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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Sick leave is the leave of absence granted in cases of illness. Current changes are being made in this realm of the paid absence of duty and coming fast.  Federal requirements have not been in place for paid sick leave.  The Family and Medical Leave Act (FMLA) does not require unpaid sick leave.  In cases of where an employee has worked for their employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles, they are eligible.  America is the only country amongst a lineup of 22 developed nations that doesn’t guarantee pay if an employee, or a close member of the employee’s family, gets an illness and needs to take a sick day.

Starting July 1, a new law will take effect and requires any business with 18 or more employees to give workers paid “sick and safe” days.  This allows for time off to deal with illness, family issues, domestic violence, and other similar circumstances. The new law provides up to three days of sick and safe leave in 2018, four in 2019 and five in 2020 and beyond. The Department of Labor and Training will post information on its website, www.dlt.ri.gov, within a couple of weeks to guide employers.  Those who have questions should call the department at (401) 462-8000. Continue reading

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We all know the basic concept of supply and demand. When supply is low and demand is high, prices tend to go up. When this happens with houses, realtors refer to it as a “seller’s market,” but what if it’s really a “realtor’s market?”

That allegation is at the heart of a recently proposed class action lawsuit against Houlihan Lawrence, a large brokerage firm with 30 offices spread throughout the northern New York suburbs and Fairfield County, Connecticut.

The lawsuit was filed by Pamela Goldstein, an associate general counsel for a communications company who fell in love with a four-bedroom, white, colonial house located in White Plains, New York. The agent who showed her the house, Daniel Cezimbra, allegedly told her there were other offers on the house and that she had better act fast and bid above the $599,000 asking price.

Goldstein took his advice, and eventually bought the house for $637,000, but then she discovered something that made her question that interaction – and her agent’s motives.

It turns out that Houlihan Lawrence was also representing the person selling the house. This meant that, when Cezimbra was supposed to be negotiating on Goldstein’s behalf and representing her interests in the bidding war, he was going up against his boss – who also happens to be his brother-in-law. No matter how hard people work to be fair and unbiased, it has to be hard to do your best negotiating when the person across the table from you has the power to fire you. Continue reading

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With the fast-paced, highly competitive nature of technology today, companies are sometimes so eager to get a new product out on the shelves before their competitor that they don’t always take the time to work out all the kinks before the big reveal. Such was allegedly the case when Apple introduced their new butterfly keyboard in 2015.

The keyboard looks much like any other keyboard on the surface, but underneath the keys is a new butterfly mechanism, which Apple claimed would make for a more responsive and comfortable keystroke than the previously standard scissors design. The new design also takes up less space, so Apple could either make room for other things or just make a sleeker laptop. At the same time, Apple claimed the new design would be exponentially more stable than previous designs.

Despite that assertion, consumer complaints about the new keyboard started popping up almost as soon as it hit the shelves. Customers have regularly complained about keys getting stuck and becoming unusable, while others claim they hear high-pitched sounds when pressing keys on their new and not-so-improved keyboard.

Problems with the butterfly keyboard are so common that more than 20,000 consumers have signed a petition on Change.org calling on Apple to replace the allegedly defective keyboard.

If the petition is unsuccessful, the consumer class action lawsuit that was recently filed against Apple might have more luck getting the tech giant reimburse its customers.

The consumer lawsuit was filed in the Northern District Court of California and is seeking to represent thousands of consumers who have allegedly suffered as a result of the new keyboard’s alleged design flaws. The class-action lawsuit was filed by two lead plaintiffs, Zixuan Rao and Kyle Barbara.

Rao bought a 15-inch MacBook Pro with a butterfly keyboard in early 2018, but one of the keys soon started to malfunction. When he took it to an Apple store, representatives were allegedly unable to fix the problem but offered to ship the computer to their Repair Center. Rao decided against that course of action since it would have meant going a week without his computer.

Barbaro bought a 2016 MacBook Pro, only to have his caps lock key and space bar stopped working. Apple was able to fix it, but the space bar again stopped working, by which time, Barbaro’s computer was out of warranty and Apple told him that he would have to pay $700 for them to fix the key. Continue reading

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It’s common for early versions of a new technology to suffer from some kinks that still need to be worked out, but usually, developers find remedies for those problems in later versions of the technology. Unfortunately, Apple allegedly failed to find a fix for their defective Apple Watch screen, according to a recent consumer class action lawsuit.

