Nancy Lischer is one of five partners in the Chicago office in the appellate specialty group. She concentrates her practice on civil appeals in state and federal appellate courts. Admitted in nine of 14 circuits of the federal courts of appeals, her practice is primarily focused in Illinois federal and state reviewing courts.
Her appellate work focuses on civil rights/constitutional law, class actions, professional liability, contract, employment, physician credentialing disputes, environmental and governmental affairs.
Ms. Lischer represents a variety of clients, including corporations, municipalities, hospitals, universities and government employees involving an array of issues, ranging from statutory construction to civil rights. Besides appeals, Ms. Lischer works closely with the firm’s trial attorneys both in anticipation of appeals to posture the case for appellate review and handling complex motions.
A selection of Ms. Lischer’s representative cases includes:
- RK Co. v. See, 622 F.3d 846 (7th Cir. 2010). An investor sued the founder of bio-pharmaceutical development company, for inducing it to buy stock in the company through misleading and false press releases, Securities and Exchange Commission (SEC) filings, and reports. The court affirmed the finding that defendant violated federal and state securities laws, state deceptive practices law, and committed common law fraud. The fact that the named plaintiff was an assumed name was waived, and the prejudgment interest award and attorney fees were not an abuse of discretion.
- County of Kankakee v. Illinois Pollution Control Bd., 396 Ill.App.3d 1000, ___ N.E.2d ___ (3d Dist. 2009). The appellate court held that under the Environmental Protection Act, a landfill application must be consistent with the County’s Solid Waste Management Plan which it had adopted. Notice on one of six co-owners was proper.
- Qualls v. Northern Illinois Univ., 272 Fed. Appx. 512 (7th Cir. 2008). The Seventh Circuit affirmed dismissal under the doctrine of res judicata which barred all claims that were brought or could have been brought. Defendant sought attorney fees as sanctions for the frivolous suit and successfully asked the Seventh Circuit to order that the plaintiff was barred from bringing any future lawsuits against the defendant until the fees were paid.
- Sain v. Wood, 512 F.3d 886 (7th Cir. 2008). Plaintiff was civilly committed under the Illinois Sexually Violent Persons Act. He sued under the Fourteenth Amendment challenging the conditions of his confinement. Plaintiff argued on appeal that the Seventh Circuit lacked jurisdiction over the denial of qualified immunity because of a fact question under the Supreme Court’s decision in Johnson v. Jones, 515 U.S. 304 (1995). Defendant successfully argued that there was no issue of fact, and the court could accept plaintiff’s version of events and the district court’s findings for purposes of determining qualified immunity. The Court agreed, and found there was no violation of constitutional rights and reversed the district court.
- Town & Country Util., Inc. v. Illinois Pollution Control Board, 225 Ill.2d 103, 866 N.E.2d 227 (2007). The Illinois Supreme Court resolved the appellate court conflict and held that the decision of the Illinois Pollution Control Board, not the local siting authority which held the hearing on the landfill application, was the decision under review. A second application was filed, and the Illinois Appellate Court upheld the denial of the landfill siting permit in County of Kankakee v. Illinois Pollution Control Bd., 396 Ill.App.3d 1000 (2d Dist. 2009).
- MacDonald v. Gayton, 469 F.3d 1079 (7th Cir. 2006). Plaintiff (judgment creditor) sought to collect on a loan by setting aside the deceased debtor’s transfer of his joint tenancy interest in his house to his wife. The plaintiff argued that pursuant to the Uniform Fraudulent Transfer Act (“UFTA”), the husband fraudulently transferred his interest in the house to the defendant, who previously owned the house in joint tenancy with her husband, so that the plaintiff could satisfy the loan with the husband’s share of the house. The Court affirmed and held that because the plaintiff never recorded a lien on the husband’s interest in the house, the transfer was valid and the UFTA provided no relief to the plaintiff.
