Lubin Austermuehle, P.C.

The lawyers at Lubin Austermuehle, P.C. handle all types of internal disputes that may take shape during the course of a company’s formation, management, or dissolution. When it comes to managing a family business, for example, complications may arise that are perhaps unforeseeable. For instance, when spouses who co-own a company decide to divorce, the entity’s value as well as who retains ownership and managing responsibilities must be determined either through negotiations leading to an agreement or by a judge in court.

Lubin Austermuehle, P.C. Blogs

Latest from Lubin Austermuehle, P.C.

Abuse of trust is considered a breach of the fiduciary duties owed by the trustee of a will or estate. When an individual decides how to distribute his or her estate among one or more beneficiaries, he or she will typically name a trustee who will be responsible for carrying out those wishes. A trustee may be a person or an organization and, in fact, can be anyone specified by the deceased, from a family member or friend to a lawyer to a financial investment company.
Depending on the size of the estate and the complexity of the deceased’s instructions,
Continue Reading Abuse of Trust: Breach of Fiduciary Duty by a Trustee

After passing one of the strictest non-compete laws in the nation, the District of Columbia Council has responded to criticisms about the bill by passing the Non-Compete Clarification Amendment Act of 2022 which significantly scales back key aspects of the non-compete ban law enacted back in 2021 but which has not yet gone into effect after the Council has delayed its enactment several times in response to feedback from employer groups.

The non-compete ban, passed by the Council in 2020 and enacted in 2021, sought to impose a near-universal ban on simultaneous and post-termination employment restrictions for employees working in
Continue Reading D.C. Council Passes Amendment to Scale Back Ban on Non-Compete Agreements

We have previously written about President Biden’s Executive Order in which he encouraged the Federal Trade Commission (FTC) to crack down on the “unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” Since the issuance of that Executive Order the FTC has ramped up its efforts to curtail the use of such restrictive covenants using existing antitrust and unfair competition laws. Additionally, the FTC held a two-day workshop in December 2021, called “Making Competition Work: Promoting Competition in Labor Markets,” at which industry leaders and professionals held panel discussions on antitrust and labor
Continue Reading FTC Action Limits Scope of Non-Compete Agreement in Sale of Business

In today’s society, license agreements are everywhere. With the advent of Software as a Service (SaaS) and web-based services, click-wrap or clickthrough agreements—agreements where the licensee agrees to the terms of the license agreement by clicking a button or ticking a box—are commonplace. The software and online services industries depend on such agreements. Recently however, a federal district court judge out of the Northern District of California issued a potentially industry-shaking ruling invalidating amendments to such click-wrap agreements unless a user is required to manifest assent to such amendments through something more than mere continued use of the service.
The
Continue Reading Federal Court Ruling Finds Amendments to Click-Wrap and Terms of Service Unenforceable

As non-compete agreement attorneys, we often write on the topic of restrictive covenants and developments in the area of law across the country. Frequently, we review judicial opinions that involve courts analyzing the specific terms of non-compete agreements in order to determine whether to uphold or invalidate such agreements. In this post, we will examine a recent decision in which a former employer succeeded in obtaining a temporary restraining order (TRO) enjoining several former employees from working for a competitor. The twist in this case is that none of the former employees are accused of violating a non-compete agreement by
Continue Reading Texas Court Enjoins Employees from Working for Competitor Despite Lack of Non-Compete Agreement

The United States Court of Appeals for the Seventh Circuit recently decided a case concerning the enforceability of an arbitration clause in a trade secret dispute. In its decision, the Court affirmed the district court’s ruling that denied a defendant’s motion to enforce an arbitration clause in a software license agreement entered into under false pretenses by one of the defendant’s employees using the name of a fake company at the request of the defendant.
The two companies involved in the lawsuit, CCC Intelligent Solutions and Tractable, are competitors that provide estimates for the cost of repairing damaged cars and
Continue Reading Seventh Circuit Denies Request to Compel Arbitration in Trade Secret Misappropriation Dispute

The Federal Trade Commission is taking action against motorcycle manufacturer Harley-Davidson and Westinghouse outdoor generator maker MWE Investments for illegally restricting customers’ right to repair their purchased products. The FTC has charged that the companies’ warranties included terms that conveyed that the warranties would be void if customers used independent dealers for parts or repairs. The FTC has ordered that Harley-Davidson and MWE Investments to take several corrective actions including removing illegal terms and recognizing the right to repair in their warranties, making corrective notices to their respective customers, and instituting new policies to ensure that dealers compete fairly with
Continue Reading Right-to-Repair Violations Lead to FTC Action against Harley-Davison and Westinghouse Generator Maker

As we have written about previously, shareholders in a corporation have two different types of claims they can assert, direct claims and derivative claims. Direct claims are filed by the shareholder for the benefit of the shareholder. Derivative claims are filed by a shareholder but for the benefit of the corporation itself. An Illinois appellate court recently considered the issue of whether a successful shareholder in a derivative action can obtain an award of attorney fees directly from the defendants personally, as opposed to from the common fund created by the judgment.