The lawsuit, which was filed in California, is seeking $5 million in damages – enough to take the case to the federal level if a judge agrees to certify the class and the parties agree that federal court is the best venue for arguing the case.

The lawsuit alleges Apple Watch screens are prone to shattering, cracking, and popping out through no fault of the wearer. According to the complaint, Apple knew about this problem when it started selling its smartwatches (and possibly even earlier), but failed to do anything about it. The problem allegedly started with the very first Apple Watches the tech giant ever sold and has continued through Series 3, which is the latest version to be sold by the company.

Although Apple forums are full of complaints about the Apple Watch screens, Apple refuses to publicly admit the devices have a problem. The only step the company has made toward remedying the situation is to offer extended warranty plans for certain versions of the Apple Watch for screens that had popped out as a result of a battery swelling issue. Apple announced in spring of 2017 that it would begin offering these extended warranty plans. Continue reading

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Inquiries into the background history of an employee have the potential to affect the salary set for an employee in the future. Questions such as, “how much did you make
in your previous job?” have the potential to legally tie up employees and not in a good way. Though the question may lead to the formulation of a salary or not intentionally
meant to do a harm, to some the interview question may sound like bait. This is especially when it comes to women being more “woke” in a post-Trump era. Typically,
women minorities have had a history of earning less, as with other minorities and the pinch is felt during the interview process.

This salary question may come in pre-screening for an interview, during an interview or after the interview process. Several states have measures in place that now preclude
employers from being able to ask employees about prior pay. Does this curtail the gap between race and gender? Employers are generally looking for the standard set by industry
but from a legal perspective, these standards are now viewed as being set with an imbalance and huge discrepancy. That is why the courts have also stepped into place
to interpret what is legal and not when it comes to this process. There are companies that have moved forward and already adapted to the changes in the current legal climate. For that reason, changes have been made to ensure that this type of question is not asked. Hiring policies have been made to reflect in with some of the bigger names that do not wish to even take a legal risk or set a standard that would not be fair.

A Philadelphia law banned questions about pay in a federal district court ruling by ruling that it was an impingement on free speech. A recent ruling was made by a female who
sued her employer for paying her less than her male colleague based on the scale of her prior salary. It was clearly made known to the court that she had received the same step increases as males under the union contract but was hired at a lower rate due to her prior salary. The employer testified to that being the only basis for the difference. Application of the Equal Pay Act could not justify this at all. It was a clear violation as the act prohibits discrimination against employees on the basis of sex by paying lower wages “for equal work on jobs requiring equal skill, effort, and responsibility performed under similar working conditions.” Continue reading

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Employers have increasingly been including arbitration agreements in their contracts with their workers. These clauses require the worker to give up any right to sue their employer in court, instead of requiring them to pursue all legal disputes in arbitration, where employers have significant advantages over their workers.

Because arbitration was initially designed as a way to resolve disputes between businesses, it was not set up to handle classes of plaintiffs, and as a result, most people tend to interpret arbitration clauses as automatically banning class arbitration.

But a new data breach lawsuit filed against Lamps Plus alleges employees should be able to file class arbitrations, as long as the arbitration agreement does not specifically ban class arbitration.

The case involves a class of workers who are attempting to sue Lamps Plus for allegedly failing to properly secure their IRS information, which was stolen in a data breach. The case went before the U.S. District Court for the Central District of California, wherein the company tried to have the case moved to arbitration, but the plaintiffs claimed the arbitration agreement was invalid and asked to be certified as a class. The court partially ruled in favor of Lamps Plus by agreeing to enforce the arbitration agreement, but it also ruled that the case could go forward as a class arbitration.

The decision was appealed to the Ninth Circuit Court of Appeals, which agreed with the lower court to enforce the arbitration agreement, but on a class basis. That decision was further appealed to the U.S. Supreme Court, which has agreed to consider the case. Continue reading

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Inquiries into the background history of an employee have the potential to affect the salary set for an employee in the future. Questions such as,  “how much did you make in your previous job?” have the potential to legally tie up employees and not in a good way.  Though the question may lead to the formulation of a salary or not intentionally meant to do a harm, to some the interview question may sound like bait.  This is especially when it comes to women being more “woke” in a post-Trump era.  Typically, women minorities have had a history of earning less, as with other minorities and the pinch is felt during the interview process.

