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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Despite plenty of evidence to the contrary, certain business advocates continue to insist that arbitration bans hurt individual consumers and employees more than they help them. They are not bothered by the facts, such as:

  1. Arbitration does not allow multiple plaintiffs to combine their claims into a class action or collective action. This effectively blocks consumer lawsuits from ever seeing the light of day because an individual’s claims are often smaller than the cost of filing a lawsuit or pursuing the dispute in arbitration.
  2. There is no explanation for why an arbitrator ruled the way they did and no opportunity to appeal the decision.
  3. The arbitration process is kept private, which means the results, and even a customer filing for relief for a complaint, are never made public. The transparent nature of the courts is an inherent ingredient to justice and accountability. By keeping all the proceedings private, other consumers with identical or similar complaints will not even know that they have a valid complaint.
  4. Arbitration is not always neutral. While some arbitrators have a good reputation for neutrality, others are less trustworthy, and many arbitration clauses give the company the power to choose the arbitrator. Because arbitration is a business, many arbitrators tend to be tempted to rule in favor of the side that brings them a lot of business.

Despite all these facts, and extensive research conducted by the Consumer Financial Protection Bureau (CFPB) showing how arbitration clauses harmed consumers, the U.S. House of Representatives and Senate both voted to overturn a CFPB rule that would prohibit banks from putting arbitration clauses in their consumer contracts. Continue reading

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The battle to be the first self-driving car company has a new twist.

Waymo’s lawsuit against Uber for allegedly stealing trade secrets pertaining to its self-driving technology was supposed to go to trial earlier this month, but has been delayed as a result of new evidence against Uber.

While the two ride-hailing companies were preparing their cases and getting ready to argue their sides before a jury, Judge William Alsup had ordered an investigation into Uber by the Department of Justice (DOJ) – an investigation which recently turned up a letter that has the potential to do serious damage to Uber’s case.

The letter was written by an attorney representing Richard Jacobs, who used to work for Uber as part of their Marketplace Analytics (MA) team. According to the letter, which Jacobs approved at the time, it was sent, Uber allegedly used its MA team for the sole purpose of stealing trade secrets from Waymo, and possibly other competitors as well.

The DOJ also found that Uber had actively taken steps to hide this information from the court and other legal professionals.

The letter was part of a lawsuit between Jacobs and Uber, which has since been settled. When questioned about the letter on the stand, Jacobs denied parts of it, saying he reviewed the letter in haste when he was on vacation. Jacobs denied that Uber’s MA group existed in order to steal trade secrets, or that Waymo was a target, but he did confirm that Uber took steps to protect sensitive information and eliminate the possibility of a paper trail that might work against them later. Continue reading

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The #MeToo scandals has generated more work for lawyers. Last year, within New York sex scandals were shaking elite preparatory schools with an uptick in investigations.  One unidentified school had spent at least $2 million on a comprehensive report detailing decades of sexual indiscretions between faculty members and students.  This year, we saw reflections of harassment and abuse within the entertainment and political environments. It has had a momentum effect and impacted many with more and more cases being reported everyday.

No one is ever free from abuse of harassment and people are more vocal and aware of the abuse nowadays, as this hashtag has been trending on social media.  Investigation, litigation and handling of sexual allegations are not easy to navigate and are emotionally taxing, whilst damaging to reputation of either victim or alleged perpetrator.  One incident and its exposure often leads to others coming forward and class actions or multiple investigations.  Reputation, character and conduct is important.  Once an image is tarnished, it can be life affecting in so many ways.  A cycle of resistance or denial can also exist in the cycle.  Having insurance coverage in such instances helps relieve the emotional distress in finance over monies paid to victims or an insurance dispute over clauses and coverage can also arise.  As more and more claims come out, it must be realized that one cannot be fully absolved of such allegations and the need to have measures in place in case is important.  Prevention is always better than cure and whether or not employers wish to screen such conduct as part of their background check is also becoming a possible concern.  The costs of such suits can be steep and the damage that is done can never be monetized.  The possibility of employers screening behavior in an interview position for work purposes may also become more commonplace, as costs and money talks.  It is not worth the baggage of having such persons within a working environment and maybe including contract clauses for relieving personal behavior whilst at work must be ensured within employment manuals.  More education is required as to why such behavior will not be tolerated.  Continue reading

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Despite claiming it’s ready to make amends to its customers after multiple scandals involving things like opening bank accounts and lines of credit for its customers without their notice or consent, overdraft fees, and fraudulent car loans, Wells Fargo’s CEO, Timothy Sloan, recently testified before the Senate Banking Committee to defend the bank’s use of arbitration agreements.

