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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The #metoo, can be viewed as a disease in business practice.  In its wake, thousands of women have come forward to raise complaints of sexual harassment.  Workplace harassment does not simply remain in the realm of celebrity, its reach is much greater.  People are getting worked up about it and are taking sides.  Statistically speaking, since the movement began, the Legal Defense Fund has received more than 3,500 requests for assistance from workers in more than 60 different industries in all 50 states. Any business anywhere could be targeted for some event that could have happened for a time period prior to the current management in place.

In the past, people have not spoken up because of the fear.  With taking a stance can come the loss of job which leads to a loss of financial security.  The risk was too great.  This had lead to many debates and reconsideration of the way in which business practices transact business and of its operation.

Businesses are looking towards countering that culture.  Getting their name enmeshed in a lawsuit looks like a poor reflection on them from a commercial perspective.  Consumers have that much power.  That is why bystander protections are measures being introduced.  Ensuring policies that already exist in manuals are enforced or stood by are another way of standing firm to the commitment of culture. Continue reading

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Trump and Today’s America

Part of the Trump Brand has come about from a success story that has arisen due to being able to overcome being bankrupt.  Trump turned around and transformed the brand of a Reality TV show series by the name of, “The Apprentice,”  to eventually triumph from TV into becoming the President of the United States of America.  Did his bankruptcy define his business? Most likely not.  A story emerged, one of a businessman transition to the leadership of a country.

The Decision to File

Of course, filing a bankruptcy is a huge decision.  Sometimes the trigger can be circumstances beyond control.  Even in today’s age, there may still be a stigma applied, as some view it as a moral failure.  As it stands and within a year, we have seen corporate bankruptcies at their highest point.

When a company files for a Chapter 11 bankruptcy, it seeks protection from creditors in trying to restructure debt.  The judge oversees this.  Effectively, it transfers the ownership of the company from shareholders to the creditors.  For the most part, shareholders are the ones that suffer the greatest loss.  Creditors are normally made whole.

What is at Stake?

The tax scheme makes allowances when creditors and shareholders of failing companies write off losses.  In 2018, the new tax law adds uncertainties, but shareholders and creditors knew that losses incurred in 2018 would face the new corporate tax rate of 21%, and so the government would only pick up 21% of the losses. Continue reading

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A suburban business in Chicago is under scrutiny for implementation of a system in which the way the business allegedly sterilized caused emissions of a cancer-causing substance. The operational facility provides sterilization services to the medical, pharmaceutical and food industries.  Ironically, the health damage by its emissions cause might make locals worse off.

Consequently, a change was made to equipment that was being used had been installed.  Governor Bruce Rauner then, eventually, requested closing the plant completely which was also co-owned by his former private equity firm.  It was not looking good on him and locals were very angry.  Whether or not, and the type of action that would have been taken in circumstances, but for, that situation are not known. Local politicians added pressure and since we are dealing with cancer, people are not taking this issue lightly at all.

Right now, as it stands, the Attorney General, Lisa Madigan, believed that further investigations of air quality with analysis by experts would be necessary in order to make a case.  Perhaps, the one-off situation is not enough to gauge that there has been negligence or any breach that is substantial.  This would constitute as information that only a state or federal Environmental Protection Agency would be able to give in such circumstances.

It was the likelihood of the emissions ranged from “probably carcinogenic” to “carcinogenic to humans,” that became grounds for tests to be expedited.  It is speculated that the new system is less harmful, but can the damage be reversed?  Even a reduction by 90 percent cannot do much to whatever is out there in the atmosphere.  These issues are problematic, affect multiple residents’ health and will require in-depth investigation.  A school is even within the vicinity of impact.  If a class action arises, this will be one not taken lightly. Continue reading

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With the increase in sensitivities to gender and race discrimination and the resulting lawsuits, more corporations are seeking ways in which to help cater for the divisions in gender and background of employees.

Sexual harassment suits have gone up in the light of the #metoo and many other ethnic-related and religious identities are not holding back when it comes to taking behavior that they do not approve of to the courts.

Some suits have gone so far to include the following words in their pleadings as proof of an alleged racist or sexist culture:

A consumer bureau “maintains a biased culture replete with harmful stereotypes regarding its racial minority and female employees that infect its policies and decision-making, including performance evaluations, compensation, and promotions.” (U.S. Consumer Financial Protection Bureau have charged they were discriminated against by officials of the bureau once headed by Cordray.) 

In that suit, the bureau has responded by stating Cordray “worked hard to build a more inclusive and diverse workplace, launching initiatives to ensure women and minorities receive fair treatment and fundamentally reforming the management practices of the bureau. Civil rights leaders stood by Director Cordray then, and they stand by him now.”

This has forced some companies to change their approach when it comes to steering away from segregated groups within a workforce environment.  People who are not included, do not divest and are more likely to drive up costs for employers overall.  Disgruntled, angry employees take it to the news and courts, leading to bad publicity and unnecessary costs. Continue reading

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The Non-Compete

All contracts are subject to scrutiny before the law, especially when a dispute arises, including employment ones.  The importance of fair and just contracts always comes up in the media spotlight and the courts.  If a contract is too much in favor of one party who has far more bargaining power over the other party, it may violate the law. Employers should take this into consideration when drafting terms and have them reviewed by attorneys who are familiar with restrictive covenants within the scope of employment law.

One Clause Cannot Fit All Employees

A “one size fits all policy” when drafting restrictive covenants, will risk the clause being unenforceable. This is especially true if the demand is unreasonable or not necessary to protect legitimate business interests. 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 the competing with an ex-employee 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.  This issue was a reminder in the case of Dumrauf, where the Courts later deemed teh non-compete agreement to be unenforceable because it was too restrictive.

The Illinois Attorney General, Lisa Madigan, required WeWork Inc. to end its use of an overly broad clause for almost all of its employers. Overall, over 1,800 employees agreements were altered to become a less restrictive version and 1,400 agreements were rendered too restrictive voided.  The agreement went so far as to prohibit all employees from taking jobs with competitors, including cleaners, assistants, baristas and others who earn close to minimum wage.  It was viewed as being a career obstacle which did not allow people to make better decisions with their lives. The clause appeared to be one set for all employees and barred them for working with competitors after they left.  It also prohibited a worker from working anywhere where WeWork did.  That is a cost that WeWork had to bear as a social stigma in society, legally and will have a negative image in the minds of future employees as well.  Building back trust and rapport will be difficult. Continue reading

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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