Tea Party Files Class Action

A California Tea Party group, NorCal Tea Party Patriots, has sued the IRS yesterday, in connection with the recently revealed news that the federal government was scrutinizing them disparately because of their political affiliations.

According to Ginni Rapini, the group’s founding president, as told to KGO-ABC7 in San Francisco, the IRS requested voluminous data when they were applying for tax-exempt status.   ’They wanted every email I had ever sent out,’ she said. ‘They wanted the transcripts of every speech from any speaker at any event, meeting or anything that we had had,” Rapini reported to ABC7.  More than two years passed while their application remained pending.

NorCal Tea Party’s lawsuit asserts that the  IRS has violated its rights under the First and Fifth Amendments to the U.S. Constitution.  They claim that the IRS “engaged in systematic discrimination based upon the speech, expressed viewpoints, and association of NorCal Tea Party Patriots, its members, and similarly situated groups.”

It is unclear to what extent the lawsuit was brought merely to make a statement in and of itself, given the likelihood that it will not ultimately succeed.  Class actions, by their nature, require the injured victims to have suffered nearly-identical injuries so as to prove typicality among the class.  It is hard to imagine how individualized tax-exempt applications are not unique to each tax-exempt applicant.  Further, the Supreme Court previously refused to hold in the famous Dukes v. Wal-Mart matter that gender discrimination claimed by the female employees of Wal-Mart could be certified as a class.

Citizens know soon enough – with every class action comes a motion to dismiss.

Chase Sued by California Attorney General

The California Attorney General’s office has sued JP Morgan Chase Bank for abusive debt collection practices.

Apparently, over the last few years, Chase flooded California courts with unpaid credit-card lawsuits by using illegal robo-signing and other unlawful debt collection practices.  Chase is accused of failing to provide borrowers with debt collection notices as required by law, before initiating lawsuits. Chase also apparently failed to investigate whether certain borrowers were active military personnel or service-members, even though “swearing” under penalties of perjury that they were not, which is required for default judgments to be entered against individuals who have not responded to a lawsuit.

According to the lawsuit, “At nearly every stage of the collection process, Defendants cut corners in the name of speed, cost savings, and their own convenience, providing only the thinnest veneer of legitimacy to their lawsuits.”

“Robo-signing” refers to the practice of signing declarations, affidavits, and other documents in voluminous quantities, without having any knowledge of the facts in the document and without regard to the truth or accuracy as to those facts.  In Chase’s case, Chase would often file affidavits, “under penalty of perjury” that the declarant was an “assistant treasurer and officer Chase USA” when in reality, it was a “low-level employee” of Chase “who has never even seen the Complaint.”

Read More: 

Copy of the Complaint - http://oag.ca.gov/system/files/attachments/press_releases/Complaint_0.pdf?

http://oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-announces-suit-against-jpmorgan-chase

http://www.loansafe.org/california-ag-files-lawsuit-against-chase-bank-for-abusive-and-unlawful-debt-collection-practices

Sketchers Paying $40 Million to Settle False Advertising Claims

Skechers is going to be paying $40 million to settle a huge class action over its “toning” shoes, which advertised that the shoes would help people lose weight and tone leg/calf muscles.  More than 520,000 claims could be made.  Settlement claimants with approved claims will be able to obtain a repayment of up to $80 for Shape-Ups, $84 for Resistance Runner shoes, $54 for Padded Sole Shoes,  and $40 for Tone-Ups. Last year, Skechers also settled a governmental investigation brought against it over “toning” shoes from the Federal Trade Commission.

Read More: http://www.washingtonpost.com/business/judge-oks-40m-class-action-settlement-over-skechers-shoes-ads-claimed-they-aided-weight-loss/2013/05/13/685e6fec-bbf6-11e2-b537-ab47f0325f7c_story.html

The lawsuit was decided in favor of a Pensacola, Florida woman Jackie McMahon, who had severe injuries to her limbs as a result

Jackie McMahon, of Pensacola, Fla., was driving the four-wheeler on a family farm in Alabama when she tried to make a right turn and the vehicle overturned on top of her, causing serious injuries to her limbs.

Yamaha has been sued numerous times since the Rhino came onto the market in 2003.  In 2010, the Consumer Product Safety Commission said 70 deaths were reported in Rhino crashes.

McMahon’s $3.3 million verdict also included $2 million in punitive damages for Yamaha’s reckless conduct in keeping the vehicle on the market, despite all of the complaints that came in.

Read More:

http://blogs.lawyers.com/2013/05/yamaha-pays-3m-for-dangerous-rhino/?cid=soc%3A102&WT.mc_id=TwitterAds_ProTweets12Q2

http://www.pnj.com/article/20130502/NEWS01/305020016?odyssey=mod%7cmostcom&nclick_check=1

U.S. DOJ Joins Lawsuit Against Armstrong

There is a new addition to the lawsuit against disgraced athlete Lance Armstrong – the United States Department of Justice.   The lawsuit was originally brought against Armstrong asserting that the seven-time Tour de France winner defrauded supporters, advertisers, and the general public about his use of performance-enhancing drugs, which he always denied.

The DOJ became involved because of the long-time support provided to Armstrong by the U.S. Postal Service.

“Lance Armstrong and his cycling team took more than $30 million from the U.S. Postal Service based on their contractual promise to play fair and abide by the rules – including the rules against doping,” said U.S. Attorney Ronald Machen to the Associated Press. “The Postal Service has now seen its sponsorship unfairly associated with what has been described as ‘the most sophisticated, professionalized and successful doping program that sport has ever seen.’”

According to the Associated Press, Armstrong was the subject of a two-year federal grand jury investigation that the Justice Department dropped a year ago without an indictment. Last October, a report was released including affidavits from 11 of Armstrong’s former teammates, detailing how the U.S. cycling team was supplied with hormones through injections and blood transfusions, and that they were pressured to dope by Armstrong.

San Diego School District Sued For Yoga Classes

Does this one pass pass the straight-face test? A San Diego family, Stephen and Jennifer Sedlock, have sued their Encinitas school district for teaching yoga to their children and other students, alleging that the classes violate the “separation between church and state.”

According to their lawyer, ”

EUSD’s Ashtanga yoga program represents a serious breach of the public trust.” “This is frankly the clearest case of the state trampling on the religious freedom rights of citizens that I have personally witnessed in my 18 years of practice as a constitutional attorney.”

The legal position taken by the Sedlocks has also been strongly advocated for by conservative non-profit group The National Center for Law & Policy (NCLP). According to the NCLP’s white-paper, the yoga life skills taught in the classes are “

inherently religious”

and “conflict with the beliefs of Christians, Muslims, Mormons, Jews and others.”

$1 Million Awarded to Victims of Pepper Spray

A California federal judge has approved the $1 million settlement of the lawsuit brought against University of California – Davis by students who were the victims of the shocking “casual pepper spray” incident at the Occupy protests that took place on the campus back in November 2011.  The students were videotaped being saturated with pepper spray at close range by UC Davis police officer John Pike, as they sat on the ground with their hands under their seats.

According to the ACLU, “What happened on November 18 was among the worst examples of police violence against student demonstrators that we’ve seen in a generation. The early resolution to this lawsuit means that the students can begin the process of moving on and we can work with the University to ensure that nothing like this ever happens again at the University of California.”

In the wake of the incident, UC-Davis formed a task force to investigate the incident and analyze the police officers’r esponse to the protests.  Their report stated that “The pepper spraying incident that took place on November 18, 2011 should and could have been prevented,” and determined that the police force as well as University administration were all responsible for poor handling of the incident.

As part of the settlement:

• $730,000 will be paid to the students who were arrested and pepper-sprayed;
• $250,000 will be paid to the attorneys for fees and costs;
• $20,000 will be paid to the ACLU for future work with UC-Davis to develop new policies on student demonstrations, crowed management, and the use of force;
• $100,000 has been set aside to compensate other students or individuals who were pepper-sprayed or wrongfully arrested;
• A formal written apology will be made by the UC-Davis Chancellor to each student or alumni who was pepper-sprayed or arrested;
• UC-Davis will assist students who were negatively affected in their academic performance to apply for an academic records adjustment.

Wal-Mart ordered into labor code violation lawsuit by California federal judge.

The stakes have been raised in a California federal lawsuit brought by thousands of temporary warehouse workers against Schneider Logistics, a warehouse logistics company serving mega-retailer Wal-Mart. On January 10, 2013, the Judge overseeing the case, Carillo v. Schneider Logistics, ordered that Wal-Mart could be included in the lawsuit, which alleges violations of overtime rules, meal/rest breaks, and other labor code violations on behalf of approximately 1,800 workers.

What is monumental about this case is that none of the workers worked for Wal-Mart directly. According to the lawyers for the workers, ““Walmart has the ultimate say in how the warehouse work will be conducted,” says Michael Rubin, a plaintiff lawyer for the workers at the San Francisco law firm Altshuler Berzon. “The evidence shows a remarkable degree of control by Walmart. As a matter of economic reality, which is the ultimate legal test, Walmart should be held liable.”

Delta’s “Fly Delta” App Collects Consumer Info with Disclosure of Privacy Policy

Airline giant Delta has been sued by the state of California for violating consumer privacy rights, specifically, for collecting a wealth of private consumer information through its mobile app, “Fly Delta,” without providing consumers with any kind of clear privacy policy about how that information will be used.

The California lawsuit was brought by California attorney general Kamala Harris, charging Delta of violating the California Online Privacy Protection Act (COPPA), which was passed in February of 2012.  COPPA requires  mobile app providers to provide clear privacy policies if they collect personal information for users, or face lawsuits initiated by the state attorney general. The Delta lawsuit is the first of its kind enforcing COPPA, and California is the only state with the app-privacy law.

According to the lawsuit,  which was brought in San Francisco superior court, Delta’s mobile app “Fly Delta” does not have any clear privacy policy, even though it collects a bevy of information about consumer, including their reservations, cancelled or missed flights, baggage fees, frequent flyer account, and personally-identifiable information such as the consumer’s full name, telephone number, email address, photos, and geolocation.

California Attorney General Kamala Harris

“Losing your personal privacy should not be the cost of using mobile apps, but all too often it is,” said Attorney General Harris. “California law is clear that mobile apps collecting personal information need privacy policies, and that the users of those apps deserve to know what is being done with their personal information.”

The California Attorney General is seeking up to $2,500 for each violation from Delta, and requesting that Delta be barred from using its app any further without establishing a clear privacy policy.

The Illinois state government had previously sought to punish residents via the “Illinois Eavesdropping Act,” enacted in 1961, which made it a Class 1 Felony, punishable by 4-15 years in prison, to record police on the job.  A lawsuit was brought by the ACLU of Illinois (ACLU v. Alvarez), arguing that the Illinois Eavesdropping Act was unconstitutional and in violation of civil rights, including citizens’ First Amendment rights. The Court of Appeals for the Seventh Circuit, which oversees appeals in the Chicago and Cook County area (as well as Indiana and Wisconsin), agreed and refused to enforce the law, which is one of the harshest in the country.  The Illinois state government filed an appeal to the U.S. Supreme Court, which fortunately refused to hear the case, leaving the Seventh Circuit Court of Appeals’ ruling in place —  meaning that Illinois residents cannot be prosecuted for a felony under the Illinois Eavesdropping Act for recording police. The Seventh Circuit’s law would be considered “precedential” authority for similar laws, whether in Illinois, Indiana, or Wisconsin.

The case will now be now headed back to Illinois federal court (Northern District), where the ACLU will probably ask the temporary injunction barring the Illinois state government from enforcing the law to become permanent. If that is granted by the Court, that will effectively be the end of the Illinois Eavesdropping Act.  Lawmakers will have the option, however, to try to enact different laws.

Is it Legal or Illegal to Record Others?
Although the ACLU v. Alvarez case brings some clarity to the rights of citizens under the juridiction of the Seventh Circuit Court of Appeals (Illinois, Indiana, Wisconsin), the issue of whether it is legal or illegal to record others is often tough to answer because it depends on the nature of the circumstances.

Federal law allows telephone and in-person recordings, as long as one person who is there and is party to the discussion consents.  This means that you can record a conversation you are a party to, even if the other person is not aware that the conversation is being recorded.   38 states and the District of Columbia  allow individuals to record phone calls and conversations to which they are a party.  12 states, on the other hand, require everyone involved in the discussion to give their permission before it is permissible for it to be recorded. These states consist of California, Connecticut, Florida, Hawaii (if the recording is done by a hidden device), Illinois, Maryland, Massachusetts, Montana, Nevada, New Hampshire, Pennsylvania, and Washington. Recording a discussion or conversation, however, is different fromwiretapping, which is done in secret without any of the parties’ knowledge, and which can be illegal under state and federal laws.

Recording Police
In addition to the above, there are special rules for recording the police, depending on where you live.  It has been ruled as constitutional under the First Amendment to record (film or voice) the police performing public duties in public places in the 1st Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island), 7th Circuit (Illinois, Indiana, and Wisconsin), 9th Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and Washington), and 11th Circuit (Alabama, Florida and Georgia).

Changing Legal Landscape.
As seen from the most recent activity on this issue, this area of state law is clearly in a state of change. There is currently a legal battle brewing in Massachussets about whether the recording of police (constitutional in Massachussets) has to be done “openly” or whether it is acceptable for the recording to be done “secretly.” Elsewhere, a New Hampshire journalist is currently facing 21 years for filming a fight between a cop and student in school, that resulted in a police brutality case.  The federal government and civil rights groups, however, have both encouraged citizens to exert their rights. The U.S. Department of Justice has taken the position that it is clearly within the First Amendment rights of individuals to record local and state police. The ACLU of New York even offers free app that gives citizens a guide to recording police, if needed, to help citizens document ongoing problems with NYPD.

For now, the reality is that recording police is a lot like asking officers for their names and badge numbers: while it is legal, it will annoy or irritate the police officers, and rarely result in any breaks being given to the person asking.  With greater protections afforded to citizens’ civil rights, however, the legal landscape will change, and hopefully lessen the frequency of excessive force and other incidents of police brutality.

Related Reading:

http://www.chicagotribune.com/news/local/breaking/chi-supreme-court-rejects-plea-to-prohibit-taping-of-police-20121126,0,686331.story 

http://www.huffingtonpost.com/2012/11/26/illinois-police-recording_n_2191800.html

http://www.nytimes.com/2012/05/21/opinion/the-right-to-record.html?_r=2 

http://reason.com/archives/2012/04/05/7-rules-for-recording-police

http://reason.com/archives/2012/04/05/7-rules-for-recording-police

Robert Shapiro’s LegalZoom Sues Competitor

Well, this is an interesting one. Do-it-yourself legal forms website LegalZoom.com (founded in part by former OJ Simpson attorney Robert Shapiro) has sued a rival, Rocket Lawyer, which seems to provide similar services, but for free.  LegalZoom charges ordinary individuals various fees for giving them access to legal forms to help them form businesses, prepare Wills, or prepare other divorce, adoption, or similar legal paperwork.  

According to the LegalZoom lawsuit, Rocket Lawyer is liable for “false and misleading advertising, trademark infringement and unfair competition.”  The LegalZoom lawsuit was filed in California federal court in Los Angeles.  