This salary question may come in pre-screening for an interview, during an interview or after the interview process. Several states have measures in place that now preclude employers from being able to ask employees about prior pay.  Does this curtail the gap between race and gender? Employers are generally looking for the standard set by industry but from a legal perspective, these standards are now viewed as being set with an imbalance and huge discrepancy.  That is why the courts have also stepped into place to interpret what is legal and not when it comes to this process.

There are companies that have moved forward and already adapted to the changes in the current legal climate.  For that reason, changes have been made to ensure that this type of question is not asked.  Hiring policies have been made to reflect in with some of the bigger names that do not wish to even take a legal risk or set a standard that would not be fair.  Continue reading

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DiTommaso Lubin Austermuehle filed its’ Appearance in the Illinois Supreme Court for Respondent’s appeal of 750 ILCS § 5/513 (“Section 513”) being declared unconstitutional.

When an Illinois Statute is declared by a court to be unconstitutional it can be directly appealed to the Illinois Supreme Court and it does not have to go through to the Appellate Court first. Illinois Supreme Court Rule 302(a)(1).

The Respondent in the underlying case, where Section 513 was declared by the circuit court to be unconstitutional filed a direct appeal to the Illinois Supreme Court to decide if Section 513 is unconstitutional.

DiTommaso Lubin Austermuehle was retained by our client in the circuit court case to defend him in the appeal before the Illinois Supreme Court.

The circuit court’s ruling that Section 513 is unconstitutional was only applicable to the facts of the case. Our client’s fundamental right of raising his child and his decision to guide his daughter to a more appropriate college through the tightening of his pocket-book strings was obstructed by Section 513.

Section 513 creates two separate classes of persons, those married with children and those unmarried, widowed, or divorced with children. This is a violation of the Fourteenth Amendment of the United States Constitution. The Fourteenth Amendment guarantees equal protection to all United States citizens regardless of their classification by the government. Continue reading

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When small companies compete against larger, more established companies working in the same space, they often rely on their unique selling points to set them apart from their competition and establish their own niche in the marketplace. But succeeding with that tactic becomes much more difficult if your competition starts using your own tactics against you.

According to a recent lawsuit against Ray Borg, the UFC flyweight allegedly stole trade secrets and took them to a competitor, broke his contract with a gym and a management company without warning, and committed fraud, among other things.

The lawsuit was filed by Wild Bunch Management, which is run by Tim Vaughn, who’s a team member of the gym, Fit NHB. According to the complaint, Borg was working out at Fit NHB and had a three-year contract with Wild Bunch in which the management company would arrange fights for Borg, as well as train and promote the fighter and manage the business side of his fighting career. For his end of the deal, Borg was allegedly supposed to pay Wild Bunch 20% of everything he earned in the cage up to $10,000, plus 10% of any bonuses of $10,000 or more. The contract also allegedly included a non-compete clause in which Borg agreed not to teach martial arts within 50 miles of Fit NHB for the first year after his contract with Wild Bunch had been terminated.

Wild Bunch had allegedly negotiated Borg’s five-fight contract with UFC when Borg allegedly broke off all ties with both the gym and the management company after just the first fight and without any warning. After that point, Borg allegedly switched to Jackson Wink MMA in Albuquerque, a direct competitor of Wild Bunch that’s located across town. Continue reading

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One of the biggest advantages to settling a lawsuit outside of court is that it removes the uncertainty of going to trial. The plaintiffs are sure to get some financial benefit, rather than risking it all at trial, and the defendants often pay a lower amount than they would have had to pay if they had left it up to a jury. Both parties get to avoid the time, expense, and hassle involved in pursuing a legal dispute that has the potential to drag on in the courts for months or even years. This is why most class action lawsuits settle before ever reaching court.

But if the parties reach a settlement agreement and one or more of the plaintiffs don’t agree with the terms of the agreement, they can choose to opt out of the class. Plaintiffs who decide not to opt out, and take the settlement, are usually prevented from filing similar lawsuits against the defendant in the future as part of the settlement agreement. It’s for this reason that, when someone decides to opt out of a class, it’s often because they want to reserve their right to sue the defendant. In most cases, they think they can get better terms, either by pursuing a lawsuit all the way through a trial or pushing for a more favorable settlement agreement.

This is the case with the recent class action copyright lawsuit against Spotify. The music streaming company recently reached a settlement agreement worth $112.55 million with a class of more than 535,000 plaintiffs. After the class members were notified of the settlement and its terms, about 1,200 members opted out of the class. Continue reading