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 ousted founder and former CEO of Orion Energy Systems, Inc., cannot prevail in his federal whistleblowing claim against the company because his complaints to the board did not amount to whistleblowing under the Sarbanes-Oxley Act, the Seventh Circuit recently ruled in considering his appeal.

Neal V. founded Orion in 1996 and took the company public in 2007. His tenure became bumpy in 2012 when Neal asked Orion’s board to help cover the costs of his divorce.

Soon after, Neal and the board began to clash over multiple managerial and other issues, with Neal objecting to everything from excessive legal bills to unauthorized alcohol consumption by the board. The board refused his request to disclose these matters to shareholders, and Neal failed to report them in Orion’s quarterly and annual statements filed with the SEC.

As the conflict between Neal and the board over the running of the company escalated, the board discovered that about one-third of the $170,000 it had reimbursed him for his divorce expenses was unaccounted for. Neal blamed this on a fee dispute with his divorce attorney.

Consequently, the board removed Neal as CEO in September 2012 and renamed him “chairman emeritus.” Among the reasons it cited was high senior management turnover which it attributed to Neal’s “intimidating leadership style.”

Unhappy with his demotion, Neal announced his resignation, which triggered new disagreements over his severance package. Shortly before a board meeting convened to discuss Neal’s termination, he sent an email to the board reiterating his managerial complaints against them and accusing them of conspiring against him. Although he later characterized this email as a “complaint” pursuant to Orion’s whistleblower policy as well as Sarbanes-Oxley, it did not reference any official complaint filed with the SEC or other government entity, nor did it provide the board with new information or do anything except “simply rehash the numerous personal and professional grievances about which he had been complaining over the course of the past year,” in the words of the court. Continue reading

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Some states, such as California, North Dakota, Montana and Oklahoma already ban non-compete agreements throughout the state, including agreements that were signed in other states where non-compete agreements are recognized. But now Democratic U.S. Senators are looking to expand such bans all over the country.

Elizabeth Warren, Ron Wyden, and Chris Murphy have come together to propose what they call the Workforce Mobility Act (WMA). If it makes it through Congress, the new federal law would place a nationwide ban on companies writing non-compete agreements into their employment contracts.

Non-compete agreements were first used only with high-level executives and they were designed to prevent those executives from going to work with a competitor and taking trade secrets and/or client relations with them. While such actions would clearly harm their former employer, and many businesses have successfully proven that their non-compete agreements protect only their legitimate business interests, non-compete agreements have become increasingly stringent, while at the same time more widespread, in the past decade or so, further inhibiting employment opportunities for workers.

While the first non-compete agreements included limits on both geography and time (usually six months to a year), companies have continued to extend these limitations, some going so far as to forbid even minimum-wage workers from going to work for any competitor anywhere in the world, thereby purportedly limiting those workers’ ability to find new employment.

Employee advocates have long warned about the unfairness of non-compete agreements and their effect of keeping workers chained to their employer. It inhibits a worker’s ability to grow as an individual and also gives companies more opportunities to take advantage of their workers, especially when such agreements are combined with arbitration agreements, in which any dispute between the company and their employers are required to be settled in arbitration, where the employee is at a distinct disadvantage. Continue reading

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Sometimes truth really is stranger than fiction.

As if the idea of a monkey (a “crested macaque,” to be precise) taking a perfect selfie wasn’t strange enough, the lawsuit that followed is.

In 2011, David Slater, a British nature photographer, was taking pictures of the wildlife on the Tangkoko reserve in Indonesia when a monkey by the name of Naruto managed to get Slater’s camera away from him. Naruto took several pictures before Slater managed to get his camera back and one of those pictures turned out to be a perfect selfie – Naruto even smiled and looked right at the camera as he snapped a picture of himself.

Later on, Slater published a book that included some of the pictures Naruto had taken, which had been dubbed “monkey selfies.” That’s when the People for the Ethical Treatment of Animals (PETA) got involved.

PETA sued Slater on behalf of Naruto, trying to claim that, because Naruto had taken the picture, Naruto owned the copyright to that photo. By publishing those photos, Slater had allegedly violated Naruto’s copyright, according to PETA’s lawsuit.

