litigation

James Vargo and Jerry Kaltenbach announce new law practice.

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KV Law Full Size jpgWith nearly 30 years of combined experience practicing in large and in mid-size law firms, and after embarking on successful careers as sole practitioners, Jerry Kaltenbach and James Vargo have teamed up to bring you Kaltenbach Vargo, LLC.

Kaltenbach Vargo, LLC, was founded on the principal of delivering top quality legal services in a more economic manner.  We do this through our efficiency and our ability to utilize technology in almost all aspects of our practice.

While our primary focus will continue to be business litigation, we can assist you or your business in many other areas, including business formation, employee and vendor agreements, and various other contractual matters.

We also leverage our extensive experience in fee disputes, consumer complaints, commercial and residential real estate matters, and ethical matters before the Ohio Division of Real Estate and Professional Licensing, as well as local Boards of Realtors and associations, to assist agents and brokers seeking representation on any of these matters.

In addition, we are strong advocates for consumers, protecting their rights through the Ohio Consumer Sales Practices Act and various federal laws, and by representing those who were injured by a defective product or who suffered a significant personal injury due to the negligence of another.

If we can assist you or your business in any of these matters, please feel free to contact us for a free consultation.

First Amendment, Middle Finger. It’s all protected speech.

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This Amendment is Number One! See...?

An Oregon man flips off some cops.  They stop him.  Then, he does it again.  They stop him again.  The man then sues claiming the cops harassed him by stopping him while engaged in free speech.  The case settles without a trial paying the man $4,000.00.  Protected speech?  Certainly.  Ridiculous plaintiff?  Most probably.

I agree that making a certain infamous hand gesture is free speech.  Shoot, any hand gesture is probably protected as free speech by the First Amendment to the Constitution.  But for Robert Ekas, I do not think the constitutional question is at issue so much as the personal conduct/gentlemanly behavior issue.  Why flip off a bunch of Sheriff’s deputies?  What’s the point?  My guess is that it was just a way to get national attention including an appearance on The Colbert Report.

Personally, I think Mr. Ekas’ victory (if you can call it that) should be widely celebrated by giving Mr. Ekas the very free speech he holds so dear.  So when you see Robert Ekas, make sure to extend your favorite hand, extend that hand’s middle finger, and let us all celebrate what our Founding Fathers must have truly intended with the First Amendment.  Let us direct that speech squarely at the man that fought so hard to protect it by taking a $4,000.00 settlement and running rather than trying to establish legal precedent that the “cop flip-off” is protected free speech.  That’s definitely the forthright man’s way through the case.  (Readers, I hope you’re picking up the sarcasm, because I’m laying it on pretty thick here). Continue reading →

Class Action against Apple and AT&T to proceed

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I have an iPhone.  I love it.  I have AT&T service on my iPhone because I have to.  I don’t love it.

I honestly don’t know if I would love the iPhone more on Verizon, T-Mobile, Sprint, or any other carrier.  A device so powerful, so popular, and so demanding of bandwidth has the capacity to cripple any carrier.  That’s why I hope all the carriers will have the iPhone someday.  I may not even switch from, AT&T.  At least, not right away.  I will wait to see how network traffic across carriers is affected.  Fewer iPhones on multiple networks will should reduce traffic and dropped calls. Also, competition amongst the communication giants should reduce the “sticker shock” when I get the monthly bill.

These topics and more, including anti-trust and claims of secret deals between Apple and AT&T, are the subject of many lawsuits filed since 2007 and now consolidated in the Northern District of California.  The AP reported this morning:

SAN JOSE, Calif. – A federal judge says a monopoly abuse lawsuit against Apple Inc. and AT&T Inc.’s mobile phone unit can move forward as a class action.

The lawsuit consolidates several filed by iPhone buyers starting in late 2007, a few months after the first generation of Apple’s smart phone went on sale.

An amended complaint filed in June 2008 takes issue with Apple’s practice of “locking” iPhones so they can only be used on AT&T’s network, and its absolute control over what applications iPhone owners can and cannot install on the gadgets.

The lawsuit also says Apple secretly made AT&T its exclusive iPhone partner in the U.S. for five years. Consumers agreed to two-year contracts with the Dallas-based wireless carrier when they purchased their phones, but were in effect locked into a five-year relationship with AT&T, the lawsuit argued.

The actions hurt competition and drove up prices for consumers, the lawsuit claims.

Apple and AT&T have not commented on the terms of their deal. In its response to the complaint, Cupertino,California-based Apple said it did not hurt competition.

In court documents filed July 8, Judge James Ware of the U.S. District Court for the Northern District of California said parts of the lawsuit that deal with violations to antitrust law can continue as a class action. The class includes anyone who bought an iPhone with a two-year AT&T agreement since the device first went on sale in June 2007.

Apple has sold more than 50 million iPhones in the last three years. The company does not specify how many have gone to U.S. customers.

Ware dismissed other claims against Apple, among them allegations that the company broke laws when an update to the iPhone’s operating software caused some phones to stop working and deleted programs that users had purchased.

The lawsuit seeks an injunction to keep Apple from selling locked iPhones in the U.S. and from determining what iPhone programs people can install. It also seeks damages to cover legal fees and other costs.

We will continue to follow this story on the blog.  Would you like links to filed court documents from this case?  Let us know in the comments and we will provide.