- Turner v. Firstar Bank, N.A., 363 Ill.App.3d 1150, 845 N.E.2d 816 (5th Dist. 2006). Plaintiff sued for conversion after her car was repossessed for two days. The jury awarded punitive damages only in the amount of $500,000. On appeal, the Illinois Appellate Court reversed in part finding the damages violated due process and remitted the damages to $225,000.
- Autotech v. Automation Direct.com, 471 F.3d 745 (7th Cir. 2006). Plaintiff and defendant contracted to develop market touch screens together, but defendant subsequently developed a competing touch screen. The plaintiff sued, claiming a breach of fiduciary duty and sought a preliminary injunction forcing the defendant to stop selling its own touch screen. On appeal, the Seventh Circuit affirmed the denial of the preliminary injunction, accepting the arguments that a contract labeling the deal a “marriage” and referring to the parties as “partners”, along with evidence of a friendship between the parties’ CEOs, did not establish a fiduciary relationship. Absent a fiduciary relationship, the defendant owed no fiduciary duty that it could breach. The Seventh Circuit also found plaintiff’s expert incompetent. He had testified, without examining the defendant’s product, that the defendant’s touch screen could not have been developed independently of the jointly developed touch screen.
- Fidelity Nat’l Title Ins. Co. v. Charter Bank & Trust, 436 F.3d 836 (7th Cir. 2006). A real estate closing company fraudulently used money from client escrow accounts to purchase certificates of deposit (“CDs”) from the defendant banks, secured personal loans to the company’s owners using the CDs as security, and then ordered the defendants to sell the CDs and use the proceeds to satisfy the loans. The missing amount was as much as $50 million. The plaintiff had insured the escrow accounts and sued the banks that made the loans, claiming the banks violated the Uniform Fraudulent Transfer Act by helping the title company funnel the money in the escrow accounts to the company owners. The Seventh Circuit affirmed on the basis that the claims were time barred. It applied the discover rule and held that the time to sue started when the plaintiff discovered that money was missing from the escrow account, not when the plaintiff could affirmatively identify all the banks that had loaned money to the title company. It also agreed that banks’ loans to the company owners were not fraudulent transfers as the banks did not know that the title company had fraudulently obtained the proceeds it used to purchase the CDs and secure the loans to its owners.
- Behrens v. Harrah’s Casino, 366 Ill.App.3d 1154, 852 N.E.2d 553 (3d Dist. 2006). Plaintiff sued claiming she was forced to work allegedly unreasonable overtime hours and fell asleep at the wheel while driving home. In a case of first impression in Illinois, the Court held there was no duty owed to prevent persons claiming to be overly tired from leaving work. In so holding, Illinois joined the majority of states rejecting claims by workers who have swing shifts or extended working hours who are injured as the leave work. Employers owe no duty to ensure that the employees are not overly tired when they leave work. The minority view follows an Oregon case that held the employer liable is view.
- In re McBride, No. 06-1948 (7th Cir. June 8, 2006). The Seventh Circuit issued a writ of mandamus ordering the district court to recall its remand to the state court. The defendant had removed the action from state court to federal court, and the district court remanded on the basis that the amount in controversy was less than the required $75,000. Although 28 U.S.C. §1447(d) of the federal removal statute provides that such and order “is not reviewable on appeal or otherwise,” defendant successfully obtain a writ of mandamus from the Seventh Circuit. The Seventh Circuit agreed that because the district court remanded on a procedural defect that the plaintiff had waived by not raising it within thirty days of removal, the district court exceeded its authority. It issued a writ ordering the district court to recall the remand and assert jurisdiction over the case once again.
- Parks v. Wells Fargo Home Mortg. Co., 398 F.3d 937 (7th Cir. 2005). The jury awarded $3.0 million in punitive damages, plus compensatory damages for emotional distress and breach of contract. The trial court then found for plaintiffs on their Consumer Fraud Act claim and awarded another $280,000 in compensatory and punitive damages and attorney fees. After remittitur and the appeal, the $3.25 million award was reduced to less than $5,000 with costs and no punitive damage award.
