Inc. Magazine

The GOP Wants to Pass Greater Liability Protections. Do Businesses Need Them?

“They have to show that the exposure caused the plaintiff to contract the coronavirus,” and that the business did nothing to prevent consumers from getting sick, says Robert Tauler, managing partner at Tauler Smith, a Los Angeles law firm that focuses on commercial litigation. “That is a very, very difficult standard to meet,” he says, adding: “It would basically cut any lawsuit off at the knees.”

Read the full article on Inc.


Paper Magazine’s Instagram account disappeared on July 8 and a new lawsuit explains why

If anyone is wondering why Paper Magazine’s Instagram account disappeared, a new lawsuit helps to explain why.

In a lawsuit filed on Wednesday in California federal court, the magazine’s parent company ENTtech Media Group claims it has fallen victim to an alleged scheme by a group of photo companies allegedly weaponizing copyright claims to extract a settlement for roughly $1 million.

Click here to read full article on WWD.


Paper Magazine Broke the Internet, but What Happened to Its Instagram Account?

If anyone is wondering why Paper Magazine’s Instagram account disappeared, a new lawsuit helps to explain why.

In a lawsuit filed on Wednesday in California federal court, the magazine’s parent company ENTtech Media Group claims it has fallen victim to an alleged scheme by a group of photo companies allegedly weaponizing copyright claims to extract a settlement for roughly $1 million.

Two of these companies — Okularity Inc. and BackGrid USA Inc. — did not respond to requests for comment. Splash News and Picture Agency LLC declined to comment, while contact information for Xposure Photo Agency Inc. could not be located.

Click here to read the full article on Yahoo! Life.

Can You Get Sued for Posting a Picture of Yourself on Instagram?

In the last three months, celebrities Amy Schumer, Gigi Hadid and Kim Kardashian have all been sued for posting photos of themselves to their Instagram accounts. In each case, the photographer behind the photos in question has alleged that they are the owner and copyright holder of the media, and that the subjects of the photos have no right to post them. Richard Liebowitz, attorney for Plaintiffs in all cases, has filed Complaints stating that “One can not use photographs without the photographer’s permission, even for social media websites.”

In the lawsuit against Schumer, Liebowitz notes that the photographs in question were copyrighted, though he does not note that date of the copyright. A search of the United States Copyright Office records shows that the photographs were copyrighted on February 8, 2020, three months after Schumer allegedly infringed on the copyright by posting the photos.

Paparazzi are filing Copyright lawsuits against celebrities who post photos of themselves on Instagram.

The complaint against Schumer further states that Plaintiff is “the sole owner of all right, title, and interest” in the photographs. However, if the photo was previously shared on a social media platform by the Copyright owner, this may not be the case. For example, Instagram’s terms of agreement read as follows: “[W]hen you share, post, or upload content that is covered by intellectual property rights (like photos or videos) on or in connection with our Service, you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivate works of your

As such, any Plaintiff who has posted the media at issue on Instagram is only a non-exclusive licensee of the work. Courts have been receptive to this Instagram copyright case defense, however, the issue has not been litigated since most Copyright defendants opt to settle promptly. In the meantime, cases against celebrities who post photos of themselves on Instagram continue to be filed.

Tauler Smith LLP sues Chase Bank & SBA for PPP Loan Fraud

Lawsuit Seeks Order that Chase Bank be Enjoined from Participating in PPP loan Program and give $700 million dollars back to the Treasury.

According to the lawsuit, by the time Chase Bank’s online portal opened to small businesses, Chase Bank had already personally solicited and submitted all of the loans for its rich clients, who could ask for bigger loans that would be more profitable to Chase Bank. The average PPP loan Chase Bank funded was over $500,000. According to the lawsuit, Chase made over $700 million in less than two weeks, with no risk and no need to verify the statements of their rich clients.

A copy of the lawsuit can be found here:

Payment Protection Program (PPP) Lawsuit

Tauler Smith LLP is representing small businesses that did not obtain funding through the Payment Protection Program (PPP).  The PPP was intended to benefit small businesses impacted by COVID-19, and provided for loans to small businesses on favorable terms, and was administered by the government and banking institutions under the CARES Act.  On April 16, 2020, the government announced that the program ran out of funding.

If you are a small business owner that applied for PPP funding through a lender, and have been denied funding, you may have standing to file a lawsuit to obtain the funding that was promised. 

If you are interested in potentially being a plaintiff, fill out the questionnaire below and a member of our team will contact you.  The information you provide below is confidential and will not be shared with anyone outside Tauler Smith LLP without your prior consent.

