FIFTH DI VISI ON DECEMBER 24, 2009 Nos. 1-08-1632; 1-08-1633; 1-08-2122 (Cons.) THE WESTERN AND SOUTHERN LI FE ) Appeal from the INSURANCE COMPANY, ) Circuit Court of ) Co ok Co un ty. Plaintiff -Appella nt, ) v. ) ) NIKEA EDMONSON, DEP ARTMENT OF ) No. 07 L 050740 EMPLOYMENT SEC URITY, DIRECTOR OF ) EMPLOYMENT SECURITY , J. HUNT BONAN, ) STANLEY L . DRASSLER, JR., and ) Honorab le WILL IAM J. NOLAN , ) Elm er J ame s To lm air e III ) Judge Presiding Defend ants-App ellees, ) THE WESTERN AND SOUTHERN LI FE ) Appeal from the INSURANCE COMPANY, ) Circuit Court of ) Co ok Co un ty. Plaintiff -Appella nt, ) v. ) ) KAREN A. BRYAN , DEPARTM ENT OF ) No. 07 L 050741 EMPLOYMENT SEC URITY, DIRECTOR OF ) EMPLOYMENT SECURITY , J. HUNT BONAN, ) STANLEY L . DRASSLER, JR., and ) Honorab le WILL IAM J. NOLAN , ) Sheldon Gardner ) Judge Presiding Defendants-Appellees., ) THE WESTERN AND SOUTHERN LI FE ) Appeal from the INSURANCE COMPANY, ) Circuit Court of ) Co ok Co un ty. Plaintiff -Appella nt, ) v. ) ) ROBERT ROHM AN, DEPART MENT OF ) No. 08 L 050018 EMPLOYMENT SEC URITY, DIRECTOR OF ) EMPLOYMENT SECURITY , J. HUNT BONAN, ) STANLEY L . DRASSLER, JR., and ) Honorab le WILL IAM J. NOLAN , ) Alexande r P. White ) Judge Presiding Defend ants-App ellees. )Nos. 1-08-1632; 1-08-1633; 1-08-2122 (Cons.)

2

JUSTICE TULL Y deliver ed the opi nion of the

court. This action arises out of the consolidation of three appeals filed by Western and Southern Life Insu rance C ompany

(Western ). Each appeal was filed f

rom circ uit court j udgmen

ts affirming decisions of the Board of Re view (Board) of the Illinois Department of Employment Security (I

DES). The decisions found that former insurances ag ents of Western claiming unemployment benefits, spec ifically Kar en A. Bry an, Nikea Edmonson, and Robert Rohman (claimants), were not exempt from covered employ ment under the Illinois Unemploy ment Insurance Act (Act) (820 ILCS 405/100 et seq. (West 2006)). On appeal, Western contends that the age nts were exempted u

nder the Act and not entitle d to unempl oyment insur ance be nefits. BACKGROUND Karen A. Bry

an Brya n filed an application for unemploy ment insurance benefits with IDE S in July 2005. She stated that she was discharged from Western a s an insurance sales representative for failing to meet minimum sales requirements. Western filed an employ er protest to the application. An IDES claim adj udicator

subseque ntly determined that B ryan was e ligible t o recei ve bene fits because she was not discharge d for misconduct, as used in the Act. Western subsequently appe aled the decision and argued for the first time that Brya

n was not its employee and there fore not entitled to unemployment bene fits. Western argued that section 228 of the Act (820 IL CS 405/228 (West 2006)) provides that an insurance agent is not an employee

if the agent's remunera

tion is solely through commission. I n support, WesternNos. 1-08-1632; 1-08-1633; 1-08-2122 (Cons.)

3

submitted a copy of its sales re presentative agreement with B ryan as well as a schedule of commission s. The ag

reemen t indicate d that onc e Bry

an had worked at l east 26 w eeks, she would be entitled to an annual vacation ranging from one to five weeks based on length of se rvice. An addendum was also included which stated that Bry an would be paid a $600 weekly salary for

the first 13 weeks of employ

ment. A 52-week "validation period" would follow whe re she would be compensated according to the schedule of commissions. The schedule of commissions provided that Brya n would be paid one - thirteenth of a pooled commission fund on a weekly basis. During the validation period, if her weekly share was less than her $600 weekly starting salary , Brya

