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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Sometimes things happen outside a business owner’s control that affects the business. It’s understandable, but that does not justify failing to reveal to investors if the company is suffering financially as a result. In fact, executives and board directors of publicly traded companies are required to disclose the financial state of the company to their investors on a regular basis.

After the documentary, “Blackfish,” was released, SeaWorld’s business suffered significantly, but executives and board directors allegedly refused to reveal to shareholders the effect the documentary was having on the amusement park’s business.

The documentary details the story of Tilikum, a performing killer whale that was held captive in amusement parks for decades, including SeaWorld, where he famously killed a trainer – the first trainer to die at SeaWorld, although not the first time Tilikum had been involved in a death in a marine park.

Contrary to their name, killer whales have never been known to kill humans in the wild, leading many to wonder what causes them to attack when in captivity. The film examines the lives Tilikum took, before they were cut short, the cruel treatment of killer whales held in captivity, and the pressures of the sea-park industry, which makes billions of dollars every year. Continue reading

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Bands work hard to build and maintain a certain image, which is why they have to react quickly when someone tries to infringe on that image.

According to a recent trademark lawsuit, a Mexican hotel, located in Baja, California, was allegedly trying infringe on the image of the famous rock band, the Eagles, by changing the hotel’s name to Hotel California. The hotel was also allegedly playing the band’s music in and around the hotel, and selling T-shirts and other merchandise with “Hotel California” emblazoned across them as part of the hotel’s marketing campaign for their new name.

The hotel’s original title was actually “Hotel California” when it was founded back in 1950. Over the years, it acquired new owners and new names, but when John and Debbie Stewart bought the hotel in 2001, they decided to restore its original name.

The hotel is now owned by a company called Hotel California Baja LLC, which applied for a trademark for the name of the hotel, and that’s when the Eagles filed their lawsuit against the hotel company in the U.S. District Court of Los Angeles. Continue reading

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Environmental groups have sued to stop the Bayou Bridge pipeline after it received construction permits and the green light to start. The construction will take a toll on the environment. This has affected local businesses who used to harvest large amounts of crawfish but now the traps yield dead crawfish.

The purpose of the pipeline is to deliver crude oil to a terminal in St. James Parish. The first phase of the project, which consists of a 30-inch pipeline from Nederland to Lake Charles.

The U.S. Army Corporation of Engineer’s decision to issue the permit for construction followed completion of an environmental assessment, review of its compliance with Section 408 of the Clean Water Act and feedback received during a public notice.

Construction must comply with provisions aimed at protecting nesting periods for birds.  Builders of the pipeline also will have to survey the route for the presence of both active and inactive eagle nests.

Engineers had a permit issued in around mid-December and the people in the vicinity of the Atchafalaya Basin know of its uniqueness to the whole world. Part of nature provides subsistence for the Cajun people.  The water quality is substantially affected.

Environmental groups are trying hard to block further construction by requesting the state court to force the company to turn over records to seize private property or obtain easements on property along the pipeline path. Surveillance records from a company have also been requested.  The suit, called a writ of mandamus, was filed against the pipeline and its president, by the New York-based Center for Constitutional Rights on behalf of Atchafalaya Basinkeeper.

Public purpose and the right to the state’s public laws are being asserted and become grounds for being subject to Public Records Law.  The land that was once public will become for private profit usage with no oversight.  The pipeline process could affect health, the natural environment, and people’s livelihoods.  Multiple parties have a stake in this: from small business operators who harvest food, locals and those who profit.

To challenge the making of the pipeline for violations of environmental law is the starting ground for the attack on a corporation that is said to have a history of violations. The plaintiffs claim the permit granted violates the Clean Water Act and Rivers and Harbors Act. Continue reading

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The war for data rages on as companies continue to mine their customers’ data and their customers continue to sue them for it.

The latest data-related lawsuit was filed last month against Casper, a direct-to-consumer startup that makes and delivers mattresses, on behalf of visitors to its website. According to the class action lawsuit, Casper used a software company called NaviStone (which is also listed as a defendant in the lawsuit) to collect personal information from visitors to the Casper website, including the visitor’s name, address, IP address, and their online shopping habits, including keystrokes and mouse clicks.

The lawsuit alleges NaviStone’s code (which Casper uses on its website) begins transmitting information about the individual as soon as they load the Casper website onto their browser, without the individual’s knowledge or consent. That meant information that visitors put into forms on Casper’s website went directly to the company, regardless of whether the person ever finished filling out the form or hit the “Submit” button.

The lawsuit alleges the violation amounts to wiretapping and is suing both companies under the federal Wiretap Act and the Electronic Communications Privacy Act. Continue reading

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Google has been sued in the past and is being sued in the future.  The last time, within the USA, this time within the UK.  The accusation is for collecting personal data of millions within the UK and is the first of its kind of massive legal action.  Within the USA, this kind of case is yet to be tested.

People feel that their privacy is invaded when it harvests information by settings on iPhones, through use of cookies which collect information on devices to target advertising that will be received by users.  Apparently, this has been a trend in place since 2011 for persons that choose to implement Safari on their devices.

On what basis will people sue?  The abuse of trust is what people feel most strongly about.  A strong message from the people is being made in asserting that individuals values their rights above any abuse received due to technology giants in the Silicon Valley.  Abuse occurs when rights are violated by a breach of privacy.  Procedural and jurisdictional violations have been made by non-disclosure and this sets up a basis for grounds of the suit. Google plans to still contest on the grounds of no basis.  Some law firms have taken up a similar claim within the USA.  While no precedent has been set in the UK, there has been grounds in the USA.   Google agreed to pay a record $22.5m in a case brought by the US Federal Trade Commission (FTC) on the same issue in 2012.

