The Business Litigators
The Business Litigators
The Business Litigators
The Business Litigators
Patrick Austermuehle and Andrew Murphy were selected by Super Lawyers as Rising Stars
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Being skilled at contracts and the negotiation process is important.  Knowing when to enter and when to exit is equally as important.  Some terms become non-negotiable and some bargaining points.  Knowing strategy, weakness and plus points always help.

Some key pointers include:

  1. Analyze -your source of power and know when to walk away –  the best source of power lies in an ability to walk away from bargaining.
  2. Listen – to what is being said, do not just assume – listen to the arguments being made.  Paraphrase and clarify where necessary.  Know where difficulties may lie in their stance.
  3. Trade off – where can you make concessions? Identify issues that the other party may value and the ones which you do not.
  4. Contingent – where penalties will be imposed or how events may unfold can be calculated in.  This becomes like a pilot test process.
  5. Rapport – what is the background history and level of trust.  Can this be established and built?

How Did Dish TV Network Use these skills in their Contractual Approach?

Dish Network TV obviously had to examine the scope of some of these questions when considering the need to re-negotiate contracts with certain TV Channels.  Certain demands of what they were wanting to be met and where they did not want to make an agreement were examined when they had to revise contractual agreements that had long been in place.

Why Renegotiate?

Renegotiation of contracts which were to be licensed with multiple other channels was made instead.  This time, it was decided that these contracts were to be entered into on a week-to-week basis.  A rapport was already in place. Majority of the disputes in the past and re-negotiations centered on programming or retransmission fees. Entering agreements this way, most possibly helps them gain greater control and leverage on when they want to be able to walk away from a contract without being bound to it on a long-term basis.

Some channels do not like to be at a point where an extension may not be a likelihood and do not enter those contracts for that reason.  This is a big change for what it used to have before, which was similar to the three-year contract.  Being able to hold accountability can give one party an upper hand when it comes to renewals.  Viewers also want to be kept out of any dispute and public image will matter.

These sorts of contracts can allow for gaining greater power but also require much time invested when it comes to re-entering contracts on a timely basis and can require scrutinization of terms and agreements over and over.  When disputes arise, they become programming disruptions.  There contracts also apply for channels in the Spanish language and have been subject to the most of the disruptions.  Continue reading

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Handshake deals (known as “oral contracts” in the legal industry) have long thrived in Hollywood. If, for example, an agent agrees to represent an artist in exchange for a percentage of that artist’s income (known as a contingent fee), that agreement would be considered binding even without a written contract. Whether the same can be said of attorneys seeking a percentage fee was recently up for debate in Johnny Depp’s lawsuit against his former attorney, Jake Bloom.

The dispute began last fall when Depp sued Bloom for allegedly collecting more than $30 million in fees, despite the absence of a proper contract. Bloom countersued Depp for breach of contract, citing their 1999 handshake deal. Depp’s attorneys pointed out that California law does not recognize oral contracts, but Bloom’s attorneys maintained that the contract was ratified when Depp continued to accept legal services. Moreover, they pointed out that Depp continued to accept legal counsel from Bloom and his firm after settling his lawsuit with his former management company – a lawsuit that included allegations that the company had failed to maintain proper written agreements.

This last point Judge Terry Green found to be a point in favor of (rather than against) the need to maintain written contracts. Continue reading

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A Judge has forced a legal dispute to go to mediation instead of hearing the matter in a trial. The matter is over a natural gas and energy plant issue and involves real estate and land being optioned between two energy plants. Both sides of the dispute have been postponed and to be heard back in court later. The Judge did not want to deal with the matter, as he felt that a resolution could be made.

How did the Court become Involved?

The way the court became involved was with an appeal being filed by the Lordstown Industrial Park.  The Court of Appeals was to decide whether real estate matters should be determined by court or arbitration.

Does Arbitration or Mediation Produce a Different Outcome?

Sometimes channeling through a different medium to litigation produces a different result.  In this case, that is what one of the parties’ feel.  The result may not be reasonable, the decision will then be made to go to litigation which will then drive up time and costs.  One party wants resolution, the other does not.  In their defense, mediation has been a tried option several times and has failed each time.  Issues that cannot be resolved remain outstanding, and it is not just one but quite a few. Continue reading

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Walking the tightrope of business ethics and practice becomes more and more under scrutiny in a climate where minorities are divided.  Business owners want to maximize potential, please customers and, let’s face it, the money does matter! Have a business and then be implicated with being racist will come into play in affect image negatively.  That’s where allegations of a racist slur have hit the founder of Papa Johns. He came under fire for criticizing the National Football League’s leadership when it came to the anthem “take-a-knee” protests by players. Comments made have come to haunt him in such a way to put him in trouble and, eventually, have led to suit.  In the suit filed, company documents are to be inspected due to the company’s treatment of him since the publication of a rumor.  He says they are false.

