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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If you’re going to claim that the use of certain content counts as fair use, you should probably know what “fair use” means.

The fair use doctrine allows people limited use of copyrighted content without the need to get permission from the copyright holder first, but the law is specific about how and under what circumstances someone can claim fair use of a particular piece of content.

First, they can only use part of the content. Just reproducing the entire piece and distributing it on your own is not fair use.

Second, fair use is generally used to make a point about the content being used, such as in a parody or a review.

Third, whether the work in question is of a creative or factual nature.

Fourth, whether the person using the content for fair use intends to profit off the material in any way.

According to Judge Thomas M. Durkin, Jasmine Enterprises Inc. did not meet any of those requirements when claiming that their use of the three copyrighted photos they stole from FameFlynet constituted fair use. Continue reading

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The primary laws that govern the disclosures to shareholders and the marketplace include the Securities Act of 1933 and the Securities Exchange Act of 1934 and the rules adopted by the Securities and Exchange Commission (the “SEC”).  These laws have come subject to scrutiny in the Camping World Holdings, Inc. who suffered financial losses in excess of $100,000 due to a failure to disclose.  Some of their executives have been charged with failing to disclose material information during the Class Period, violating federal securities laws.

Generally speaking, causes of action have been interpreted by the federal courts to specifically set forth in the statutes and to address claims brought as class actions.  These types of claims are often brought forward and against the corporation, its directors and officers, purchasers and sellers of securities, persons otherwise having a duty to investors who participate in the alleged disclosure violation.  Sometimes accountants and underwriters and persons required to make public filings with the SEC.  The history behind it is entrenched in common law notions of disclosure claims such as fraud and negligent misrepresentation. Continue reading

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With all the talk around Roy Moore’s alleged sexual misconduct around young girls, including a Pulitzer-Prize winning article in The Washington Post, it’s hard to believe one actor’s prank could make much of a difference, but Moore alleges it did.

For an episode of his show, Who Is America? that aired on July 29th, Sacha Baron Cohen invited Moore to Washington D.C. under the pretense of an award for Moore’s support of Israel. Instead, Moore met with Cohen disguised as his character, Erran Morad, an Israeli “anti-terrorism expert.”

During a sit-down between “Morad” and Moore, Morad told Moore about a particular enzyme that pedophiles secrete at much higher rates than normal people. He said that Israelis had developed a machine that could detect this enzyme, with the idea being that they could install the machines at school entrances to alert staff of any pedophiles entering the building.

Morad then produced what he claimed was one of these machines, saying it would beep if waved over a pedophile but would remain silent if waved over a normal person. Of course, the “machine” was rigged to beep when waved over Moore, at which point Morad pretended to be confused, claiming the machine must be malfunctioning and asking Moore if the jacket he was wearing belonged to him and whether he had loaned it to anyone recently.

Moore denied the insinuation that he’s a pedophile, pointing to his 33-year-long marriage as evidence and alleging he had never been accused of such things. He eventually ended the interview and left, saying he supported Israel, but not the kind of antics to which he was being subjected. Continue reading

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As Alex Jones prepares to deal with the shutdown of several of his social media pages (including four Facebook pages and his Infowars YouTube channel), he also has to contend with multiple defamation lawsuits that have been filed against him, at least one of which will soon be moving forward.

Judge Scott Jenkins of the District Court for the 53rd District in Austin, Texas, denied Jones’s motion to dismiss the case. Jones claimed his hateful speech was protected under the First Amendment of the U.S. Constitution, but Judge Jenkins disagreed. Defamation is not protected under the First Amendment, and if the plaintiffs can prove their claims of financial damages as a result of Jones’s defamatory statements, then they’ll have a solid case for defamation.

In his request to have the lawsuit dismissed, Jones included a request that the families suing him pay him $100,000 for the legal fees he has incurred in defending himself against their lawsuit.

While defendants are often made to pay legal fees if a court rules against them, it’s almost unheard of for a court to require a plaintiff to pay for a defendant’s legal fees. As the situation currently stands for Jones, not only will he not get that $100,000, but he might have to pay more than $1 million in damages to Leonard Pozner and Veronique De La Rosa, the parents of six-year-old Noah, who was one of the children gunned down at Sandy Hook Elementary School in 2012.

Jones has repeatedly called the mass shooting a hoax and accused victims and family members of being actors who are paid by the government and gun control lobbyists to carry out their anti-gun conspiracy. Continue reading

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The former president of the College of DuPage won a victory in his federal court appeal against the trustees who ousted him. The Seventh Circuit Court of Appeals held that his employment contract was valid under Illinois law.

Robert Breuder was hired as president of the Glen Ellyn, Illinois-based community college for a four-year term beginning in 2008. The college’s board of trustees later extended his contract through 2019. In 2015, newly elected trustees, accusing Breuder of misconduct, discharged him without notice or a hearing. The board denied his severance pay and retirement benefits.

Breuder filed a complaint in Illinois federal court on state and federal grounds, accusing the board of breach of contract, deprivation of property without due process of law, and defamatory statements.

Public employees who serve pursuant to a contract are considered to have a property right in their job and generally must be afforded a hearing before termination.

The board obtained the dismissal of the complaint on the grounds that Breuder never had a valid employment contract.

The crux of the board’s argument was that under Illinois law dating back over a century, a governmental body whose members serve limited terms may not enter into contracts that extend beyond those terms (Millikin v. Edgar County, 142 Ill. 528 (1892)). The board that originally hired Breuder contained members whose terms expired the following year. Therefore, the defendants reasoned, both the original four-year contract and the extensions were invalid. Continue reading

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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