n would receive an additional supplement to reach that fig ure. After the validation period, Bry an would receive the weekly one - thirteenth of the commission fund but without payme nt of the suppleme nt. Furthermore , other monthly withdrawals could

be reque sted fro m a producti on/legi on incent

ive commis sion acc ount afte r the val idation pe

riod. The agree ment also provided that shoul d Bry

an be ter minated, Western would keep the rema ining fu nds conta ined in the account balance. A hearin gs ref eree affirmed

the claim s adjudic ator's

decision that Bry an was e ntitled to benefits finding that Bry

an had not engaged in any misconduct. Western appealed to the Board. The Board subsequently

affirmed the referee' s decision regarding the issue of misconduct but remanded the matter to the local I DES office for a determination reg arding the section 228 issue. The local office subsequently determined that Bry

an was a covered employ ee of Western and was therefore eligible for be nefits. The circuit court later remanded the matter to IDES for a hearing regar

ding that determination. Bry an testified that, in addition to commissions, sheNos. 1-08-1632; 1-08-1633; 1-08-2122 (Cons.)

4

received vacation pay, medical and dental benefits, a pension plan after f ive years of service, life insuranc e, and de ath bene fits. Br ya n also tes tified tha

t she rec eived bon

us gifts picked f rom a catalog and trips if she earned a certain amount of commission. Tim McCoy

, an assis tant vice

preside nt with Weste

rn, testif ied that B ryan would s till

re ce iv e t he sa me we ek ly o ne - t hi rt ee nt h s ha re th e c om mi ss io n f un d s ho ul d s he us e v ac at io n d ays or sick le ave. However, if more tha n five sick day s were u sed in a y ear, B ryan would n

ot be paid for the additional day s. McCoy acknowledged that certain gifts and awards a re given by

Western but could not state whether Bry an had been a recipient of one. After the hearing, a re feree issued a decision which first concluded tha t although Western lacked p arty

status or a

ppeal ri ghts re gardin

g the se ction 228 i ssue, I

DES had the

authority to address it sua sponte . Among its findings, the decision stated that it was undisputed that Bry an received a salary

for the first 13 weeks of her employ ment. It also stated that for the following 52 weeks, she received a supplementary payment should her c ommission earnings be under $600 and that she received gifts and awards based on her performance . The decision then concluded that Bry an was no t remune

rated so lely

by way of commiss ions. I

t also stat ed that e ven if onl y Bry an's unemploy

ment base

period c ould be considere d, she still receiv ed remuneration

in addition to commissions. Western appealed the decision to the Board, which ultimately affirmed the ref eree's d ecisi on. W ester n then filed a comp laint for adm inis trati ve revi ew of t he Boar d's decision in the circuit court, where the decision was af firmed. Western timely appe aled.

Nikea EdmonsonNos. 1-08-1632; 1-08-1633; 1-08-2122 (Cons.)

5

In July 2006, Nikea Edmonson filed an application for unemploy ment insurance benefits. An IDES claims adjudicator denied he r application stating that she did not have qualify ing wages during her base period. Western filed a subseque nt employer protest in which it ar gued that Edmonson had been discharged for misconduct a nd was also paid solely by commission. IDES informed Western it had already found Edmonson to be ineligible for benefits. Edmonson filed an appeal from the claims adjudicator's de cision. An IDES refere e conducted a hearing wher e Edmonson testified that in addition to commissions, she received vacation, holiday, a

nd sick pay, medica

l and vision benefits, a pension plan, life insurance, and death benefits. She further testified that she was given awards and incentives in the form of cash, restaurant coupons, and gift cards. She a lso stated that she received a pen and plaques for her servi ce. Edm onson 's sale s repre senta tive a greemen t cont ained the sa me pro visi ons as Bryan's regarding vaca

tion and account balance forfeiture upon te rmination. Edmonson's compensation, detailed in an addendum, was similar in form to Bry an's. It was a

greed that Edmonson would be paid a $400 weekly

salary for

the first three weeks of employ ment. Following that, Edmonson would be compensated according to the sche dule of commissions similarly to Bry an except that for the next 49 weeks, if Edmonson's weekly one - thirteenth share of the commission fund was less than $400, Western would supplement it to reach that figure. After 52 weeks of employment, Edmonson would continue to rece ive her weekly one - thirteenth share but with no supplement. The referee determined tha t Edmonson was not remunerated solely by way of commission stating reasons similar to those in Bry an's case. The decision was af firmed by the Board on appeal and also by the circuit court on administrative review. Western timely appealed.Nos. 1-08-1632; 1-08-1633; 1-08-2122 (Cons.)