The parties were investors in a business
Continue Reading Illinois Court Rules that Attorney Fee Award in Shareholder Derivative Suit Can Be Assessed against Defendants Personally

An Illinois Appellate Court recently affirmed a ruling dismissing the defamation claims filed by a manager of a homeowners association stemming from comments made about him during a meeting of the HOA. The Court ruled that the manager could not maintain his claims because the allegedly defamatory comments were protected from liability by qualified privilege.
The plaintiff in the case, Philip Kiss, managed the HOA from 2010 to 2016 and also served as its attorney during this time. The board relieved Kiss of his duties in 2016. In November 2017, one of the board members, Ellen Sheldon, stated during a
Continue Reading Court Rules that HOA Manager’s Defamation Claims Barred by Qualified Privilege

In a recent decision, the Seventh Circuit federal court of appeals reaffirmed the limited role courts have in reviewing arbitration awards. The decision also provides a lesson to litigants about the need for a clearly written and well-reasoned arbitration decision.

The case stems from a fallout between a technology company and an inventor turned equity owner in the company. The defendant Roe invented a nozzle that transforms gases into liquids. Nano Gas expressed interest in acquiring and commercializing the technology. The parties embarked on negotiations resulting in Roe assigning the nozzle to Nano Gas in exchange for a 20% ownership
Continue Reading Seventh Circuit Short Circuits Attempt to Avoid Enforcement of Arbitration Award

Earlier this month, the New Jersey Assembly’s Labor Committee passed bill A3715, designed to sharply limit the availability, use, and enforceability of restrictive covenants such as non-compete agreements by New Jersey employers. The stated purpose of the bill is to preclude the use of certain post-employment restraints of covenants with certain groups of employees including low-wage workers, students, employees under 18 years old, and seasonal and temp workers. The bill would also preclude the use of restrictive covenants with independent contractors. This new bill is similar in many ways to bills that have been proposed in various state legislatures recently
Continue Reading New Jersey Considering Major Changes to Non-Compete Law

A Delaware Chancery Court judge recently rendered a post-trial verdict in the In re Tesla Motors Stockholder Litigation in which he found in favor of co-founder and CEO of Tesla Motors, Elon Musk, on claims that Musk breached his fiduciary duties, was unjustly enriched, and created corporate waste in connection with Tesla’s 2016 acquisition of the SolarCity Corporation.
This high-profile, high-stakes lawsuit stemmed from alleged conflicts of interest created by Musk’s leadership and ownership of both companies during the 2016 acquisition. At the time of the merger, Musk was SolarCity’s largest stockholder and chaired its board of directors. At the
Continue Reading Delaware Judge Finds for Elon Musk on Breach of Fiduciary Duty Claims

The Colorado legislature recently passed a bill, now awaiting the governor’s signature, which will substantially limit the ability to enforce non-compete agreements against any workers other than those who are deemed “highly compensated.” In addition, the new law will impose new, stringent notice requirements and penalties if employers fail to comply with the new statutory requirements. If the governor signs the bill, which he is expected to do, the law will go into effect this August, giving employers only a few months to put into place processes to ensure compliance with the law’s new requirements. This bill comes on the
Continue Reading Colorado Legislature Passes New Restrictions on Use of Non-Compete Agreements

For nearly six weeks, many have followed the defamation trial between Johnny Depp and his former wife Amber Heard. The trial has provided potent insight into the destructive effects of drugs, alcohol, and stardom. It has also highlighted the perhaps more relatable lesson that ending a marriage can be a messy process. Emotions run high, tempers flare, and deep wounds can lead former spouses to lash out. Sometimes these outbursts result in saying things that are hurtful or even defamatory. Such is the basis of the case of Depp and Heard.

The dispute between Depp and Heard stems from a
Continue Reading What the Depp v. Heard Trial Has Taught Us about Defamation Law

A California state appellate court recently issued an opinion reviving a class-action lawsuit concerning alleged violations of requirements employers must follow when performing employment-related background checks. In its opinion, the Court reversed summary judgment entered in favor of book retailer Barnes & Noble in a class-action lawsuit accusing the retailer of failing to strictly comply with the requirements for obtaining authorization for background checks found in the Fair Credit Reporting Act (FCRA). The Court’s decision breathes new life into the putative class action which was remanded to the trial court for further proceedings.

The FCRA is a federal statute that
Continue Reading California Court Rules that Jury Must Decide Issue of Willfulness in Fair Credit Reporting Act Class Action

The Texas Supreme Court dealt a fatal blow to Brazilian state-run petroleum company Petrobras’s breach of fiduciary duty claims against former joint venture partner Belgian Transcor Astra Group S.A. The Texas high court ruled that an $820 million settlement agreement between the two oil and gas companies precluded Petrobras from asserting breach of fiduciary duty claims accusing Astra of bribing certain high-ranking Petrobras employees.
In 2006, Petrobras and Astra formed an ill-fated joint venture of Pasadena Refining System Inc. The joint venture between the two multi-national oil companies soon began to unravel. After the parties found themselves embroiled in several
Continue Reading Texas High Court Rules that Breach of Fiduciary Duty Claims Barred by $820 Million Settlement