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A manufacturing plant may have closed four years ago, but according to multiple lawsuits, the effects of the alleged mismanagement of dangerous chemicals used at the plant are still affecting residents of the area surrounding the now-defunct plant.

The plant in Tioga, LA opened in 1961 and made pressure relief valves for the oil and gas industry. The plant was sold to and absorbed by various companies over the years, and the plant was finally shut down for good in 2017 after the company that owned and ran it was absorbed by General Electric Oil & Gas in 2010, and the two companies combined became known as GE-Dresser.

In November of 2011, when the plant was still up and running, a fire hydrant near the plant broke and water filled an area that had been excavated for repairs. According to some of the recent lawsuits, a chemical sheen could be seen on the surface of the standing water.

A few months later, GE-Dresser notified the Louisiana Department of Environmental Quality (LDEQ) about a spill at the plant that had resulted in trichloroethylene (TCE) and tetrachloroethylene (PCE) getting released into the ground around the plant. The chemicals are used to clean grease from metal, and neither exists naturally, but has to be made in a lab.

The LDEQ installed monitoring wells to test the soil and groundwater for dangerous levels of TCE and PCE, but allegedly did nothing to notify residents about the possibility that toxic chemicals had been released into their environment until January of 2020, when the department first learned about the contamination levels in the Aurora Park subdivision. Some residents claim they weren’t notified of the contamination until months later in 2020. Continue reading ›

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Paying college tuition has long been a struggle for many aspiring students and their families, but when it comes to paying for college, tuition is just the beginning. The cost of textbooks and other school supplies is another financial hurdle, and according to an antitrust lawsuit, some of the biggest on-campus bookstore chains and publishers of college textbooks have deliberately created and taken advantage of the Inclusive Access program to monopolize the market on college textbooks and raise prices.

The Inclusive Access program requires students to buy one-time access codes to access textbooks and course materials online. Because the access codes only work once, students are required to buy into the program each semester, meaning they can’t reuse textbooks or any other online materials they (or other students) already used in another class. Because all the materials are available online, the program is less expensive than buying new, hard-copy textbooks, but more expensive than buying used, hard-copy textbooks.

The lawsuit was filed by college students, independent bookstores, and online textbooks retailers against Barnes and Noble Education, Follett Higher Education Group, Cengage Learning, McGraw Hill, and Pearson Education. According to the lawsuit, the textbook publishers and major retailers are collectively making $3 billion annually from their sales through the Inclusive Access program. At the same time, the lawsuit alleges, the same program raised prices for hundreds of thousands of students, requiring them to pay for the online access code to get all their class materials, instead of getting some of their textbooks used, which would allegedly have saved them money. Continue reading ›

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After a police officer pressured a woman for oral sex in a suburb of Chicago, including harassing her at her place of work, the woman filed a lawsuit against the police officer and Cook County. For obvious reasons, she asked the court to allow her to remain anonymous, filing the lawsuit under the name Jane Doe v. Cook County. Unfortunately, Doe only knows the first name of the officer who sexually harassed her: Kevin. The sheriff’s office is also named as a defendant.

While the federal courts used to require every plaintiff to provide their full name in order to file a lawsuit, they have since allowed certain exceptions, including whether the plaintiff identifying themselves would result in “retaliatory physical or mental harm”.

There are plenty of well-documented cases of women receiving death threats when accusing men (especially men in power) of sexual harassment or assault. For example, Dr. Christine Blasey Ford needed to hire a security detail after receiving an onslaught of threats to her personal safety leading up to her testimony before the Senate. However, the judge assigned to the case of Jane Doe v. Cook County, U.S. Judge Charles Norgle, denied Doe’s request for anonymity.

This is in spite of the fact that, not only is there a long history of retaliation against women accusing men in power, but police officers in particular are notorious for closing their ranks and protecting their own, making the recent conviction of Derek Chauvin so remarkable. No one who knows that history could be surprised by Doe’s request for anonymity or think it unreasonable. Continue reading ›

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How do we know how much a piece of art is worth? For most of us, a professional art appraiser or auction house gives us a number or price range, but that number is based partly on how much the artwork sold for the last time it changed hands, and it turns out determining that number is more tricky than it might initially appear to be.

To start with, who’s really buying the artwork? An auction house or dealer might say that sold a piece to a particular collector, but they rarely meet the collector in person. Instead, they deal with a “friend” of a collector, but that “friend” might turn out to be an “independent agent” who buys the artwork from the auction house or dealer for one price and sells it to someone else at a higher price.

