|

People who want to be entrepreneurs are often told to find a problem in the world that they can solve, then build their business (and their marketing efforts) around solving that problem for their customers. That’s exactly what Melissa Nelson and Jeremy O’Sullivan thought they were doing for McDonald’s and its customers before McDonald’s started telling its franchisees that the technology Nelson and O’Sullivan had created could lead to worker injuries.

The problem Nelson and O’Sullivan sought to solve is the prevalence of ice cream machines at McDonald’s constantly breaking down. It’s such a common occurrence that it has inspired memes (and even some conspiracy theories) that pop up all over the internet. You’d think McDonald’s would be eager for a solution to the problem, but Nelson and O’Sullivan were surprised to find that was not the case.

The two would-be problem solvers met as freshmen at Bucknell University in 2005 and started a business together, FroBot, in 2011. FroBot sold frozen desserts from automated soft-serve machines made by the same company that supplies McDonald’s ice cream machines, Taylor Company. The only problem was the machines kept breaking down and the only way to get them up and running again was to call one of the company’s technicians. But according to Nelson, the technicians were more likely to blame a lack of electrical power, if they found any problem at all. Continue reading ›

|

Earlier this month, former governor of Alaska and vice presidential candidate Sarah Palin lost her defamation suit against the New York Times when a federal jury found in favor of the newspaper. Palin’s lawsuit had alleged that the New York Times and its former editor, James Bennet, defamed the former governor when it published an opinion column that incorrectly linked Palin to the 2011 Tucson, Arizona mass shooting, in which a federal judge was killed and Democratic House of Representatives member Gabrielle Giffords was wounded.

As many legal commentators and defamation law practitioners had noted, Palin faced an uphill battle going into the trial given the protections afforded to media defendants under current First Amendment case law. Most, however, could not have predicted the chain of events that unfolded in the case. First, as we previously wrote about, the trial itself was delayed when Palin tested positive for COVID-19 on the eve of jury selection. Then following the trial itself, the trial judge announced that he would dismiss the case while the jury was still deliberating. In an unusual move, the judge stated that he would allow the jury to continue deliberations but would ultimately dismiss the case no matter how the jury ruled. In total, the jury deliberated for a little over two days.

The trial was also unique in that it is unusual for defamation lawsuits with public figure plaintiffs to reach trial. In the landmark 1964 decision in New York Times v. Sullivan, the Supreme Court established a heightened “actual malice” standard for public officials to prevail in defamation cases. Under the actual malice standard, public officials must establish that the defendant either knew that the statement was false or had “reckless disregard” of the falsity of the statement in order to prevail on a claim of libel or slander. Absent actual malice, media defendants are protected by the First Amendment from defamation liability.

As the trial judge explained when announcing his ruling, Palin is expected to appeal the loss. It has been speculated that Palin is ultimately hoping to bring her case to the Supreme Court where Justices Clarence Thomas and Neil Gorsuch have expressed a willingness to reexamine the more than half century-old New York Times standard. Continue reading ›

|

Melissa McGurren, former co-host of the popular radio show, “Eric in the Morning,” recently sued Hubbard Radio Chicago for allegedly defaming her in an internal email in which an executive of the radio station said they did not agree with McGurren’s statements about workplace harassment at the station. McGurren alleges the email defamed her to her former coworkers because it implied she was a liar, but according to a federal judge, defendants need to do more than imply in order to be found guilty of defamation.

McGurren spent more than two decades working at WTMX-101.9-FM, the radio station that hosts “Eric in the Morning,” but she left the station in 2020, saying her years of complaining about Eric Ferguson’s behavior, both on and off the air, were ignored by station executives. Among other things, McGurren described her fear of working in the same room as Ferguson during the COVID-19 pandemic. Initially, she said she worked in a space where she was separated from Ferguson by a window because her asthma and other medical issues put her at high risk for COVID-19. According to McGurren, Ferguson harassed her about the setup until she agreed to get back in the studio with him in June of 2020, even though she said she still felt very uncomfortable doing so.

According to her lawsuit, Jeff England, the vice president of the station, allegedly defamed her when he said in an email to the station’s staff that the station did not agree with the way she had characterized events with Ferguson. In her defamation lawsuit, McGurren alleged the email amounted to telling her former coworkers she was a liar, but a federal judge disagrees. Continue reading ›

|

The Supreme Court has stayed the OSHA’s vaccine-or-test mandate for large private employers, while litigation over its legality continues in the lower courts. Over a dissent from the Court’s three liberal justices, the court ruled that OSHA exceeded its congressionally granted authority in issuing such a sweeping mandate. In a separately issued decision, the Court by a 5-4 vote permitted a vaccination mandate covering health care workers at facilities receiving federal funding through Medicare or Medicaid programs to go into effect.

