Defamation Per Se in the Facebook Era

A recent decision out of the United States District Court for the Southern District of Florida takes a look at defamation per se in the era of Facebook and social media. The entire case revolves around a single Facebook post by an individual named Eugene Weiner: “Yurim and Isaac took advantage of a old 94plus sick man elder abuse [sic]” Apparently, Isaac Aflalo saw the post, took exception to it, and filed suit, styling his claim as one for defamation per se. Florida defines defamation – slander when spoken, libel when written – as (1) a false statement of fact, (2) published…

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Trademark Trash: Hard Rock’s Stupid Trademark Lawsuit Fails Miserably

In a turn of events that will shock nobody other than perhaps Hard Rock's lawyers, the iconic brand's trademark lawsuit against RockStar Hotels has failed miserably. As some folks might recall, when Hard Rock filed its trademark suit more than a year ago, I made the following statement: Exactly two people in the entire world think the case is a good idea: Some idiot in-house at Hard Rock and some big firm attorney who stands to generate $500,000 in fees before losing the case in spectacular fashion. Once again, my prediction has proven correct. Not because the Eye of Thundera gave…

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Franchise Non-Compete Agreements: Mostly Unenforceable as Written

Every month, I see a dozen different franchise non-compete agreements. The vast majority of them are absurd, over-broad and should be deemed unenforceable. Let’s jump right in. The Relevant Legal Framework & How We Got Here For the past several decades, courts in most jurisdictions have handed out injunctions like candy in franchise non-compete cases. Most judges incorrectly treat non-compete matters as pure breach of contract cases rather than antitrust cases. Their analysis is fixated on one fact: You signed the contract. From there, courts routinely give lip service to the applicable legitimate business interest test and preliminary injunction factors.…

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Tesla Sues Ex-Employee (Whistleblower?) for Theft of Trade Secrets

Tesla has sued a former employee in Nevada federal court alleging theft of trade secrets. That employee - in turn - claims that he's a whistleblower. Let’s take a look. Martin Tripp joined Tesla’s Nevada operation as a process technician in October 2017. And apparently, Tripp was a problem from the jump. He complained that the role wasn’t “sufficiently senior” for his level of experience and expertise. According to his managers, Tripp was disruptive and combative with his colleagues. On approximately May 17th, 2018, as a result of these personality issues, Tesla reassigned Tripp to a different role. But that…

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The $20 Million Asset Purchase Agreement Non-Compete Problem (AKA the Death Star Non-Compete)

Today’s topic: The APA Death Star Non-Compete Agreement. You sell your company to venture capitalists for $20 million. You get some money immediately, some money in deferred compensation and some (restricted) shares in the new company. And you already know what else: You get the most hyper-aggressive, insane, worldwide, 5-year non-compete restriction. In the 5 years post sale, you cannot engage in any business that competes with the Company’s current business, past business or contemplated business. Contemplated business! You know what’s wild? I’ve seen so many of these exact situations that all of this is old news to me. I’ve…

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Carlton Fields Facing $15 Million Malpractice Claim from Procaps Debacle

The long-running Procaps v. Patheon antitrust litigation is once again back in the news. This time, it's Procaps vs. its former lawyers at Carlton Fields. Procaps spent nearly five years litigating an incredibly weak antitrust case and doing a terrible job of it. In fact, both the 11th Circuit and the SDFL observed that the case wasn't even really an antitrust case. It was a breach of contract case that Carlton Fields dressed up as an antitrust case--- to avoid an arbitration provision and gain settlement leverage from the threat of treble damages. But as the litigation demonstrated, the Procaps'…

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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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