A federal district judge in San Francisco dismissed PETA’s claims in early 2016, saying that, since Naruto was not a person, he could neither own a copyright. Continue reading

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The makers of products for newborns and young children, Johnson & Johnson, were subject to suit for their talcum powder.  It was alleged that lung cancer came about due to use of that powder.  As a result, a New Jersey banker and his wife were awarded $37 million in compensation for damages sustained.  More specifically, $30 million for him and $7 million for his wife.  Johnson and Johnson assumed 70% of the liability for the illness. The supplier of the talc mineral is what was linked to the cross contamination with asbestos being mined.  For that reason, they were hit with the other 30% of the liability.  In addition, there are thousands of other cases tying its talc products to ovarian cancer.

The way the mesothelioma acted was by having inhalation of the baby powder dust by regular use since his 1972. The jury was a seven-woman jury, which had found that asbestos was concealed in their products, making the product deadly.  This is despite the evidence that Johnson & Johnson has long tested its products for contamination and the other party argued that asbestos exposure could have come from somewhere else other than the talc.  “The evidence was clear that his asbestos exposure came from a different source such as the asbestos found in his childhood home or schools,” a spokeswoman had said and they will most likely consider an appeal.  Punitive damages are also yet to come, as the second phase of the trial is to begin next week.  On Tuesday, the jurors will make the decision as to whether or not to award punitive damages. Johnson & Johnson said it was disappointed by the jury’s most recent decision. Johnson & Johnson still affirms that its products are not carcinogenic and never have or do not contain traces of asbestos fibers. Continue reading

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Miley Cyrus has become the latest pop star to be hit with a multi-million-dollar lawsuit for one of her songs, which reached second place on the Billboard Hot 100 in 2013. The song is “We Can’t Stop,” which Michael May, a Jamaican songwriter, alleges bears a striking similarity to his own song, “We Run Things,” a 1988 reggae track that reached No. 1 in Jamaica.

The line in question appears in “We Can’t Stop” as “We run things/things don’t run we,” which May alleges is suspiciously similar to the line “We run things/things no run we,” which appeared in “We Run Things.”

In addition to Cyrus herself, her manager, Larry Rudolph, has also been named as a defendant in the lawsuit, as have writers and producers of the song, including Timothy Thomas, Theron Thomas, and Mike Williams. RCA Records and Sony Music are also defendants in the copyright infringement lawsuit.

To support May’s allegations, the complaint points to a 2015 article in which Theron Thomas talks about how Caribbean music has influenced his own work. It further alleges that Cyrus’s song would not have seen the same success without the stolen elements of Jamaican music, specifically the language of Jamaican Patois. Continue reading

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The First Amendment to the U.S. Constitution is arguably the most important part of the document because it guarantees all citizens the right to free speech. It means we have the right to openly debate (and criticize) each other, our neighbors, public figures, and most importantly, our own government. That right extends to specific individuals who work for, or are hoping to obtain positions in, the government. Having envisioned a government made by the people for the people, our founding fathers realized that freedom of speech would be a key ingredient to this experiment, which is why they lost no time in adding it to the Constitution.

So Josh Harms was probably taken by surprise when officials of the city in which he lives threatened to sue him for exercising his First Amendment right.

Harms, who lives in Sibley, Iowa, has been protesting his city’s government on his website, which is called “Should You Move to Sibley, Iowa?” Harms set up the website, and posts on it, in order to protest the city’s decision to allow Iowa Drying and Processing to move into a vacant building in Sibley in 2013. Harms started posting on his website a couple years later in 2015.

Iowa Drying and Processing uses pig blood to make a protein-rich supplement for animal food, so it’s not hard to imagine that Harms’ odor concerns are legitimate. He was most likely not far from the mark when he wrote on his website that the town smelled like “rancid dog food.” Continue reading

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Buying a landmark often comes with unique challenges people don’t have to worry about when purchasing just any old building. In addition to the location and the features of the building itself, buyers of a landmark also have to think about how they can preserve the value of that building as a landmark, especially once the former occupants have left the building.

The Tribune Tower stands on what is known as the Magnificent Mile and has been a landmark of the city since it was first built in 1925. It has housed the offices and newsroom of the Chicago Tribune ever since and currently bears a sign of the Tribune’s logo along the top of a low-rise section of the building overlooking the plaza. Commuters have seen that iconic logo every day for decades as they drive or ride the train past the building, but apparently they won’t be able to for much longer.