Six Justices agreed that OSHA exceeded its statutory authority to impose universal COVID-19 safety standards under its power to issue emergency temporary standards. The Court described the vaccine-or-test rule as a “blunt instrument,” that draws no distinctions based on specific industry or actual risk of exposure. Taking the opportunity to articulate its view of OSHA’s role, the Court explained that OSHA’s authority is limited to regulating workplace hazards and Congress “has not given that agency the power to regulate public health more broadly.” Because COVID-19 is not a uniquely occupational hazard (i.e. people can catch it anywhere), the vaccine mandate exceeded OSHA’s authority, the Court reasoned.

OSHA issued the vaccine mandate at the center of the case back in November 2021. Under the mandate, all employers with 100 or more employees were required to compel their employees to either get fully vaccinated against COVID-19 or to be tested weekly and mask up while at work. The mandate covered approximately 84 million workers. Continue reading ›

|

Sarah Palin’s libel lawsuit against The New York Times was already unusual in that it made it all the way to trial, whereas most libel lawsuits settle outside of court. The lawsuit recently became even more noteworthy when the defense attorneys asked the court to rule in their favor, even if the jury ruled in Palin’s favor, and Judge Rakoff said he would. The decision effectively nullified the jury’s decision before the jury had a chance to reach a decision.

The jury did rule in favor of The New York Times, but there is no longer any way to tell whether their decision was influenced by the judge expressing his willingness to overrule their decision if they ruled in Palin’s favor. The judge’s announcement certainly put the jury in an awkward position, since they were instructed to stay away from news about the case to avoid swaying their decision, but they were most likely able to read reports of the judge’s decision prior to making their own.

Nevertheless, Judge Rakoff’s ruling is not surprising. He had dismissed the case back in 2017, but in 2019 an appellate court reversed his decision and sent the case back to his court.

Palin and her legal team viewed this lawsuit as an opportunity to weaken the protections the First Amendment extends to news outlets so they can report without fear of a lawsuit like this one making it to trial. The lawsuit is one of many filed by right-wing figureheads against various news outlets in an attempt to silence those outlets. Continue reading ›

|

Arbitration has been a hot topic in legal circles and court opinions over the last decade. The U.S. Supreme Court and Federal Appeals courts have issued a number of high-profile decisions addressing issues of the enforceability of arbitration agreements, who gets to decide the threshold issue of arbitrability, and whether class claims can be decided in arbitration. Proponents of arbitration argue that it is quicker and less expensive than traditional litigation and provides greater confidentiality than the public court record. Opponents argue that it provides fewer avenues for discovery and allows unscrupulous defendants to shield their unsavory conduct or practices from the public eye.

Regardless of which side of the argument you fall on, the undeniable truth is that arbitration agreements are ubiquitous. Consumers find them in everything from cellphone contracts to gym membership agreements and everything in between. Many employers include them in employment contracts requiring employees to arbitrate claims of discrimination or harassment. And nearly all car dealerships include them in their sales contracts. In short, arbitration agreements are impossible to escape in modern life.

One customer of Hyline Auto Sales, a used car dealer, found this out the hard way. In April 2019, the plaintiff, Jason Taylor, purchased a vehicle from Hyline. Included in his sales contract was an agreement to submit disputes for arbitration by the Better Business Bureau (BBB).

Only weeks after his purchase, Taylor filed an arbitration demand with the BBB. After no response from the BBB for a week, Taylor wrote the BBB asking for a hearing date. He requested a hearing again on May 1, 2019. On May 27, 2019, Taylor again wrote the BBB and asked for the appointment of an arbitrator. Over the following several months, Taylor contacted the BBB dozens of times requesting the appointment of an arbitrator and to set an arbitration date, without success. Continue reading ›

|

Former Alaska Governor and vice-presidential candidate Sarah Palin’s much-anticipated defamation trial against the New York Times was set to begin in federal court, but was rescheduled at the last minute after she tested positive for Covid-19 a day before jury selection was slated to begin. Defamation and First Amendment attorneys and legal scholars around the country have been keenly following the litigation as it could test key First Amendment protections for media. The trial has been rescheduled for February 3.

After learning of Palin’s positive COVID-19 test, the judge presiding over the case prepared ready to move forward with the trial, with Palin’s consent, and offered to allow her to testify via videoconference. Palin’s lawyers objected, however, and argued that she wanted to be present for jury selection and to provide her testimony live during trial.

The former governor sued the Times in 2017 over an editorial that incorrectly linked the 2011 mass shooting in Tucson, Arizona that left six people dead, including a federal judge, and gravely wounded others including Arizona Representative Gabby Giffords to a map showing certain electoral districts in crosshairs that was circulated by Palin’s political action committee. The Times later corrected the op-ed to remove any suggestion that Palin incited the shooting and apologized for the error. After Palin filed the case in federal court, the judge initially dismissed the case, but it was revived on appeal. Continue reading ›

|

Recently the U.S. Court of Appeals for the Seventh Circuit issued a much-anticipated decision in Cothron v. White Castle, concerning whether claims asserted under Sections 15(b) and 15(d) of the Illinois Biometric Information Protection Act (“BIPA”) accrue only once upon the initial collection or disclosure of biometric information or whether a new claim accrues each time biometric information is collected or disclosed. In lieu of answering the question, however, the Seventh Circuit punted the question to the Illinois Supreme Court at the plaintiff’s request.

