Appellate Court Affirms Dismissal of Defamation Suit Spawned from Contentious Divorce

August 24, 2019 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Divorce proceedings can be contentious but some can be more contentious than others. In the case of disbarred McHenry County lawyer, Mark McCombs, a contentious divorce led to his filing of a defamation and malicious prosecution lawsuit. The First District Appellate Court affirmed the trial court’s dismissal of the complaint in which McCombs alleged that his former wife defamed him and had him falsely charged with harassment. The Court also affirmed the denial of sanctions that McCombs sought against his ex-wife in the suit.

McCombs and his former wife, Kathryn Crivolio, started divorce proceedings in 2010. The proceedings soon became contentious. So contentious in fact that at one point in the proceedings, the judge entered an order prohibiting McCombs “from filing any pleadings in this matter without first seeking leave of court [ ] to do so.”

Shortly before the divorce proceedings began, McCombs, who had served as special counsel to the Village of Calumet Park from 2002 to 2010, was indicted for stealing between $600,000 to $800,000 from the Village. McCombs pled guilty and was sentenced to six years in prison. A few months later in January 2012, he was disbarred.

While McCombs was in prison, he conversed with his wife via email. In one of the email exchanges, Crivolio allegedly wrote to McCombs: “You have stolen from me, your employers, your client’s (sic) and your own mother.” McCombs alleged that Crivolio also published this statement to his children, family, and others, which he alleged “lowered [him] in the eyes of the community.” The complaint pled claims for both defamation per se and defamation per quod. Circuit Judge Kathy Flanagan dismissed the complaint with prejudice on the grounds that the allegations lacked substance. Continue reading ›

LUBIN AUSTERMUEHLE JOINS NEXTLAW REFERRAL NETWORK CREATED BY DENTONS THE LARGEST LAW FIRM IN THE WORLD

July 28, 2019 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

(July 28, Chicago) – Lubin Austermuehle PC announced it has joined Nextlaw Referral Network, enabling it to connect its clients to high-quality lawyers around the world. Nextlaw Referral Network is the largest legal referral network in the world, with more than 650 member firms, 30,000 lawyers covering 200+ countries.

Peter Lubin of Lubin Austermuehle said, “By joining Nextlaw Referral Network, we can now provide our clients with the best of all worlds by continuing to serve them where we currently have offices, while also being able to direct them to top tier lawyers in other jurisdictions where they need legal counsel and business advice. We can build on our trusted relationships with our clients by putting the full resources of the global, legal powerhouse at their disposal.”

Jeff Modisett, Nextlaw Referral Network CEO said, “We’re proud to have Lubin Austermuehle P.C. as part of our network. We’re only as good as the quality of our member firms and Lubin Austermuehle makes us stronger and better able to meet the needs of our other members’ clients in the Chicago metropolitan area and Illinois.”

If You Received Money as Part of a Lawsuit Settlement, That Money Is Subject to Taxation

July 23, 2019 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

If you recently received money as part of a settlement or award for a lawsuit, have you thought about how that settlement or award will affect your taxes? Depending on the nature of your claim, you’ll probably have to pay taxes on that money, just like you would on any other form of income. Whether you’ve already received your award, or you’re thinking of settling a legal dispute, here’s what you need to know:

The Origin of the Claim

Not all awards come in the form of monetary payment. For example, if you sue your employer for loss of income, for whatever reason, then any award you receive will be taxed as wages. If, on the other hand, you bought a car that turned out to be defective and you sue the manufacturer, you might be able to treat any award you receive as a reduction in the price you paid for the car.

Physical Injuries and Illness vs. Emotional Distress

If you sue your employer for physical injuries sustained while on the job, or if you sue your doctor for medical malpractice, those awards are not subject to taxation. While you can also sue for “emotional distress” caused by the incident, any amount granted for that will be taxed. Continue reading ›

Court Denies Jurisdiction in Suit Over Breach of Contract and Failure to pay Royalties Because Plaintiffs’ Contrived Jurisdiction Through Single Purchase

July 17, 2019 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

When two founders of a company sued the company that had come into possession of the founders’ patents and intellectual property rights, the district court dismissed their suit for lack of personal jurisdiction. The appellate court affirmed on appeal, finding that the plaintiffs’ lawyer contrived to create personal jurisdiction by ordering a single item from the defendant company be shipped into the state of Illinois, even though the defendant company did not do business in or specifically target the Illinois market. The appellate panel also noted that the conduct that allegedly created personal jurisdiction had happened after the plaintiffs filed suit and was therefore clearly contrived.

