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An Illinois federal court granted a motion to dismiss in a putative shareholder derivative class action, having already denied the plaintiff’s application for a temporary restraining order (TRO). Noble v. AAR Corp., et al, No. 12 C 7973, memorandum and order (E.D. Ill., Apr. 3, 2013). The plaintiff asserted causes of action for various alleged breaches of fiduciary duty on behalf of the corporation, but the court found that the lawsuit was a direct action, primarily for the plaintiff’s benefit as a shareholder, rather than a derivative one.

The dispute related to a recommendation by the Board of Directors to the shareholders of AAR Corporation, a publicly-traded company, regarding an executive compensation plan. The Board made a unanimous proposal regarding the corporation’s “say on pay” plan, which allowed the shareholders to vote on executive pay as required by Section 951 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act), 15 U.S.C. § 78n-1. In a seventy-page proxy statement, the Board asked the shareholders to approve an advisory resolution regarding executive compensation at the corporation’s annual shareholder meeting, which was scheduled for October 10, 2012.

The plaintiff filed suit against the corporation and individual Board members, alleging that the Proxy Statement failed to disclose various details about what the Board considered before making its proposal. Noble, memorandum at 5. He claimed that the individual defendants breached their fiduciary duties of good faith, care, and loyalty to the shareholders, and that the corporation aided and abetted these breaches. Id. at 5-6. The defendants removed the case to federal court on October 4, 2012. The following day, the plaintiff filed a motion for a TRO, asking the court to stop the shareholder vote. The court held a hearing on October 9 and denied the motion. On October 10, the shareholders approved the Board’s proposal, with seventy-seven percent of the shares voting in favor. Id. at 1-2.

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Despite the fact that some state laws have been working against non-compete clauses in employee contracts, companies continue to find ways around them. While California has been the least tolerant by banning non-compete clauses altogether, other states, such as Massachusetts, have taken more moderate approaches by seeking merely to limit the scope of such contracts.

Non-compete agreements usually exist as part of a contract between an employee and her employer. The non-compete clause states that the employee will not work for one of the company’s competitors for so many months after termination of her employment with her current employer. Such clauses are usually limited by geography as well as time and the idea is to protect the trade secrets of the employer.

Non-compete clauses are usually included in an employee’s initial contract or (if she doesn’t sign an individual contract) in the employee handbook or manual. If a company wants to change its policy regarding existing employees, then it is subject to the requirement of consideration. This requirement means that both the employer and the employee must gain something from the new or altered contract in order for it to be enforceable in a court of law.

Our Chicago non-compete agreement lawyers observed that in its recent attempt to bypass these new restrictions, Best Buy Co. Inc., (which employs about 5,200 people at its corporate headquarters in Richfield, MN) has offered future stock considerations to hundreds of mid-level executives, including the vice presidents and directors.

These stock considerations are to be in exchange for the executives signing new employment contracts with Best Buy, which include a non-compete clause. The clause prohibits the employees from working for any of Best Buy’s competitors anywhere in the world for 12 months after termination of their employment with Best Buy. By offering something of value to the employees in exchange for signing the new contract, Best Buy gets around the consideration requirement.

If an employee were to dispute this new non-compete clause, most state courts would consider the benefit of the clause to the employer as far as protecting intellectual property, confidential business practices, etc. against the employee’s interests in pursuing other employment. The balance struck between these two will, ideally, result in a determination of the clause’s “reasonableness”. There are two key factors which are normally used to determine reasonableness: time and geography.

While some courts have upheld non-compete clauses which extend for a year or more, Best Buy’s geographical limitation prevents the employee from working for any of Best Buy’s competitors anywhere in the world. This may not meet the requirements for reasonableness as it inordinately benefits Best Buy over the employee.

Another argument an employee could use to challenge the clause is to question whether Best Buy has anything of value to protect. As a retailer, Best Buy does not create anything of its own; it merely resells products made by other companies. Even the services that Best Buy offers, such as installation and repair, are not the kinds of services which typically consist of any kind of confidential information recognized by the courts.

This is just one instance of a company’s response to the changes in law regarding non-compete clauses. No doubt we will see many more before long.

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Despite all of the patents and trademarks out there, one might assume that, at the very least, one’s own family history would be safe. However, according to Georgette Mosbacher, the owner of Borghese Inc., that is not the case.

