote’s reference.


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¶ 127 Finally, we would note that this court earlier ruled that a law firm seeking to collect

unpaid fees from a client could not collect attorney fees performed by two of that law firm’s

member lawyers, Mr. Jacquays and Ms. Kennison. In re Marriage of Tantiwongse, 371 Ill. App.

3d 1161, 1164-65 (2007). Without distinguishing between plaintiff-law firms and individual

plaintiff-lawyers, the court simply relied on Hamer to hold that these two lawyers were

“representing themselves” in the collection action and “could not incur any legal fees on their

own behalf.” Id. Thus, though the court there did not explain why, the court appeared to

unhesitatingly apply Hamer in the context of a plaintiff-law firm representing itself.

¶ 128 Having taken all of this case law into account, it is our judgment that relator should not

be allowed to recover attorney fees in this instance. We reach this holding, and do not follow the

case law cited by relator, for several reasons.

¶ 129 First, the federal circuit court decisions that favor relator’s position were focused,

properly so, on Kay. But Kay’s holding—and its footnote—focused on the presence of an

attorney-client relationship and nothing more. The entire point of the holding in Kay was that an

independent lawyer was necessary to counsel the plaintiff-lawyer, to provide an objective,

detached view of the case. Likewise, the entire point of footnote 7 in Kay was that organizational

plaintiffs are different because in that context, an attorney-client relationship always exists.

Accordingly, as we noted above in detail, the federal circuit court decisions repeatedly

emphasized that an attorney-client relationship did exist in the context of a plaintiff-law firm and

its member lawyers, and thus, the concern in Kay was satisfied.

¶ 130 But it is possible to agree with that assessment and still reach a different outcome under

Illinois law. We agree without hesitation that, in this case, relator had an attorney-client

relationship with its member lawyers. Of course it did. A corporation cannot appear in court


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No. 1-15-2668

without a lawyer representing it. Downtown Disposal Services, Inc. v. City of Chicago, 2012 IL

112040, ¶ 22 (“Courts in this country, including this court, unanimously agree that a corporation

must be represented by counsel in legal proceedings.”). And nothing prevents a corporation of

any kind—a law firm or any other company—from using its own, in-house, salaried lawyers in

court. See, e.g., Uptown, 2014 IL App (1st) 130161, ¶ 25. If our only concern were whether an

attorney-client relationship existed between relator and its member lawyers, we would agree with

relator’s position.

¶ 131 But Kay, and its singular consideration, is not our only concern. Our supreme court’s

decision in Hamer, while not directly on point because it involved a pro se individual plaintiff-

lawyer rather than a corporate entity that cannot appear pro se, nevertheless is instructive in that

it considered an attorney-fee provision much like ours and raised several public policy reasons in

interpreting that provision. When we analyze the policy considerations raised in Hamer, we find

that they favor denying fees to relator in this case.

¶ 132 Under the first Hamer consideration, we consider the purpose of the fee provision. The

purpose of the Act is to reveal fraud against the government. See Ritz Camera, 377 Ill. App. 3d

at 996. The fee-shifting provision in the Act incentivizes individuals to ferret out such fraud by

removing the burden of legal fees as a deterrent. We do not view the fee provision as a reward

for successful relators. The Act rewards prevailing relators in other ways. It provides for an

award of 25% to 30% of the proceeds of the lawsuit to a relator who handles the litigation from

start to finish, without the State’s intervention. 740 ILCS 175/4(d)(2) (West 2012). It awards a

smaller share to a prevailing relator in cases where the State intervenes—15% to 25%,

“depending on the extent to which the [relator] substantially contributed to the prosecution of the

action.” 740 ILCS 175/4(d)(1) (West 2012). Thus, the successful relator-law firm is not only


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No. 1-15-2668

rewarded, but rewarded (at least roughly) based on the amount of effort it expended. To reward

that law firm for its efforts again, this time based on an hourly fee rate, strikes us as a double

recovery.

¶ 133 And while an action under the Act could bring along with it a rich bounty for the

relator—as it did in this case—that is not necessarily always true. Here, the reverse false-claims

action snared a defendant with significant sales in Illinois, but a false-claims action (particularly

a traditional one) could very well reveal fraud against the government in a far smaller amount.