The lawsuit came after numerous unsuccessful attempts by LegalZoom over the past year to convince RocketLawyer to cease the “false advertising.”  Apparently, LegalZoom sent RocketLawyer a copy of Federal Trade Commission guidelines  addressing when the word “free” can be used in advertising.   According to LegalZoom, Rocket Lawyer uses the phrases “free incorporation,” “free legal review,” and “free help from local attorneys” but allegedly requires filing fees or buying a paid membership plan.

We took a look at the RocketLawyer website after hearing about the LegalZoom lawsuit. It is unclear what “false advertising” LegalZoom is referring to, because on the front page of the Rocket Lawyer website is a link, as clear as day, that takes the user to ”Plans and Pricing.” According to the price list, although there are  “free” trial features of Rocket Lawyer services, the membership plans and prices are clearly disclosed.  Like with many online services, it appears that a trial run of Rocket Lawyer services is free, and then the user is charged once a certain period of time expires.  Unless LegalZoom has some written documentation or proof that Rocket Lawyer has actually made or been making confusing, misleading, deceptive or false advertisements, LegalZoom may not succeed in the lawsuit asserting allegations alone. 

Further, it is also especially interesting that when a Google search of Rocket Lawyer is done, Legal Zoom’s ads come up. Registering Google keywords that use a competitor’s trade name, mark, or business name, on the other hand, does use a portion of the intellectual property and brand of the competitor.

Maybe there is more to the LegalZoom lawsuit than meets the eye. At first blush though, it appears that LegalZoom has just sued a competitor to protect its stake in the DIY-legal forms  market.  Finally, it is worth mentioning that although both sites offer “cheap” and “affordable” legal services to consumers, there is no ”on-demand” or one size-fits-all substitute for discussing a legal problem with a live lawyer.

U.S. Supreme Court Rules On Credit-Card Privacy Claim Against U.S. Federal Government

In its first opinion of the new term, the U.S. Supreme Court has ruled against a class action brought against the federal government for violating privacy / identity theft protection laws by printing credit card numbers and expiration dates on receipts, determining that the federal government is not liable for violations of the Fair Credit Reporting Act. 

The matter originated when the lead plaintiff (and lawyer) James X. Bormes, a Chicago lawyer, paid for a court filing fee using his American Express credit card, in the amount of $350.  In his lawsuit, he asserted that the receipts contained the credit card’s expiration date, which violate provisions of the Fair Credit Reporting Act.  Bormes brought a class action lawsuit alleging that the federal government violated FCRA.  Borma asserted that the federal government did not have governmental immunity from the suit based on the Little Tucker Act, which purportedly provided the government’s consent to be sued in FCRA cases. 

FCRA prohibits the showing of more than the last five digits of a card number or the expiration date on a credit card or debit card receipt, and defines a person liable under the act as “any individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency.”

Initially, the class action was dismissed by the Northern Illinois federal court, which ruled that the federal government did not waive its immunity to be sued under FCRA.  The U.S. Court of Appeals, however, reversed that ruling, and the U.S. Supreme Court granted the petition to review the case. 

Authored by Justice Antonin Scalia, the Supreme Court rejected Bormes’ case, arguing that FCRA alone could determine whether it applied to the federal government, not the Little Tucker Act.  The Supreme Court’s position was not surprising, given that the federal government is the nation’s largest creditor, lender, and employer.  The federal government would have been responsible for “massive liability,” the U.S. government’s lawyers wrote in their filings, if Bormes’ case were successful. 

Although the Supreme Court determined that Bormes’ case did not have merit based on the Little Tucker Act, they returned the case back to the Seventh Circuit Court of Appeals in Chicago, to determine whether FCRA cases can be brought against the federal government. 

The ruling appears to be a big blow to consumer privacy considerations, because FCRA clearly says it applies to any “government” or “governmental subdivision or agency.” Despite this definition being included in its provisions, the U.S. Supreme Court still ruled that FCRA did not apply to the U.S. federal government.  It is not only the U.S. government alone that could be affected, but the multitude of govenment contractors and quasi-governmental bodies that handle governmental functions throughout the nation, given that a significant portion of the U.S. government’s functions are actually performed by non-governmental entities and contractors. Although it is not surprising that the U.S. Supreme Court would rule in favor of the federal government and against consumers, the Bormes decision could pave the way for deeper blows to consumer privacy and identity theft concerns.

 Sources: 

http://articles.chicagotribune.com/2012-11-13/business/chi-supreme-court-deals-a-blow-to-credit-card-privacy-20121113_1_credit-card-fcra-federal-appeals-court

http://www.huffingtonpost.com/huff-wires/20121113/us-supreme-court-suing-the-government/

Photos of the UC-Berkeley Protests of November, 2011

The UC-Berkeley police, officials, and other administrators who were sued in  a multi-million dollar First Amendment and excessive force lawsuit by student protestors during the Occupy protests of 2011 are now asking the Court presiding over the case to throw out the lawsuit. 

The suit was filed on behalf of 24 protesters against 17 defendants, including four UCPD officers and detectives, three Alameda County Sheriff’s deputies, Chief of Oakland Police Department Howard Jordan, UC Berkeley Chancellor Robert Birgeneau and five other campus administrators.

The lawsuit arose out of the Occupy protests in Berkeley in November, 2011. In videos of the altercations between students and police, police used batons to beat with batons some protesters who refused to leave tent/encampment areas. UC-Berkeley had  forbidden students, some of whom were protesting the rising cost of tuition at UC schools, from protesting in the area. 

The UC-Campus’s motion to dismiss will be heard by the Court next week, on Nov. 13.

 Sources: http://www.dailycal.org/2012/11/05/campus-files-motion-to-dismiss-bamn-lawsuit-claiming-police-brutality/

Extreme conservative interests behind $11 Arizona opposition to California’s Prop. 30 and 32

Yesterday, the truth about the identities of the political contributors to the Arizona-based   ”Americans for Responsible Leadership” group were revealed, after the California Supreme Court ordered them to disclose that information.  The legal battle between Americans for Responsible Leadership and California’s watchdog political interest groups began after Americans for Responsible Leadership spent $11 million opposing two California Ballot measures under the cover of “dark money,” a term used to describe political contributions made anonymously by corporate interests. Americans for Responsible Leadership spent the $11 million fighting  Prop. 32, a temporary tax increase, as well as Prop. 30, which would dramatically alter California’s campaign-finance scheme by banning labor unions from obtaining political contribution money through payroll deductions.

Last night’s article by the Arizona Republic revealed that the group, unsurprisingly, is funded by individuals and groups tied to the powerful billionaires David and Charles Koch as well as former Bush administration advisor Karl Rove. According to the Republic, “Americans for Responsible Leadership” was funded by a single other group, “Americans for Job Security,” which is itself funded by a second intermediary, the “Center to Protect Patients Rights.”  One of the intermediary groups is controlled by Sean Noble, an Arizona political consultant tied to the Koch brothers. Further, one of the center’s founding board members, Heather Higgins, has been a presenter at Koch fundraisers and her gorup, the Independent Women’s Forum, has received money from a Koch-controlled foundation, according to the Republic. Americans for Job Security, listed as a 501(c)(6) non-profit trade association, according to Huffington Post, shares an office in Alexandria, Va., with Crossroads Media, a company that services Karl Rove’s American Crossroads SuperPAC.

Sources and Related Content: http://www.azcentral.com/news/politics/free/20121105arizona-group-release-donor-names.html

http://www.huffingtonpost.com/2012/11/05/california-11-million-campaign-donation_n_2078917.html

The young athlete had been wearing a helmet when he suffered a stroke during the 9th-grade football practice at school. The lawsuit was brought against Riddell for manufacturing the helmet allegedly defectively, and asserting that the helmet pushed on his neck, causing damage to an artery that led to the stroke.

After five full days of trial, the Mississippi jury determined, unanimously, that Riddell could not be held responsible because there was not enough proof that the helmet, and no other cause, resulted in his stroke, given that football is a violent sport, and that there is no way a single product can protect against all possible football injuries.

Although this particular suit is over for Riddell, Riddell remains a defendant in the NFL concussion lawsuits brought by NFL players, who assert that football helmets do not provide adequate protection to players, leading to brain injuries and concussions.

Related Content:

http://bit.ly/RBhEDF

10-Year Old Boy Tasered by Police

The events happened at Tularosa Intermediate School, at the Career Day event held by the school.  The officer in question was Christopher Webb, who asked students whether they would clean his cop car; the boy in question joked that he did not.  The officer apparently said, “Let me show you what happens when you don’t listen to the police,”  pointed the taser gun at him and fired two barbs into the boy’s chest, and tasered him with 50,000 volts.   According to the lawsuit incident, the boy has been traumatized by the incident,  waking up in the middle of the night holding his chest, and reporting afraid he is never going to wake up again.

Officer Webb was given three (3) days of suspension.

Full Story: http://blog.sfgate.com/hottopics/2012/11/01/lawsuit-cop-tased-boy-on-school-career-day/ 

Prop. 34 will replace California’s death penalty with life without possibility of parole.

 I once supported the death penalty.  But as an attorney now representing individuals who have been deprived of civil rights in California’s prison system, I am compelled to speak out about why the death penalty must be eliminated in California, and throughout the nation.   

As California voters already know, ballot initiative Proposition 34 seeks to repeal the death penalty and replace it with life in prison without possibility of parole. As of Oct. 5, 2012, there were 726 inmates on death row, according to the California Department of Corrections and Rehabilitation.

Among professionals, law enforcement officials, or attorneys with any exposure to the criminal justice system, there a few basic principles that seem to be undisputed. First, the American criminal justice system is not perfect – it seems each year there are more and more stories that chronicle the punishment (and sometimes execution) of an innocent person later exonerated through DNA evidence or recanting witnesses.  Second, hard research has proven that the death penalty does not actually do anything to reduce or deter crime.  Finally, the death penalty results in the expenditure of massive amounts of money and resources that are wasteful, unnecessary, and purposeless. 

Since 1973, more than 130 people  around the country facing the death penalty have been exponerated, after being determined to be 100% innocent.   Since 1989, more than 2,000 people across the United States have been cleared of wrongful convictions according to the National Registry of Exonerations.  California frequently prosecutes, jails, and convicts the wrong pereson – in fact, California ranks 3rd for the highest number of exonerations in the registry. The high error rate is reason enough to retire the death penalty. 

Moreover, the costs that are borne to pursue death-penalty cases from inception through conclusion are staggering.  Over 17.5 years (the average time between conviction and execution for the 13 inmates executed in California since 1976), merely housing a death-row inmate is $1.6 million more expensive than for other inmates.  Even the former warden of San Quentin prison, Jeanne Woodford, now opposes the death penalty.   “It is an illusion in this state. … Since 1978 we’ve carried out 13 executions. We’ve spent $4 billion on the death penalty. The death penalty is far more expensive than if these individuals had life in prison without possibility of parole,” said Woodford.  

Further, most death-penalty supporters do not know the reality of how inmates on death row are treated.  ”On death row the inmates are single celled. They get to stay in their cell and watch TV all day and read the newspapers and magazines that are often sent to them by their legal teams, which they have for life,” said Woodford.   “Less than 10 percent of death row inmates work,” she said. “They can be out on the exercise yard for up to six hours a day. They’re allowed to have visiting seven days a week.”  However, inmates serving life without possibility are doubled celled. They are required work five days a week at least six hours a day. They pay restitution to the victims’ compensation fund, she said.

Further, most death-row inmates are never actually executed — they die of natural causes while the death-penalty process languishes.   About 900 people have been sentenced to death in California since the current death penalty law was enacted in 1978, according to the death penalty initiative statute.  Of those who have not been executed, 83 have died of natural causes or suicide, 75 had their sentences reduced, and 726 are now on death row, most still in appeal.

The system is clearly broken. Regardless of the moral issues, Californians must vote to repeal the death penalty if only for fiscal sensibility.  17 states,  the District of Columbia and Puerto Rico, have all replaced death penalty with life without the possibility of parole, and rerouted millions of dollars to underfunded law enforcement offices that need those funds much more desperately.
 

First Long-Term Study of GMO Consumption Revealed

In the American food landscape post pink-slime, any momentary relief consumers may have felt about food safety following the public outcry over ammonia-soaked beef was short-lived, as consumers now have new reasons to worry.  Ground-breaking research by a French scientist Gilles-Eric Serlini and the Caen University has revealed that long-term diet of GMOs, specifically those produced by agricultural conglomerate Monsanto, causes tumors, organ damage, and premature death in lab animals fed a steady GMO diet.

The research was the first of its kind, consisting of a long-term “feeding trial” whereby Monsanto’s famous Round-Up resistant “NK603” corn was fed to rats over a period of two years. The study, published in the journal Food and Chemical Toxicology, found that 50% of male rats and 70% of female rats fed Monsanto’s corn died prematurely, suffered from organ damage, and grew massive tumors. Prior to the French study, the previous studies funded by the agricultural industry found that GM crops were safe for human consumption.

Although GMOs are “deeply unpopular” in Europe and banned in several countries, they sadly “dominate major crops” in the U.S., with no regulation whatsoever.  The French Environment and Farm Ministries, in light of the results of the French study, has said it will be asking European authorities to take “all necessary measure to protect human and animal health,” including emergency suspension of all imports of Monsanto corn in the European Union. Monsanto spokeman Thomas Helscher, on the other hand, responded that Monsanto’s scientific studies “continuously confirmed” the safety of Monsanto corn.  At least one major news source, Huffington Post, discredits Monsanto’s response, asserting that Monsanto cites “crude statistical data” involving “tests” that lasted only 90 days – too little time to reveal any chronic health problems.

The problem is that Monsanto has a virtual grip over the U.S. agriculture seed industry, controlling over 90% of the production of not only corn seeds, but soybeans, cotton, and other crop seeds. Monsanto, the manufacturer of Round-Up pesticide, has genetically modified its crop seeds to include a genetic trait that resists Round-Up – which is apparently the cause of the premature death, tumors, and organ damage identified by the French study. According to data published by the U.S. Department of Agriculture itself, the overwhelming majority (over 90%) of U.S. soybean, corn, and cotton seeds today carry Monsanto’s genetic mutations, nearly double the figures that existed in 2000.

Currently, there are no regulations requiring Monsanto or other agricultural manufacturers to disclose genetically-engineered foods.  Even “organic” and “natural” food retailers such as Whole Foods Market and Stonyfield Farm have lost in the war with Monsanto over the labeling of food and whether Monsanto needs to disclose to consumers whether foods are sprayed with carcinogenic pesticides.  Abroad, university researchers criticizing Monsanto’s pesticides (such as Round-Up, which is used on the NK603 corn), were physically attacked and left with traumatic spine and head injuries after attempting to notify local citizens that Round-Up caused embryo deformities and birth defects in animals, similar to the kinds of birth defects and child cancer growth that had been experienced by nearby populations in recent years.