The Borghese family is a noble Italian family, which has included royalty, rulers, philosophers, and a pope. In the 1950s, Borghese Inc. was started by Princess Marcella Borghese and Revlon and has since been developed into a well-known cosmetics brand. In 1976, Revlon bought the rights, title, and interest to the Borghese cosmetics brand. According to the court papers, this included “the words BORGHESE, MARCELLA BORGHESE”, and “PRINCESS MARCELLA BORGHESE”.

In 1992, Revlon sold Borghese Inc. to Ms. Mosbacher, who then became its chief executive. She then reached an agreement with the family regarding final payments, although those have also been disputed.

Since then, Princess Marcella’s descendants have made their own mark on the beauty industry. Her son, Francesco, started his own line of beauty products in the early 1980s under names such as Orlane, Perlier, and Elariia. Beginning in the 1990s, the family (including Francesco, his wife, Amanda, and their son, Lorenzo) started making appearances on the home shopping channel QVC and, after that, HSN.

While none of the products are sold under the Borghese name, their marketing does include the noble lineage of the Borghese family. However, Borghese Inc. argues that that heritage is no longer theirs to capitalize on.

According to Mark N. Mutterperl, the attorney representing Borghese Inc., the lawsuit “is not different than if any other brand name with a surname like Lauder, McDonald, Heinz, Gallo, Ferragamo were to take steps as they do to stop others from using their intellectual property rights”.

Mark Evens, the attorney for the Borghese family, argues that Borghese Inc. “has suffered no harm. No dilution of their mark. No counterfeiting. No palming off.”

For decades, the Borghese family coexisted peacefully with Borghese Inc. It wasn’t until 2006, when Lorenzo entered into discussions with ABC to possibly appear on “The Bachelor” that things started to get heated. It was then that ABC mentioned Lorenzo’s grandmother as the woman who “started the famed self-named cosmetics line, Borghese Inc.” Although there is nothing factually incorrect about this assertion, Ms. Mosbacher nevertheless appeared to feel that her toes were being stepped on. She wrote to Mr. Borghese to warn him not to “cause any false impression in the marketplace that there is a connection or relationship between yourself and Borghese Inc. and our cosmetics products.”

In 2008, Lorenzo applied for a federal trademark for a line of pet shampoos and conditioners called “La Dolce Vita by Prince Lorenzo Borghese” for PetSmart. Borghese Inc. contested the trademark and, as the trademark approached approval in 2010, Borghese Inc. filed a lawsuit against the family.

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There are multiple reasons why so many people are up in arms against the rising prevalence of genetically modified organisms (GMOs) in our crops. Aside from the debate as to whether consuming food that has been genetically modified is safe, the issue of contamination is potentially a very serious problem.

Recently, Monsanto has been prominent in the news and in the courts, often depicted as an evil corporation putting the health of the public at risk for the sake of profit. Now the company is facing several lawsuits from farmers who claim that they have suffered financial harm as a result of Monsanto’s genetically modified wheat having been found in a wheat field in Oregon. In late May, the U.S. Department of Agriculture announced that a wheat farmer in Oregon had discovered Monsanto’s genetically modified wheat growing on his farm alongside his conventional wheat.

The announcement was followed by European and Asian buyers quickly backing out of buying American wheat when they heard of the contamination. Consumers in Europe and Asia have much stronger feelings against GMOs than American consumers. Both South Korea and Japan have suspended certain purchases of American wheat. The European Union has said it will increase the testing of produce coming in from the United States.

The announcement made by the Department of Agriculture and the ensuing loss of overseas buyers for American wheat has led to a series of lawsuits against Monsanto. Clarmar Farms, Inc., farmer Tom Stahl, and the Center for Food Safety have filed a lawsuit against Monsanto in the U.S. District Court for the Eastern District of Washington. The lawsuit is seeking class-action status on behalf of other farmers it alleges have been harmed by the lower wheat prices, which have resulted from overseas buyers backing out of buying American wheat.

A similar lawsuit was filed a few days prior by a wheat farmer in Kansas who alleges that he and other farmers have been financially harmed by lower wheat prices as a result of the discovery of Monsanto’s genetically modified wheat in American crops. Two other farmers have also filed similar lawsuits in federal court for the western district of Washington state.

The experimental wheat was initially developed by Monsanto in order to withstand treatments of its Roundup weed killer. The product was never commercialized though, due to widespread industry opposition. International buyers were already threatening to stop buying American wheat if the GMOs ever entered the marketplace. The decision to end attempts at commercializing the wheat was announced in 2004.