The record of large civil penalties to settle Federal Trade Commission charges alleged misrepresentation to users of Apple Inc.’s Safari Internet browser that it would not place tracking “cookies” or serve targeted ads to those users, violating an earlier privacy settlement between the company and the FTC. The FTC wanted to ensure that it lived up to the privacy it offered consumers.  The order that was made required Google to disable all tracking cookies and pay a civil penalty.  Continue reading

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Jurisdictional issues can affect any case and are most likely to be more common in America where the variances in counties and states are, perhaps, greater than anywhere else in the world.  Such concerns affect all cases in terms of venue and the ties that parties may have to a certain jurisdiction over another.

The death of Charles Manson has been no exception to challenging jurisdiction.  His recent death has to lead to unexpected claims over his remains and the venue for the matter still needs to be decided.

Shortly after his death, two Wills have resurfaced with each one leaving the estate to a different person.  He died at a hospital in Bakersfield, California but those that wish to claim rights reside in a different jurisdiction.  A judge in Los Angeles considers it to be too early to determine who has the right to the remains and the estate of the cult leader that died in November. He was originally have thought not to have any next of kin and now that people claiming entitlement have surfaced, the decision over his remains and estate should be decided in a separate hearing.  The judge will also decide whether the case should be tried in the county where he lived before the crimes that he was involved in were committed, where he was imprisoned before his death or where he died.  Continue reading

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Although most board members of publicly traded companies are paid an annual salary, plus a bonus based on performance (usually in the form of company stock), being on the board of a company or organization tends to be a part-time job and most members have day jobs in addition to their position on the board.

But because board members bear a fiduciary responsibility to look after the financial interests of the company’s investors, they have to be very careful where they get the rest of their income. Accept some money or do a favor for someone from the wrong company, and you raise suspicions that you might have a conflict of interests.

Alan Kahn, an investor in United Flexible, Inc., an aerospace parts manufacturer and an affiliate of Arlington Capital Partners, filed a lawsuit in Delaware against two of Kreisler Manufacturing Corp.’s board members for allegedly conducting a merger in bad faith. According to the lawsuit, the two board members, Edward Stern and his brother Michael, received side deals from Arlington just before the board decided to drop its asking price for the company.

The lawsuit further alleges board members deliberately failed to disclose important information from shareholders regarding the merger. As evidence, Kahn’s complaint points to the fact that the board members refused to make copies of the merger agreement, requiring instead that all shareholders who wanted any information about the details about the agreement needed to be willing to fly to Philadelphia to see a physical copy of the contract. Continue reading

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The recent decision by a New York appeals court to affirm the dismissal of a defamation lawsuit filed against President Donald Trump highlights two important defenses to charges of defamation or libel.

In Jacobus v. Trump, public relations consultant Cheryl Jacobus alleged that President Trump defamed her in a series of tweets made during his presidential campaign. In these tweets, Trump repeatedly claimed that Jacobus had “begged” him for a job and “went hostile” after he turned her down. He also interspersed several other insults in the tweets calling Jacobus “A real dummy” and a “Major loser” with “zero credibility.” Jacobus alleged that these tweets harmed her career and disparaged her in the way of her profession, trade, or business.

Days before President Trump took office, the trial court dismissed the lawsuit. The trial court held that the term “begged” was merely an example “loose, figurative, and hyperbolic” language that is generally nonactionable. While acknowledging that the insults were “clearly intended to belittle and demean” Jacobus, the court found that the context of the tweets made it clear to any reader that they were statements of opinion and not fact. Consequently, they were too vague and subjective to be “susceptible to objective verification.” The appeals court affirmed the dismissal in a short order. Continue reading

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While some federal courts have been making it easier for employers to use more expansive non-compete agreements to shackle their workers, some states are working to make it more difficult. California already has a blanket ban on non-compete agreements, including those signed in states where they are legal. Now Pennsylvania might be the next state to join California’s worker-friendly approach.

Pennsylvania’s legislators recently introduced a new house bill, titled the “Freedom to Work Act,” which would ban almost all non-compete agreements.

The proposed law, as it is currently written, is not quite as restrictive as California’s ban. Pennsylvania’s proposed Act defines a non-compete agreement as any agreement between an employer and their worker that is designed to prevent the worker from seeking employment with another company, although the Act would enforce non-compete agreements in certain situations, including the sale of a business or the dissolution of a partnership or LLC. The Act also would not apply to non-compete agreements in existence prior to the time the Act is made into law, although it would prohibit the renewal of any such agreements. Continue reading

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The Federal Circuit Court of Appeals has ruled that a century-old provision in the Lanham Act disallowing registration of “immoral” or “scandalous” trademark names violates the constitutional right to free speech. Consequently, plaintiff Erik B. will be allowed to trademark the “FUCT” label on his apparel brand.

Section 2(a) of the Act permits the Patent and Trademark Office to refuse to register a trademark that comprises “immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.”

To determine whether matter is immoral or scandalous, PTO decides whether a “substantial composite of the general public” would find the mark shocking, disgraceful, or offensive.

Erik founded the “FUCT” brand in 1990, and in 2011 filed an intent to-use application with PTO for the mark to be displayed on clothing. The examining attorney refused to register the mark under Section 2(a), finding it comprised immoral or scandalous matter because it could be interpreted as the past tense of the “F” word.

Erik appealed to the Trademark Trial and Appeal Board, which affirmed the denial on the grounds that dictionary definitions uniformly characterize the “F” word as offensive, profane, or vulgar. Further, the Board found the mark was used in the context of what it called explicit and degrading sexual imagery depicting extreme misogyny and other violent and anti-social imagery. Continue reading