Tai Matlin and James Waring, and other business partners co-founded a company called Gray Matter Holdings, LLC in 1997. Matlin and Waring developed certain products for Gray Matter, including an inflatable beach mat known as the “Snap-2-It” and a radio-controlled hang glider called the “Aggressor.” In 1999, facing failure of the company, Matlin and Waring entered into a Withdrawal Agreement with Gray Matter wherein they sold their partnership shares and forfeited their salaries. The agreement also assigned Matlin and Waring’s intellectual property to Gray Matter but entitled them to royalty payments. In the following years, Matlin and Waring frequently brought Gray Matter to arbitration to enforce royalty payments.

In 2002, Gray Matter filed an assignment of the products’ intellectual property rights with the United States Patent and Trademark Office. Matlin and Waring allege that Gray Matter filed the assignment without their knowledge and that the company forged Waring’s signature on the paperwork. The following year, Gray Matter sold assets to Swimways, including the patent rights to Matlin and Waring’s products. A 2014 arbitration between Gray Matter and Matlin and Waring determined that Gray Matter did not assign the Withdrawal Agreement to Swimways upon the sale of the products and that the plaintiffs were owed no further royalties. In 2016, Spin Master acquired Swimways and intellectual property rights. Continue reading ›

Business Unable to Recover From Insurer When it Urged Insurer not to Settle Lawsuit, and Ultimately was Found Liable for Damages Significantly More Than its Policy Limit

July 13, 2019 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

After a surgery went horribly awry at a private surgical center, and the center was sued by the patient, it could not recover the full amount of judgment against it from its insurer an appellate court found. The court found that the surgery center had urged its insurer, who was defending it in the patient’s lawsuit, not to settle, as it believed its case to be highly defensible. Because of this, the panel found that the insurer had behaved appropriately even though it eventually lost and the jury awarded damages that were more than quintuple the surgical center’s policy limit.

Surgery Center at 900 North Michigan Avenue, LLC is an outpatient surgical center that permits outside physicians to perform day surgery at its facility. American Physicians Assurance Corporation, Inc. is a medical malpractice insurance company that insured Surgery Center. The insurance policy that Surgery Center purchased from APA limited APA’s liability to $1 million per claim and provided that APA would defend and indemnify Surgery Center for claims that fell within the policy’s coverage. Continue reading ›

Lawsuit Accuses Getty Images of Deceiving Customers into Buying Licenses for Public Domain Images

June 10, 2019 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

A class action lawsuit recently filed in a federal court in Washington accuses Getty Images, Inc. (“Getty”) of allegedly duping customers into paying for fictitious copyright licenses for images in the public domain that can be used freely.

The plaintiff in the case, Texas digital marketing company CixxFive Concepts LLC, claims that it was one of the victim’s of Getty’s wrongful conduct and alleges that Getty’s actions violated the RICO Act and state consumer protection laws. The wrongful conduct, according to the complaint, was not merely charging for the public domain images but rather deceiving customers into believing they needed to buy licenses for access to those images and purporting to restrict the use of those public domain images. The complaint concedes that “charging for public domain images is not illegal by itself,” but goes on to allege that “Getty’s and/or Getty US’s conduct goes much further than this… Using a number of different deceptive techniques, Getty and/or Getty US misleads its customers and potential customers into believing that it or one of its third-party contributors owns the copyright to all of the images available on its website, and that a license from Getty and/or Getty US is required to use all of the images on its website [when] [i]n truth, anyone is free to use public domain images, without restriction, and by definition in a non-exclusive manner, without paying Getty and/or Getty US or anyone else a penny.”

