Articles & Updates

The Negligent Hiring Dilemma (Part II)

In a recent post, I discussed a legal claim known as “negligent hiring.” In a nutshell, an employer might face civil liability if (i) it knew, or upon a “reasonable inquiry,” would have learned, that a job candidate posed an …

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The Negligent Hiring Dilemma (Part I)

Let’s say you’ve hired a twice-convicted, newly freed ax murderer to manage your hardware store. (For purposes of this unrealistic hypo, let’s also assume that your state has frighteningly lenient sentencing standards.) One day, while feeling cranky, he intentionally strikes …

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One Man’s Catchy Ad Campaign is Another Man’s Consumer Protection Violation

“LAW & ORDER” / “DRAGNET”-STYLE DISCLAIMER: The following story, though loosely based on real events, is fictional. Not only have names been changed to protect the innocent, but facts have been changed to fit my literary purposes. Joe Brown and …

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Business About to be Sued? Don’t Destroy the “Harmful” Documents!

Not every lawsuit comes as a surprise. Sometimes the filing of a court complaint is preceded by direct formal or informal threats of litigation, and other times, the threat is apparent from circumstances. When faced with a reasonable possibility of …

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Restrictive Covenants in Employment: Preventing Key Employees from Unfairly Competing

Does your business have a right-hand man or woman? You know . . . the person who not only has great skills and experience, but also handles the company’s sensitive information and enjoys terrific relationships with your clients or customers? …

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“Uniform Standards” Provision Of Universal Franchisee Bill Of Rights Is Not So Franchisee-Friendly

As a franchisee-side lawyer, I’m painfully aware of the steep imbalance of power between franchisors and franchisees. Disclosure requirements aside, the federal government and most state governments take a fairly hands-off approach to franchising – which they tend to consider …

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Competition’s The American Way – But “Tortious Interference” Could Get You Sued

I’ve handled a number of commercial lawsuits in which one business has accused another – usually a competitor – of “tortious interference.” The basic concept underlying such a claim is that Victim Company had an actual or potential business relationship …

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Wage Payment And Collection Laws: Don’t Withhold Employee Paychecks!

You might find this hard to believe, but litigation attorneys don’t always play nicely together. I remember the time many years ago when a colleague, “Oscar” (not his real name) got into a spat with his boss, “Felix,” and quit …

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Terminated Franchise? Avoid Inadvertent Trademark Infringement

“LAW & ORDER”/ “DRAGNET”-STYLE DISCLAIMER: The following story, though loosely based on real events, is fictional. Not only have names been changed to protect the innocent, but facts have been changed to fit my literary purposes. “Betty” was a former …

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“Put It In Writing”: Why It’s Important For Business Owners To Document Their Communications And Agreements

A couple of decades ago, long before we had a “Do Not Call” registry, AT&T based an ad campaign on the public’s dislike of telemarketers. In a representative TV commercial, an outraged customer looked into the camera and complained that …

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Preventing “Hostile Environment” Harassment In The Workplace – And Avoiding Liability

My advice to employers is colored in part by my past experience representing employees. When representing an employee in litigation, I always looked for evidence of the employer’s sloppy management style. The more clueless the business owner, the better things …

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Be Wary Of An Oppressive Franchise Agreement – Even If You Trust The Franchisor

One of my jobs as a franchise lawyer is to review new franchise opportunities for prospective franchisees. Often, a client with no previous experience in franchising will be so excited about the venture that he wants me to essentially rubber-stamp …

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Protect Your Trade Secrets (Or Else The Courts Might Not)

A few years ago, while its corporate headquarters were being renovated, KFC temporarily moved Col. Sanders’ secret recipe of eleven herbs and spices from a vault in those offices to a secure, undisclosed location. A 2008 article from Elissa Elan …

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False Complaint Of Discrimination? Don’t Retaliate Against The Employee

It’s common knowledge that laws protect employees from – and punish employers for – various types of discrimination. For example, Title VII of the Civil Rights Act of 1964 prohibits discrimination (including harassment) based on characteristics such as race, sex, …

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Mandatory Arbitration – Advantage: Franchisor

Many franchise agreements contain “mandatory arbitration” clauses that require the parties to use private arbitration – as opposed to the court system – to resolve legal disputes between them.  If you’re a franchisee who has signed a contract containing that …

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Is The Protected Territory Really “Protected”?

Comedian Louis Black once claimed that he discovered the end of the universe when he saw a Starbucks across the street from another Starbucks.  I suppose we’re now in the post-apocalyptic world, as I’ve seen a number of shopping centers …

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The Moving Target: System Standards and the Franchisor’s “Sole Discretion” to Change Franchisee Obligations

by David G. Ross and Jeffrey S. Fabian – This article first appeared in August 2011 on http://www.franchisehelp.com. Let’s make a deal:  For the next 10 years, we’ll let you use our “Widgets-R-Us” name and trademark and allow you to sell …

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Go Fish in Your Own Pond: Encroachment Liability to Fellow Franchisees

by David G. Ross – This article first appeared in July 2011 on http://www.franchise-info.ca, the official website of the International Association of Franchisees and Dealers. It goes without saying that you should know, and honor, contractual obligations to your franchisor.  …

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A Fair Use of Nominative Fair Use? Toyota Motor Sales, U.S.A., Inc. v. Tabari

by Jeffrey S. Fabian and David G. Ross – Originally published in the Maryland State Bar Association’s Annual Intellectual Property Law Update, Vol. IV, June 2011 In Toyota Motor Sales, U.S.A., Inc. v. Tabari, 610 F.3d 1171, 1176 (9th Cir. …

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The Good & the Bad: What Congress’s “Fair Pay” and “Mandatory Arbitration” Bills Mean for Franchisees

by David G. Ross – Originally published in The Franchisee Voice, Vol. 13, Issue 4, Spring 2008. As small business owners and franchisees, you should be aware of two very different sets of bills now being considered by Congress. One, …

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