Defamation & Employee Termination: A $27 Million Minefield

There's a reason why corporate HR is tight-lipped about former employees. Calling to check a potential new hire's reference? Good luck getting more than dates of employment. The reason: Defamation. There are a growing number of defamation claims tied to employee departures and particularly to employee terminations. And the damages can be huge. Take a recent case from Illinois: Allstate Insurance fired four employees and accused them of violating the Company's conflict of interest policy. Allstate repeated that allegation in a memo the Company sent to more than 350 of their former co-workers and in an SEC filing. The memo contained…

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Fake Online Reviews & False Advertising Law

We are about to witness an explosion of Lanham Act litigation over fake online reviews. Estimates vary, but at least 50% of American consumers consider online reviews before making a purchase. A couple days ago, I had dinner at Boulud Sud in Miami. Before making reservations, I checked out the reviews online. The reviews were great. I was sold. Positive reviews drive new business. Negative reviews can be a disaster. Companies are now acutely aware of their online reputations and how that reputation measures up against the competition. In an effort to improve their competitive positions, many companies turn to the…

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Florida Non-Compete Litigation & the Meaning of Confidential Information

Some background to get oriented: Non-compete agreements are restraints of trade. Non-compete cases fundamentally are not contract cases. Instead, they are restraint of trade cases. There are two lenses: The first lens is the restraint of trade lens. The second lens is the contract lens. They operate in that order. No exceptions. As such, the proper analysis of a non-compete agreement works as follows:  Is the agreement an unreasonable - and therefore illegal - restraint of trade? The answer to that question hinges on the following: Is the restraint necessary to protect a legitimate business interest. Legitimate business interests generally…

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Reminder: Competitors Have Standing Under FDUTPA

Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA") is a powerful weapon against unfair business practices. The statute broadly prohibits any "Unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce."  Consider that for a moment. Many legal claims and causes of action require the plaintiff to meet a far more specific standard and make a far more particularized showing. But not FDUTPA. If a plaintiff can make a colorable claim that the defendant has engaged in unfair or deceptive conduct, that's generally enough to get past the…

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How to Win at Arbitration: First, Demand Great Arbitrators

I'm a fan of arbitrating complex commercial disputes.  Arbitration beats the risk of state court any day.  And probably federal court, too.  I'm a huge fan of certain federal judges. But even in federal court, the process is just too much nonsense.  Arbitration is better.  It's more efficient.  There's less bullshit.  And you get to pick the judges.  That's what this post is about. Perhaps the standard of practice in Florida is just appallingly low.  Perhaps Florida has too many lawyers and, therefore, way too many bad ones.  But for some reason, I see all of these veteran Florida lawyers…

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Law Firms Are Wasting Your Money on Useless Discovery

Discovery is the most poorly understood, widely abused and terribly governed aspect of commercial litigation.  One could write a treatise on all the problems with the modern day discovery process.   Instead, I'll take it one at a time.  Today's topic:  Lawyers wasting tons of client money on overly-broad, useless discovery.   I already anticipate that some big firm will file this exact blog post as an exhibit to a court filing and complain about how I'm a big meanie to big law firms.   So let the fun begin! Defining the Problem:  World War III Discovery Tactics The problem:…

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Pollard PLLC Essay Contest – $2,500 Cash Prize

This contest is open to all students in grades 9 through 12 anywhere in the country. I originally tried to do this solely for students in Broward County, Florida but the school system would not cooperate with me and help me get a flyer posted in the schools.  True story.  So it's now open to all high school students everywhere in the United States.  And the stakes are higher. The topic: Colin Kaepernick's Protest: Helpful, Hollow or Something in Between. Your assignment: Explain your perspective on the utility or lack thereof of Colin Kaepernick's protests during the National Anthem. This…

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Reminder: The Lanham Act is a Powerful Weapon Against False Advertising

Stop what you're doing and go read the Lanham Act!  I'm kidding, but only slightly.  Let's get right to it:  Lots of folks have no idea what the Lanham Act does.  If they know it at all, they say, "Oh, it covers trademark infringement."  But that's not even half of the story.  The Lanham Act is an incredibly powerful weapon.  It goes way beyond protecting trademarks.  It also protects against false advertising.  Let's focus on that: The false advertising provisions of the Lanham Act prohibit two types of false advertising:  (1) advertising that is literally false and (2) advertising that…

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10 Pieces of Advice for Young Lawyers from Jonathan Pollard

Ten piece of advice for young lawyers, in no particular order: Don't Send Emails When You're Angry:  It happens to the best of us.  You're in the middle of intense litigation.  You've been working on the case for a year.  The case itself is ugly and contentious.  Say theft of trade secrets.  Both sides are locked into their positions.  To make matters worse, opposing counsel is a complete jerk.  You know the type:  He signs his emails with the phrase "govern yourself accordingly", which I believe is supposed to be vaguely intimidating.   He talks down to you.  He is…

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In-N-Out Burger Sues In-N-Out Cleaners for Trademark Infringement

Just days ago, the famous California burger chain In-N-Out Burger filed a lawsuit against a Witchita, Kansas dry cleaner called In-N-Out Cleaners alleging trademark infringement.  A picture is worth a thousand words: Dozens of commentators on LinkedIn and elsewhere have deemed this a slam dunk case of trademark infringement.  But I say not so fast.  In it's complaint, In-N-Out Burger says it received emails and messages from the consuming public saying that - from afar - the Defendant's logo looked an awful lot like the Plaintiff's logo.  Indeed, some folks alerted In-N-Out Burger to the fact that the Kansas-based dry…

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