Any time you need photos for any kind of marketing material, but don’t want to spend a fortune on a professional photographer, you probably go online and search for photos that are either in the public domain (and can, therefore, be used for free) or photos with licenses that can be bought for a price that fits your budget. But how can you tell if the entity you’re paying for the rights to the photo really has the license?

Getty is the go-to source of high quality, affordable photos for many people. You pay them a small fee for the license of the photo you want and you’re free to use it within the restrictions of the license. Except, according to a recent proposed consumer class action lawsuit against Getty, you were always free to use some of those photos without having to pay Getty anything. Continue reading ›

Earlier this month, a Florida daycare responded to a negative online review left by parents of a child that until recently attended the daycare by serving the parents who left the review with a defamation lawsuit. The parents, Marc LaRocco and Kimberly Moore, left the review after they claim the daycare, The Learning Experience, repeatedly fed their son Owen dairy despite being notified that the child had an allergy to milk.

The parents of the child who attended The Learning Experience daycare in Sunrise, Florida claim that they notified the daycare upon enrolling their son that he was allergic to milk. Despite this, the parents claim that the daycare sent them pictures on numerous occasions of their son eating foods containing dairy. The parents claim that their son suffered rashes and vomiting as a result.

After removing their son from the daycare, the parents took to social media to describe what they claim was their experience at The Learning Experience in Sunrise, Florida. In lengthy online reviews, the couple made statements, according to the complaint, such as: “The Learning Experience- Sunrise is ill-equipped to handle children with any type of special needs.” The complaint also alleges that the couple wrote that: “This school needs a complete overhaul in training and management” and “If you value your child’s life, do not allow them to attend this facility.” The daycare responded to the reviews by filing a lawsuit claiming that the statements were “false and injurious” false and made with “reckless disregard for the truth.” The daycare alleges that the “statements were communicated to at least 500,000 third parties” and “negatively impacted (The Learning Experience’s) trustworthiness and character.” A CBS affiliate in Miami ran a story about the lawsuit and interviewed the parents. That story and the interview can be found below:

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A fan emailed MomoMilk LLC last fall, excited because she had heard they were opening a store in her home town of Chicago. But she was soon disappointed when she realized it was not the nationally recognized bakery that was coming to Chicago, but another company altogether taking advantage of the Milk Bar trademark and brand recognition.

A few years ago, chef Christina Tosi started a restaurant and bakery called “Milk Bar” in New York City, which features shakes, milk cookies, cakes, pies, and a variety of cereal products. The bakery was an instant success and was soon opening other stores throughout the city, then in other cities across the country. It also works with third-party distributors and sells its delicious products through its website. Although it does not currently have a store in Chicago, Tosi has publicly spoken in interviews about the fact that she has been considering opening new stores in cities like Chicago and Miami where the brand has a strong fan base.

The famous bakery operates under the name MomoMilk LLC and it has owned the trademark to the stylized milk since 2014. Now another restaurant has recently opened in Chicago, also calling itself “Milk Bar” and using the trademarked style milk that MomoMilk has been using in all its branding materials for the past five years. Continue reading ›

The Illinois Appellate recently affirmed a two-year bright-line continued employment rule for adequate consideration in non-compete cases if the only consideration is continued employment. Many, but not all, of the federal district courts in Illinois, do not follow this bright-line rule predicting that the Illinois Supreme Court will not follow it.  The Illinois Supreme Court has not yet addressed the issue. You can read the most recent Illinois Appellate decision here.  You can also listen below to the oral argument held in the Appellate Court before it reached this decision:

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New Washington Law Makes Sweeping Changes to Non-Compete Agreement Law 

Non-compete law in the state of Washington underwent sweeping changes last week with the signing into law of HB1450 (“Washington Non-Compete Act”) which targets the use of restrictive covenants within the state. The new law regulates the use and scope of non-competition agreements with both employees and independent contractors and restricts the use of non-poaching agreements in franchise agreements as well as policies against moonlighting. The new law takes effect on January 1, 2020.

Under the new law, a non-competition covenant will be void and unenforceable unless the following criteria are met:

  1. If the covenant is entered into at the commencement of employment, it must be disclosed in writing to the employee by no later than the date of the employee’s acceptance of the offer of employment;
  1. If the covenant is entered into at the outset of employment but will not take effect until a later date due to a foreseeable change in the employee’s compensation, the agreement must specifically disclose that it may be enforceable at a future time;
  1. If the covenant is entered into after the commencement of employment, it must be supported by additional consideration;
  1. The worker’s annual earnings must exceed $100,000 (in the case of an employee) or $250,000 (in the case of an independent contractor)based upon the income reflected in Box 1 of an employee’s IRS Form W-2 or an independent contractor’s IRS Form 1099; and
  1. The post-separation duration of the non-compete must last no longer than 18 months unless the employer can show by clear and convincing evidence that a longer duration is necessary to protect its business or goodwill.