The relator would still get its 25% to 30% of the recovered proceeds, but it could be 25% to 30%

of an amount so small that it is not worth the cost of paying a lawyer to fight the case, on an

hourly-fee basis, for several years. And even in a case like this one, where the amount of

recovery was larger, a relator could lose part of its case—as it did here, regarding craft-show

sales. The fee provision in the Act permits citizen-relators to ferret out fraud even when the

reward at the end of the rainbow would not ordinarily warrant the cost of litigation.

¶ 134 Relator could argue that the legal fees are a burden, because of the opportunity cost—the

time that its member lawyers could have spent on other matters instead of this one. We do not

agree, first, because this particular relator’s attorneys do not appear to perform any legal work

other than these false-claims cases. They are not taking time away from other clients to perform

this work; this work is the only work they do. More importantly, we reject this reasoning because

the same thing could have been said of Mr. Hamer in the Hamer decision—he was an attorney at

a “large Chicago law firm” (Hamer, 132 Ill. 2d at 62) who presumably could have used the time

litigating the FOIA case to bill hours on work for the law firm’s clients. He certainly had more

profitable ways to spend his time than litigating a FOIA case, but the supreme court nevertheless




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No. 1-15-2668

reasoned that legal fees did not present an obstacle to him, because he was capable of performing

the legal work himself.

¶ 135 And the same thing could have been said of the lawyers representing the Uptown

People’s Law Center in Uptown, 2014 IL App (1st) 130161. The lawyers in that case could have

been spending their time on other lawsuits involving prisoners’ rights, but that did not persuade

this court that attorney fees were appropriate or consistent with the fee-shifting provision in the

FOIA. Id. ¶ 25 (because organizational plaintiff had salaried, in-house counsel, “legal fees were

never a burden that Uptown was required to overcome in order to pursue its FOIA requests”).

¶ 136 The same is true of relator here. We thus find that the purpose of the fee-shifting

provision—to eliminate the barrier of attorney fees—would not be served by awarding fees to a

relator that is both client and attorney.

¶ 137 The second consideration discussed in Hamer was the need for an objective, detached

viewpoint of independent counsel—much the same as the concern in Kay. We acknowledge that

the Kay footnote seemed to bless the concept of in-house counsel representing its corporation—

its singular client. We also acknowledge that this relator appears to function in a manner unlike a

traditional law firm, that it seems to exist only for the purpose of filing, as a party-plaintiff, false-

claims cases. Its lawyers might appear to be more like in-house counsel for an organizational

plaintiff than lawyers at a law firm with assorted clientele.

¶ 138 On the other hand, the traditional corporation with “in-house counsel” is not a

corporation where all of the shareholders are lawyers, like a law firm. The “in-house counsel” for

a traditional corporation would typically be giving his or her opinion to people who do not

actively practice law or, at least, are not experts in the particular field. There is at least some

measure of “independence” in that context, in that the “in-house” lawyer would be guided by


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what he or she believes to be the merits of the case, providing objective advice to a client whose

interests and motivations may be contrary to that objective advice.

¶ 139 In the specific context before us, we are not convinced of the “independence” of the

relator’s lawyers from the relator itself. We are not intimately familiar with the relator’s

corporate structure, but we know this much: First, the company is presently incorporated as

Stephen B. Diamond, P.C. (formerly Schad, Diamond & Sheffen, P.C.), and Diamond testified at

trial that he is the president of the corporation and has been since Mr. Schad’s death

approximately 7 years ago. Second, Diamond testified that he, personally, made at least one of

the purchases of products from My Pillow, using his personal credit card on the Internet while

driving to Wisconsin. Third, Diamond performed legal work on this case, as indicated by the fee

petitions and as disclosed in the record, in that he conducted the direct examination of relator’s

principal witness, Lindell of My Pillow. It would be fair to say that Diamond was the lead

counsel at the rather brief trial—as well as a witness called in My Pillow’s case-in-chief.