The field testing of the genetically modified wheat that Monsanto did in many states was supposed to have kept the experimental wheat from contaminating conventional wheat supplies.
Following the most recent onslaught of lawsuits, Monsanto has said that, when it ended testing on the genetically modified wheat, it ordered the wheat to be destroyed or shipped to the U.S. Department of Agriculture’s seed storage facility in Colorado. Company officials have denied knowing how their wheat could have made its way into a wheat farm in Oregon.

Kyle McCain, an attorney for Monsanto, has called the lawsuits premature. He claims that the wheat “is limited to one field in Oregon, and no such wheat has entered the stream of commerce”. However, the genetically modified wheat has been found in one farm of conventional wheat, it takes no stretch of the imagination to think that the modified wheat has made its way, undetected, onto other farms and into the marketplace. When this possibility is taken into consideration, especially given the claims of GMOs’ potentially harmful effects, it is no wonder buyers overseas are hesitant to buy American wheat.

Monsanto insists that it followed “a government directed, rigorous, well-documented and audited” program when conducting experiments on the genetically modified wheat.
The lawsuit filed in Spokane, Washington, alleges that Monsanto’s failure to contain genetically modified wheat qualifies as “wrongful conduct” which has potentially contaminated “the entire wheat farming and production chain” and puts many wheat farmers at continued risk of harm by cross-pollination with and contamination of their crops. The lawsuit has not named a number for specific monetary damages, but it is seeking compensatory, as well as punitive damages. It also asks that Monsanto be made to decontaminate equipment, storage, and transportation facilities.

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The world of professional athletes has long been extremely financially rewarding. In recent years, college athletics have approached professional levels where revenue is concerned. The biggest difference is whether or not the players get a cut of the action. Beginning in 2008, the National Collegiate Athletic Association (NCAA) has faced increasing criticism from people who claim that college athletes are being exploited while colleges and the NCAA are making millions off the performance of these players.

The exploitations might not be permitted to last much longer. Ed O’Bannon, a former basketball star for UCLA, watched a friend’s son start up a video game in 2008 and was surprised to see himself appear on the screen. While his name never appeared, the player in the game undoubtedly resembled O’Bannon, down to his physique, his player number, and his right-handedness. O’Bannon was initially flattered until he realized that the gaming company was making money off of his likeness while he, O’Bannon, received nothing. The video game was published by E.A. Sports, a brand of Electronic Arts.

Beginning in 2009, O’Bannon filed a lawsuit seeking licensing of broadcast and video game rights for student athletes. Shortly after O’Bannon filed his lawsuit, the NCAA released a statement that its agreement with E.A. Sports prohibits the use of the names and pictures of athletes. However, in July 2003, six years before the lawsuit was ever filed, Peter Davis, an NCAA official, noted that Electronic Arts did include a feature in their latest football game, which allowed users to download rosters of players’ real names. Electronic Arts responded that the game did not use real names, although it did use “all the attributes and jersey numbers of the players.”

In an email, Davis asked if that was “too close to reality”. He was then warned by another NCAA executive, Melissa Caito, to be “cautious as you move through this – any more ‘watering down’ of the video games will likely move the manufacturers to cease operations with us”. Such a statement reflects the NCAA’s awareness that the video game avatars were pushing the limits of the law. It also demonstrates their determination to make as much money as possible off of the student athletes, while simultaneously making sure that they do not receive any of that money.

Other emails provide further evidence of high-level executives who see absolutely nothing wrong with the way they treat their athletes. David Berst, a senior NCAA executive, wrote to the head of the organization in August 2008 that, regarding “the student athlete, I think the focus of the exploitation may be misplaced, and maybe it is not our duty to protect the student athlete.”
Christine Plonsky from Texas, part of the presidential task force on commercialism, was equally dismissive. She wrote, “We have things we have to do a certain way to raise funds and pay for the scholarships and other things that [student athletes] and their parents expect. I view these cases as being the result of the entitlement attitude we’ve created in our revenue sports.”
Now O’Bannon’s lawsuit is moving to a critical stage.

A federal judge in Oakland, California will hear arguments concerning whether the case can proceed as a class action. If class-action status is granted, it would give the plaintiffs the opportunity to represent thousands of current and former student athletes.

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Our Chicago class action attorneys note that a class action claim against an insurance company, which the defendant had removed to federal court, fell within an exception to the federal jurisdiction statute, according to a federal district judge in LaPlant v. The Northwestern Mutual Life Insurance Company, No. 11-CV-00910, slip op. (E.D. Wis., Aug. 20, 2012). The court remanded the case to Wisconsin state court under the corporate governance exception to the Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d). It held that the plaintiffs’ claims related exclusively to the defendant’s “internal affairs,” based on Wisconsin law.