The complaint goes on to allege that “Getty and/or Getty US purport to restrict the use of the public domain images to a limited time, place, and/or purpose, and purport to guarantee exclusivity in the use of public domain images,” and that Getty’s license agreement currently “prohibits the use of licensed public domain works in on-demand products, such as ‘postcards, mugs, t-shirts, calendars, posters, screensavers or wallpapers,’ or in electronic templates, such as ‘website templates, business card templates, electronic greeting card templates, and brochure design templates.’” This conduct, the complaint alleges “deceptively purports to restrict the licensee’s preexisting right to free and unfettered use of public domain images.”

To add insult to injury, the complaint also alleges that Getty (through a company License Compliance Services, Inc. (“LCS”) which the complaint alleges Getty owns or controls) regularly sends copyright infringement letters to businesses using public domain images online “accusing them of infringing copyrights in public domain images.” The complaint gives an example alleging that “LCS sent a letter to Carol Highsmith, the noted American photographer who has donated tens of thousands of images to the Library of Congress, accusing her nonprofit foundation of copyright infringement for using one of her own public domain images.”

The lawsuit seeks to represent all licensees who have paid Getty for public domain images and seeks to recover treble damages, costs and attorney’s fees as well as an injunctive relief preventing Getty from “wielding a false claim of ownership of over intellectual property that is rightfully in the public domain.”

A copy of the complaint against Getty can be obtained here. Continue reading ›

Getty Allegedly Required Payment for Public Domain Photos — Best Chicago Class Action Defense Counsel and Attorneys

May 23, 2019 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

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 ›

Chicago’s New Milk Bar Might Not Be the Milk Bar You Think It Is — Chicago Trademark Infringement and Unfair Competition Lawyers Near Naperville and Wheaton

May 20, 2019 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

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 ›

Lubin Austermuehle Fight to End Media Smear of the Their Clients — Top Chicago Defamation Attorneys — Top Oak Brook Libel Lawyers

May 5, 2019 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Our clients give us five star reviews for our work in Oak Brook and Chicago Libel Defamation and Slander cases:

Gerald Modory

7 weeks ago

I really appreciate this opportunity to highly recommend Peter Lubin of the Law Offices of Lubin and Austemuehle. I recall in 2016 considering that I might be involved in litigation. This lead me to search Google for a lawyer as people might do. I saw the law offices of Ditomasso and Lubin which specialized in the problem I had. I called Mr. Lubin by phone and left a message. He returned my call a short time later. We discussed my case over the phone and I was impressed with Mr. Lubin’s insight and experiences. Although I really didn’t know him my “instincts” told me this was the right person. Unfortunately, my fears came into true and I was eventually sued in federal court months later. When I contacted Mr. Lubin again there was no hesitation that he would take the case. He guided me through the initial paperwork and fees and then did all the required notifications involving my insurance company. Mr. Lubin also asked me to send him the paperwork I had and reviewed same. He then started the process of representing me in court. He filed his appearance as the attorney of record and then set about defending me. Not only did Mr. Lubin defend me in the lawsuit, per se, but he also worked on dealing with my insurance company. During this process Mr. Lubin contacted me numerous times via text, phone, and email. He and his staff were well prepared for the work that was required. Mr. Lubin made me feel like I was the only one that he was representing. He was thoughtful, professional, and particularly mindful of how all this would be affecting me personally and financially. When it came to his fees he was considerate that monies would have to come from me and not my insurance company. He specifically counseled me to talk to my wife and family to see how his fees could be paid. He was never pushy about this. He allowed me to pay him a set amount over time. When I got discouraged he consistently encouraged me to have faith that I would prevail. He never promised that I would win but he did promise that he would not give up or abandon me. This was absolutely true. I also want to say that Mr. Lubin could not have done all this without his associates and staff. The staff are fantastic. I got updates from them frequently, and yes, I also got the invoices. But they were very kind about it. I want to let you know that Mr. Lubin was successful in defending me when I was sued. A federal judge dismissed the case, I believe, as a direct result of the superior legal briefs that Mr. Lubin and his staff developed. Mr. Lubin is a very aggressive attorney. Aggressive in the sense of defending his clients. I didn’t sleep so well during all this time, but I did sleep better knowing that Peter Lubin and his superior staff were working for me. Peter Lubin is a seasoned, experienced, and successful Libel, Defamation and Slander lawyer. In my opinion he is the best Chicago area Libel, Defamation, and Slander lawyer that anyone could have. Gerald Modory