The incident surrounds a conference call made and use of the N-word when it came to Colonel Sanders and KFC.  Papa Johns was a sponsor of the National Football League and the context of the conversation came about when national anthem protests were being discussed. In asking him to resign from the company, he feels ousted without proper investigation into the matter. This has, in turn, lead to a “breach of fiduciary duties” in cutting him off from the company.  All marketing materials and commercials, including logos have been edited to remove his name or image as well.  It is likely that all materials that he is entitled to will be brought into the lawsuit.  He feels he will be exonerated. Continue reading

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The video of Jason Spencer walking backward with his pants down while screaming “America!” was widely viewed and mocked after it aired on Sacha Baron Cohen’s show, “Who Is America?” While it’s certainly embarrassing for Spencer, who later resigned his position as a Georgia state lawmaker, is it worthy of a lawsuit?

Sacha Baron Cohen is no stranger to getting sued by people who appear on screen with him. His movies and TV shows tend to poke fun at people and put them in a less-than-flattering light, so it’s never a surprise when they become upset after seeing themselves on screen. The latest round of lawsuits looks like it might come from several politicians who appeared on Cohen’s show, “Who Is America?” although it’s unclear exactly what their claims will be. Some of them have already made public comments saying they’ll pursue all legal remedies, but no lawsuits have yet been filed.

There are a few problems with these people trying to sue Cohen and/or the show’s producers. The first is the high probability that they all signed release agreements. While one upset politician has admitted to having signed a release, another said he doesn’t remember, but that it’s likely that he did. Continue reading

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In August some major online content distributors, including Twitter, Facebook, YouTube, and Apple, started removing Alex Jones’s Infowars content from their platforms for allegedly violating their policies. It made sense for Jones’s staff to delete some of the offensive material in order to get his content back onto those major platforms so he could get back in front of his audience. But because he is also facing a defamation lawsuit, deleting that material could be considered destroying evidence, which is illegal.

Jones and his company, Infowars, have been sued by survivors and family members of the Sandy Hook elementary school shooting. Jones has said on his broadcast that the entire shooting was a hoax planned and sponsored by the government in order to promote an anti-Second Amendment agenda. Jones has accused survivors and family members of being actors and claimed that the supposed deceased never really existed in the first place.

As if losing a child to senseless violence isn’t bad enough, survivors and family members have had to deal with threats and harassment from Jones’s followers. At least one family has moved to a gated community as a result of the threats they received.

Some of the survivors and family members have responded by suing Jones and his company for defamation. Much of that lawsuit depends upon the content published by Infowars, but since some of that content has since been deleted (and Jones is on record admitting he told his staff to delete the content), Jones may have inadvertently dug his hole deeper. Continue reading

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When entering into the employment domain, covenants are imposed on employees restricting what they can and cannot do once they leave the job. Violations and restrictions are what employers often look for when they wish to seek enforceability of a contract that was entered into when employees decide to move elsewhere. Typically, such agreements prohibit competing with an former employer for a certain period after the employee has left the business, or prevents the ex-employee from soliciting or dealing with customers of the business by using knowledge of those customers gained.

Non compete clauses are in often in place for businesses to protect their investments in business and to not have employees turn around and share information that may be valuable in another employment setting.  That is why the wording of non compete agreements is important.  However, more and more businesses are now laying off employees.

It could be speculated that since more and more businesses are now laying off employees, that this is one of the reasons as to why Massachusetts legislature passed a bill that would require companies in the state to give employees some kind of compensation for up to a year after leaving if they decide to enforce a non-compete agreement.  Another reason is that workers could also end up for months without a paycheck from either a previous employer and by not being able to work for a competitor.  At least now, there is some form of relief and compensation until enforceability of the non-compete agreement is made.

When it comes to Massachusetts, the clause known as a “garden leave clause” provides pay for of at least 50% of the employee’s highest base salary over the prior two years, or other mutually-agreed upon consideration. Though the law does give some room for “other mutually-agreed upon consideration” leaving some level of flexibility.