It is hard to believe the extent of the fortune that Monsanto has made manufacturing products that are toxic, hazardous, or carcinogenic. Monsanto’s first product was saccharin, eventually sold to Coca-Cola and at one point linked to bladder cancer in rats.  Monsanto manufactured highly-poisonous DDT for nearly thirty years before it was banned in 1972 due to the high level of toxicity.  In the 1960s and 1970s, Monsanto was one of the largest producers of ultra-deadly Agent Orange, which devastated the Vietnamese countryside – killing, maiming, or seriously disabling up to 1 million Vietnamese  and 2.6 million U.S. military. Monsanto was the single largest producer of PCBs, banned in 1979 due to causing cancer in animals and humans. Monsanto’s PCB plant in Sauget, Illinois is commonly regarded as one of the most polluted communities in the U.S.  In fact, at another PCB plant in Anniston, Alabama, Monsanto dumped approximately 45 tons of hazardous waste into local waterways, resulting in tremendous death and destruction to the fish population and nearby wildlife.  A recent Vanity Fair article on Monsanto is as informative as it is chilling in telling the story of Monsanto’s growth from a chemical company to agriculture conglomerate controlling 90% of the nation’s food supply.

Monsanto not only has a long history of making deadly products, it has made a strong investment in concealing its activities: Monsanto has contributed over $7 million to oppose the passage of California’s Proposition 37, which, if approved by voters in the November, 2012 election, would require companies to disclose to consumers whether genetically-modified organisms are used in food products.   Monsanto and similar companies have raised a total of over $25 million in total to defeat Proposition 37.

It is hard to believe that so little is being done to stop big agricultural companies like Monsanto from hiding or concealing from consumers how dangerous their products are reported to be, especially when those products concern the nation’s food supply. Even blue-chip companies  like Pepsi, Nestle, and Coca-Cola, to name a few, have joined Monsanto in opposing Prop. 37 mandate that consumer foods made with GMOs be disclosed with sufficient labelling.

What can be done? Health-conscious consumers must make their voices heard by demanding that GMO foods and food-products be labelled clearly so as to provide all necessary disclosures. In California, voters will get the opportunity to do so in November through ballot measure, via Proposition 37. For citizens in other states, including those in which no power exists to provide citizens with ballot initiatives, consumers can still take steps to limit their exposure to GMO foods.  Some simple steps that consumers can take are as follows:

• Buying Organic. Certified organic food manufacturers are generally not allowed to use GM seeds, though there are no guarantees.
• Buying Certified.  Some manufacturers stamp their foods with “Non-GMO” seals verifying that the food-products were not manufactured using GMOs.
• Getting Involved. A number of online resources are petitioning the FDA and other U.S. agencies for change, including requiring mandatory disclosure of GMO products and calling for better regulations. Two notable ones are justlabelit.org and nongmoshoppingguide.com.  Change.org also lists a number of GMO-related petitions that consumers can participate in to effectuate change.
• Attention to Advertising. It is illegal in most states for manufacturers to use advertising that is false, deceptive, or misleading to reasonable consumers. Consumers should pay attention to how foods are labelled and advertised. Product manufacturers that have mislabeled or mispackaged products or are employing false advertising could face legal liability.

*           *           *

Rabeh M. A. Soofi is a lawyer practicing in Los Angeles, California and focusing on consumer and civil rights. She can be reached at rsoofi@sb-lc.com. 

When HIV Status is Disclosed

Despite the advances that have been made promoting diversity among people of different races, ethnicities, religions, and sexual orientation, there still exists an unfortunate stigma against those with HIV.  One big issue that comes up often for those with HIV is the inadvertent disclosure of HIV status by health professionals, hospitals, doctors, nurses, and other practitioners who have access to this information.

Criminally Illegal? Unfortunately, in most states, there is often no law that makes it  criminally punishable on a blanket basis for HIV status to be disclosed (though it is often criminally punishable for those with HIV to “willfully” transmit HIV to others).

Civil Penalties. California, which has some of the strongest pro-individual laws in the country, also has strict guidelines protecting health records from disclosure, including records of HIV status.  Health records identifying HIV status are considered “confidential health records” under the California Health and Safety Code, and must be handled with confidentiality.   The unauthorized disclosure of confidential public heath records is subject to civil penalties under Health and Safety Code 121025(e).   < Negligent disclosure of information contained in a confidential public health record, meaning a disclosure that is accidental or unintentional, is subject to a civil penalty of up to $2,500, plus court costs under HSC 121025(e)(1).  Willful or malicious disclosure of the content of a public health record, on the other hand, is punishable by a civil penalty of $5,000-$10,000 plus court costs under HSC 121025(e)(2).   “Willful” or “malicious” disclosures usually require intentional conduct and culpability, meaning, the perpetrator knew what they were doing, and knew that it was wrong, but did it anyway.  The penalties are steeper when the disclosure actually hurts the victim.   Willful, malicious, or negligent disclosure of information contained in a public health record that results in economic, bodily, or psychological harm to the person named in the record is considered to be a criminal misdemeanor, subject to imprisonment for a period of up to one year and/or a fine of up to $25,000 plus court costs under 121025(e)(3).  Under HSC 121025(e)(5), each disclosure in violation of California law is a separate, actionable offense.

Civil Claims.  When individuals with HIV have their status as HIV-positive broadcast to those who did not previously have those facts, there may also exist a claim for “public disclosure of private facts,” which is a civil claim that can be brought by the aggrieved victim in a court of law.  Bringing a “public disclosure of private facts” claim, however, has its challenges. In California, an aggrieved claimant must show that  the disclosure of facts was “public,” that the facts disclosed were private and not generally known, that publication of the facts is offensive to a reasonable person, and that the facts are not newsworthy.

What to Do.  Individuals who suspect that their health records or HIV status may have been disclosed, especially by a medical provider, should take these steps:

• Good Notes.  Adequate notes should be taken about the incident, the names/titles of the nurses, doctors, or other practitioners who were involved with the disclosure.  The notes should specify the date/time of visits, what exactly happened, whether the practitioner became aware of the unauthorized disclosure, what the victim said and did to notify the practitioner or treatment facility, and what measures were taken to rectify the disclosure, if any.  Information on whether a treatment facility is a repeat offender is also helpful.
• Privacy Policies.  The patient should obtain a copy of all privacy policies, written consent forms, releases, and all other information the patient was asked to sign by the perpetrating medical treatment facility.  These documents will help determine whether the medical provider has sufficient controls in place to protect against the unauthorized disclosure of sensitive information.
• Practices/Procedures.   Even if the privacy policies exist, they may not be enforced.  The victim should pay close attention to whether other staff in the treatment facility demonstrated any concern when reporting unauthorized disclosures.  A lack of regard for privacy concerns of HIV-status information could indicate general office sloppiness, and ultimately, the lack of any enforcement of privacy policies.
• Consult with a Privacy Lawyer. Armed with good notes and documentation, individuals who are the victim of HIV disclosure should contact a privacy attorney familiar with the rules governing confidential health records. The attorney will be able to give the patient an overview of the legal rules, their rights, and options.

Having HIV is already a big enough challenge. Expecting healthcare providers obligated to keep confidential health information private should be easy. Unfortunately, doctors, nurses, assistants, and other practitioners are not perfect, and sometimes mistakes happen.   Fortunately, California’s HIV-status protection laws offer victims of unauthorized disclosures some means of rectifying the errors.

Rabeh M. A. Soofi is a Los Angeles attorney defending the civil rights and privacy of individuals through the LA metropolitan area, including members of the LGBT community.  

Every time I see it, it is remarkably upsetting. Opposing counsel seem to relish pouncing on individuals who are confused by the legal process or are not familiar enough with the dialogue to understand what is happening.  They almost always flail and flounder, which only results in further impatience and annoyance from the Court.

I heard this quote once when describing pro se parties (as told by a Judge to a criminal defendant):  “You don’t know how to ask a question…You don’t know how to offer things into evidence. You keep making stupid speeches. You keep saying you are good at this. You are not…  I do not say this to insult you…You do not know the law.”

The sad reality of the legal justice system in the U.S. is that it is extremely complex, confusing, and difficult to naviate – making it very difficult for people to represent themselves in court.  In California especially, there are a tremendous number of rules that govern not only law and procedure, but rules down to the size of fonts, spacing on the page, and kind of paper to be used in filing.

With the Internet making legal forms and “nolo” representation more available to consumers, individuals may end up feeling more confident about representing themselves in Court. Unfortunately, the reality is that things go south almost all of the time and can become expensive —  and ugly — very quickly.  Courts do not give unrepresented individuals any special treatment, help, or attention. Unrepresented parties are expected to know the law and comply with them, all Rules of Court, and procedural guidelines.  In states like California, this can be extremely difficult for trained lawyers to do, even after several years of practice – making it nearly impossible for an ordinary citizen to pick up the applicable legal rules and work with them with fluency. 

 The biggest reason individuals do not hire lawyers is that they cannot afford it – which is another sad reality of our civil justice system. Attorneys can be so expensive and retainers so high that most ordinary individuals cannot afford paying them.  The most onerous one that I ever saw was one requiring a $50,000 evergreen retainer — these astronomical numbers are beyond the capabilities of most ordinary Americans.  Because of these hurdles, unrepresented parties have trouble getting representation, or reliable representation at that.

Unfortunately, there is no real solution to this problem. Legal aid and pro bono clinics are overwhelmed with requests for aid, and many do not handle contentious or serious matters, such as divorced, bankruptcies, or criminal cases.  Altoghether, it perpetuates the division between middle-class Americans and powerful corporations, who not only afford lawyers, but often teams of lawyers who have the capabilities of burying unrepresented parties in paper, discovery requests, and requests for sanctions. 

As with most things, for those with resources, the playing field is even. For those without, it is an uphill battle, marked with perils and pitfalls at every juncture.

Who Should be Responsible for Bar Fights that Hurt Others?

Multiple lawsuits have been filed against hip-hop artists Chris Brown and Drake for starting the massive bar fight that resulted in injuries to numerous bar patrons, who needed emergency treatment, stitches, and other treatment from glass-related injuries.  Because the members of each entourage got involved, an ordinary bar fight turned into a massive brawl in which 300+ lb. 6’5″ men were  “throwing highball glasses laden with alcohol, shattering the handles of bottles of spirits to use as makeshift knives and even throwing full bottles at each other.” Within seconds, the club was “full of flying glass shrapnel.”

Risk of Engine Fire

Yikes. Every single Chevrolet Cruze made from the first production through May 31, 2012  is being recalled by General Motors Co., due to reports of engine fires and explosion risk.  Apparently, liquids are getting trapped in the engine compartment, where a fire can start and spread.

The National Highway Traffic Safety Administration in March opened a preliminary investigation into the Cruze after there were two reports of engine fires that destroyed the vehicles.

Another Victim of Google’s AdWords

Google has been sued again for trademark infringement resulting from its AdWords program, this time by Cybersitter. Cybersitter sells software that blocks adult content on computers so they are not accessible by children.

This problem has been going on for years.  Here is what happens (and actually what seems to be partially encouraged by “SEO Maximization” companies):  predatory companies who use AdWords register not only the keywords pertinent to their business, but the trade name, mark, or brand of their competitors. When consumers do searches for one company, its competitor’s ads show up. 

In this case, the perpetrator was Net Nanny.  Net Nanny used Cybersitter’s name and brand in its Google AdWords campaigns.  Cybersitter alleged that Google and Net Nanny “intentionally and wrongfully used a bait and switch strategy to confuse consumers into purchasing a competing product.”

Sued Again

John Travolta and his attorney Martin Singer have been sued for libel by Robert Randolph, author of the book “You’ll Never Spa in this Town Again.” Randolph’s book was allegedly about his gay encounters with Travolta.

Randolph accuses Travolta and Singer of spreading false statements about his mental health to discredit the book. Apparently, Singer, on behalf of Travolta, had written a letter to a gossip blog about the book, presumably to prevent the blog from publishing content about it. Randolph accuses the letter of being libelous.

What is interesting about the Chicago Tribune’s coverage on this story is that the Trib describes the two sexual assault lawsuits against Travolta as being “swiftly dropped” by the accusers “after doubt was cast on the details of their alleged encounters.”

This makes it seem as though the accusers were fabricating allegations.  Usually when suits are settled, money is paid specifically in exchange for the accusers to promptly drop their lawsuits. So no determination has been made on whether Travolta sexually assaulted the accusers or not, if the suits were settled by a monetary payment.  In that case, the truth will likely never be known due to confidentiality and non-disparagement provisions that are regularly found in settlement agreements.

Costner Sued for Not Trimming his Bushes

With the lawsuit against Steven Baldwin freshly decided in his favor, Kevin Costner is embroiled again in another legal battle: this time, with his neighbor.

Costner’s Carpinteria, California neighbor Rick Grimm, an investment banker, has filed a lawsuit over the trees and shrubs planted by Costner to protect his privacy, which now block Grimm’s ocean view. Apparently, covenants on the properties established in 1957 prevent hedges from being grown over six (6) feet. 

The neighbor is seeking $150,000 damages for loss of enjoyment and $500,000 for damages to his property value if the trees are not removed.   Grimm also wants an order compelling Costner to chop down the trees.

 If Costner did violate the convenants restricting use of the land, then it will be very difficult for him to win this lawsuit.  Generally, it is hard to challenge covenants and succeed, because they are usually established by the devleopers of their property long before warring neighbors take title and ownership to their houses. 

Kettle Brand Chips May Contain Metal Fragments

Caution when snacking! Those delicious thick-cut Kettle Brand Potato Chips are being recalled because a certain set of them apparently contains metal fragments.

Only the New York Cheddar flavor is affected, in two sizes. Details below.

Kettle Brand Potato Chips, New York Cheddar (5 oz)
UPC Code: 084114-009944
Best Before dates: 1Nov12 and 15Nov12

Kettle Brand Potato Chips, New York Cheddar (1.5 oz)
UPC Code: 084114-112712
Best Before date: 15Nov12

The U.S. Consumer Product Safety Commission has issued a recall of about 17,000 Bowflex® SelectTech® 1090 Dumbbells because of an injury hazard. Apparently, the weight selector dial is defective, and can cause the weight plates to fall if the dumbells are lifted from their cradle.  There have been at least 16 reports of the failure of the weight selector dial, and three injuries to the user’s foot or leg.

The Bowflex Dumbbells were available at Nautilus.com and other online retailers from May 2011 through August 2011 for about $600.

And yes, they were made in China.

If you have been injured by a defective product, click here for a confidential assessment of your case by an attorney.

Ron Paul Delegates Sue GOP

120+ delegates to the Republican National Convention have sued the GOP alleging they are being forced into voting for Mitt Romney. They are asking that the Court unbind them from voting for Ron Paul, even though Paul has already ended his campaign .  The lawsuit was brought in California.

The lawsuit essentially alleges that the GOP has engaged in racketeering to push Romney as the top candidate, and violated the Rules of the Republican Party.  They accuse the GOP of violence, intimidation, and ballot stuffing to secure Romney as the GOP challenger to President Barack Obama.

Although the lawsuit will probably not conclude by the time the GOP National Convention takes place in August, the allegations should be investigated more carefully.

2012 Recall for China-Produced Infant Formula

Another day, another toxic product manufactured by China.