6 Robert Rohman In Februar

y 2007, Robert Rohman filed an a pplication for unemployment bene fits. Rohman' s applica

tion was in

itially grante d but was s

ubseque ntly denied after a c laims adjudicator concluded Rohman was paid solely by commission. Rohman appealed in a

su bs eq ue nt he ar in g a nd te st if ie d t ha t i n a dd it io n t o c om mi ss io ns , h e r ec ei ve d v ac at io n p ay, holiday pay

, health insurance, a 401(k) plan to which Western contributed, life insura nce, and death benefits. He also stated that his sales manage r gave him performance inc entives including a DVD player, cash, and lunches. Tim McCoy , who had also testified in Bry an's case, testified that because the managers' compensation is based on their agents' per formance, some managers offered performance inc entives "out of their own pocket." For e xample, McCoy stated that he did not believe Western supplied the funds to pay f or Rohman's DVD play

er. Rohm an's sa les re presen tati ve agreem ent al so con taine d the s ame pro visi ons as Bryan's and Ed mons on's re gardin g vacati on and accoun t bala nce for feitu re upo n term inati on. R ohman 's compensation was also detailed in an addendum and was similar in form to Br yan' s and Edmonson's. It was ag

reed that Rohman would be paid a $475 weekly salary for

the first three weeks of employ

ment. The remainder of the addendum and schedule of commissions were similar to those received by Edmonson. A referee then issued a decision finding that Rohman was not remunerated solely by way of commission for similar reasons in Bry an's and Edmonoson's cases. I t was also noted that even if incentives were given independently and out-of-pocket, Western knew of the practice , did not object to it, and thereby be nefitted from the increased production it gene rated. Western appealedNos. 1-08-1632; 1-08-1633; 1-08-2122 (Cons.)

7

but the Board ultimately a ffirmed the decision. Western then filed a complaint for administrative review in the circuit court but the circuit court also aff irmed the Board's decision. Western time ly appeal ed and this court subs equen tly conso lidat ed Bryan's, Edmon son's , and R ohman 's cases in to the insta

nt appea l. ANA LYSIS Western c ontends that the Bo ard err ed in dete rmining that the c laimants w ere elig ible to receiv e unemployme

nt benef its. On appea l from a de cision re gardin g unemp loy

ment comp ensation

benefit s, it is the d

uty of this court to review the decision of the Board, ra ther than of the circuit court. Messer & Stilp, Ltd. v . Depar

tment of E

mploy ment Secu

rity , 392 I ll. App. 3d

849, 854 ( 2009). The applic able standard of review, which determines the deg ree of deference g

iven to the agency

's decision, depends upon whether the question presented is one of fa ct, one of law, or a mixed question of law and fact. City of Belvidere v. Illinois State Labor

Relations Board , 181 Ill. 2d 191, 204-05 (1998). An administrative agency 's determinations as to questions of facts are dee med prima facie true and correct and will not be disturbed unless they are against the manifest weig ht of the evidence. Messer & Stilp, Ltd. , 392 I ll App. 3d a t 855. Fa ctual fin dings ar e aga inst the ma

nifest weight of the evidence if the opposite conclusion is clea rly evident. Belvidere , 181 Ill. 2d at 204. The Board's conclusions on questions of law ar e reviewed de novo

. Czajka v. Department of Employ ment Secu

rity , 387 Ill. App. 3d 168, 173 (2008). However , despite not being bound by an administrative agency

's interpretation of the law, a reviewing court should afford substantial deference to the age

ncy' s determination of a statute that the agency administers and enforces.Nos. 1-08-1632; 1-08-1633; 1-08-2122 (Cons.)