Buyers and sellers are frequently shell companies, rather than individual agents, taking advantage of the secrecy inherent in the art world to conceal their identity.

Most investors would never consider investing millions (much less billions) into an industry with so much secrecy because such secrecy leaves the industry ripe for fraud. But in the case of the art world, it is that very secrecy that makes it so appealing to certain investors.

To combat the fraud that some say has become rampant in the world of art collecting, some people are saying it’s time we treat art dealers and auction houses more like we treat banks.

Banks are already required by law to identify their customers and where their wealth is coming from, as well as any transactions involving more than $10,000 in cash. Now the federal government is considering applying that same law to the art world. The new law would put an end to shell companies acting as collectors, or allegedly buying on behalf of collectors. Continue reading ›

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A recent decision in the case of Huffman v. Activision, a case we previously covered here, has created a split among federal courts on the issue of who gets to decide the issue of disgorgement of profits in copyright infringement cases. The court in Huffman ruled that a jury is entitled to decide the issue. Other courts to recently consider the issue have come to the opposite conclusion finding that the court should decide the issue, not a jury. These differing answers to the same question may be teeing up the issue for the Supreme Court to settle the question once and for all.

As we have previously detailed, Huffman involves claims by retired professional Booker T that video game developer, Activision, infringed on his copyrights. Specifically, Huffman has alleged that Activision’s video game character, David “Prophet” Wilkes, in Call of Duty: Black Ops 4 infringed his own “G.I. Bro” character. Huffman requested that the issue of disgorgement of Activision’s profits be decided by a jury. Activision moved to strike Huffman’s jury demand.

In its motion, Activision argued that Section 504(b), the section of the Copyright Act dealing with disgorgement of an infringer’s profits, does not provide a statutory or constitutional right to a jury trial. Activision’s motion was filed on the heels of a decision on essentially the same issue in the case Navarro v. Procter & Gamble in which the court in that case found no right to a jury on the issue of disgorgement of an infringer’s profits under Section 504(b). Despite concerning the same issue, the district court disagreed with the reasoning and conclusion of the Navarro court and denied Activision’s motion.

The plaintiff in Navarro is Anette Navarro, a world-renowned photographer, from Cincinnati, Ohio. She filed a copyright infringement suit against Procter & Gamble (P&G) and Walmart alleging that the companies willfully infringed on her copyrights in certain photos that she provided to P&G for use pursuant to licensing arrangements between the parties. Navarro claims that P&G violated the terms of the license by using them on products and in geographic areas beyond those permitted in the license agreements and also continued to use her photographs after the licenses expired.

She sought both actual damages and disgorgement of the defendants’ profits under Section 504(b) of the Copyright Act. P&G and Walmart sought to strike her jury demand with regard to disgorgement of profits, arguing that nowhere does Section 504(b) mention juries. They also argued that there was no constitutional right to a jury under the Seventh Amendment because it only provides a right to a jury for “legal” remedies, not “equitable” remedies which the companies argued disgorgement was. Continue reading ›

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News conglomerate Fox News finds itself fighting against not one, but two multi-billion dollar defamation lawsuits over its post-2020 election reporting. The plaintiffs in these lawsuits are the companies that ran electronic voting machines used during the election. In their complaints, the plaintiffs accuse Fox News and its on-air hosts of engaging in a smear campaign against them which involved making numerous false statements accusing the companies of engaging in a criminal conspiracy to change votes and decide the outcome of the 2020 election in favor of now-President Joe Biden. Fox News has countered that all of its allegedly defamatory statements are protected under the First Amendment as statements about matters of public concern. One of the companies, Smartmatic, has responded, arguing that Fox News’ statements were calculated falsehoods and thus enjoy no First Amendment immunity.

According to Smartmatic, it was founded in 2000 “to bring secure technology to elections and build an election technology company that could ensure accuracy, transparency, and auditability.” Smartmatic claims that the 2020 election was intended to be the launching point for the company as it had been selected to run the electronic voting for Los Angeles County. Days after the election, Smartmatic alleges, Fox News embarked on a disinformation campaign against it. In the weeks following the 2020 election, Smartmatic claims that Fox News broadcast 12 shows, posted 9 videos and transcripts online, and posted 20 comments and videos on social media about Smartmatic. Many of these references to Smartmatic allegedly involve accusations that it rigged the election against then-President Trump.