China’s biggest milk producer Yili Industrial Group has recalled its baby formula due to high levels of mercury.   According to the U.S. Center for Disease Control, high levels of mercury can cause poisoning and damage the brain and kidneys.

This is the second major contamination affecting China-produced infant formula, the worst of which happened in 2008 when melamine-laced formula sickened nearly 300,000 infants and killed 6.

The pollution could have been from coal-fired plants or additives caused by fish, contaminated packaging, or the whey powder that Chinese milk processors import.

There have been other contaminations.  In December,  products by a certain Chinese manufacturer were destroyed after they were found to contain aflatoxin, which can cause severe liver damage. The Beijing Food Safety Administration identified 10 infractions of food safety dating as far back as November 2011, including two at a Wal-Mart store in Beijing in March.

Unfortunately, it is extremely difficult to bring claims against manufacturers physically located in China for manufacturing toxic products, mostly because the Chinese court system does not recognize U.S. judgments and because the Chinese legal system is itself extremely limited in the avenues for recovery it provides injured parties. Due to these impediments, many U.S. citizens, families, and children suffer injury or property damage due to products or foods manufactured in China every year.

If you or a loved one has been sickened or injured due to toxic products manufactured in China, click here for a confidential evaluation of your case and potential legal rights.

No justice for Guatemalans

This story is just sad. A federal court judge has dismissed the lawsuit brought against U.S. officials by Guatemalans who had been subject to experiments by U.S. researchers in the 1940s by being deliberately injected with STDs without their knowledge or consent. The researchers had purportedly been studying the effects of penicillin, and were testing the drug’s effect on sexually-transmitted diseases by using Guatemalan natives as human guinea pigs.

Although the judge commented that the study was “deeply troubling,” the dismissal was based on federal law that prohibits claims to be brought against U.S. officials for injuries that took place in a foreign country.  The judge granted the U.S. government’s motion to dismiss the lawsuit, ending the suit.

Apparently, last year, Gautemalan officials identified almost 2,100 natives that were the subject of experiments, being infected with syphlis, gonorrhea, or chancroid.   The research was hidden for decades until a Wellesley College medical historian uncovered the records in 2009.

Do as I say, not as I do, America.

What a difference the mulllet makes.

David Cassidy’s lawsuit against Sony over royalties from the Partridge Family shows no signs of slowing down. 

 Right now, Sony & Cassidy are arguing about whether the case should be tried to a jury, or decided by an arbitrator.

The biggest drawback to arbitration is that an arbitrator, who is not  a  judge, has total control in deciding the outcome of the cases.  Unlike a court or jury trial, arbitrations cannot be appealed.  Further, in arbitrations, under certain circumstances, the party who wins can ask for their attorneys’ fees — which is the opposite of the American justice system, which does not adopt the “loser pays” rule.    

Apparently, because Cassidy once signed an agreement with Sony that included an arbitration provision, Sony is asking the court to dismiss the case and compel arbitration.  

Cassidy’s lawsuit involves his 1971 contract with Screen Gems (now Sony), for which he was supposed to get 15%  of net merchandising revenues for use of his name, image, voice, or likeness.   Cassidy’s lawsuit alleges that Sony has failed to pay him millions of dollars of royalties, and refused to allow an audit of the merchandise sales generated from the show. 

The problem is often that up-and-coming entertainers, like Cassidy in 1971, are too trusting of production companies and management agencies, who often present them with complicated legal documents that are difficult to understand. Often, these companies have financial interests that are distinct from those of the actors, talent, or artists. 

Individuals signing production, merchandise, or other deals should be very wary of these pitfalls and consult with talent-side lawyers to help them understand what they are signing and advocate for the their interests.  To obtain an assessment of your entertainment rights, click here for a confidential legal consultation.

Floyd Mayweather, Financial Victim

Floyd Mayweather, currently incarcerated, has sued his financial advisor, Jeff Rubin, and Pro Sports Financial, Inc., to recover more than $4 million blown on a real estate/casino that Mayweather says was recommended by Rubin.  The lawsuit was brought in the Miami-Dade Circuit Court in Florida. 

Mayweather apparently loaned $4 million to develop the gambling resort in Alabama, after Rubin allegedly told him the investment involved very little risk.   Mayweather lost his entire $4 million investment in the business deal.

Floyd Mayweather claims that Jeff Rubin and Pro Sports Financial knew that the investment was a bad deal and that it was “doomed” from the start because of Alabama rules/regulations governing certain kinds of gambling. 

Financial advisors owe their clients duties of care, which are generally to avoid self-dealing, avoid conflicts of interest, and act in the best interests of their clients, who trust them to provide sound financial advice.  Financial advisors who violate these principals can be sued for breach of “fiduciary” duties.  Financial advisors generally cannot be held liable, however, for changes in the value of investments due to market conditions. 

This is another sad story for Mayweather, who says he lost his entire $4 million investment.  That is an awful lot of money to have simply vanished.  It is not clear how the money was spent, exactly, but if any of the defendants attempt to hide or conceal assests so as to make themselves appear “judgment-proof,” they would be at risk of also being sued for making fraudulent transfers of assets. 

If you have been defrauded, mislead, or deceived by a financial advisor, click here to  request a confidential legal consultation and assessment of your rights.

No vote for most Facebook users.

Facebook is in the news again – this time for allegedly “hiding” the voting tools in connection with its much-hyped “public vote” on privacy changes. Apparently, .00038 percent of total Facebook users voted, of the total 270 million accounts.  A privacy activist group, Europe v. Facebook, accused Facebook of hiding the polling station and making it difficult for users to vote.

“Zuckerberg seems to have taken democracy lessons in China,” the group’s speaker Max Schrem said.

Facebook users have been commenting on the Facebook Site Governance page claiming that they had no idea that the vote was going on.  Perhaps the problem is not that Facebook does not care about user privacy, but rather, that it may have bigger legal woes brewing, given the recent governmental investigations into the Facebook IPO.

Diamond Pet Foods Recall Sickens Infant

The salmonella-tainted pet food manufactured by Diamond Pet Foods has resulted in severe illness to a New Jersey infant.

A lawsuit was filed in federal court in New Jersey, after the infant contracted salmonella due to the pet food, alleging negligence, fraudulent misrepresentation, and other claims.

Not "All Natural"

A slew of lawsuits have been filed against Tropicana and its parent, PepsiCo, as well as Simply Orange, and its parent, Coca-Cola, for false advertising in connection with orange juice products. Apparently, the orange juices, which are billed as “all-natural” actually contain flavor packs that replace the orange “flavor” lost through inconsistent ripening times, heat pasteurization, and loss of oxygen.

The fight is over the words “all natural.”  For FDA purposes, as long as the product is free of added color, flavor and synthetic substances, it’s OK to call it “all natural.”  The plaintiffs in the lawsuit allege that the “all natural” label is false and misleading to consumers.

Read more here: http://www.bradenton.com/2012/06/08/4069237/lawsuits-against-orange-juice.html#storylink=cpy

If you have been misled by false and deceptive products, click here to request a no-risk and no-charge consultation with an attorney to explore your legal rights.

Another class action lawsuit.

Time Warner and Comcast have been sued in class-action lawsuits for privacy violations because of their practice of keeping customers’ names, social security numbers, and personal data — even after those customers terminated their services.

According to the 1984 Cable Communications Policy Act, cable companies are required to destroy subscribers’ data once it is no longer needed.  Comcast may also have violated California’s state laws, which require businesses to destroy customers’ personal data once it is no longer needed.

Read more at: http://www.mediapost.com/publications/article/176403/time-warner-comcast-hit-with-privacy-lawsuits.html#ixzz1xLo3HpJA

Compassion for chicken?

The estimated 270 million egg-laying hens in America are given cages the size of a sheet of paper (8 x 11 inches).  Due to a new bill supported by the Humane Society of the United States that is currently making its way through Congress, America’s chickens may be given larger cages that will give them the ability to stand up, scratch, perch, and flap their wings.

The new bill is a compromise between the Humane Society, who had originally pursued “cage-free” conditions for chickens, and the United Egg Producers, who represents the chicken farming industry and fought vigorously to prevent any additional cage-room being given to chickens.     

 The new law would amend the Egg Products Inspection Act to improve the conditions for chickens in chicken farms across the country.    It would require 125 square inches of room per chicken (about 12″ by 10″) within 15 years, and notification to consumers via labels on the egg cartons about how the manufacturer’s eggs are produced: eggs from caged hens; eggs from enriched colony systems; cage-free hens; free-range hens. 

Apparently, research in Europe shows that when consumers are offered these explanations, more of them choose eggs from hens that are treated better.  The enriched colony system, which houses chickens in European-style cages, has resulted in more eggs per chicken, lower mortality rates, and better health in the chickens.  JW West is  California’s only enriched colony chicken/egg farm, and features live videos of its chicken coops, in which the birds appear to be comfortably given enough room to have interaction with other chickens, move, scratch, flap their wings, and live somewhat ordinary lives, all things considered.  Their brand, Comfort Coop Eggs, can be purchased at a number of retailers. 

The story by Associated Press noted that the new chicken-cage bill has caused some concern among most of the nation’s leading beef and pork producers, who fear they will be the next target of legislation.  The coalition wrote a letter to Senator Debbie Stabenow, chairman of the Agriculture Committee, expressing that their “gravest concern” was that animal rights movements would “leach into all corners of animal farming, irreparably damaging the lives of family farmers across the country.”

Taylor Farms Issues Recall for Baby Spinach

Spinach-lovers beware: Taylor Farms Retail, Inc. is recalling Organic Baby Spinach after a U.S. Dept. of Agriculture test showed potential contamination with Salmonella. Taylor Farms is based out of Salinas, California.

Compact Disposal Wars

Call it a disposal food fight. Compact disposal InSinkErator, installed in what seems to be every kitchen in America, has been sued by a competitor manufacturer of compact disposals, alleging anti-trust violations.

Anaheim Manufacturing, which says it is the nation’s second-largest food waste disposer manufacturer,  filed a lawsuit against InSinkErator’s parent company, St. Louis-based Emerson Electric Co., accusing Emerson of monopolizing the U.S. market for food waste disposals.

Luxury department store Nieman Marcus has been sued by a Dallas woman, Patricia Walker, for refusing to take back $1.4 million worth of merchandise. Apparently, Walker was in a traffic accident and spent three years recovering. Her husband at the time, Robert Tennison, began showering her with piles of gifts from Nieman Marcus.  Little did Walker know, however, that Tennis was having a secret affair with Favi Lo, Walker’s personal shopper at Nieman Marcus.  

 Tennison’s “gifts” purchased for Walker were made using her account, and earned Favi Lo very generous commissions from the sales.  When Walker attempted to return all of the gifts, Nieman Marcus refused without explanation. 

The upscale chain’s return policy is: ” If for any reason you are not satisfied, we will gladly accept your timely return of unworn, unwashed, or defective merchandise. Returned merchandise should include the vendor packaging and tags and be in the same condition as when it was received. Used merchandise cannot be returned unless defective. A pickup and/or restock fee may apply.”

Patricia Walker, Looking Refreshed

To get out of accepting the return, it appears that Nieman Marcus must take the position that the gifts were worn, washed, or used.  From Walker’s perspective, receiving a gift from a spouse is nice gesture;  but receiving a “gift” that a spouse purchases with your own money, while earning a commission for a store clerk with whom the spouse is having an adulterous relationship, seems to be slightly less than kind.  Although Nieman Marcus may be taking a hard line in refusing to accept return of the products, the real wrongdoers appear to be the husband or the personnel shopper, not Nieman Marcus.  I guess the lesson here is to keep an eye on either husband, personnel shopper, or hope that a traffic accident does not leave you bed-ridden for three years.

Charity Problems for Mary J. Blige

The charity founded by R&B singer Mary J. Blige, the Foundation for the Advancement of Women Now, has been sued for “losing” $250,000 by the lender, TD Bank.  Apparently, the Foundation not only defaulted on the huge loan taken out from TD Bank, but it also has other management problems.  According to a recent NY Post article:

- The Foundation has now been sued by musicians who were stiffed for their performances at a 2011 fundraising gala.

- The Foundation failed to properly file its proper federal tax return with the IRS.

- It cannot account for $60,000 of perfume sales.

- Is presently going a change in “management.”

Some of the big-dollar donors to Blige’s charity have been Wal-Mart, Gucci, and Jay-Z, who sat on the board for a period of time, along with Jada Pinkett Smith.

The news about Mary’s charity raises some interesting issues, including ones I have dealt with in doing legal investigations of charities-gone-awry.  How can you tell if the charity you are giving to is responsible with donations, managed properly, and actually fulfilling the mission it publicizes to the outside word? Here are some warning signs.

Warning Sign #1 – Unusual Tax Records.  This is rarely an issue for large, internationally-known charities, such as Goodwill, Salvation Army, or Red Cross. But with smaller charities, including private foundations, taking a peek at the charity’s tax returns and other IRS documents can be extremely illuminating.  All public charities and private foundations are required by IRS laws to document their donations, distributions, and other activities, and make those records available to the public.  Through the review of IRS documents, donors can gain easy access to the inner-workings of a charity, specifically to identify who actually runs the charity, its members, their contributions, its donations, and its distributions.  These documents are publicly available, and can be accessed from various online sites.   Unusual tax records, such as insufficient documentation, odd donations, or unusual distributions tend to indicate that a charity is not being managed properly, or has lost its focus.  For example, in 2009, Mary J. Blige contributed $25,000 to her charity only, despite having album sale and performances totaling $43.5 million in 2008, according to the NY Post.  The donation of such small amounts to a charity by the principle (and named) donor could indicate that the charity or its mission is not serious.

Warning Sign #2 – High Turnover in Board Members.  The old saying is that charities are always in need of board members who can contribute the “Three T’s” – time, treasure, or talent.  But the relationship is often synergistic – most professionals who serve as board members with prominent, successful charities derive considerable benefits from such affiliations. High turnover among  board members, however, tends to be a bad sign. It could mean that board members who get into the charity find themselves looking for a way out.  It could also be a sign that the charity operates in a way that does not induce directors to stay long-term.  This has bad consequences.  Continuity among board members help give charities long-term stability, direction, and vision.

Warning Sign #3 – Incomplete or Unavailable Accounting Records.  A solid charity should always be able to give its donors, members, or officers a clear and accurate picture of its incoming donations, outgoing distributions, and expenses, including the percentage of its administrative costs vis-à-vis total donations, and what percentage of donations actually directly benefit the charity’s primary beneficiaries.  Bad charities struggle with these basic accounting principles.  Money goes “missing,” donations are not tracked properly, it is unclear where funds are going, and it is entirely uncertain whether the charity is even solvent.  These are signs that the charity is either being negligently overseen by board members who are not paying attention, or that the charity lacks basic financial management.

Warning Sign #4 – Wasted Funds.  Irresponsible charities not only have trouble managing money, they often squander valuable donations.  Some classic  examples involve the charity using significant funds for projects that are not really related to the purpose of the charity, holding extravagant events that seem disproportionate to the goals the charity seeks to accomplish,  or spending funds without the knowledge and approval of board members.  In some cases, charities can be managed so poorly that administrative costs end up eating into the bulk of donations.  Ultimately, charities are expected to serve their intended beneficiaries.  A charity that spends more simply to remain in operation than it does serving its intended beneficiaries could be suffering from irresponsible management.