5 Things and More to Know Before you Trademark

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Do you have that great once-in-a-lifetime idea? Have you created a great logo or a new word to represent the brand behind your idea? If so, you may consider obtaining a trademark at your state level or at the federal level. The process is not easy and an article by freelance writer Shira Levine I saw today offers some advice:

It seems like almost anything can be trademarked these days. The name of a product, a catch phrase, and your own name, if it’s beguiling, for that matter. All is for sale and fair game for the bidding.

Businesses have been known do whatever it takes to protect their brand, including shut down another trademark that threatens to be the slightest bit akin to their own.

Historically individuals and companies fight to trademark even the silliest of names. The trademark for the almighty iPad, a name that most definitely does not conjure up images of the latest slick gadget from Apple, initially had issues with Fujitsu. Back in 2003, Fujitsu beat Steve Jobs to the iPad trademark, purchasing the name for use as a mobile phone.

This wasn’t the company’s first trademark dispute, either; the name Apple itself caused a multi-year battle with The Beatles’ record company.

Another extreme example is HBO’s Sex and the City franchise, which has had its fair share of trademark issues. In one situation, a clever New York entrepreneur tried to start a health and fitness business called “Health and the City”, but HBO told the owner to back off their trademark. “Health and the City”, however, won that war.

1. Make sure your trademark isn’t already taken. Use LegalZoom or the US Patent and Trademark Office website to verify if anyone has it. Continue reading →

You Must Buy My House, But Don’t Have to Paint My Fence: Specific Performance

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Contracts, contracts, contracts.  We all have a basic understanding of what a contract is: it’s an agreement to do something in exchange for something else.  The fundamental elements of a contract are:

Hey, Huck, how about you paint this fence?

Offer: I’ll pay you $50.00 to paint my fence.

Acceptance: Ok, it’s a deal.

Consideration: $50.00 paid to the painter.

Performance: The fence gets painted.

Now what happens if you pay the $50.00 and the painter runs off with it?  You can sue the painter for breaching the contract.  Have a look at my post on small claims court practice for information on how to do this.

Let’s say you sue and you win.  What is your remedy?  Can you get the $50.00 back?  Absolutely.  Can you force the painter to paint the fence (a remedy known as specific performance)?  No.  Ohio law is pretty clear that specific performance for a contract for personal services is not an available remedy.  The reasoning behind this is the “mischief” that could result by forcing a party to perform a service after breaching a contract. Continue reading →

Small Claims Court. So, do I need a lawyer to sue this guy?

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The muscles cringe, the strain sets in, and the resentment, scorn, and frustration boil over whenever someone hears this answer from a lawyer to what seems like a simple question:  “Maybe.”

You can go it alone, or bring a lawyer.

But, believe me, the lawyer is not trying to get you to pull your hair out.  The quick answer is “yes,” anyone can represent themselves in Small Claims Court.  However, going it alone might be the worst decision depending on the circumstances you are facing.   For instance, who is going to be on the other side of the battle?  If you sue a person or company that shows up with a lawyer, then you’re likely outmatched.  It may have nothing to do with the merits of your case.  The truth will prevail, but you have to play by a set of rules in order to properly present that proof to the judge.  This is where the professional guidance of an attorney can make all the difference.  The biggest part is just being ready.

Small Claims cases involve matters where $3,000 or less is in dispute and are filed in the Small Claims Division of the Franklin County Municipal Court if you live in my neck of the woods.  If you want to pick a bigger fight, you can claim up to $15,000 in the General Division of the Municipal Court.  Anything higher than that, and it’s Common Pleas Court time, my friend.  We’ll look to a practical example to illustrate the small claims process: Continue reading →

JK-Q&A: Landlord’s letting the place go! Can I get out?

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I know I have 8 months left, but can I have one of these?

People seem to ask this question a lot and it often sounds like this: I’ve told my landlord several times that the kitchen sink is leaking, the cabinet doors are falling off, and my toilet starts making these crazy noises in the middle of the night and not because it’s in use.  He hasn’t done anything!  At best, he says “I’ll get to it,” but most of the time, he just ignores me.  I would love to move out of here, but I have 8 months left on my lease.  Can I get out with a clean break?

The Ohio Landlord-Tenant Act, Revised Code Chapter 5321, provides several statutory duties for a residential lease relationship that both the landlord and the tenant must follow. A proper Lease Agreement should spell out most of the duties and will be your “instruction manual” on how you can get relief. Some terms that may not appear in the Lease Agreement are nevertheless enforceable as they appear in the Revised Code.

For instance, the Landlord has a duty under the Act to keep the premises in a fit and habitable condition, including making repairs in a timely fashion. Most leases specifically spell out this duty by the Landlord. If you have notified your Landlord (notice in writing is always recommended and certified mail is not a bad idea either) that you need repairs in the unit and the Landlord fails or refuses to respond or make repairs, it is possible for a tenant to terminate the Lease Agreement without any further liability for the rent on the remainder of the Lease term.

It is not advisable to proceed on any course of action without referring to the Lease first or to follow a lawyer’s answer if that lawyer has not reviewed your lease agreement…(including this lawyer!). My best advice would be to read your Lease carefully and, if you are still not sure how best to proceed, to contact a lawyer and ask him or her to review your Lease Agreement.

Posted by Jerry