Additionally, Smartmatic claims that Fox News repeatedly invited then-President Trump’s attorneys, Rudy Giuliani and Sidney Powell, onto its broadcasts where Guiliani and Powell allegedly stated that Smartmatic was founded to “fix elections” and “alter votes,” its technology is “extremely hackable,” it was “banned by the United States,” its technology was “corrupt” and “switched votes,” it has an “algorithm” used to “modify the votes,” and Smartmatic was part of “one huge criminal conspiracy” to manipulate the 2020 election. Smartmatic filed suit against Fox News, several of its on-air hosts, Guiliani, and Powell seeking $2.7 billion in damages, making it one of the largest defamation complaints ever filed. Continue reading ›

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The Supreme Court recently issued its first ever opinion interpreting the Computer Fraud and Abuse Act, 18 U.S.C. §1030. In issuing its opinion, the Court limited the scope of the Computer Fraud and Abuse Act and resolved a circuit split on the meaning of “exceeds authorized access” found in the statute. In a 6-3 opinion, Justice Amy Coney Barrett, in her first signed majority opinion, said the Court would not turn “millions of otherwise law-abiding citizens” into criminals if they violated their employer’s computer-use policies at work by using their computers to send personal e-mails, do online shopping, or plan a vacation.

At issue, the Court said, were so-called “inside hackers” who have legal access to a computer but exceed their authorized authority by using the information for unauthorized purposes. Adopting the government’s “breathtaking” interpretation of the phrase “exceeds authorized access,” the Court explained, would turn every violation of a computer-use policy into a criminal act.

The immediate beneficiary of the Court’s ruling was a former Georgia police sergeant, Nathan Van Buren. Van Buren was authorized to use the Georgia Crime Information Center database to check license plates as part of his job. He unwittingly found himself caught up in an FBI sting when he took a $5,000 payment from a man who claimed that he wanted to learn about a stripper he had just met. After using his official computer to perform the requested search, Van Buren was charged and convicted of violating the Computer Fraud and Abuse Act for exceeding his “authorized access.”

The Computer Fraud and Abuse Act was enacted in 1986, during the early stages of the internet. The statute imposes criminal or civil liability on any person who “intentionally accesses a computer without authorization” or “exceeds authorized access” and, in doing so, obtains information from a “protected computer.” The statute does not define the term “without authorization” but does define the term “exceeds authorized access” in a rather opaque way. Pleading a claim under the statute requires a plaintiff to allege that the defendant (i) intentionally accessed a computer, (ii) lacked authority to access the computer or exceeded authorized access to the computer, (iii) obtained data from the computer, and (iv) caused a loss of $5,000 or more during a one-year period. Continue reading ›

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In a unanimous ruling, the Supreme Court recently came down hard on the Federal Trade Commission by eliminating its ability to seek monetary relief in court under Section 13(b) of the Federal Trade Commission Act (FTC Act). The ruling comes as quite a blow to the FTC which has been recovering monetary penalties from defendants under Section 13(b) of the FTC Act for nearly half a century. The full impact of this ruling remains to be seen and may not become clear for several years.

Section 13(b) monetary relief is among the FTC’s primary tools for obtaining recovery in the cases it pursues, particularly in consumer protection matters. For instance, in fiscal year 2019 alone, the FTC filed 49 complaints in federal court and obtained 81 permanent injunctions and orders, resulting in more than $723 million in consumer redress or disgorgement. The ruling is also likely to affect antitrust enforcement in the pharmaceutical industry where the FTC has pursued disgorgement amounts as high as $1.2 billion. Going forward, the FTC will be limited to injunctive relief in the vast majority of matters unless it pursues other avenues of recovery available under different sections of the FTC Act.

The case, AMG Capital Management, LLC v. Federal Trade Commission, began when the FTC filed a lawsuit in federal court against payday lender AMG Capital Management, its owner, Scott Tucker, and several other entities under Section 5(a) of the FTC Act for allegedly misleading consumers with certain terms of payday loans. A payday loan is a high-interest, short-term loan, typically marketed to low-income consumers in need of quick cash. They generally come with exorbitantly high interest rates and short repayment schedules and have been called predatory by a number of consumer rights advocacy groups, such as the National Association of Consumer Advocates.

In its complaint, the FTC alleged that AMG Capital Management and other related entities engaged in numerous deceptive acts and practices in connection with how it collected loan payments from borrowers, often resulting in consumers paying hundreds or thousands of dollars more than the cost of the loan disclosed in the loan application documents.