¶ 140 If the same person is both the final decision-maker at the client-corporation—its

president—and the lead attorney giving advice to the decision-maker, do we have the requisite

“independence” envisioned by these federal circuit courts relying on the Kay footnote? If the

corporate decision-maker and the lead counsel are one and the same person, our situation would

seem to be more along the lines of the holding in Kay—denying fees for lack of objective,

independent counsel—than the organizational exception in the Kay footnote, allowing fees for

work performed by in-house counsel.

¶ 141 The second Hamer consideration thus provides marginal assistance, if any, to relator’s

position.




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¶ 142 The third consideration in Hamer was the potential for abusive fee generation, the notion

that a law firm with an otherwise “inactive practice” would make a business out of filing lawsuits

under a statute such as the FOIA with a fee-shifting provision. Hamer, 132 Ill. 2d at 62. In that

regard, the FOIA could become less about vindicating citizens’ rights to information and more

about generating legal fees for a law firm.

¶ 143 We recognize that, whatever one may think of relator’s practice, it does perform the

valuable service of uncovering fraud against the State, primarily discovering companies that are

selling products in Illinois but failing to remit and collect use taxes. The result is that the State is

able to recover much-needed tax money going back several years and going forward, as well—

revenue it quite possibly never would have recovered otherwise.

¶ 144 But that does not alter the fact that this relator has made a business out of filing these

false-claims cases as a party-plaintiff. The record discloses the trial court’s notation that at one

point early on in the development of relator’s practice, relator had filed 157 such lawsuits. My

Pillow, in its brief, says that relator has filed over 600 such lawsuits in Illinois, and relator has

not taken issue with that number. Our review of the docket of the circuit court of Cook County

indicates that hundreds of cases are currently pending bearing relator’s name. See

https://courtlink.lexisnexis.com/cookcounty/FindDock.aspx?NCase=&SearchType=2&Database

=2&case_no=&Year=&div=&caseno=&PLtype=1&sname=Stephen+Diamond&CDate                                (last

accessed May 17, 2017). And we can attest that it is virtually impossible to conduct legal

research regarding the Act without constantly running into decisions bearing the relator’s name

as the plaintiff (or its predecessor name of Schad, Diamond & Sheffen, P.C.), many of which we

have cited in this opinion.




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¶ 145 It is true that a relator receives a reward, a percentage of the proceeds, for ferreting out

these nontaxpayers. But it is also true, as we noted earlier, that not all of these cases result in

large money judgments, and it is quite likely that the 25% to 30% of the proceeds will pale in

comparison to the award of attorney fees. This case is an example. The “proceeds” from this

action—the amount that My Pillow failed to pay, trebled—was $889,637, a sizeable number by

any estimation. From that amount, relator recovered the maximum 30% fee of $266,891.

Compare that maximum-rate recovery, in a case involving significant proceeds, with the amount

relator recovered for attorney fees and costs: $600,960. Even granting that a small portion of that

award could be shaved off for the “costs” aspect of fees and costs, the attorney-fee award was

still more than double relator’s statutory recovery of proceeds. And that was in a case involving

significant revenue; imagine the disparity should relator litigate roughly the same case, for

roughly the same amount of time, resulting in roughly the same amount of attorney fees, in a

case where the resulting proceeds are far smaller. The fee award could dwarf a relator’s statutory

recovery of the proceeds.

¶ 146 It is hard to imagine, in other words, that the prospect of earning fees is not a significant

driver in the decision to file these cases. It is presumably the reason why relator chooses to file

these lawsuits in the name of the law firm and perform (or at least primarily perform) the legal

work on the case, too—to obtain both the statutory percentage of recovery as well as attorney

fees. In any event, even if this is not relator’s intention, Hamer tells us to consider the potential

for abusive fee generation, even if not present in the situation currently before us (as it was not in

Hamer), and we can, at a minimum, find the potential for abusive fee generation if attorney fees

were awarded to a law firm that was both relator and attorney.