The defendant issued an annuity insurance policy to the lead plaintiff. As a mutual insurance company, the defendant was “owned cooperatively by its policyholders,” LaPlant, slip op. at 1, and paid dividends to policyholders out of its profits. In 1985, it moved policyholders’ money into a separate fund and began paying dividends based on interest generated by the fund. Id. The amount of the payments received by the policyholders allegedly decreased as a result of this change. Wisconsin law gives policyholders the right to participate in annual profit distributions. Wis. Stat. § 632.62(2).

The lead plaintiff brought a class action lawsuit for breach of contract and breach of fiduciary duty on behalf of a class of policyholders in Wisconsin. The class prevailed at trial, and the lead plaintiff moved to expand the scope of the class to include policyholders in other states. The defendant removed the case to federal court under CAFA, which confers jurisdiction to federal courts over class actions with more than one hundred class members, more than $5 million in controversy, and diversity of citizenship between the defendant and at least one class member. The plaintiff moved to remand the case to Wisconsin state court based on the “corporate governance exception,” which applies when a class action’s claims solely relate (1) “to the internal affairs or governance of a corporation” (2) based on the laws of the state of incorporation. LaPlant, slip op. at 2, citing 28 U.S.C. §§ 1332(d)(9)(B), 1453(d)(2).

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A federal court allowed most causes to proceed in a putative class action against a bank for allegedly fraudulent overdraft fees. White, et al v. Wachovia Bank, N.A., No. 1:08-cv-1007, order (N.D. Ga., Jul. 2, 2008). The plaintiffs, who alleged that the bank had recorded transactions out of chronological order to maximize overdraft fee liability, claimed violations of state deceptive trade practice laws and several claims related to breach of contract. The court denied the defendant bank’s motion to dismiss as to all but two of the plaintiffs’ claims.

The two lead plaintiffs opened a joint checking account with Wachovia Bank in 2007. They signed a Deposit Agreement that stated that the bank could pay checks and other items in any order it chose, even if it resulted in an overdraft. It also stated that the bank could impose overdraft charges if payment of any single item exceeded the balance in the account. The plaintiffs alleged in their lawsuit that Wachovia ordered its posting of transactions in a way that would cause their account to incur overdraft fees, even when they had sufficient funds to pay the items. They also alleged that the bank imposed overdraft fees when no overdraft had occurred.

The lawsuit, originally filed in a Georgia state court in February 2008, asserted violations of the Georgia Fair Business Practices Act (FBPA), O.C.G.A. §§ 10-1-390 et seq., and breach of the duty of good faith. The plaintiffs also claimed that the clause of the Agreement related to the ordering of transaction was unconscionable, that the bank had engaged in trover and conversion, and that it had been unjustly enriched. The defendant removed the case to federal court under the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d)(2), which allows defendants to remove certain class actions to federal court. It then moved to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6), which allows a court to dismiss a lawsuit that “fail[s] to state a claim upon which relief can be granted.” To defeat such a motion, a plaintiff must show a plausible factual basis for their claims.

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The Chicago class action attorneys and consumer fraud lawyers at Lubin Austermuehle filed a lawsuit alleging consumer fraud on behalf of our clients against famed Chicago Chef Charlie Trotter claiming that he sold what the specially retained expert concludes is a counterfeit bottle of rare wine. Trotter denies our client’s claims and asserts that they simply have “buyer’s remorse” according to a report in the Chicago Tribune. Our clients, a small family of wine enthusiasts, very much wanted to add the rare wine to their collection. They believed it was a magnum-size bottle of 1945 Domaine de la Romanée-Conti. They sought to have it insured but their carrier required them to get it authenticated. The expert concluded in the report attached to the lawsuit that the bottle was not authentic. After trying to get their money back, the client believed that they had no choice but to file suit so that they could get their over $46,000 investment back. They retained our Chicago fraud attorneys and we filed suit alleging consumer fraud and magnuson moss warranty claims on their behalf. We based the suit on the expert report that the wine was unmerchantable and that Charlie Trotter should have known based on his claimed expertise that it was not authentic. Charlie Trotter denies the claims according to the Chicago Tribune report and has not yet responded to the suit formally so it will now be a matter of proving the case in court before a jury which will decide the merit of the claims. The Complaint only states our clients’ claims which they need to prove.