The FTC could have initiated the case by using administrative proceedings available to it under Sections 5 and 19 of the FTC Act. Instead, though the FTC skipped these administrative proceedings and initiated the case directly in federal court seeking a permanent injunction and equitable monetary relief in the form of restitution and disgorgement under Section 13(b) of the FTC Act. The district court directed the defendants to pay $1.27 billion in restitution and disgorgement. On appeal from the judgment, the Ninth Circuit affirmed, citing circuit precedent interpreting the statutory text of Section 13(b) broadly to include the authority to award restitution and other forms of monetary relief as “necessary to accomplish complete justice.” Continue reading ›

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Not every renter loves his landlord. And many people express their feelings, for better or for worse, on social media. However, sometimes what is said on social media can land a person in hot water. Such was the case for one Iowa resident whose social media venting landed him in court as the defendant in a defamation lawsuit that wound its way all the way up to the Iowa Supreme Court. Luckily for the individual, the Iowa Supreme Court held that referring to a landlord as a “Slumlord” was not defamatory but constituted non-actionable opinion.

The plaintiff in the case was Richard Bauer, the manager of the Bauer Apartments located in the small town of Sloan, Iowa. The defendant was Bradley Brinkman, who lived across the street from the Bauer Apartments. The dispute that landed Brinkman in court started out having nothing to do with him at all.

A dog care facility, Pet Perfect, began construction next to the Bauer Apartments. Bauer was concerned that issues would arise from the dogs and their feces due to the outdoor area being constructed. Bauer tried to get the construction stopped. First, he contacted the Sloan City Council. He also contacted the owner of Pet Perfect about his concerns and offered to buy the parcel of land where the facility was being built. The owner refused to sell. Next, Bauer filed suit against the City of Sloan and the city council members claiming they failed to enforce a zoning ordinance in approving the construction of the facility.

During this ordeal, Pet Perfect posted on its own Facebook page about Bauer’s lawsuit and cameras he had installed on the exterior of the apartments. The daughter of Pet Perfect’s owner also posted about the ordeal on her own personal Facebook page. She included in her post a photo of a letter Bauer’s attorney sent to her mother. Several people commented on the post, including Brinkman, who it turned out was a friend of the owner of Pet Perfect. Brinkman’s Facebook comment stated:

It is because of shit like this that I need to run for mayor! [grinning emoji] Mr. Bauer…you sir are a PIECE OF SHIT!!! Let’s not sugar coat things here people. Kathy Lynch runs a respectable business in this town! You sir are nothing more than a Slum Lord! Period. I would love to have you walk across the street to the east of your ooh so precious property and discuss this with me!

Continue reading ›

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Illinois recently joined a growing list of states that have passed laws constraining the use of restrictive covenants by employers. The Illinois legislature passed Senate Bill 672 which imposes significant limitations on the use by Illinois employers of non-compete and non-solicitation agreements. The bill achieves this by amending the Illinois Freedom to Work Act to establish new requirements for agreements containing restrictive covenants and to codify standards for the use of non-solicitation agreements. Governor Pritzker is expected to sign the bill into law. Once signed by the governor the bill would take effect on January 1, 2022, though significantly the bill would not apply retroactively and would only apply to restrictive covenants entered into after this date.

Illinois’ Freedom to Work Act, originally passed in 2017, prohibited “covenants not to compete” for “low-wage employees,” defined as those earning the greater of minimum wage or up to $13.00 per hour. The Act only addressed covenants not to compete, leaving employers unsure as to whether the statutory limitations also applied to provisions prohibiting former employees from soliciting the employer’s employees or customers. The newly passed bill clears up that uncertainty by amending the Act to apply explicitly to non-solicitation agreements as well. The bill explicitly defines the term “covenant not to solicit” broadly as any agreement that “(1) restricts the employee from soliciting for employment the employer’s employees or (2) restricts the employee from soliciting, for the purpose of selling products or services of any kind to, or from interfering with the employer’s relationships with, the employer’s clients, prospective clients, vendors, prospective vendors, suppliers, prospective suppliers, or other business relationships.”

The bill additionally clarifies that “covenants not to compete” do not include confidentiality or nondisclosure agreements, trade secret protection agreements, invention assignment agreements or covenants, agreements by which the employee agrees not to reapply for employment to the same employer after termination of the employee or, importantly, agreements entered into in connection with purchase and sale transactions.

Significantly, the bill replaces the definition of “low-wage,” which referred only to hourly wages, with an annualized earnings requirement, joining states like Washington and Maine. The bill would prohibit employers from entering into non-compete agreements with employees who earn $75,000 per year or less. The bill incrementally increases the earning threshold every 5 years through 2037. The earning threshold increases to $80,000 per year beginning on January 1, 2027, $85,000 per year beginning on January 1, 2032, and $90,000 per year beginning on January 1, 2037. A covenant not to compete entered into in violation of the bill is void and unenforceable. Continue reading ›

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