The plaintiff, a manager at a White Castle restaurant, alleged that the restaurant chain introduced a system that required employees to scan their fingerprints to access pay stubs and work computers. The plaintiff alleged that each scan is sent to a third-party vendor that authenticates it and gives the employee access to the restaurant’s computer system. The plaintiff alleged that based on its use of that system, White Castle violated Sections 15(b) and 15(d) of the BIPA.

Under Section 15(b), a private entity may not “collect, capture, purchase, receive through trade, or otherwise obtain” a person’s biometric data without first providing notice to and receiving consent from the person. Under Section 15(d), a private entity may not “disclose, redisclose, or otherwise disseminate” biometric data without consent of the owner of the biometric data. The plaintiff brought suit not only individually but on behalf of a class of other White Castle employees.

White Castle defended against the lawsuit by seeking judgment on the pleadings. In support of its motion, the company argued that the claims were untimely since they accrued in 2008 when the plaintiff’s first fingerprint scan occurred after the BIPA came into effect. The plaintiff responded that every unauthorized collection or disclosure of biometric data constituted a separate violation of the statute, meaning a new claim accrued with each fingerprint scan. This meant, the plaintiff argued, that each scan started the clock on its own limitations period. The distinction is no small issue as the BIPA allows a successful plaintiff to recover the greater of actual damages or statutory damages of $1,000 for each negligent violation and $5,000 for each reckless or willful violation. The District Court ultimately denied White Castle’s motion but thought the issue important enough to warrant an interlocutory appeal. Continue reading ›

|

Palin’s lawsuit against The New York Times alleges the newspaper defamed her in an editorial it published that incorrectly linked Palin’s own political rhetoric with a mass shooting that took place near Tucson, AZ in 2011 in which six people were killed and 14 others were wounded. The casualties included Gabrielle Giffords, who was shot in the head and was a Democratic member of Congress at the time.

As it happened, the editorial about Palin was published on June 14th, 2017. That same day, a gunman opened fire on several Republican congressmen at a baseball field in Virginia. The editorial suggested the 2017 shooting in Virginia was evidence of how violent American politics had become.

The editorial also suggested Palin’s own violent language might have incited the 2011 shooting, pointing to a map that had been circulated by Palin’s own political action committee that showed crosshairs over congressional districts Republicans were hoping to pick up in the next election, including Giffords’s district.

The Times later corrected the error by saying it had made a mistake in linking the shooting with Palin’s rhetoric, but her libel lawsuit against the newspaper is still going forward in the courts. It is just one in a string of lawsuits against major news outlets that want media outlets to pay a higher price for making a mistake. Continue reading ›

|

An Illinois appeals court recently held that the plaintiffs in a commercial litigation lawsuit could not sustain claims for fraud, breach of fiduciary duty, conversion, and tortious interference with contract because the claims were untimely. The Court also affirmed dismissal of the plaintiffs’ claims for respondeat superior liability, prejudgment interest and attorney’s fees on the basis that the substantive underlying claims were untimely or had been released by the plaintiffs.

The appeal stemmed from a November 2016 lawsuit filed by Edward Shrock, a minority owner of the company Baby Supermall, LLC, against the company’s bank and the bank’s vice president for allegedly aiding the company’s majority owner, Robert Meier, in using the company as his “personal piggy bank” and misappropriating millions of dollars from the company during a decade-long scheme. According to Schrock’s complaint the company was eventually driven to insolvency as a result of Meier’s scheme.

The 2016 lawsuit followed on the heels of another lawsuit Schrock filed against Meier in 2009, which alleged nearly the same underlying facts as alleged in the 2016 lawsuit against the bank. In the 2009 suit, Schrock won an injunction enjoining Meier and his family from taking payments from the company under certain “profit-sharing” plans Meier had drafted and entered with the company. Following entry of the injunction in the 2009 case, Schrock won an approximately $11 million jury verdict against Meier, which Schrock later released in 2018 even though the judgment had only been partially satisfied. Continue reading ›

Contact Information
Chicago Office
19 S LaSalle St #702
Chicago, IL 60603
Phone: 630-333-0333
Mailing Address
17W220 22nd St #410
Oakbrook Terrace, IL 60181
Phone: 630-333-0333 Please direct all mail correspondence to our Oakbrook Terrace address.
Highland Park Office
189 Whistler Rd
Highland Park, IL 60035
Phone: 630-710-4990
We accept the following credit cards
Credit Cards Accepted
We accept payment via Venmo at: @L-A-LAW

Please direct all mail correspondence to our Oakbrook Terrace address.

Phone: 603-333-0333
Visit our site: chicagobusinesslawfirm.com

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2024, Lubin Austermuehle, P.C.
JUSTIA Law Firm Blog Design