The new law defines the term “non-competition covenant” to expressly carve out certain types of restrictive covenants such as employee and customer non-solicitation covenants, confidentiality/non-disclosure covenants, and covenants relating to the purchase or sale of a business or franchise. Continue reading ›

If the CEO of a bankrupt company buys shares in a spinoff company, is that evidence of sabotage, or just that they’re trying to make the best of a bad situation?

Edward Lampert, who was chairman and CEO of Sears Holding Corp. when it went bankrupt, is now being sued by the company for allegedly orchestrating shady dealings between himself, his hedge fund company (ESL) and Sears’ finances.

Having taken the reigns of the company when it was already in a financial downward spiral, Lampert allegedly made promises he couldn’t keep about turning the company’s finances around. Instead, he and his investors bought some of Sears’ largest and most valuable assets, then invested in the companies that spun off from Sears using those assets, essentially profiting off Sears’ bankruptcy.

Shareholders who received stock in the home improvement branch of Sears, known as Orchard Supply Hardware Stores Corp. allegedly received millions of dollars’ worth of stock, but without properly compensating Sears. Three of the shareholders who were on the board of Sears owned stock in the home improvement store that was collectively worth more than $100 million, according to the lawsuit.

When Sears Hometown and Outlet Stores was spun off into another company, those who owned stock in Sears were given the opportunity to buy shares of the new company. Continue reading ›

This year marks one hundred years since the birth of modern First Amendment jurisprudence. In 1919, as the United States was recovering from the effects of World War I, the U.S. Supreme Court grappled with a series of cases involving the speech of political dissidents charged with violating federal laws designed to quell criticism of the U.S. war effort, draft, or policy toward foreign nations.

The first of the free speech cases that came before the Supreme Court in 1919 was Schenck v. United States. The Schenck defendants were convicted for violating the Espionage Act of 1917 for distributing leaflets that criticized the draft and supported that position by reciting language from the 13th Amendment. Writing for a unanimous court, Justice Oliver Wendell Holmes affirmed the defendants’ convictions, reasoning that what can be said in times of peace may not be legal during times of war. In short, the First Amendment had limits.

Holmes reasoned that, “[t]he character of every act depends upon the circumstances in which it is done,” which he followed with the now-famous hypothetical of “a man in falsely shouting fire in a theatre and causing a panic.” Holmes’s opinion was also noteworthy in that it introduced the “clear and present danger” test which became the test applied by courts in First Amendment cases for the next five decades.

Perhaps the most impactful opinion to come from the 1919 free speech cases was Justice Holmes’s dissent in Abrams v. United States­—a dissent that has come to be known as the “great dissent.” Few could have known at the time Justice Holmes penned his dissent that his words would begin shaping the contours of our understanding of the First Amendment and the freedoms guaranteed by it—freedoms that are considered by many around the world to be quintessentially American.

The Abrams case was not particularly noteworthy. It was in many respects a repeat of Schenck. And like Schenck, the convictions of the defendants charged with violating the Sedition Act of 1918 were upheld. But despite coming only a few months apart, Justice Holmes voted to uphold the convictions in Schenck and to overturn the convictions in Abrams. What was the difference? Continue reading ›

Our longtime co-counsel and colleague Dmitry Feofanov argued an important case this week before the Illinois Supreme Court concerning a consumer’s ability to revoke acceptance of a brand new RV with a hidden defect — a leaky roof.  The consumers revoked acceptance after the RV dealer couldn’t provide an estimated completion date for the repairs. An RV is a summer product and the consumers feared (correctly) that they would lose the use of the RV which is a summer product for the entire summer if they did not revoke acceptance.  The trial and appellate courts ruled that the consumers should have given the dealer the opportunity to repair the RV. We filed an amicus brief in the Supreme Court on behalf of the National Association of Consumer Advocates supporting the position that a consumer or buyer of goods does not have to provide an opportunity to cure for a material defect as this that undercuts the value of the product to the buyer and can revoke acceptance.

You can also listen to the oral argument below.

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