As it stands, Massachusetts has become one of the first states to offer this kind of relief for employees.  This change may encourage others states to enact reforms. Another change of note is allowing employees to review the agreements prior to signature and relieving laid off employees from the non-compete’s restrictions.

An agreement can be deemed null and void or certain provisions within can be.  This is pretty much the same as it was before.  It’s impact and affect is yet to be tested.

https://www.bostonglobe.com/business/2018/01/15/compromise-may-near-restricting-noncompetes-mass/GWjyz1NOpnZbGA3YXCbWxL/story.html

http://www.mondaq.com/unitedstates/x/725264/Contract+of+Employment/Massachusetts+Legislature+Passes+LongAwaited+NonCompete+Law

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Continue reading

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A plaintiff’s attorney in New York recently challenged a federal court’s authority to order him to pay a $10,000 fine as a sanction for misconduct under the Federal Rules of Civil Procedure in a copyright infringement case. Southern District of New York Judge Denise Cote imposed the monetary sanction on attorney Richard L. pursuant to Rule 11 of the Federal Rules and the court’s inherent authority to manage its own affairs (Paul Steeger v. JMS Cleaning Services, LLC).

The alleged conduct for which Richard was sanctioned included failure to serve notice to the defense of a pretrial hearing as required by court order, which the judge accused Richard of having done on three other occasions in the southern district, and also failing to respond to the defendant’s settlement offer.

Shortly after the defendant complained of Richard’s conduct to the court, the parties reached a voluntary settlement in the case. As a result of the complaint, the judge issued Richard an order to show cause why he should not be sanctioned.

At issue in Richard’s motion for consideration was what the court is allowed to do under its inherent power and under Rule 11, which requires that no monetary sanction or order may be imposed against a party or its counsel after the litigants have reached a voluntary settlement.

Judge Cote noted, however, that she received the defendant’s complaints about Richard’s misconduct and issued the order prior to the case’s formal dismissal or settlement. Instead, Richard had notified the court only that the parties had reached a settlement “in principle.” The case was not dismissed pursuant to the settlement until four weeks later.

The judge accused Richard of a pattern of omissions and misrepresentations in the case and failing to adhere to standards expected of officers of the court. Continue reading

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As consumers become increasingly aware of the potentially harmful side effects of certain chemicals used to extend the shelf life of prepared foods, the demand for packaged foods that are free of preservatives has gone up and continues to go up. Many consumers are prepared to pay a higher price for foods bearing labels such as “organic” and “all natural,” while others simply refuse to buy any foods they cannot be certain are free from artificial preservatives.

The more scrupulous buyers check the ingredients of everything they buy before taking it to the checkout counter, and over the years, people have come up with a few different rules regarding what to look for in the ingredients label. For example, some say you shouldn’t buy anything containing any ingredients you can’t pronounce, while others claim you simply shouldn’t buy anything with more than five ingredients.

Still others just rely on the product’s label. If the company claims their product is free of artificial preservatives, most customers will take that claim at face value and grab the product without bothering to check the ingredients label. Others rely on labels with terms like “all natural,” even though products don’t need to meet any legal qualifications in order to put that label on their products (as opposed to the term “organic,” which does require the product to be certified organic by the U.S. Department of Agriculture). Continue reading

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For years the NutriBullet blender has been marketed as a small, convenient blender people can use to make single-serving smoothies and other cold drinks, then pop off the cannister and drink. The blender has been marketed as a “nutrition extractor,” implying people can get more nutrition in their diets by drinking their fruits and vegetables with the help of the blender. What the blender’s marketing fails to mention is the allegation that it tends to build up the pressure and explode.

Capital Brands, the company that makes the NutriBullet blenders, advises users of the product to only make cold drinks in the blenders and avoid putting anything hot in it to avoid overheating. They also recommend using it for no more than 60 seconds, at which point a safety mechanism will turn the NutriBullet off in order to avoid any accidents as a result of overheating.

But consumer lawsuits claim the blender has been known to overheat and even explode, even when consumers follow the directions and use it with cold foods for less than 60 seconds. One such lawsuit was brought against the company in North Carolina and is currently pending in court. In California, one consumer rights attorney says he has brought almost two dozen lawsuits against Capital Brands over the alleged defect in their NutriBullet blenders.

Now Deveta White has joined the list of consumers to sue Capital Brands over their allegedly dangerous NutriBullet blenders. The only difference is that White’s consumer lawsuit is the first to seek to represent a class of similarly situated plaintiffs against Capital Brands. Continue reading