Warning Sign #5 – Conflicts of Interest.  Another nasty trait of an irresponsible charity is its participation in events, transactions, or dealings that pose an unmistakable conflict of interest. These situations usually involve an individual closely tied to the charity who engages in self-dealing  or undertakes projects that satisfy the individual’s personal interests at the expense of the charity.  For example, a president of a charity that runs his own personal side-business out of the charity’s office, using resources and utilities paid for by the charity’s donations, is engaging in self-dealing.  A charity director who hires a family member that is paid wages from the charity’s donations could be engaging in a conflict of interest transaction.  There are many other examples.  Conflicts of interest among a charity’s leadership can be especially insidious because the individuals involved tend to take steps to conceal their activities, or understate the magnitude of the conflict of interest.  This sort of behavior often manifests itself by the individual taking control  over certain affairs, and then refusing to let anyone else become involved in them, or whitewashing procedures intended to disclose conflicts of interest.

Warning Sign #6 - Widespread Cluelessness.  Finally, an irresponsible charity can usually be identified simply through speaking to its board members, staff, and officers.  The governing body of a charity should not be clueless – they should know basic information about the charity, such as its purpose, mission, major projects, upcoming events, and the identities of all other board members, staff, and officers.  Charities in which there is widespread cluelessness about these facts are often charities that have de-railed off track.  Cluelessness can be a sign that the people involved with the charity are not paying attention or are left in the dark about the activities of the charity.  This can be dangerous not only to the charity’s donors, but to the board members, employees, and officers themselves.  Board members, officers, and employees that are either admittedly or unknowingly “asleep at the switch” expose themselves to liability, should something go wrong.  For some charities, this could mean a lawsuit; for others situations in which significant funds are being funneled, laundered, or misused, criminal charges can  result and jail sentences sought.

Mary J. Blige’s charity may be in some turmoil for the time being, but things could turn around.  For individuals wishing to give funds, goods, or services to charities, there is no reason to be overly suspicious – there are many reputable charities throughout the country that are well-managed and effectively serve their beneficiaries.  But keeping the warning signs above in mind could help identify irresponsible charities that have some growing yet to do.

Max Hirsh

This story is so sad, we don’t even know where to begin with it. Apparently, the Southern Poverty Law Center has sued an Oregon psychiatrist for practicing “conversion therapy,” intended to “change” the sexual oirentation of troubled teenage boys and girls, on a young patient, without the patient’s consent.

The patient was Max Hirsh, an openly gay young man.  Hirsh reported that when he would visit his psychiatrist, the topics would often veer into the topic of his sexuality, with the psychiatrist insisting that Hirsh was not gay, that Hirsh had failed at sports and with teenage women, and that he had a deficient relationship with older men.

The psychiatrist in question was not named,  which is not unusual in ethics complaints, as these are made to rectify the inappropriate conduct by the professional, without creating a public spectacle of the situation.

More Money, More Problems

Last week, a class action securities fraud lawsuit was also brought against Facebook in connection with the Facebook IPO, initiated by the law firm that obtained a $7 billion settlement with Enron.   The lawsuit was brought not only against Facebook, but also personally against Mark Zuckerberg and several others, including Facebook’s investment bank team and underwriters, such as Morgan Stanley.  The lawsuit alleges that Facebook and its chief investment team at Morgan Stanley failed to provide critical facts about the Facebook IPO with ordinary investors, but shared those sensitive facts with Morgan Stanley’s preferred investors.     

The class action lawsuit papers offer a good bit of detail about the nature of the omitted facts.   They are essentially as follows:

• Facebook made representations to potential investors in its Prospectus and other IPO paperwork identifying certain events as “risks” that “could” lower Facebook’s revenues.  
• These scenarios included more users accessing Facebook via mobile means (i.e., on their cell phones);  ad space purchasers not being given clear metrics or measurements about how much value they were getting out of purchasing Facebook ads; new laws or regulations that would make Facebook’s operations more difficult, and other events.  Facebook stated that these and other events could drive down their revenues and make the comapny less profitable over the long-term.
• The main representation at issue in the class action involves the risk of more users using mobile devices to access Facebook. Apparently, Facebook disclosed in its SEC filings that it makes more money when users access Facebook on their computers rather than their cell phones and other mobile device, because there are more advertising opportunities available on the web-page version of Facebook. 
• The class action alleges that at the same time Facebook was describing these events, including increase mobile use, as mere “possibilities,” they were happening or had substantially happened already.   The lawsuit alleges that Facebook was actually already undergoing a sharp decline in revenues, and had in fact told its underwriters to lower their revenue forecasts, because so many users were using Facebook via mobile decides.
• Morgan Stanley, in the middle of the IPO roadshow, apparently became aware of the huge reduction in revenues due to the increase in mobile users of Facebook, and cut its revenue estimates.  According to the lawsuit papers, Morgan Stanley’s mid-stride cut in forecasts was highly unusual and a rare occurrence in the IPO world. 
• Facebook ended up filing amended IPO paperwork with the SEC.
• The lawsuit alleges that Morgan Stanley’s news about Facebook’s revenue problems were not shared broadly, and instead, shared with only preferred investors.
• According to the lawsuit, ordinary investors who were not given any notice of the problems with Facebook’s revenue models simply bought the shares on May 18, 2012, when Facebook went public, resulting in a multi-billion dollar windfall to the Facebook team, its investment bankers, and underwriters.  The lawsuit asserts that Morgan Stanley’s “preferred” investors knew about the problems with Facebook’s revenue models, and could plan their investment strategy accordingly (in some cases, short-selling shares), while ordinary consumers were left in the dark, and thus, suffered monetary loss. 
• The class action estimates the losses made by ordinary investors to be approximately $2.5 billion.

 If the facts alleged by the lawsuit are true, it could very well constitute securities fraud.  As has been the case with short-selling on prior occasions (including the subprime mortgage crisis), it would be the very essence of securities fraud for wealthy investment banks to turn a profit based on the ignorance of ordinary purchasers of Facebook stock about the fact that Facebook was having revenue problems pre-IPO. 

 Flurry of Investigations. Since then, there has been a blizzard of activity as a number of authorities have announced investigations of the Facebook IPO.  The Financial Industry Regulatory Authority has announced it intends to review the negative news Morgan Stanley shared with institutional investors in the days before the IPO.   The SEC also announced that it would be “exploring issues” surrounding the Facebook IPO, without providing specifics.  Congress has opened a congressional inquiry, and so has the State of Massachusetts.

 Next Steps in the Lawsuit.  As far as the lawsuit is concerned, once the defendants are all properly served with summonses, they will have about 30 days to respond, though they could ask for extensions of time to do so.  The New York federal court overseeing the matter will probably set an initial status conference which will establish the litigation dates and deadlines in the matter.  Once the discovery (fact-gathering)  process begins, Facebook users and investors may obtain a much clearer picture of the facts that were given to preferred investors, but not ordinary investors, and whether the omission is “material” enough to constitute securities fraud under the 1933 Securities Act. 

Two Down, Many to Go

Another federal court judge has ruled that the Defense of Marriage Act is unconstitutional.   U.S. District Judge Claudia Wilken has ruled that DOMA, passed in 1996, violates constitutional laws because it denies  federal benefits to same-sex spouses married under California law, according to The Huffington Post.

This past February, a San Fransisco judge also declared the federal law unconstitutional in a separate case. The ruling is under appeal and set to go before the 9th U.S. Circuit Court of Appeals in September.

Dogs Dead After Flight on Delta

Delta Airlines has been sued by a Utah petowner, Barbara Burgett,  for the way it handled her 11 dogs (1 male and 10 puppies) that were flown in cargo.   Apparently, the dogs were being shipped internationally from Hungary to Salt Lake City, and three died by the time they arrived. Burgett blames Delta for failing to give them water, food, and keeping them in roasting 120 degree temperatures for many hours.

Two things.

Bulldogs Flying from Hungary? First, I am surprised that Delta even permitted the dogs (that were French Bulldogs) to be shipped internationally. These days, most airlines do not allow a variety of bulldog breeds from being shipped via air at all, much less internationally.  The reason is that bulldogs have very short snouts, meaning that they have more restrictive air and nose passages, which prevents them from being able to get enough air when they are in high altitudes and because of  stress and hyperventilation that airline travel can cause animals.  A number of airlines ban various bulldog breeds  and other short-snouted breeds from traveling in cargo.  Because these dogs are too large to travel in coach as a carry-on, they can end up with no way of being able to travel via air.

Pets as “Property.” The other big issue for this petowner is going to be collecting damages from the lawsuit – Burgett’s lawsuit is apparently seeking $4 million.   As hard as it is to hear, pets are treated as “personal property” by the law, meaning that a petowner who loses their pet is only usually entitled to attempt to collect the amount the paid for the pet, and possibly vet expenses.  Although losing a pet can be like losing a family member, in the eyes of the law, pets are only treated as property, and in a lawsuit, you can usually only recover what you paid for the property.   Unless Burgett paid $4 million for the dogs, which would be outrageously high, she will have little chance of actually recovering that much as compensatory damages.   

When we flew our dogs from the mid-west to the west coast in the summertime, we were worried about exactly the same unfortunate circumstances that befell this woman.  Although it is not common for dogs to die during airline travel, it does affect different breeds more often than others. 

So please, owners of short-snouted dogs – beware of the risks of flying your dogs and ship them via air only when necessary and during cool seasons if you have to.

Valderrama Accused of Being a Bad Neighbor

Former “That 70′s Show” star and Lindsay Lohan hearthrob Wilmer Valderrama has been sued for being a bad neighbor.  Apparently, Valderrama has been throwing “wild parties” at his home, refusing to take his neighbor’s noise complaints seriously.

Valderrama’s legal woes raise a good point – what can you do when you get stuck with a bad neighbor?

Rentals and Condos. It is generally easier dealing with a bad neighbor when living in apartment communities, condos, or townhouse properties.  Usually, the property management sets forth rules requiring quiet hours between certain times, like 10 PM – 6 PM, and prohibiting music or noise to be heard from outside of the tenant’s unit.   Tenants are obligated to abide by rules and regulations when they move in, and violations are generally assessed as fines against the property owner.

Homes and Homeowners. But when living next door to a noisy homeowner, there are fewer options.  Noise violations can be reported to local non-emergency law enforcement authorities, or a private security company, if one is hired by a homeowner’s association or community.   However, the only real legal option is to bring a lawsuit for nuisance, similar to the one that was brought against Valderrama.  Nuisance lawsuits essentially make a claim that a propertyowner engages in such offensive activity on the property that it prevents the complaining neighbor from quiet enjoyment of their own property

Nuisance  lawsuits are not easy to prove, and damages usually are not recoverable — meaning that the relief given to the complaining party is often an injunction, which is basically a permanent restraining order barring the noisy neighbor from making more noise.  But, if the noisy neighbor disregards the injunction order, the affected neighbors usually have to go back to court and ask that the court hold contempt proceedings or issue sanctions for the noisy neighbor’s disobedience of court order.  It can all be very expensive.

 Alternative non-legal ways of handling noisy neighbors is attempting to talk to them, or making requests in writing.  But these can lead to friction and confrontation, especially if there are age, lifestyle, or other disparities between the neighbors.   For Valderrama’s neighbor, talking did not work, neither did writing letters.  Lawsuits are often the last resort, but sometimes they may be the only way to get uncoooperative neighbors to pay attention.

"3 Stripes and You're Out"

Adidas has filed a lawsuit over knock-offs of its distinctive Adidas 3-stripe design.  California athletic equipment retailer Big 5 Sporting Goods is one of the defendants, as is California shoe manufacturer World Industries.  Adidas is asking the Court to stop sales of the infringing sneakers, have them destroyed, and pay Adidas money damages.

Adidas has in recent years filed similar lawsuits against other retailers including Wal-Mart Stores Inc., which it said sold knock-off sneakers with two or four parallel stripes.

Apparently too much pornography at Time Warner Cable

A former employee of Time Warner Cable is suing the company after being fired for complaining that his supervisors watched too much pornography at work.

The employee, Keith Reid, said that he walked in on his supervisor and other co-workers watching pornography on company time at least 10 occasions. Reid complained to the Time Warner Cable HR department, saying that his religious beliefs as a Christian were offended by the constant pornography-watching and that felt uncomfortable. Reid says his complaints went nowhere – instead, the lawsuit alleges that Reid was suspended, then fired in retaliation for making complaints.

John Devenanzio

MTV’s Real World/Road Rules star Johnny “Bananas” Devenanzio has lost the lawsuit against HBO, over the rights to the nick-name “Johnny Bananas.”  Devenanzio alleged that HBO’s “Entourage” used his nick-name when referring to the fake cartoon gorilla played by Kevin Dillon’s character.

The New York judge overseeing the suit dismissed the case. Apparently,  Devenanzio didn’t file the “Johnny Bananas” lawsuit until 14 months after the first air date of the episode – in New York, the statute of limitations (the time frame in which a lawsuit for Devenanzio’s claims can be brought) is only 1 year.

Some news sources are calling Devenanzio a crybaby for suing over this, but owners of trademarks, copyrights, and other brand-names often must  sue to protect their intellectual property rights.

In the intellectual property legal world, failing to enforce rights that you believe are yours can lead to “dilution,” meaning that your mark or brand becomes so diluted or commonplace that the rights become lost.   Some good examples are Band-Aid or Kleenex.   Someone needing a finger bandage or tissue paper would likely say “Give me a band-aid,” or “Give me a kleenex.”  But these product names are actually brand names - “Band-Aid brand bandages” and “Kleenex brand tissue paper.” But because the brand names have been used as substitutes for the product names for so long, it is difficult to separate the two – leading to a loss of the ability to enforce the intellectual property rights associated with “Band-Aid” or “Kleenex.”

Dillon with Johnny's Bananas Promo

If Devenanzio really intends to secure for himself the intellectual property rights to “Johnny Bananas,” then he needs to focus on strengthening that brand, filing the necessary trademark applications, and confirming that he is the rightful owner of the “Johnny Bananas” brand — before he sues anybody else again.

Unclear what caused the strong odors.

Notice that your Advil pills are smellier than usual? Pfizer has recalled 650,000 bottles of Advil Ligui-Gels due to “strong odors” associated with the product.  The recall was issued to distribution centers (and not retail outlets) only.

Apparently, something in the manufacturing process  ”may have caused a stronger odor in the product,” according to a notice posted by the FDA.  It is unclear whether the odor-affected Advil bottles have anything else wrong with them.

Some of the contaminated brands.

Salinas, California-based  lettuce grower River Ranch Fresh Foods has issued a recall for bagged salads after detecting listeria contamination.  The contaminated packages were distributed in several states, including California.