8

McDoug all v. White , 355 Ill. App. 3d 483, 486 (2005). Mixed questions of law and fact ar e reviewed under the clearly erroneous standard. Belvidere , 181 Ill. 2d at 205. A mixed question is one invo lving an

examination of the le gal ef fect of a given set of fa cts, that i s, where

the fac ts and law are established and the issue is whether the f acts satisfy a c ertain statutory standa rd. Messer & Stilp, Ltd. , 392 Ill. App. 3d at 855. The purp ose of the

Act is to pr

ovide ec onomic re lief to tho se who ar e involunt

arily unemployed, throug

h the collection of compulsory c ontributions from employers and the pay ment of be

nefits to e ligible u

nemploy ed persons. 820 I

LCS 405 /100 (West 2 006); SMRJ, Inc . v. Russel l , 378 Ill. App. 3d 563, 572 (2007). Under the Ac t, an employer' s liability for making contributions and an individual's eligibility for benefits is dependent, in part, on the existence of an "employ

ment" relationship between the two. SMRJ, Inc. , 378 Ill. App. 3d at 573. Plaintiff first argues that pay ments made prior to what is termed a base period cannot be considered under section 228 of the Act. Section 228 of the Act provides an exemption to the definition of "employme

nt" and states that "[t]he term 'employ ment' shall not include services performed by

an individual as an insurance agent or insura nce solicitor, if all such services performed by such ind ividual are p erformed for rem uneration s olely by way of commiss ion." 820 IL CS 405/228 (2006). A “base period” is defined as the first four of the last five completed calendar quarters immediately preceding the benefit y

ear. 820 ILCS 405/237(A) (West 2006). Claimants in this case were given guar anteed minimum payments in vary ing amounts for the first 13 weeks of employ ment and it is uncontested that those payments c onstituted remuneration other than commission under the Act. Plaintiff argue s that the payments must beNos. 1-08-1632; 1-08-1633; 1-08-2122 (Cons.)

9

disregarded because the

y were made prior to each claimant's respe ctive base period. However, section 2 28 contai

ns no lang

uage d ictating the time f

rame to w hich it is a

pplicabl e or othe

rwise restricting its a

pplicabi lity

only to the bas e period . The ter m “base p eriod” d

oes not ap

pear in section 228 and is actually de fined in a later section in the Act (820 I LCS 405/237 (West 2006)). Therefore, we are r

eluctant to read such a specific time limitation into section 228 when it has been explicitly held that a court ca nnot rewrite a statute, and depart from its plain langua ge, by reading into it exceptions, limitations or conditions not expressed by the leg islature. In re Mic hel le J. , 209 Ill. 2d 428, 437 (2004). Western also notes that section 500(E) of the Act provides that only wages paid during the base period a re used t o determ ine a cla imant's eligibil ity f

or benef its. See 82 0 ILCS 405/500(E) (West 200 6). Weste rn arg ues that s ection 50 0(E) impli es a par ticular t ime frame to be used under section 228. However, section 500(E) does not discuss exemptions to employment or address what constitutes employ ment under the Act. Instead, se ction 500(E) is a brief section which onl y pr ovides a m

inimum wag e that must

be earned in orde

r for a c laimant to

be elig ible for benefits. In light of

our findings, we believe that it was proper for the Board to consider the guaranteed minimum pay ments made to claimants in determining whether they were exempted from the term "employ

ment" under the Act. According ly, we find that the cla imants were not exempted under section 228. Our holding in the prior discussion regarding section 228 is sufficient by itself to af firm the Board's decision because the fixed salary provided to c laimants removed them from the exemption conditions contained in section 228. Nevertheless, we will address the remainder ofNos. 1-08-1632; 1-08-1633; 1-08-2122 (Cons.)

10

Western' s arguments for

the sake of comple

tion. Weste

rn next ar gues tha t the paid holiday s, vacation, and sick day s claimants were entitled to did not constitute remuneration by way other than commission and thus did not serve to remove claimants from the purview of the section 228 exemption.. While the Act does not define “remuneration”, section 234 provides some a ssistance. Section 234 defines “wages” as " every f orm of remuneration for personal service s, including salaries, commissions, bonuses, and the reasonable money value of all remuneration in any medium othe

r than ca sh." 820

IL CS 405/234 ( 2006). “ Remunera tion” is de fined br

oadly in Black's L aw Dictionary

as "[p]ayment; compensation." Black's L aw Dictionary 1409 (9th ed. 2009). Black's L aw Dictionary , in pertinent part, defines “compensation” as "[r]emunera tion and other benefits received in return for se rvices rendered," and include s a subsequent comment stating that it "includes wages, stock option-plans, profit-sha ring, commissions, bonuses, golden parach utes, vac ation, sic

k pay , medica

l benefi ts, disabil ity, leaves o f absenc e, and expense reimbursement." Black's L aw Dictionary

322 (9th ed. 2009). In the instant ca se, the a

greements prov

ided that work atte ndance was mand

atory unless an absence was authorized. An unauthorized leave of a bsence exceeding two day s without notice was sufficient to provide a cause for termination without notice. Howe ver, provisions in the agreements provided for leave s of absence without requiring the usual authorization. During that time off, claimants were still entitled to the weekly one-thirteenth distribution from the pooled fund. West

ern arg ues that s uch remu neration was by

way of commiss ion beca

use the pa yme nts were still paid from the commissions earned by the agents. However, the ref erees' findings wereNos. 1-08-1632; 1-08-1633; 1-08-2122 (Cons.)