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No. 1-15-2668

¶ 147 Relator, at oral argument, reminded us of the value of the service relator performs and

warns that it may not be able to provide this service going forward, should this court rule against

it on this issue. Again, we do recognize the value of relator’s legal work to the State of Illinois. It

is not our intention to have any such devastating impact, but rather to interpret this fee provision

consistent with our supreme court’s consideration of various factors. Moreover, nothing we have

said prevents this law firm from continuing to practice in its specialty of false-claims actions. It

will simply not be able to serve as the client simultaneously—at least not if it wants to recover

attorney fees.

¶ 148 For all of these reasons, we hold that the fee-shifting provision in the Act does not permit

the award of attorney fees to relator, who served as its own attorney for much of this case. To the

extent that the trial court awarded relator fees for work performed by relator’s own attorneys,

that fee award is reversed.

¶ 149          b. Attorney Fees Related to Unsuccessful Claims Regarding Craft Shows

¶ 150 My Pillow also argues that the trial court erred in awarding attorney fees for work relator

performed relating to the craft shows since relator did not prevail on any claims related to those

craft shows.

¶ 151 We have already decided that relator was not entitled to any attorney fees whatsoever for

its own legal work. But we will address this argument to the extent that its resolution affects the

trial court’s recalculation of attorney fees regarding services performed by those attorneys hired

by relator.

¶ 152 On this issue, which does not question the court’s authority to impose fees but, rather,

concerns whether the court properly exercised that authority, we apply an abuse-of-discretion

standard. Grate, 373 Ill. App. 3d at 231. We will overturn an award of fees under this deferential


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No. 1-15-2668

standard “only where the trial court acts arbitrarily, without conscientious judgment, or, in view

of all of the circumstances, it exceeds the bounds of reason and ignores recognized principles of

law, thereby resulting in substantial injustice.” In re Marriage of Faber, 2016 IL App (2d)

131083, ¶ 39.

¶ 153 My Pillow claims that whether it submitted false claims related to its craft show sales (for

which My Pillow was found not liable) and whether it submitted false claims related to its

Internet and telephone sales (for which it was liable) are “two distinct questions.” In awarding

attorney fees related to relator’s work regarding the craft shows, the trial court relied, in part, on

Berlak v. Villa Scalabrini Home for the Aged, Inc., 284 Ill. App. 3d 231 (1996). The trial court

noted that, in Illinois, a party petitioning pursuant to a fee-shifting statute is entitled to obtain

fees for all work involving “a common core of facts” or “based on related legal theories.”

(Internal quotation marks omitted.) Berlak, 284 Ill. App. 3d at 238. The trial court concluded that

relator’s claims were all based on a common core of facts and related legal theories, entitling

relator to its attorney fees and expenses related to its trade and craft show claims.

¶ 154 This rationale has also been applied in federal false claims act cases. See United States

ex rel. Longhi v. Lithium Power Technologies, Inc., 575 F.3d 458 (5th Cir. 2009). In Longhi, the

court noted that when a plaintiff’s claims for relief “ ‘involve a common core of facts’ ” or are

“ ‘based on related legal theories,’ ” much of counsel’s time will be “ ‘devoted generally to the

litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim

basis.’ ” Longhi, 575 F.3d at 476 (quoting Hensley v. Eckerhart, 461 U.S. 424, 435 (1983)).

¶ 155 We find that reasoning persuasive and applicable to this case. The trial court found that

much of the work relator performed overlapped the different areas of alleged false claims and

determined that it would be inappropriate to dice up the claims in awarding fees.


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¶ 156 The trial court’s judgment on this question was reasonable and supported by case law.

We cannot say that its decision was arbitrary, without conscientious judgment, or so

unreasonable as to result in substantial injustice. In re Marriage of Faber, 2016 IL App (2d)

131083, ¶ 39. Thus, the trial court did not abuse its discretion by awarding relator fees for legal

work (performed by outside counsel) relating to the craft show claims.



¶ 157                                  IV. CONCLUSION

¶ 158 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County in

favor of relator as to the false claims regarding Internet and telephone sales. We reverse that

portion of the attorney-fee award for legal services performed by relator’s own member lawyers;

the fees that were awarded for services performed by outside counsel retained by relator shall

stand. We remand this matter only for a recalculation of the attorney-fee award consistent with

this opinion.

¶ 159 Affirmed in part and reversed in part; cause remanded.




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