Listeria bacteria is found in soil, water and animal feces. Humans typically are infected by consuming:

- Raw vegetables that have been contaminated from the soil or from contaminated manure used as fertilizer

- Infected meat

- Unpasteurized milk or foods made with unpasteurized milk

- Certain processed foods — such as soft cheeses, hot dogs and deli meats that have been contaminated after processing

Symptoms of listeria infection include high fever, headache and neck stiffness. Infants, the elderly and those with weakened immune systems are at risk of becoming severely ill from the bacteria.

]]> http://lalawblog.net/california-bagged-lettuce-recalled-for-listeria-contamination/feed/ 0 http://lalawblog.net/steve-jobs-allegedly-directly-involved-with-price-fixing-e-books-to-profit-at-consumers-expense/?utm_source=rss&utm_medium=rss&utm_campaign=steve-jobs-allegedly-directly-involved-with-price-fixing-e-books-to-profit-at-consumers-expense http://lalawblog.net/steve-jobs-allegedly-directly-involved-with-price-fixing-e-books-to-profit-at-consumers-expense/#comments Thu, 17 May 2012 06:03:59 +0000 Rabeh Soofi http://lalawblog.net/?p=784

Alleged to Be the Price-Fixing Ringleader

Last month we reported about the Department of Justice’s anti-trust / price-fixing lawsuit against e-Book publishers. Well now, a federal court judge in New York has ruled that the civil lawsuit against the e-Book publishes by consumers may go forward.  

The e-Book publishers attempted to dismiss the civil lawsuit.  The Judge denied that request, ruling, “In short, Apple did not try to earn money off of eBooks by competing with other retailers in an open market. Rather, Apple accomplished this goal by [helping] the suppliers to collude, rather than to compete independently.”

To recap, the allegations are that Apple and other e-Book publishers conspired together to create artificially high prices for e-Books, to generate more profit, at the expense of Americans.

According to the papers uncovered thus far, late Apple visionary Steve Jobs was directly involved with and at the heart of the price-fixing scheme.

Skechers: Paying $40 Million

The false advertising claims over Skechers’ “Shape-Up Shoes” have reached a conclusion.  Yesterday, Skechers  (owned by Skechers USA, Inc.) reached an agreement with the U.S. Federal Trade Commission (FTC) to pay $40 million to consumers who were deceived by Skecher’s advertisements that Shape-Ups and other products would help people lose weight and strengthen flabby rear-ends, legs, and abs.  

The FTC settlement was part of a larger investigation led by the Tennessee and Ohio Attorneys General Offices and included attorneys general from 42 other states and the District of Columbia.

“Skechers’ unfounded claims went beyond stronger and more toned muscles. The company even made claims about weight loss and cardiovascular health,” said David Vladeck, Director of the FTC’s Bureau of Consumer Protection. “The FTC’s message, for Skechers and other national advertisers, is to shape up your substantiation or tone down your claims.”

Some of the highlights of the investigation involved the “doctor’s endorsement” that Skechers’ ads featured.  Shape-up ads contained an endorsement from chiropractor Dr. Steven Gautreau, who claimed he recommended Shape-Ups based on an “independent” study — but failed to disclose that he was actually married to a Skecher’s marketing executive.

 For consumers defrauded by Shape-Ups, the FTC has set up a website at www.ftc.gov/skechers for more information. 

And Then There Were Four

 A fourth accuser has stepped forward and alleged sexual misconduct against John Travolta.  To recap,  the first accuser has now hired maven lawyer Gloria Allred after dismissing his original lawsuit; the second has agreed to a private mediation of his claim, meaning that the lawsuit will not go forward publicly and its ultimate resolution will be confidential; and the third involves a Royal Caribbean cruise employee.  All four accuse Travolta of sexual improprieties ranging from “sexual battery,” meaning that Travolta inappropriately touched the accusers, without their consent, to claims that Travolta made threats, bribes, and offered payments for sexual activity. 

This Daily Mail article offers a thoughtful and sympathetic commentary on Travolta for having the misfortune of having his personal life and questions about his sexual orientation persist on the front page news.  Although a number of celebrities have now come forward in support of keeping Travolta’s personal life, sexual orientation, and other personal details private, the issue may not be how Travolta handles his personal life, but rather, whether he has been involved in committing sexual battery, assault, and harrassment.

Some of the victims are as follows: 

	Ibraheim (Abe) Mashal, a U.S. citizen and veteran of the U.S. Marine Corps, is a traveling dog trainer and father of three.
	Ayman Latif, a U.S. citizen and disabled Marine veteran.
	Raymond Earl Knaeble, a U.S. citizen and U.S. Army veteran.
	Steven Washburn, a U.S. citizen and U.S. Air Force veteran who was prevented from flying from Europe to the United States or Mexico; he eventually flew to Brazil, and from there to Mexico, where he was detained and finally escorted across the border by U.S. officials.

One victim is Abe Mashal, a U.S. Marine Corps veteran and dog trainer.  “I have no idea why I’m on the list,” said Mashal. “I should have the chance to clear my name and live my life normally. This has been a real hardship for me both personally and financially.”  There is more to Mashal’s story, according to Wikipedia:

Abe Mashal, a 31-year-old Muslim and United States Marine Veteran, found himself on the No Fly List in April 2010 while attempting to board a plane out of Midway Airport. He was questioned by the TSA, FBI and Chicago Police at the airport and was told they had no clue why he was on the No Fly List. Once he arrived at home that day, two other FBI agents came to his home and used a Do Not Fly question-and-answer sheet to question him. They informed him they had no idea why he was on the No Fly List. In June 2010, those same two FBI agents summoned Mashal to a local hotel and invited him to a private room. They told him that he was in no trouble and the reason he ended up on the No Fly List was because of possibly sending emails to an American imam they may have been monitoring. They then informed him that if he would go undercover at various local mosques, they could get him off the No Fly List immediately, and he would be compensated for such actions. Mashal refused to answer any additional questions without a lawyer present and was told to leave the hotel. Mashal then contacted the ACLU and is now being represented in a class-action lawsuit filed against the TSA, FBI and DHS concerning the legality of the No Fly List and how people end up on it. Mashal feels as if he was blackmailed into becoming an informant by being placed on the No Fly List. Mashal has since appeared on ABC, NBC, PBS and Al Jazeera concerning his inclusion on the No Fly List. He has also written a book about his experience titled “No Spy No Fly.”

The stories of how some people have ended up on the No-Fly list are, in certain cases, stunning:  

• Robert J. Johnson, a surgeon and a former lieutenant colonel in the U.S. Army, who ran as a Democrat against U.S. Representative John McHugh, a Republican, opposing the Iraq War, was put on the No-Fly list. 
• U.S. Representative John Lewis (D-GA), widely known for his civil rights advocacy, has been stopped many times.
• Walter F. Murphy, Professor of Jurisprudence at Princeton, reported that he was on the Terrorist Watch list because, in September 2006, he had given a lecture at Princeton that was “highly critical of George Bush for his many violations of the constitution.” 
• Jesselyn Radack, a former United States Department of Justice ethics adviser who argued that John Walker Lindh was entitled to an attorney, was placed on the No Fly List 
• Nelson Mandela and other members of the African National Congress were on the list.

The No-Fly list was a creation of the Bush administration, following the 9/11 attacks.  Immediately after 9/11, the N0-Fly list included 16 individuals. In the time that has passed after 9/11, the list has expanded to include over 1,000,000 names.

The ACLU’s argument is that the No-Fly list violates the constitutional rights of Americans by preventing them from traveling, but without giving them any due process or opportunity to challenge the blacklist.

No telling what Google is doing for NSA.

Republican-Appointed Judges OK NSA to Hide Nature of Relationship with Google. A Reagan and Bush-appointed panel of judges has ruled that the National Security Agency (NSA) does not  have to disclose anything about the relationship and involvement it has with Google, because it is apparently a “national security” matter.  It would not be the first time Google has been accused of collaborating with government agencies (like the CIA) to spy on Americans. 

Ducks will be safer in California after July 1, 2012

Activists Call for Ban on Foie Gras.  Effective July 1, 2012, California will be banning the force-feeding of fowl, including ducks for the production of foie gras.  Animal Activists are now calling for a nationwide ban.  Foie gras is banned in more than a dozen countries, and force-feeding is outlawed in the United Kingdom and several other European countries.

Contains No Actual Fruit

Consumer Fraud Lawsuit Against Fruit-Roll Ups Allowed to Proceed.  A San Diego court has OK’d the lawsuit against General Mills to proceed, which alleges that Fruit Roll-Ups are deceptive and misleading because they do not actually contain any fruit.

The dispute arose after six people working for Sheriff B.J. Roberts of the City of Hampton, Virginia, allegedly supported the Sheriff’s political opponent, Jim Adams, in the 2009 election by attending a cook-out and “Liking” Adams’ Facebook page. After Roberts won the election, he fired the workers.  The workers sued, saying their First Amendment rights were violated and that Sheriff Roberts had retaliated against them for exercising their constitutionally-protected rights to free speech. 

B.J. Roberts, courtesy of City of Hampton Sheriff's Dep't Website

In the lawsuit, Sheriff Roberts asked the Court to rule in his favor on the employees’ claims via summary judgment, which is judgment based on written briefing submitted by the parties, not a full-fledged trial.  The Court ruled in his favor and dismissed all of the employees’ claims, citing several reasons, including immunity on the part of the Sheriff.  In the portion of its opinion addressing the First Amendment issues, however, the Court  concluded that “merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.”

 The Court’s opinion appears to have left many wondering how “Liking” a Facebook page could not be considered speech, especially if it involved “Liking” a politician during an election season.  That sort of expression seems to be classic political speech well within the protection of the First Amendment.  

Candy Spelling

Candy Spelling, Tori Spelling’s mother, has filed a lawsuit suing an auction company, Theriault’s, alleging she was ripped off in the contract she signed with them to sell her extensive doll collection. 

Spelling, self described as a “social commentator, socialite, and philanthropist” alleges that she  gave the extensive doll collection to Theriault’s for sale, but that they cannot account for what has been sold, unsold, and how much is due to Spelling.  Spelling fired them and cancelled the contract, demanding return of the unsold dolls, and alleges that Theriault’s refuses to return them. 

According to the lawsuit papers, “Spelling entrusted Theriault’s with possession of the Spelling Collection for the sole and limited purpose of conducting professional auctions featuring the Spelling Collection. However, after receiving possession of the Spelling Collection, Theriault’s repeatedly failed to provide Spelling with timely and complete accounting of what items had been sold at auction, what items remained unsold and the correct amount owed to Spelling based on the sale of her property. 

Photo Courtesy of TheHairpin.com

Spelling’s suit alleges that Theriault’s not only breached the contract, but also of “conversion,” which is legalese for theft.  Spelling is asking for $500,000 in damages, punitive damages, interest, and any other relief the judge may award. 

There are some pictures of Spelling’s doll collection available online. As the pictures show, “vintage” apparently does not always mean “desirable.”

This will make it much easier for injured individuals to  succeed in lawsuits involving pit bull dog bites.

There is no single law that defines “personally-identifiable information” or specifies what information must remain private on a nationwide basis. Rather, U.S. privacy laws consist of a patchwork of state-by-state prohibitions, sector-specific laws, and federal regulations. The Gramm-Leach-Bliley Act, for example, establishes the guidelines for the collection of financial data, pin numbers, and similar information, in conjunction with regulations established by the Federal Reserve Board. Violations of these policies are enforced by the Federal Trade Commission.

The protection of personal information, however, is left to each state. California’s privacy laws, one of the strongest nationwide, define personally-identifiable information as information that can be used to identify an individual, such as names, addresses, telephone numbers, email addresses, social security number, or other personal details.

Under the AG’s agreement, all apps available on the six companies’ service sites must provide “clear and complete” privacy policies explaining about how users’ personal data is collected, used, and shared. Apps that do not make use of personal data do not need to present a privacy policy. The AG has emphasized that it intended to prosecute violations of the agreement vigorously, through fines and other legal proceedings. The AG’s agreement with the six cell phone app manufacturers came on the heels of an investigation revealing that most mobile applications have no privacy policies, meaning that consumers storing their personal and information on cell phones regularly have their information used by and potentially sold to third-party vendors of app-makers, without their knowledge, authorization, or approval.

Consider the example of digital music service-provider Spotify (www.spotify.com). Spotify requires prospective users to waive their right to bring a class action, agree that only the laws of New York will apply to disputes with Spotify, and give Spotify automatic access to the user’s information, including the searches made, date/time of the request, performance statistics of the user’s computer and network, and details of the user’s computer, operating system, application version, browser type, and language. Spotify also tells users that their personal information “including gender and age and postal address” will be shared with anyone who merges with or buys Spotify.” Users have no choice but to agree, if they want the app. The agreement, though a positive development for California consumers, is only the first step.

The AG’s office has asked the six app manufacturers to continue working with its office to develop best practices for mobile privacy and mobile privacy policies. In six months, they are scheduled to re-convene with the AG to assess the progress that has been made.

The Samsung family has been locked in a bitter inheritance feud for the past several months. Photo courtesy of The Star.

The bitter family feud over the Samsung inheritance fortune that has been brewing in South Korea for the last several months should be a stinging reminder of how important it is for individuals to have end-of-life and estate-planning  documents in place before death and before they grow too old or ill to do so.

Protecting Loved Ones from Tough Decisions.   Planning for one’s own death is not easy. Individuals should look past the macabre elements of estate-planning, not only because death is an inevitable reality, but because it is absolutely required for the protection of loved ones.  A death without a thoughtfully-prepared and frequently-revisited estate plan could leave loved ones guessing about how to handle one’s end-of-life issues, such as resuscitation and others raised by advanced health-care directives.  Loved ones can be left with lasting trauma when forced to make life-altering decisions for their parents or relatives, assuming they can even reach an agreement.  Estate-planning documents can provide necessary instruction and relieve loved ones from the burden of having to guess how to handle tough issues.

"Do It Yourself" Wills can create unintended problems.

Problems with “DIY” Wills.    For the past few years, I have been involved in a number of lawsuits involving adult children and relatives in complex families, in which a step-parent is left with virtually all of the assets and control of the family finances after the passing of the biological parent.  This is a problem that can be exacerbated by overly simplistic wills.  Basic or “do it yourself” wills often do not consider the problems that exist when there are biological children of now-divorced spouses and “new-family” children produced by re-married spouses.  On occasions, relationships between “first-family” children and a step-parent are sour at best, and when a step-parent is left in total control of the family’s finances simply because of an overly-simplistic will,  there is every risk that the “first-family” children and “new-family” children are not dealt with equally.  The “first-family” child often feels hurt by the biological parent’s perceived thoughtlessness, angry at the step-parent, and resentful of step-siblings.  Most of the times, the family relationships are never the same.  A current and thoughtfully-prepared will on the part of the deceased could have wholly avoided these unfortunate events.

Most Americans incorrectly believe they are too young to be worrying about estate-planning.

What’s the Hurry? Most Americans mistakenly believe they are too young to be worrying about end-of-life and estate-planning.  This is terribly naïve.  Accidents happen, children are born in and out of marriages, divorces result, and family relationships change over time.  If an individual is involved in an accident that leaves him or her mentally impaired, it is usually too late.  The law requires individuals be fully competent and capable of understanding the nature of his/her actions in taking estate-planning steps – otherwise, the documents could be deemed ineffective and void.