11

generally silent on that specific argument. I nstead, it was reasoned that such time off constituted

remuner ation apa rt from c ommission be cause the confe rred be nefit wa s the act

ual rig ht to time off without having to seek a leave of abse nce. This was reasoned to constitute "an additional quid pro quo *** in exchange for services rende red." For similar reasons, we ag ree with the analysis and adopt it. The time off claimants were entitled to here was a bene fit in and of itself. There is certainly

some value of being able to take time off without authorization or fea r of terminat ion reg ardless

if claima nts were still paid or not. For example, consider two contr

acts, both of which terminate an employ ee should a work day

be missed. However, one contract allows a leave of absence for 5 da ys and another

allows 15 days, both leave s are unpaid but there is no risk of termination or need for authorization. The second contract is more de sirable, or provides more benefits, than the other. I n this case, claimants were allowed time off outside of any requir

ement for work attendance and wer e still entitled to the weekly one-thirtee nth share paid out during a normal work week. Should an ag ent exceed his or her time off allotment and require more time off, he or she would be re quired to seek authorization (or risk termination) and would not b e enti tled t o any pay for th ose ad diti onal d ays off. W e ackno wledge West ern's assertion that the payme

nt is from a commission pool and not Western itself. However, it is not the payment but the time off itself tha t we and the referees consider remuneration, a conclusion which West

ern has n ot dispute d. There fore, un der thes e circu

mstance s, we find

that the p aid holidays, vacation, and sic k days claimants we

re entitled to constituted remuneration by way other than commission. Western next argu

es that the

provision

of insura nce benefits and

retirement bene fitsNos. 1-08-1632; 1-08-1633; 1-08-2122 (Cons.)

12

should not be considered in evaluating a claimant' s status under section 228. In the instant case, Western provided various medical benefits, including dental and vision insuranc e, life insurance, death be nefits, a pension pl an, and a

401(k) to which it c ontribute d. Wester n argues that be cause section 235 of the Act excludes insurance benefits and retire ment benefits from the definition of "wages," such be

nefits should not be considered in determining whether the sec tion 228 exemption applies. However, the word "wage s" does not appear in section 228. I nstead, section 228 state s its exemption applies when an i

ndividual perfor ms servic es "for

remuner ation sole ly by way of commission." 820 IL CS 405/228 (West 2006). Western argues that "wage s" and "remuneration" are inter

changeable in this context when the relevant statutes are read as a whole. We disag ree. We a

cknowle dge tha

t section 2 34 define s “wag es” and s ection 23 5 specif ically excludes c ertain " remuner ation" f rom the de finition of

“wage s”. Howe

ver, whi le certa

in items may not be consider

ed wages, this does not mean that those same items cease to be remuneration. There is no case law or any language within in the Act to sugg est that the two terms are interchangeable or that the word " remuneration," as it appears in section 228, should be re placed with the w ord "wa

ges." Western a

lso arg ues for t he first t ime that it w

ould be against publ ic policy to consider the va

rious insurance and retirement benefits at issue when inter preting section 228. As a threshold matter, this argument is waived because arguments not presented at an administrative hearing or in the complaint for administrative review are waived on review. Odie v. Depar tment of E

mploy ment Secu

rity , 377 Ill. App. 3d 710, 715 (2007). Notwithstanding waiver, we find the argument to be unpe rsuasive. Western argues that if one wer e to include insurance and retirement benefits when interpr eting section 228, it would discourage insuranceNos. 1-08-1632; 1-08-1633; 1-08-2122 (Cons.)