Settlements end diamond wholesalers’ fraud, defamation disputes; lawyer accused of ‘extortion ring’

By Jonathan Bilyk | Aug 24, 2018

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A legal dispute, in which one diamond wholesaler allegedly falsely accused another of fraud, has ended in a settlement to resolve a potential multi-million dollar defamation lawsuit, amid accusations the plaintiff in the original fraud suit was acting in coordination with an attorney facing a racketeering action over claims he has participated in an alleged scheme to use alleged fraud lawsuits to allegedly pressure jewelers into settlements.

On Aug. 17, a Chicago federal judge signed off on the settlement deal between diamond wholesalers David Cohen and Ofer Mizrahi. The case was terminated on Aug. 20.

The notice of voluntary dismissal filed in the U.S. District Court for the Northern District of Illinois does not discuss or specify the terms of the dismissal.

However, in a letter to the Cook County Record, an attorney for Mizrahi said the settlement included a “full retraction and apology for all claims made” by Cohen against Mizrahi in an initial lawsuit filed in Cook County court.

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Peter Lubin DiTomasso Lubin

The matter had landed first in the courts in January, when Cohen, through his attorney David Hammervold, of Nashville, Tenn., filed a complaint accusing Mizrahi of selling him a diamond without informing Cohen the diamond had been internally laser drilled, was thus worth less than he had been led to believe.

Cohen had demanded at least $1.5 million in damages in that action.

That case was also ultimately settled and dismissed with prejudice on Aug. 15, but not before Mizrahi through his attorney, Peter Lubin, of the firm of DiTomasso Lubin Austermuehle P.C., of Oakbrook Terrace, asked the judge in June to sanction Cohen and his attorney for bringing the lawsuit in the first place.

In that motion for sanctions, Mizrahi’s attorney said the lawsuit was brought in an effort to “extort” a settlement from Mizrahi, after a customer of Mizrahi’s decided to directly deal with Mizrahi, rather than use Cohen as a “second middleman,” exacerbating what Mizrahi said was Cohen’s declining business, which “was losing tens of thousands of dollars a year” before the incident at the heart of Cohen’s lawsuit.

Later in June, Mizrahi followed his Cook County court motion for sanctions with a defamation lawsuit filed in Chicago federal court.

In that lawsuit, again filed through attorney Lubin, Mizrahi detailed accusations against Cohen and his attorney, Hammervold, who they said is accused in a separate action pending in federal court in the U.S. Fifth Circuit of participating in an “extortion ring” in which the lawyers “allegedly use the lawsuits they file as a jumping off point to begin defamatory smear campaigns against … jewelers’ businesses” to secure settlements that pay the lawyers “contingency fees.”

In the defamation lawsuit, Mizrahi accused Cohen and Hammervold of using “these same tactics” in the Cook County case, including issuing a “defamatory press release” which was “eventually picked up by both national and international media outlets,” accusing Mizrahi of harming his business.

“In fact, there were no lost reputation damages and thus there could not possibly be punitive damages of anything more than a few thousand dollars and certainly not the $1.5 million falsely represented by Cohen,” Mizrahi asserted in his defamation complaint.

In the defamation lawsuit, Mizrahi had requested actual damages of at least $2 million, and punitive damages of at least $6 million.

Lubin Austermuehle Gets Results for our Clients in Auto-Fraud Cases Against Used Car Dealers — Chicago Auto-Fraud Lawyers

May 5, 2019 | Peter S. Lubin, Patrick Austermuehle and James V. DiTommaso

Our clients give us 5-star reviews for winning judgments or obtaining favorable settlements for them in used car fraud cases where they could have lost 10s of thousands of dollars:

Mark Zeglen

****** 6 weeks ago