In Penzick v. Constrafor Inc., 25 C 4555 (N.D. Ill. Jan. 29, 2026) (Durkin, J.), Caffarelli & Associates successfully represented the Plaintiff and prevailed in defeating the Defendant’s motion to dismiss.

In a notable ruling, Judge Durkin rejected the Defendant’s argument that “software is intangible property” and therefore not a “product,” calling that position “an obsolete perspective.” The Defendant had moved to dismiss Count I of Plaintiff’s Complaint, brought under the Illinois Sales Representative Act (“SRA”), 820 ILCS 120/1(1), arguing that it did not qualify as a “principal” because the statute requires a principal to manufacture, produce, import, or distribute a product for sale. 820 ILCS 120/1(3)(A).

Caffarelli & Associates argued on behalf of the Plaintiff that the definition of “product” should not be limited to tangible goods. The Court agreed, declining to adopt an outdated interpretation rooted in a 1981 Illinois Supreme Court decision. Instead, Judge Durkin emphasized the evolving legal landscape, citing more recent case law and legislative developments supporting a modern understanding of “product” that includes software.

As a result, the Court held that Plaintiff had sufficiently alleged that Defendant qualifies as a “principal” under the SRA, allowing the claim to proceed. This decision reinforces the proposition that a “product” can include intangible items such as software—an important win for plaintiff-employees.

By Amanda Burns, Caffarelli & Associates Ltd.