Who Should Be Planning? Any person who has a loved one needs to consider end-of-life and estate-planning issues.  This includes not only the preparation of a will providing instructions on the distribution of one’s property, but also self-care instructions, such as advanced health care directives, living wills, and other documents.  If substantial assets are involved, individuals should consider how best to place their assets in the hands of those to whom they wish those assets to be given. Sometimes, individuals simply want loved ones to “inherit” their belongings outright – but other times, they would prefer to leave gifts that help pay for college costs, medical expenses, a downpayment on their child’s future house, or wedding expenses – events that could happen many years after the individual’s death. There are countless ways of estate-planning  in a manner that comports with one’s wishes.

Avoidance Increases the Risks.  Dealing with aging family members and  one’s own impending mortality is not easy – it is arguably the toughest issue that individuals face in life.  But ignoring the issues simply because they are unpleasant to consider is dangerous – accidents can happen at any time and being left deceased or too impaired to prepare an estate plan can have lasting, irrevocable, and entirely-avoidable consequences for loved ones.  It doesn’t take the $613 million at issue in the Samsung family lawsuit for bitter disputes to arise between family members. 

Three female employees who learned about the peeping-tom have hired lawyers and are attempting to sue Sears for allegedly “doing nothing” about the situation.

Obviously, videotaping others undressing and using the bathroom is illegal. But the question is whether Sears is on the hook for the illegal actions of its janitor.  Usually, companies are not responsible for the criminal actions of their employees unless the criminal actions were taken as part of the employee’s job duties, or that the actions furthered the company’s business.

However, Sears could be sued for failing to supervise the janitor, negligently hiring the janitor, if the janitor had any kind of history of being a peeping-tom that a background-check would have revealed, or failing to fire him, if Sears knew about the filming but did nothing.  Time will tell.

https://www.facebook.com/fbsitegovernance/app_4949752878

Shakur’s hologram performance was commissioned by his former colleague Andre (Dr. Dre) Young, from digital producer Digital Domain Media Group (made famous through its work on the virtual version of Brad Pitt in “The Curious Case of Benjamin Button”) and San Diego-based AV Concepts.  It was the first-ever live performance of a deceased entertainer.

According to reports, the hologram was stunningly realistic, down to the details of Shakur’s movements, skin-art, boots, clothing, and other details. In fact, the performance created such a buzz that it has been announced the hologram of Virtual Tupac will now be going on tour.

A ph oto of the Tupac hologram, courtesy of Spinner.com

The most dazzling element of Shakur’s post-mortem performance was that it was not borrowed from footage of Shakur filmed during his life, but rather, entirely fabricated and produced specifically for the Coachella music festival.  Virtual Tupac performed in front of the audience, addressed them, danced, and pranced around like a living ghost, interacting with the crowd as well as other entertainers. At the beginning of the performance, Virtual Tupac yelled, “What the f— is up Coachella?” even though Coachella was not even founded until 3 years after his death.  In the wake of the performance, some commentators expressed uneasiness that words and actions never said or taken by Shakur could be scripted by others and put into the deceased entertainer’s mouth.

Legally, the digital resurrection of a deceased entertainer brings up a plethora of thorny issues, including the appropriation of the entertainer’s publicity, intellectual property rights to the digital software/video that created the performance, rights to the performance itself, and rights to other works depicting the performance, including footage, video clips, sound clips, and other forms of social media – in addition to the huge issue over royalties and who is entitled to them. In this case, it appears that Afeni Shakur, Shakur’s mother and the legal representative for Shakur’s estate approved (and was in fact “thrilled with“) the performance of her dead son, so concerns about the unauthorized uses of Shakur’s image and likeness may be moot.  It is unclear who the copyrightholder of the Shakur performance is.  Now-defunct Death Row Records, one of Shakur’s former record companies, is already complaining that Shakur’s performance was not sufficiently attributed to Death Row.

But the digital performance also raises significant issues for living  entertainers. When Shakur passed away in 1996, the digital revolution had just begun.  There would have been no way for Shakur to have known that 15 years later, in 2012, his “ghost” would be brought back to life for a live digital performance.  Frequently, entertainers, who already have very little leverage when negotiating with big record companies,  are asked to sign broad assignment of their rights.  The broad release of rights allows record companies and their representatives to use, re-use, and manipulate nearly every conceivable likeness, depiction, and work of the artist, in all venues and channels, irrevocably, in perpetuity, and exclusively.  Many artists and entertainers are often unaware of how much of their rights  they assign over to record companies when they sign a deal.

Should artists and talent be made aware that the release of their rights could extend to new mediums of expression that do not exist today, but could be made possible through advances in technology? Certainly, it’s very possible that artists would find the new forms of expression unsavory.  For example, would a 55-year old Justin Bieber be comfortable with a 15-year old digital hologram of himself waking young schoolgirls from sleep each morning and kissing them goodnight?

Then there is the most important issue – the integrity of the deceased artist himself. Not all deceased musicians end up with responsible representatives managing their affairs in the afterlife.  If it becomes profitable for the legal representative of a deceased entertainer to approve new projects involving the entertainer, there could be virtual performances and other activities attributed to the entertainer that the enterainer may never have agreed to in his or her lifetime.  Imagine Johnny Cash promoting a commercial for Starbucks.  Who should be charged with maintaining the integrity of a deceased entertainer’s unspoken wishes?  Unfortunately, because technological growth so exceedingly outpaces legal rules, there are no easy answers to these questions.

While it is true that individuals can leave instructions in their wills and other estate planning documents, the representatives entrusted with carrying out those wishes are sued all the time for failing to uphold them.  But unless someone takes that legal representative to court for failing to honor the deceased’s wishes, there is no one to stop them for doing something the deceased would not have agreed to.

Further, although the law provides for the protection of unborn voices by permitting for the appointment of guardians who must act in the best interests of unborn children, the dead are sadly left on their own.  Unfortunately, performing in front of a packed crowed at Coachella does not sound like resting in peace.

Photo Courtesy of sinteur.com

Nice to know what U.S. taxpayers are really paying for.  A full dozen Secret Service agents were relieved of their duties after it was revealed that they were canoodling with Colombian prostitutes in Cartegena, Colombia, on the night before the Summit of the Americas international event.  Apparently one of them refused to pay for the services of the prostitute, who then complained to the Colombian police. 

It may sound like breaking news, but it is not. The sad reality is that governmental employees, starting from the bottom-rung and up, consistently engage in bad behavior.  Last month, it was revealed that state governmental offices were prodding into employees’ Facebook accounts by asking for their usernames and passwords, to see first-hand what kind of potentially objectionable” content could be found on their personal and private accounts.  Quite ironic given the long history of fraudulent, offensive, or illegal behavior on the part of high-ranking governmental figures at the top of the totem pole. 

Consider these examples:

• General Services Administration Martha Johnson, who fired two GSA officers and quit herself after over $800,000 was spent in Las Vegas on a 4-day training conference for GSA employees;
• Ultra-religious conservative John Ensign (R-NV), who quit last year before the Senate Ethics Committee began examining fiscal violations in connection with his extramarital affairs;
• Tom DeLay (R-TX), convicted in 2010 of money laundering;
• Rick Renzi (R-AZ), prosecuted for 35 charges of fraud, conspiracy and money-laundering.
• Spencer Backus (R-AL), accused of insider-trading to avoid financial losses after being given a Congressional report on the impending melt-down of the American economy;
• David Rivera (R-FL), under investigation by the FBI, IRS, and other state organizations for money-laundering, public-corruption, and tax-evasion

Although these are just a couple of examples from recent years, the larger list of scandals involving governmental leaders and employees is stunning (as well as the two presidencies under which the greatest number were apparently reported.)  The state/local list is longer and just as lurid.

Secret Service agents are certaintly entitled to blow off steam, just like every other employee.  But this isn’t the first time they or other federal security agents have misbehaved.  In November of 2011,  a federal agent providing security shot an unarmed man in a Honolulu McDonald’s and was charged with second degree murder.  In August, a Secret Secret Service agent was apparently driving drunk in Iowa and arrested. Three newsworthy reports in the past six months.  The Secret Service (organized under the U.S. Department of Homeland Security) requested $1.9 million in appropriations from the federal budget for 2012, nearly $1.7 million of which is intended to pay for salaries.  If the majority of Secret Service funds end up as employee wages, the agents themselves are the agency’s most important asset, and must perform accordingly. 

The good news is that the Obama administration, upon becoming aware of the misconduct, relieved the agents of their duties immediately instead of covering up the story or brushing it away under the guise of a long drawn-out “investigation” ultimately leading to nowhere.  But where there is smoke, there is usually fire.  A deeper clean-up may be in order.

The U.S. Dep’t of Justice filed a lawsuit today accusing Apple and other e-book publishers of colluding to price-fix the cost of e-books, in violation of federal antitrust laws.  The antitrust suit was filed against Apple, Hachette Book Group, HarperCollins, Penguin, MacMillan, and Simon & Schuster. Three of the publishers have agreed to a settlement, while the Justice Department will continue to litigate against Apple and the two publishers Macmillan, and Penguin.

The Justice Department accuses the publishers of conspiring to limit e-book price competition, increasing Amazon’s e-book retail prices and causing “consumers to pay tens of millions of dollars more for e-books than they otherwise would have paid.”  The publishers settling with the DOJ have essentially agreed to pay more than $51 million back, to compensate consumers who bought price-fixed e-books.

What is unusual about this story is not the increasingly commonplace efforts by blue-chip corporations to swindle average consumers, but how the DOJ appears to be handling the allegations.  The civil antitrust lawsuit is seeking only the repayment of money, which seems to be a departure from prior antitrust price-fixing lawsuits by federal and state authorities, which have on numerous occasions resulted in the perpetrators getting arrested or going to prison.   Perhaps, a pound of cash truly is more valuable than a pound of flesh.

Around the same time, Sprint revealed that there is only a single U.S. town, Kankakee, Illinois, that receives 4G Speed signals.  Sprint said it will offer 4G LTE service by June in Kansas City, Baltimore, Dallas, Atlanta, and Houston.

Sprint’s admission begs the question: why would anybody pay more to buy 4G phones if 4G service from Sprint isn’t actually available?

“Cramming,” for those who may not know, is the practice adopted by cell phone and telephone companies that permits third-parties to access customer billing accounts and place charges on them.  Sometimes, those charges are not authorized by the customer, leading to infuriated customers who have to spend hours on the phone with the telephone/cell phone providers to get the charges removed.

In the FCC’s open-meeting agenda last week, Senator Charles Schumer (D) called for the FCC to ban cramming altogether.   Since cellphone/telephone companies of course make a lot of money through cramming, especially when customer bills are “auto-paid” and not closely scrutinized, some degree of campaign contributions resistance from both vendors and cell phone conglomerates should be expected.

Rod Blagojevich

A few days ago, Rod Blagovich was taken into custody for incarceration in the Englewood, Colorado federal correctional institution for a 14-year sentence, closing the chapter on the ongoing saga involving the former Illinois governor. The crimes for which he was convicted? Bribery and political corruption.  Taking advantage of his political office, for self-aggrandizement and for profit, at the expense of his constituents.  Around the same time, an open letter was published by Goldman Sachs departee Greg Smith in the New York Times, accusing Goldman Sachs of corruption and “losing its moral compass,” which made ripples throughout Wall Street.  According to Smith, over the course of his career, Goldman Sachs changed from being a respectable institution into one he could no longer bear to be affiliated with.  Smith accused Goldman Sachs nurturing a culture that promoted greed and gleefully ripping off clients.  The path to success at Goldman Sachs, said Smith, usually involved persuading gullible clients to buy worthless securities, making financial decisions based on how much money it would make Goldman Sachs (not the clients), and selling cooked-up financial products to clients that did not align with their financial goals.  Perhaps the most telling portion of the letter was Smith’s admission that behind closed doors, Goldman Sachs associates (and managing directors) called their clients “muppets”  -  wood-headed inanimate playthings whose every moves would be controlled by the puppeteers, Goldman Sachs. 

 In the legal world, financial and asset managers generally owe their clients fiduciary duties -  duties that arise out of the relationship between the two that is founded on trust, confidence, and good faith.  Arguably the most important fiduciary duty owed to clients involves decisionmaking that is in the best interests of the client – interests that may diverge from the best interests of the manager.  That is the very essence of a fiduciary relationship: trusting another individual or entity to act in one’s best interests.   Every year, banks, brokers, financial institutions, trustees, and countless other fiduciaries are sued by clients in civil lawsuits, alleging breaches of duty, abuse of position,  failure to perform job duties fairly, honestly, and in good faith, and in some cases, personally profiting at the expense of the clients.  Sometimes, the loss alleged is less than $100,000; sometimes, it is a multi-million dollar lawsuit.  Usually, the cases settle; certainly, no one goes to jail. 

 Blagojevich’s incarceration is a stark contrast to the unabashed profiteering that seems to be occurring “every day” at institutions like Goldman Sachs, according to Smith.  Abusing one’s political power is apparently an unforgivable sin, deserving relentless prosecution to the bitter end by teams of federal prosecutors.  It is unknown how many manpower hours, dollars, and resources the Illinois United States Attorneys’ Office spent prosecuting Blagojevich not once but twice, when a mistrial was declared after Blagojevich was convicted of only one of the 23 pending criminal charges brought against him (lying to investigators) during the first trial.   

Graphic Courtesy of UprisingRadio.com

Profiting at the expense of the middle class, however, seems to be just another ordinary day on Wall Street.  When the American economy suffered a cardiac arrest at the end of 2007, Goldman Sachs made record profits of $4 billion by short-selling the very same subprime securities it had peddled throughout the world – selling to clients what it was secretly hoping would fail.   Once the house of cards that Goldman Sachs had built had fallen, Goldman then took home the wages for cleaning up the mess as well, as the largest recipient of the taxpayer bailout of AIG.   Goldman Sachs then went on to pay at an effective tax rate of 1% in 2008, despite making $2.3 billion in profits and paying its CEO $42.9 million in salary.  Instead of being punished for its role in either contributing to or engineering the collapse of the American economy, Goldman Sachs’ leadership was promoted.  Goldman Sachs’ former CEO (and Barrington, Illinois native) Henry Paulson, was named Secretary of the Treasury by the Bush administration; Goldman banker (University of Illinois alum) Neel Kashkari was put in charge of th $700 billion federal bailout; Goldman executive Gary Gensler was appointed by Obama as chairman of the Commodity Futures Trading Commission; Mark Patterson, a former Goldman lobbyist is chief of staff to Treasury Secretary Timothy Geithner; and Robert Hormats, another Goldman executive, is undersecretary of state for Economics, Energy, and Agricultural Affairs.  In  an outstanding piece of investigative journalism reporting on Goldman Sachs’ role in the America’s economic meltdown, Rolling Stone reporter Matt Tiabbi asked rhetorically how a bank could sell legally something to customers that it was actually betting against, knowing how toxic those products were.  “It’s exactly securities fraud,” said a hedge fund manager answered Tiabbi.  “It’s the heart of securities fraud.” Still, no one at Goldman Sachs has been prosecuted by the United States Department of Justice for financial corruption and tried twice.  And no one has been sent to federal prison for 14 years.  The lesson learned? Ripping-off political adversaries can have career-ending consequences.  Ripping-off the American people – not so much.