- Rodrigue v. Olin Employees Credit Union, 406 F.3d 434 (7th Cir. 2005). The court of appeals reversed a judgment of almost $350,000, entered against a credit union that had cashed a series of checks over the forged endorsements. The district court applied the “continuous tort” rule to toll the UCC’s three-year statute of limitations for conversion because the checks were converted pursuant to a systematic scheme. Despite an adverse Illinois intermediate appellate court decision, the Seventh Circuit agreed with the credit union that if the “continuing violation” question were presented to the Illinois Supreme Court, it would not follow the intermediate court, and reversed.
- Diaz v. Provena Hospitals, 352 Ill.App.3d 1165, 817 N.E.2d 206 (2d Dist. 2004). The appellate court rejected plaintiff’s claim that her decision to allow her medical staff privileges at hospital to lapse was not reportable under the federal Health Care Quality Improvement Act (HCQIA). Because the physician surrendered her clinical privileges while under peer review investigation, the hospital properly reported to the National Practitioner Databank under HCQUIA. The trial court ordered the hospital to submit a void report to the Databank and when it refused, it imposed a $1,000/day sanction. The appellate court vacated the sanction because the hospital properly complied with federal law.
- Comprehensive Community Solutions, Inc. v. Rockford School Dist. No. 205, 216 Ill.2d 455, 837 N.E.2d 1 (2005). The State Board of Education's decision that the charter-school proposal did not comply with Charter Schools Law and the finding that the proposal was not in the best interests of district's students was not clearly erroneous.
- Lo v. Provena Covenant Medical Center, 342 Ill.App.3d 975, 796 N.E.2d 607 (4th Dist. 2003), later proceeding, 356 Ill.App.3d 538, 826 N.E.2d 592 (4th Dist. 2005). A physician sued and sought preliminary injunction to reinstate his privileges arguing that the hospital could not summarily suspend his privileges. The Appellate Court affirmed the hospital’s actions. The trial court then dismissed the action and the physician again appealed; the appellate court affirmed holding injunctive relief had become moot because the privileges had expired during the case and the damages claims were barred by the statutory immunity in the Hospital Licensing Act.
- Skozgird v. Special Educ. Dist. of Lake County/Dist. No. 825, No. 2-02-0734 (Ill.App. July 15, 2003) (unpublished). A school district bus was used to transport students to a state competition. When the bus rolled over, the parents sued. The appellate court held the school district was immune.
- Marker v. Pekin Ins. Co., 318 Ill.App.3d 1137, 743 N.E.2d 1078 (2001). The appellate court upheld an insured’s paramount right to choose an insurer to defend and indemnify a claim. An insured may arbitrarily decline to tender (or if tendered to “de-activate” that tender) to one insurer and look to solely another.
- Garibaldi v. Applebaum, 194 Ill.2d 438, 742 N.E.2d 279 (2000). The Illinois Supreme Court upheld the hospital's decision to enter into exclusive contract with a physicians' group and held that under the hospital bylaws, the physician was not entitled to notice and a hearing because this was not corrective action.
- Bank One N.A. v. Rockford Bd. of Educ., No. 2-98-1555 (Ill.App. 2000) (unpublished). After the janitor allegedly molested student, the parents sued the school district alleging that the school was on notice about the janitor because of a single prior allegation of abuse. The parents of the first student had refused to pursue the matter with the police. The school district had reported the prior allegation, and the state refused to investigate. The appellate court held that the district was immune for its discretionary decision to retain the janitor, a union employee, after balancing competing interests, including student safety and the interests of providing the employee with due process and fairness in the face of unproven allegations.
- People Who Care v. Rockford Bd. of Educ., School Dist. No. 205, 171 F.3d 1083 (1999), later proceeding, 246 F.3d 1073 (2001), later proceeding, 272 F.3d 936 (7th Cir. 2001). The school district retained us to handle the remedial aspects of this institutional reform action after it was found to have discriminated in its schools. The various appeals involved: the role of a special master in institutional reform litigation; whether the federal court may lift state law in order to require the levy of taxes; the budget process; and other desegregation and constitutional law issues. After several battles, unitary status was reached and the injunction was dissolved.