This is in spite of the fact that the bank has said it will not enforce its arbitration agreements with the class of consumers seeking compensation for the money lost and damage done to their credit ratings as a result of the false accounts the bank opened on their behalf. Without the option to file a class action lawsuit against the bank, each customer would have been forced into individual arbitration, the cost of which would likely have caused many to abandon the case if the costs of filing were more than their claims were worth.

Most cases never make it through arbitration because of the cost, the inability to file as a class or collective action, and the private nature of arbitration that prevents people from becoming aware of legal actions with claims similar to theirs. And yet banks and Big Business advocates continue to insist that arbitration benefits consumers more than class action or collective action lawsuits.

Sloan even cited a study conducted by the Consumer Financial Protection Bureau (CFPB) that Sloan claimed proved consumers received more redress from arbitration than collective actions or class actions. Continue reading

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Being wise about knowing which clauses to include in a contract will help you in the long run.  This is for reason being that a contract that is not enforceable on some level could run the risks of becoming void and unenforceable.  In turn, that can cost business and profit.  The basic principles of materiality can change from year to year.  An awareness in advance can save.  We are here to help with the following list:

1. Non compete agreements are enforceable to the extent that a business interest is protected.

This has always been at the core of non compete interests.  Having been at the core, means it has also been subject to scrutiny.  There are plenty of court decisions that have considered this more closely which includes the fairness test as espoused in the case of  White v. Mederi Caretenders Visiting Services of Southeast Florida, LLC, Case No. SC16-28 (Fla. Sup. Ct., Sep. 14, 2017).  Is what the employer seeking to protect its investment or is it making it unfair for the employee to use information, relationships or resources that they acquired while employed by a former employer?  That is the question and agreements will be assessed on the management of their exploitative nature. 

2. Forum selection clauses are usually enforceable across the country.

Clauses that choose not to enforce another state’s law are generally enforceable unless the violation of public policy is at stake.  In the case of  Stone Surgical, LLC v. Stryker Corp., Case No. 16-1434 (6th Cir., May 24, 2017), an employee was subject to a non compete with Michigan choice of law and forum clause.  Enforceability of such clauses was challenged when that employee transitioned to work with a competitor of the other jurisdictional state of Louisiana.   It was noted on appeal at the federal level that Michigan law would favor such clauses. Continue reading

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Violations of the Telephone Consumer Protection Act (TCPA) are subject to a judgment of anywhere from $400 per call to $1,200 per call, depending on whether the court deems the defendant to have been deliberately willful in its violation of consumers’ privacy.

The TCPA was enacted shortly after cell phones became prominent in the market and cell phone users were charged for the calls they received, as well as those they made. To protect consumers from having to pay for promotional calls they didn’t want to receive on their cell phones, legislators came up with the TCPA, which makes it illegal for companies to call consumers on their cell phone in a non-emergency situation, unless the company has received the consumers’ express permission to do so.

According to U.S. District Judge Catherine C. Eagles, Dish Network LLC earned the highest judgment for the promotional calls they had made to consumers using Satellite Systems Network and allegedly failing to properly regulate the calls that company made on Dish’s behalf.

The lawsuit was filed in 2014 by Thomas Krakauer, who claimed he received multiple calls from SSN on Dish’s behalf from 2009 to 2011, despite being on the National Do-Not-Call Registry. Since he filed is class action against those two companies, the North Carolina federal court has certified two more class actions with similar claims of having received telemarketing calls from Dish or SSN between 2010 and 2011.

In Krakauer’s case, the jury found that SSN had placed more than 51,000 promotional phone calls in violation of the TCPA in the relevant time period and awarded damages to the plaintiffs of $400 for each phone call, bringing the total to about $20.5 million.

But Judge Eagles found that treble damages were warranted, since Dish had willfully violated the TCPA by failing to oversee SSN’s telemarketing practices, despite having promised regulators it would do so. Judge Eagles therefore raised the damages to $1,200 per illegal phone call for a total of $61 million. Continue reading

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Although it’s a problem most of us will probably never face, a battle currently being fought in Texas state court demonstrates why you may not want to sign away rights to your identity if you’re a celebrity chef. Kent Rathbun, a high-profile Dallas chef best known for his signature Abacus restaurant, is fighting for the right to use his own name and likeness in new business ventures while his former partner and financer claim exclusive ownership of them.

There is more drama than anything to be seen on a Master Chef episode.

It all goes back to an agreement which Rathbun now claims he signed under financial duress, allowing H2R Restaurant Holdings, the company majority-owned by his investor William H., to use his identity. Rathbun partnered with William in 2007 to form H2R Holdings in order to finance his restaurant ventures.