The newspaper’s lease is set to expire at the end of June, but the company says it is planning to move out before then and relocate to the office complex of Prudential Plaza. Instead of overlooking the Chicago River, their offices will look out over Millennium Park. Continue reading

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Having remained a beloved classic for more than fifty years, the status of Harper Lee’s famous novel, To Kill a Mockingbird was seriously upset when an earlier version of the novel, Go Set A Watchman was published a few years ago. Specifically, readers were floored by the depiction of Atticus Finch as a racist segregationist, rather than the morally upright character depicted in Lee’s first novel.

With our perception of Atticus thus changed, it only makes sense for a playwright to draw on that dichotomy when writing an adaptation of either of Lee’s novels. But Lee’s estate does not appear to agree.

A new Broadway production of “To Kill A Mockingbird” is in development, with Jeff Daniels set to play the seminal character of Atticus, and Oscar winner, Aaron Sorkin, writing the script.

It should come as a surprise to no one that Sorkin wants to update this historic character. An adaptation is rarely, if ever, a word-for-word translation, since things that work on the page don’t necessarily work on the stage or on the screen. By the same token, things that had an impact in 1960 aren’t necessarily going to be as effective in 2018. In fact, Sorkin said he deliberately wanted to avoid setting the play in the same political climate as the book, since he doesn’t think that would be as interesting to a modern audience.

But when Tonja B. Carter, the attorney in charge of running Lee’s estate, heard about Sorkin’s ideas for Atticus, she reportedly met with Scott Rudin, one of the show’s producers, to express her concerns regarding the change. The two were reportedly unable to resolve their different interpretations of the matter, and Lee’s estate sued the producers of the show shortly thereafter. Continue reading

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An Illinois trial court ruled in favor of our client. The trial court held that the Illinois College Support Requirement for unmarried parents is unconstitutional as violating the equal protection clause of the United States Constitution.

Our client, a very caring father wanted to pay 100% of the college expenses for his daughter to attend the best marine biology programs in the country to which she had been accepted. Her dream was to become a marine biologist. However, with the financial assistance of her mother, the daughter opted to attend a junior college and “party school” in Florida that had even made a list for the top party schools in the State. The Junior College also did not offer a degree in marine biology. Our client declined to pay for junior college tuition because he was shut out of the decision of where his daughter went to school. The Court originally ordered him to contribute to college as required by Illinois for all unmarried parents. We then sought a declaration that the statute was unconstitutional for treating unmarried parents differently and assuming they were not normal parents and would not look out for their children’s best interests as much as married parents.  The Court found the statute unconstitutional and held that divorced or unmarried parents should not be treated differently than married parents.

The Court noted:

While traditional two-parent, married families were the norm in 1978, in 2018 they make up less than half. In fact, if considered in statistical terms, children from either non-married or divorced parents would be considered “normal” based on today’s demographics.

It held in finding the Illinois statute unconstitutional:

The rational basis standard utilized in Kujawinski presumes that never married or divorced couples are less normal and less likely to provide post-secondary education for their offspring than couples who are married, or single parents. While this may have been true in 1978, there is no basis for such a conclusion today.

You can view the Court’s full opinion here. Continue reading

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The Panamanian government is in dispute with an owners’ association and Trump Hotels.  This was after an attempt to dislodge the Trump name from the Trump International Hotel and Tower Panama occurred.

The matter first came to light when the property owners’ association voted to remove Trump’s management team.  This was in January when  it was alleged that there had been “gross mismanagement, breaches of contract, conversion, and breaches of fiduciary duties.”  As a result, the Public Ministry of Panama is looking into the allegations seriously and as to whether or not any action is warranted.  Accordingly, investigations continue.

Part of the investigation has yielded that the hotels as having a valid contract to manage the property and a Miami based Company do not wish for this to continue.  The Federal Prosecutors have examined accusations over documents being shredded, electrical equipment disputes and of the office being barricaded.  Property owners also publicly have complained of being barred from access during the period of dispute.  When claiming access to property attempts were being made, a statement concerning “hostile attempts” to take over the hotel was released.  They retaliated with their statement condemning the bully tactics employed, indicating that the matter should be settled in arbitration.  Trump Hotels, on the other hand, feel that they will succeed in court proceedings.  Continue reading