13

companie s from providing those bene fits. While this may be true, such an in

terpretation wou

ld also res ult in the exemption und

er sect ion 228 ca sting a w

ider net , at leas t in the short term, causing economic

hardship upon a g reater number of

individua

ls that wou

ld now be i

neligib le to receiv e unemployme

nt benef its. I n other w ords, the

re are clear b enefits a

nd costs un

der both interpretations. Neither public policy argument is sufficiently

convincing to entirely

base any finding upon. The

refore , we do not

find Weste

rn's pu blic polic y a rgumen t to be suf ficientl y convincing to force us to re-interpre t section 228. Finally, Western ar

gues that there is no evidence that any claimant received bonuses or prizes during the base period. As an initial matter, we acknowledge that the e vidence is generally

unclear as to whether they may have received any

gifts or bonuses during their respective ba se periods, particularly as the evidence pertains to claimants Bry an and Edmonson. However, we have alre ady found that the time frame for which remuneration is provided is not releva nt under section 228. As discusse d above, section 2 28 does no t provide for a time

frame f or when r emunera tion is received in determining whether that se ction's exemption applies. Whether a claimant received gifts, bonuses, or awards during his or her employment is still relevant reg ardless of when it was given. It wa s established here that the c laimants w ere all g iven per formanc e incent

ives at so me time and in various forms, including cash pay ments, gift cards, awards, and in Rohman's c ase a DVD playe

r. The referees found that Western passively authorized the practice and benefitted from the increased productivity , a finding of fact that we see no re ason to disturb. A party ca nnot repudia te the acts of anot

her done on its beha

lf and at the same time acc ept the f

ruits and benefit sNos. 1-08-1632; 1-08-1633; 1-08-2122 (Cons.)

14

of those acts. Advan ce Mort gage Cor p. v. C oncor dia Mu tual Lif e Ass'n , 135 Ill. App. 3d 477, 484 (1985). Generally , receipt of these benefits knowing the sourc e of the benefits and the manner of acquisition constitutes a ratification of such act unless the bene fits are returned. Advance Mortgage

Corp. , 135 Ill. App. 3d at 484. Beca use of this, we find the performance incentiv es were

also prop erly

consider ed by the ref erees. For the f orego ing rea sons, we a

ffirm the judgmen t of the c ircuit co

urt of Cook

County confirming the decisions of the Board. Affirmed. TOOMIN, P.J., and FI TZGERALD SMI TH, J., concur.Nos. 1-08-1632; 1-08-1633; 1-08-2122 (Cons.)

15 REPORTER OF D

ECISIONS - ILLINOIS A PPELLATE CO

URT

THE WESTERN AND SOUTHERN LI FE INSURANCE COMPANY,

Plaintiff -Appella nt,

v. NIKEA EDMONSON, DEP ARTMENT OF EMPLOYMENT SEC URITY, DIRECTOR OF EMPLOYMENT SECURITY , J. HUNT BONAN, STANLEY L . DRASSLER, JR., and WILL IAM J. NOLAN , Defend ants-App ellees, and KAREN A. BRYAN , DEPARTM ENT OF EMPLOYMENT SEC URITY, DIRECTOR OF EMPLOYMENT SECURITY , J. HUNT BONAN, STANLEY L . DRASSLER, JR., and WILL IAM J. NOLAN , Defendants-Appellees., and ROBERT ROW MAN, DEPAR TMENT OF EMPLOYMENT SEC URITY, DIRECTOR OF EMPLOYMENT SECURITY , J. HUNT BONAN, STANLEY L . DRASSLER, JR., and WILL IAM J. NOLAN , Defendants-Appellees.,Nos. 1-08-1632; 1-08-1633; 1-08-2122 (Cons.)

16 No. 1-0 8-1632, 1 -08-1633 , 1-08-21 22 cons. Appell ate Cou

rt of Illin ois First District, Fifth Division DECEM BER 24, 2009

JUST ICE T ULL Y deliv ered the opinion of

the cour t: TOOM IN, P.J., and, FIT

ZGERA LD SM ITH, J., concur.

Appea l from th e Circu it Court o f Cook C ounty HONORABLE ALEXANDER P. WHITE Joseph J. Hasman, Da

vid F. Schmidt and Mor

gan J. Milner of Chittenden, M urday & Novotny, LLC., 303 W

est Madison Street, Suite 1400, of Chicago, Illinois for Plaintiff-Appellant. Lisa Madigan, A

ttorney General, M

ichael A. Scodro, Solicitor G eneral, Paul Racette, Assistant Attorney G eneral, 100 West Randolph S treet, 12 th Floor, of Chicago, Illinois

for De fendant

s-Appe llees.