The Complaint filed by our Chicago class action lawyers and Chicago consumer fraud attorneys alleges the following:

13. … A Charlie Trotter’s employee negotiated the price – $46,227.40 – with Benn and Ilir. Based on Defendants’ representation of the rarity and value of the DRC magnum, Benn and Ilir agreed to purchase it. Ben and Ilir paid Charlie Trotter’s $40,000 in cash and $6,227.40 by credit card for the DRC magnum.

14. On June 17, 2012, Defendants shipped the DRC magnum to Benn’ New York residence.

15. Upon receiving the DRC magnum, Benn contacted his insurance carrier. He notified the carrier that he wanted to list the DRC magnum on his homeowners insurance. Benn’s carrier informed Benn that 1945 bottles of Domaine de la Romanee-Conti are often counterfeited and that Benn would need to authenticate the DRC magnum through an expert before it would provide coverage.

16. On or about September, 2012, Benn retained Maureen Downey, DWS, CWE, FWS of Chai Consulting to authenticate the DRC magnum. Ms. Downey determined that the DRC magnum was counterfeit and valueless based on the physical attributes of the DRC magnum, the provenance provided by Charlie Trotter’s, and her discussions with experts on Domaine de la Romanee-Conti wines. See Exhibit 1. Ms. Downey visited the estate of Domaine de la Romanee-Conti after preparing her report. She spoke with Jean-Charles Cuvelier, the estate director of Domaine de la Romanee-Conti, regarding the production of large format bottles. The information Ms. Downey received from Jean-Charles Cuvelier confirmed the accuracy of her report.

The Complaint’s claims have been denied by Charlie Trotter according to the Chicago Tribune report and Defendants have denied the allegations.

Below is a video about famed Chef Charlie Trotter:

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A California federal court awarded $203 million in damages to a class of plaintiffs in Gutierrez v. Wells Fargo Bank, NA, 730 F.Supp.2d 1080 (N.D. Cal. 2010). The lawsuit alleged that the defendant bank overcharged the plaintiffs, who held deposit accounts at the bank, for overdraft fees, using a series of deceptive bookkeeping techniques. A similar bookkeeping trick was the subject of an Illinois lawsuit resulting in a settlement, Schulte v. Fifth Third Bank, 805 F.Supp.2d 560 (N.D. Ill. 2011).

According to the court’s ruling in the Gutierrez case, Wells Fargo charged individual depositors more than $1.4 billion in overdraft fees between 2005 and 2007, just in the state of California. Gutierrez, 730 F.Supp.2d at 1082. The lawsuit, filed on behalf of individual depositors, alleged that Wells Fargo used a bookkeeping trick known as “resequencing” to turn a single $35 overdraft charge into as many as ten overdraft charges. The bank would then hide this technique behind a “facade of phony disclosure.” Id. The court outlined how the bank would sequence transactions from the highest amount to the lowest amount, out of chronological order, often resulting in a negative balance in an account earlier than if it had sequenced the transactions in any other order. This maximized the amount of overdraft fees the bank could charge to the account. Id. at 1088.

The allegations in the Schulte case were similar to those in Gutierrez. Fifth Third Bank allegedly processed ATM and debit card transactions out of chronological order. During a posting period, the bank would process the largest transactions first, proceeding in high-to-low order. Schulte, 805 F.Supp.2d at 565. This allegedly almost guaranteed that, if a depositor overdrew their account during that posting period, the bank could collect more overdraft fees.

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A Florida appellate court reversed an order certifying a class of doctors claiming breach of fiduciary duty and other causes of action against their employer. InPhyNet Contracting Services v Soria, 33 So.3d 766 (Fl. Ct. App. 2010). The case began as a suit alleging breach of a covenant not to compete against one physician, leading the physician to counterclaim on behalf of a putative class with regards to a bonus compensation plan. After separating the physician’s individual claims from the class claims, the trial court certified a class. The appellate court reversed, finding that the class claims did not meet the requirements of commonality or predominance over class members’ individual claims.

InPhyNet Contracting Services (ICS) places physicians in hospitals around the state of Florida on a contractual basis. It offers incentives to physicians to work in hospital emergency rooms through a Physician Incentive Plan (PIP), which pays doctors out of a “bonus pool” associated with a hospital based on performance and similar factors. Id. at 768. ICS placed Dr. David Soria in the emergency room of Wellington Regional Medical Center, where he worked as Medical Director. The dispute between Soria and ICS began when Wellington terminated its contract with ICS and contracted with a competitor, and Soria began working for the competitor.

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