Wedding Cancelled by Coronavirus? Here are Your Legal Options

As wedding season approaches, couples across the nation are faced with the grim reality that their weddings have been involuntarily canceled due to the global Coronavirus (COVID-19) pandemic. Consequently, we are likely to see an onslaught of lawsuits against wedding venues and vendors in the year to come. Particularly, breach of contract claims by bride-to-be’s against wedding venues and vendors for refusal to refund advanced payments for a wedding that never occurs. Fortunately, there is some hope for couples who have written contracts in place: wedding contracts may contain force majeure provisions, you may be able to rescind your wedding contract if it is impossible to execute, and your wedding contract may be unenforceable contracts because they are against public policy.

We have previously written on force majeure provisions during Coronavirus. However, wedding contracts create special circumstances allowing would be newlyweds. The U.S. has declared a national emergency, and certain states, such as California, have issued executive orders implementing “shelter in place” of all residents, ordering closure of all nonessential businesses, and prohibiting gatherings of over ten people, arguably creating a public policy that weddings cannot go forward during the crisis.

Generally, a legal claim fails if it is based on an agreement that violates law and is contrary to public policy. See Kashani v. Tsann Kuen China Enter. Co., 118 Cal. App. 4th 531, 559, 13 Cal. Rptr. 3d 174 (2004)( “[t]he law has a long history of recognizing the general rule that certain contracts, though properly entered into in all other respects, will not be enforced, or at least will not be enforced fully, if found to be contrary to public policy.”) Given the public prohibition in California regarding gatherings of ten or more people, any persons attending, hosting, or working a wedding would be acting contrary to public policy that would threaten public health.

For example, if a bride-to-be hires a wedding photographer, and the photographer fails to perform photography services at the wedding (because the wedding is cancelled from Coronavirus), then the bride-to-be would arguably not obligated to pay the photographer. The challenge with wedding vendor contracts is the prevailing industry standard, whereby all services are typically prepaid in full. Given the unprecedented circumstances provided by the COVID-19 epidemic, however, the photographer should refund the full payment for the services they never performed.

If you need a lawyer for wedding contracts, Tauler Smith LLP can advise you regarding your rights and obligations and help you navigate this process. Contact us to see if we can help.

Attorney’s Fees Ordered Against Richard Liebowitz for Refiling and Dismissing Case

A federal court has awarded attorney’s fees against serial copyright litigant Richard Liebowitz for his practice of refilling and dismissing copyright claims without prejudice. Liebowitz has been called a “copyright troll” by federal judges based on the volume of lawsuits he has filed.

In Glen Craig v. Popmatters Media, Inc. (Case No. 19C5596) (N.D. Ill.), after the Defendant raised objections to personal jurisdiction and venue in the Southern District of Illinois, Liebowitz voluntarily dismissed this action and refiled in the Northern District of Illinois.  Defendants then filed a motion for attorneys’ fees in the first action.

The following day, Liebowitz filed a notice of voluntary dismissal in the second action.  Defendants again moved for attorneys’ fees, and Liebowitz opposed, arguing that no attorneys fees should be awarded because the dismissal was “without prejudice.”  In an order dated March 23, 2020, the Court granted Defendants motion for attorney’s fees against Liebowitz and his client. 

The Court acknowledged that the dismissal stated that the case was being dismissed “without prejudice,” but that simply stating as much “does not make it so.”  The Court reasoned that “[t]he privilege of dismissing a federal suit without prejudice to refiling may be used only once” and Liebowitz “used that privilege when he dismissed the Southern District case, so his dismissal of this case operated as a with-prejudice dismissal, an adjudication on the merits.” 

The Popmatters order marks another set back for Liebowitz, who now faces the increased specter of attorneys fee awards to Defendants.  Tauler Smith has a history of winning Liebowitz’ Copyright claims, and has argued to the Southern District of New York that an award of attorney’s fees in cases brought by Liebowitz “would serve the dual objectives of validating Defendant’s enforcement of its rights and deterring [Liebowitz] so far unrepentant abuse of judicial resources to meet purely mercenary interests which the Copyright Act was in no way created to protect.” 

If you have been sued by Richard Liebowitz contact our law firm. Tauler Smith’s copyright attorneys may be able to help you defend your claims.

Beware of Fake Cures to the Coronavirus

Companies peddling herbal remedies and other products that protect against Coronavirus are violating the law.

Growing fears about the Coronavirus pandemic have led to a dramatic rise in the sale of fraudulent nutritional supplements that claim to cure or prevent the disease. This phenomenon is not new.  The FDA itself has acknowledged that “during emergency situations or outbreaks, fraudulent products claiming to prevent, treat or cure conditions associated with the emergency or outbreak almost always appear for sale.”