According to Rathbun’s complaint for declaratory relief, two years later William presented him with a document entitled “Assignment of Rights to Use of Name and Likeness.” William told him it needed to be “immediately executed as a condition to moving forward with company business.” At issue in the litigation is whether the agreement amounts to a covenant not to compete and is thus subject to state laws governing such covenants. Continue reading

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Storms weather and can bring about the best and worst in people.  When damage occurs, the test of resilience, character, friendship and trust are all evaluated.  The process is not any easier when there is an Insurance company that one has to deal with and when there is the lurking possibility that they are handling thousands of claims at the same time.  All damages are subject to scrutiny, including the damage that takes place after storms.  Disputes arise in the context of property damage and to its extent. This firm is willing to assist as an All-American firm working for its citizens.  In the doing of so, we write and will consider assistance via phone if necessary.  Not all are easily able to navigate as emotions such as shock are still being overcome.

The competing interests that an insured and insurer have in the filing of a claim also makes it more painstakingly difficult.  Some perceive the insurance claims process as adversarial.  The insurance representative cannot guide to what is best in representation on the matter. This is since Insurance companies appear to be in a Business.  As such, the expectation to be fairly compensated is questionable.  While many pay on time and premiums it does not mean that what you give is what you will get back.  At times, adjusters may become overwhelmed in working on multiple cases that are catastrophic in nature and make mistakes or overlook damage.   That is why having an attorney best helps.   For those reasons, we have compiled a list of items that should be attended prior to discussing a case with an attorney or Insurance company.

Please ensure compliance with the following:

  1. By making a timely reporting of claim, as a failure to do so may result in its denial. This can normally be done via phone or online.  The claims process normally begins at this point: initial contact with the insurance company, an evaluation of your claim, negotiations, and a resolution/settlement.  At this point, an adjuster is normally assigned.
  2. Documentation of all video and photos of the damage, if possible.  It would even be better if those included prior and after.  Possible electronic receipts of any purchases made.
  1. The obtaining of independent quotes by contractor receipts in putting a price on the extent of the loss.  These may be challenged or questioned by the Insurance company, but are a good start and utilizing them may assist you in deciding whom you wish to use for the final repair.  Sometimes, supplements are required for damage that is hidden.  If disputed, the burden of proof can then move from the insurance company to the insured if the contractor estimate does not reflect the true damage sustained.

Continue reading

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Our Chicago, Illinois consumer rights private law firm handles individual and class action gift card, data breach, privacy rights, deceptive advertising, predatory lending, unfair debt collection, lemon law, and other consumer fraud cases that government agencies and public interest law firms such as the Illinois Attorney General may not pursue. Class action lawsuits our law firm has been involved in or spear-headed have led to substantial awards totaling over a million dollars to organizations including the National Association of Consumer Advocatesthe National Consumer Law Center, and local law school consumer programs. The Chicago consumer lawyers at DiTommaso Lubin Austermuehle are proud of our achievements in assisting national and local consumer rights organizations to obtain the funds needed to ensure that consumers are protected and informed of their rights. By standing up to consumer fraud and consumer rip-offs, and in the right case filing consumer protection lawsuits and class-actions you too can help ensure that other consumers’ rights are protected from consumer rip-offs and unscrupulous or dishonest practices.

Our Joliet and Bollingbrook consumer attorneys provide assistance in data breach, privacy violation, fair debt collection, consumer fraud and consumer rights cases including in Illinois and throughout the country. You can click here to see a description of the some of the many individual and class-action consumer cases our Chicago consumer lawyers have handled. A video of our lawsuit which helped ensure more fan friendly security at Wrigley Field can be found here. You can contact one of our Cicero and DeKalb consumer protection, gift card and data breach attorneys who can assist in consumer fraud, consumer rip-off, lemon law, unfair debt collection, predatory lending, wage claims, unpaid overtime and other consumer, or consumer class action cases by filling out the contact form at the side of this blog or by clicking here.  You can also call our toll-free number at (877) 990-4990.

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Fox news has recently come under fire for yet another sexual harassment lawsuit involving a political contributor who alleges she was forced into a sexual relationship with Charles Payne, a Fox Business anchor.

The lawsuit, filed by Scottie Nell Hughes, alleges she repeatedly refused Payne by telling him “stop” and “no,” but he allegedly disregarded her protests and forced her to stay in a sexual relationship with him for an extended period of time. Hughes alleges she received extra appearances on both Fox Business and Fox News while she remained in the relationship with Payne, but that when she cut things off, she was allegedly “blacklisted” by the media giant.

In addition, Hughes alleges that, after she brought her concerns over the sexual assault to Fox in confidence, the media company allegedly leaked her name to the press, along with a “statement” in which Payne apologized for the affair. Hughes and her attorney object to both the manner in which Fox handled the situation and Payne’s use of the term, “affair,” which implies she consented.

Payne was suspended from the network, pending an internal investigation into Hughes’s allegations, but has since returned to work.

Hughes has said that the complaint her attorney recently filed speaks for itself, and that she is pursuing litigation so that no other woman will have to suffer through the hell she says she is now experiencing. Continue reading