- Hartford Ins. Co. v. Kelly, 309 Ill.App.3d 800, 723 N.E.2d 288 (1999). The singer, R Kelly, tendered his defense to his insurer after he was sued for sexual misconduct with a minor. The insurer denied defense, and the appellate court affirmed in a case of first impression in Illinois. The court held that the underlying complaint alleging sexual misconduct with a teenager sufficiently set forth factual allegations of to exclude any possible coverage under an “expected or intended” exclusion.
- In re Guarantee Electric Co., No. 98-2938 (7th Cir. Oct. 29, 1998). After defendant removed the action from state court, the district court sua sponte remanded the action more than thirty days later on the written basis that it lacked subject matter jurisdiction because defendant failed to allege that the amount in controversy exceeded $75,000. On the record, the district court stated that it was remanding due to a crowded docket. Although decisions to remand after a removal are not appealable under 28 U.S.C. §1447(d), the Seventh Circuit issued a writ directing the district court to assume jurisdiction. It agreed with defendant that any defect in alleging the amount in controversy under the diversity jurisdiction statute was not a jurisdictional defect, but a waivable procedural defect. It issued a writ of mandamus ordering the district court to recall its remand and to resolve the case in federal court.
- Jones v. Webb, 45 F.3d 178 (7th Cir. 1996). After a young boy was stopped by the police chief of small town and asked a question, the boy ran into a house. When the homeowner asked the chief to remove the strange child, he did so using only that force necessary to remove the child. The Seventh Circuit affirmed dismissal of the § 1983 claim for false arrest and use of excessive force. It found that the chief’s use of restraint on the boy's liberty was supported by probable cause, and the chief was qualifiedly immune from the Fourth Amendment excessive force claim.
Ms. Lischer joined Hinshaw & Culbertson LLP in December 1984. She served from 1981 to 1984 as an Assistant Attorney General, General Law Division, for the Illinois Attorney General’s Office, and practiced civil litigation in state and federal courts and state administrative hearings. The areas of law she concentrated on during that time were civil rights, Title VII and discrimination cases, employment practices, Fair Housing Act, constitutional law, racing law, regulatory compliance and chancery matters.
She was responsible for the coordination and supervision of litigation before state administrative agencies, acted as liaison between the Attorney General’s Office and state agencies on personnel and employment matters before and during litigation, and assisted various agencies in the drafting of proposed rules.
Among Ms. Lischer's professional affiliations are the Appellate Lawyers Association of Illinois, the Women's Bar Association of Illinois and the Federal Bar Association. She was appointed to the Seventh Circuit Advisory Committee on Rules for a three-year term from 2002 to 2005, and reappointed for a second term, from 2006 to 2009.
Ms. Lischer has been recognized by her peers as a Leading Lawyer in the category of Civil Appellate Law, and holds the AV® Peer Review Rating from Martindale-Hubbell, its highest rating for ethics and legal ability.
Ms. Lischer has been named to the “
Super Lawyer” list in the area of Appellate Law, by
Illinois Super Lawyers magazine.
Ms. Lischer has written and presented a number of papers, including “How Well Do You Understand Diversity Jurisdiction?” which was presented as an in-house CLE in 2010, and “Preserving Points for Review in the Federal Courts, California, Florida, Illinois and Minnesota,” which was presented as an in-house CLE in 2009. Her other publications include:
- “Standards of Review Applied by Illinois State and Federal Appellate Courts,” Hinshaw publication, 2007.
- "When the Time to Appeal Is Indefinitely Extended in Federal Courts," Appellate Law Review, Vol 3, No. 2, 1991.
Ms. Lischer’s presentations include:
- "Legal Writing," DePaul University seminar.
- "The Aftermath of Bruso," Illinois Association of HealthCare Attorneys.
- "The Illinois Court System," Illinois Appellate Lawyers Community Outreach Program.