Thus, on March 6, 2020 the FDA issued warning letters to several companies selling fake treatments for the coronavirus. The most infamous recipient of the warning letters, televangelist Jim Bakker, marketed a product that would “kill” coronavirus.  Bakker’s promotional videos claimed that the product, called “Silver Solution,” had been “tested on other strains of the coronavirus, and has been able to eliminate it within 12 hours, totally eliminate it, kills it, deactivates it.”  Although these statements were arguably framed to evade false advertising lawsuits from consumers of coronavirus remedies, the statements are still considered unlawful.

Fraudulent claims about Coronavirus remedies are not limited to televangelists.  Sellers of herbal products have peddled homeopathic cures to the novel Coronavirus that have no basis in reality.  These include Amy Weidner of Herbal Amy, Inc., who claimed without any scientific support that “a number of herbs are strongly antiviral for corona viruses” in order to sell a formulation of various herbs on her website that she claimed were “preventative” of the disease.  Other websites have gone farther, selling four different herbal remedies to treat Coronavirus and dangerously stating that if their customers “are infected [with Coronavirus], take all 4 products and use the infection dosage.”

The dangers of marketing herbal products to treat a novel and deadly disease cannot be understated. At worst, consumers without access to medical care may forego medical treatment based on false claims. At minimum, consumers will shell out hard earned money for fake products that will do nothing to keep them safe.

As the pandemic spreads, so too will the opportunities for fraud. In the short time that Coronavirus has impacted daily life, a variety of fake remedies have evolved in products ranging from colloidal silver, ionic silver, herbal teas, and even essential oils like eucalyptus, all claiming they can cure or treat Coronavirus.

If you have purchased any products that claim to cure or prevent Coronavirus and believe you have been misled, contact us. Our false advertising attorneys can help investigate claims against unethical and immoral companies capitalizing on the Coronavirus crisis for their own financial benefit at the expense of the public.

Coronavirus and Broken Contracts

Coronavirus (COVID-19) has left a trail of thousands of broken contracts in its wake in a wide range of industries. From event cancellations, to broken supply chains, Coronavirus has already caused millions of dollars in commercial losses and business interruption. Continued travel restrictions, event cancellations, school and business closures, quarantines, supply-chain disruptions, cash flow problems, and worker shortages is expected to increase over the coming months. This in turn has left businesses wondering—who is liable for the disruption?

One provision often contained in comprehensive contracts is that of “force majeure.” Typically, force majeure provisions are included in contracts to excuse a breach if some unforeseen  circumstances preventing a party’s performance of the contract (ie, an act of God, such as hurricanes, war, earthquakes, etc.). The doctrine is also commonly referenced as “impossibility of performance.”

Photo Credit: CDC/Alissa Eckert, MS, Dan Higgins, MAM

The concept of force majeure (French for “superior force”) originated in the Napoleonic Code of 1804. The breaching party to an agreement was condemned unless their non-performance or delay in performance resulted from a cause that could not be imputed to them, and by a cause of a superior force or of a fortuitous occurrence.

For most businesses, Coronavirus is an unforeseen circumstance out of their control, however, the application of force majeure to any particular contract must be done applying the law of the relevant jurisdiction.

California law recognizes that parties may not be held liable when unforeseen circumstances prevent them from fulfilling their contractual obligations, whether or not the contract has a force majeure clause. The leading Supreme Court case in California defines force majeure as an “insuperable interference” occurring without the party’s intervention that “could not have been prevented by the exercise of prudence, diligence and care.” Insuperable in this context means “impossible to overcome.” Although the case dates back to World War II, it has been cited as recently as 2015 as proper guidance for the interpretation of contracts.

For its part, the State of California defines force majeure in its standard Judicial Council contracts a “a delay which impacts the timely performance of work which neither Contractor nor the State are liable because such delay or failure to perform was unforeseeable and beyond the control of the party.” The standard contract goes on to specifically list “quarantine or epidemic” as such a circumstance. Thus, quarantines resulting from the Coronavirus epidemic would render this provision operable.

Many contracts, however, do not contain specific language in force majeure provisions. Thus, each contract must be carefully analyzed with the law of the jurisdiction in order for businesses to understand their options.

Force majeure is one of many tools that business owners and individuals can use to mitigate the fall out from the current crisis. The bottom line is that businesses have options to escape ruinous consequences caused by circumstances  beyond their control. Companies should seek legal counsel to navigate the ongoing effects of Coronavirus.