 As a Chicago native, I have been reminded of my White Collar Crime class about a decade ago in law school, which was taught by a Chicago superlawyer and former federal prosecutor who prosecuted the Operation Silver Shovel corruption case many years ago. Chicago politics has been called the most corrupt nationwide.  Since 1971, seven governors have been arrested/indicted and four have been jailed – that kind of track-record for corruption is usually found only in third-world countries.  Against this backdrop, Blagojevich, once heralded as the Boy Wonder among Chicago Democrat circles, likely just ran out of “get out of jail free” cards friends and political influence.  During the second trial that resulted in his conviction on 17 of 20 counts, Blagojevich’s funds were exhausted and his defense lawyers withdrew from representing his case.   Goldman Sachs, on the other hand, has spent more than $15 million in lobbying expenses and $22.1 million political contributions over the past five years.  In fact, according to the Washington Examiner, President Obama received the most money from Goldman Sachs in 2008 (and coincidentally, again last month).   When the SEC brought charges against Goldman Sachs in 2010 for unlawful business practices, a $550 million fine paid by Goldman put the investigation to bed – no one went to jail.  Further, despite repeated calls for the Department of Justice to bring criminal charges against Goldman for defrauding investors, the 9-month investigation of Goldman by the DOJ appears to have simply fizzled away entirely.  This is not acceptable.

 This commentary is not meant as an apology for the foul-mouthed Blagojevich, who broke the rules and violated federal laws by attempting to profit politically and financially from the vacant Senate seat left by President Obama.  Politicians are  entrusted officials that are supposed to uphold the ideals of democracy, a free republic, and representative government.  But in a linear continuum of conduct that truly injures public health, safety, and welfare, Blagojevich’s actions seem to pale in comparison to the manifest injustices that have fallen on the American people by banks and financial institutions like Goldman.  

 What purpose does Blagojevich’s imprisonment serve? Is there any legitimate fear that the disgraced Blagojevich is some kind of continuing threat or danger to society? How much further can a con man go anyway, once found out? Again, it is surprising how ruthlessly the American criminal justice system was wielded against political gamesmen like Blagojevich but not brutally violent individuals (who are instead offered redemption and fame)  or institutions like Goldman Sachs that have profited a billionfold and more at the expense of the American public.  Blagojevich may have been corrupt, but political corruption is not superlative to financial corruption.  America’s politicized justice system needs to avoid showy example-setting and inconsequential distractions, and focus on actually combatting the deep and pervasive fraud that is perpetuated on ordinary Americans by big corporations.  There are much, much bigger fish to fry.

Photo of Billboard, Courtesy of TMZ

In the first, Hollywood gossip website TMZ reported that a local Mexicali plastic surgeon, Victor Ramirez, decided to promote his services by putting up a billboard of Kim Kardashian wearing a bikini, without her knowledge or approval.

Earlier in the week, True Blood star (Sam Merlotte’s shape-shifter girlfriend) and “The L Word” actress Janina Gavankar sued a LA clothing company, claiming that the company used her image to promote its plus-sized clothing line, without her permission.

 All of this is, of course, entirely unauthorized if the actresses did not agree to have their names and likenesses promoted in this manner. In California, individual privacy rights include the “right of publicity,” and makes it illegal for companies or individuals to use the names or likenesses of others, without their permission. 

Janina Gavankar, as "Luna Garza" in True Blood

To be successful, claimants must generally demonstrate that there was a use, for profit, of the individual’s identity, without consent, that resulted in injury to the individual.   There are several exceptions, such as the use of or likeness to report news-worthy events, or a use that is so “transformative” that its primary value is not derived from the celebrity’s fame. 

The Plastic Surgery billboard does not appear to make the cut (no pun intended).  Although TMZ reported that KK was considering whether to bring suit, the big issue is probably going to be whether it is worth the time to pursue Dr. Ramirez thorugh the Mexican court system. 

For Gavankar, on the other hand, it may be too early to tell.  Her lawsuit against Jasmine USA and its CEO, David Youshouafar, is underway LA Superior Court for now, and it will be seen whether the allegations are fact or fiction.

On March 2, 2012, the court of appeals for the federal circuit finally ruled in the favor of Myspace and Craiglist over whether they had infringed on the patent rights asserted by software/cloud development company GraphOn.   In a nutshell, GraphOn had accused Myspace/Craiglist of violating four patents it had obtained to a database-entry mechanisms that would store user fields and information without intervention by the webmaster.  At one point, Fox Audience Network, Inc. (now a part of the Rubicon Project) also joined in the suit and fought alongside Myspace and Craiglist.

MySpace/Craiglist counterargued that before any of GraphOn’s patents became effective, back in 1993, Harvard-Ph.D. Dr. Oliver McBryan of the University of Colorado developed the “Mother of all Bulletin Boards” system (MBB), which was essentially an identical process.  MySpace/Craiglist argued that GraphOn’s patents were invalid because of the pre-existing MBB process, under the terms of the U.S. Patent Act.  

Oliver McBryan, Courtesy of the University of Colorado

The court, in a long but carefully throught-through 37-page opinion, agreed, and ruled that GraphOn’s patents were indeed invalid.  Although the case could be appealed by GraphOn, for now, Myspace and Craiglist have been absolved of patent infringement.  The decision makes sense legally, but also because of practical considerations.  If GraphOn’s patents were deemed valid, every database-driven social networking site, “user account-based,” or e-commerce website could have been crippled and left virtually unable to collect and store users’ details and data using an automatic field-population process.  Unlike SOPA/PIPA, those circumstances actually could have brought the internet to a screeching halt…. or resulted in a huge financial windfall for GraphOn.  

Related Resources: Full court opinion at http://www.cafc.uscourts.gov/images/stories/opinions-orders/11-1149.pdf

Senegalese-born Akon

Financially-embattled Flordia-based law firm Yoss has filed a lawsuit against Akon (real name Aliaune B. Thiam)  seeking to recover nearly $40K of legal bills.  Yoss apparently represented Akon in an earlier lawsuit filed against Akon by a construction company, when he failed to pay his bills to them too. 

Last year, Yoss closed several of its offices and restructured its partnerships, apparently due to financial difficulties.  At one point, it announced it would be dissolving due to “months of defections, office closings, bounced paychecks, missed capital contributions, and a malpractice judgment.”

Related Resources:

http://www.stlamerican.com/entertainment/living_it/article_cc76915c-66d5-11e1-8e2b-001871e3ce6c.html

http://blogs.findlaw.com/celebrity_justice/2012/03/akon-sued-by-own-lawyers-contractor-over-unpaid-bills.html?DCMP=NWL-cons_blg-celebrity

 The Long Road to Settlement

The multi-plaintiff class action lawsuit against Apple involved the poor quality and reception of the mobile antenna of the iPhone 4, which users may remember was released in June of 2010 (the problem was fixed by the time the Apple iPhone 4GS was released). The settlement was the culmination of nearly two years of litigation which combined 18 separate lawsuits from across the nation, and five additional lawsuits in California alone, into a single dispute heard before the United States District Court for the Northern District of California, presided over by California-native Judge Ronald M. Whyte.  In the settlement papers, Apple continued to assert that it “vigorously contested” the claims alleged, but was “entering into the Settlement to avoid burdensome and costly litigation.”  According to the attorneys for the class, more than 21 million owners will be eligible to participate in the settlement.  If each and every single owner files a claim (an unlikely scenario), Apple’s tab could reach $315 million.

 Class Action Settlements: A Primer

Generally, once parties enter into class action settlements, the court overseeing the lawsuit must approve the terms of the settlement and provide a hearing process for class action claimants who do not agree with the terms of the proposed settlement.  First, a hearing is usually set for the Court to approve the settlement on a preliminary basis.  From there, individuals who are included as settlement class members (whether they are automatically included, or must specifically “opt-in,”) are given notice of the settlement and proceedings, sometimes through email, publication, mail notice, or other means.  Individuals who do not wish to agree by the terms of the settlement may “opt-out” and bring their own claim, or file an “Objection” and attend the Fairness Hearing to voice their objections to the settlement.   Once the class claim process begins, there is an established period of time in which individuals may “make a claim,” usually by completing paperwork and submitting it to a claims administrator.  A claim administrator then processes all of the claims, one at a time, and resolves each claims in the manner determined by the settlement agreement.  Sometimes, this can involve the payment of cash, coupon, or other mechanism. 

 The Apple iPhone Settlement: Next Steps

In this case, the settlement was reached in late January, presented to the Court for approval on February 10, 2012 and successfully approved.  According to the terms of the settlement, class members will be entitled to receive a $15 cash payment if they meet the requirements and submit a completed Claim Form, which will ask for their names, addresses, and the serial numbers of their iPhones, and require them to certify that they: 1) had antenna problems with the iPhone 4; 2) unsuccessfully attempted troubleshooting steps on the Apple website; 3) could not have returned their iPhone without incurring any costs, and 4) were unwilling to use a case or a free bumper for their iPhone 4, which allegedly would have minimized the poor antenna-reception problems.  Consumers who no longer own their iPhone are also given an option to contact Apple to verify their prior ownership.  Alternatively, consumers may obtain a free bumper in lieu of the cash payment.

Apple will be giving Notice to all potential class members by April 30, 2012 by publishing ads in MacWorld magazine and USA Today.  All iPhone 4 purchasers who are registered in Apple’s warranty registration database will also be receiving an email copy of the Notice.  Once notice is provided, settlement class members will have approximately four months (120 days) to submit a claim.  Claim forms will be available on the website www.iPhone4Settlement.com (not active yet). Claims that are submitted will be processed by third-party administrator Kurtzman Carson Consultants, which has administered several other high-profile class settlements, such as those involving Blue Cross Blue Shield, California Pizza Kitchen, Deloitte & Touche, and others.

 For class members who object and do not agree with the settlement, the Notice will specify the dates by which Objections must be filed, and the date of the Fairness Hearing.  Class members who do nothing will automatically be a part of the settlement class, but will not receive a cash payment unless they file a valid and timely Claim Form.

In California, individual privacy rights include the “right of publicity,” which provides individuals with an avenue of recovery if their names or likenesses are misappropriated by others.

To be successful, claimants must generally demonstrate that there was a use, for profit, of the individual’s identity, without consent, that resulted in injury to the individual.   There are several exceptions, such as the use of or likeness to report news-worthy events, or a use that is so “transformative” that its primary value is not derived from the celebrity’s fame. 

However, those defenses may not be vailable to ToyWatch – after all, Sanda Bullock seems to be displayed in a number of sites on the internet and used to promote the ToyWatch “Plasteramic” Collection.

 A Brief Background
It is wholly uncertain whether most Americans even understood what SOPA/PIPA was intended to accomplish, how it sought to do so, or why.  Let’s focus on SOPA for the moment.  SOPA was intended to combat foreign copyright infringement by disabling the internet infrastructure by which U.S. citizens would  access and financially compensate the products or services offered by such sites.  SOPA, as proposed, would have allowed the U.S. Attorney General  to bring a lawsuit against foreign websites “dedicated to infringement” to obtain restraining orders and injunctions in order to prevent them from “undertaking any further activity as a foreign infringing site.”  With a TRO/injunction  order in hand, the U.S. Attorney General would then be authorized to provide that court order to internet service providers, who would be obligated by SOPA to “take technically feasible and reasonable measures” to prevent U.S. internet users from accessing the offending site.  This would include disabling domain name resolution services (i.e., the internet service that translates IP addresses (192.168.0.1) into website “names” like www.lalawblog.net).  It would also include preventing offending websites from showing up in search engine results, and preventing U.S. based merchant services providers from funding transactions providing payment to the offending registrants.  To make a long story short, SOPA hoped to kill foreign copyright infringement by cutting off its air supply, nervous system, and circulation.  Practically, however, the bill would shift the laboring oar of combating foreign copyright infringement from U.S. copyrightholders and governmental entities onto internet and merchant service providers, who would have been responsible for complying with SOPA’s stop-service requirements.  SOPA also would have provided tools to copyrightholders to combat sites “dedicated to the theft of U.S. property,” including sites that “engage in, enable, or facilitate” intellectual property violations, as well as “sites that have taken “deliberate actions to avoid confirming a high probability of use” to violate intellectual property sites.

 What is the best example of SOPA in action? A colleague of mine, in recently attempting to purchase a holiday gift for a significant other, came across an “outlet store” offering counterfeit luxury goods. The registrant is located in China, and the goods, sold at a small fraction of market value, are unmistakably counterfeit, despite all representations to the contrary.  There are hundreds, if not thousands of similar sites; they go up online with relentless frequency, and are notoriously difficult to shut down.   SOPA would have prevented sites like this from being accessed through Google, advertised via sponsored links, and receiving online payments from U.S. citizens through common payment gateways and merchant service providers.

 Luxury goods are not the only products/services affected by foreign counterfeit commerce.  Foreign companies not only sell retail/consumer goods to the United States, they do not always comply with product safety, testing, and quality standards.  Foreign companies may make numerous misrepresentations about the quality and nature of the products/services being offered, and  U.S. consumers can be misled into purchasing what are not easily identifiable as counterfeit or of inferior quality.  The motives of foreign counterfeit product manufacturers are not opaque – short-term profits in a  business landscape with little fear of repercussions, given the difficulty of facing lawsuits from abroad.  Across the nation and over a period of time, counterfeit products could result in the multibillion dollar fraud of American consumers.  Sometimes, counterfeit products do not only infringe on copyrighted goods – they can be deadly products causing serious bodily injury or damages.  Eliminating U.S. access to counterfeit goods not only protects copyrightholders, but it could further the safety, health, and welfare of Americans as a whole. These two seemingly conflicting goals pit the interests of “freedom” against those of the greater national good.  Do Americans have a constitutional right to purchase knockoff Rolexes from the downtown black market?  Or could there be some public welfare interests served by prohibiting street sales by corner peddlers altogether?  As SOPA/PIPA has demonstrated, the jury is still out.

 The Causes of Death
Most critics of SOPA/PIPA relied on common “slippery-slope” arguments to make their points.  But, because most casual newsreaders are not practicing lawyers,  the fears associated with SOPA/PIPA, at least in part, succumbed to unnecessary amplification. 

Burden on Internet.  For example, SOPA drew cries from numerous internet service providers claiming that SOPA’s onerous requirements on them would bring the Internet to a halt.  But this assertion would have been an overstatement because SOPA, as proposed, would have offered an internet service provider the ability to show that it “did not have the technical means” to comply with stop-service orders “without incurring an unreasonable economic burden.” This provision was intended to relieve service providers from burdensome obligations by giving them an avenue to demonstrate the hardship that would result.  Statutory provisions aside, why shouldn’t huge internet service providers be expected to take responsibility for the content their services make available to the American public?  Keep in mind, SOPA/PIPA are primarily intended to address internet sites “dedicated” “primarily” to the theft of U.S. property and copyright infringement.    

Personal Lawsuits.  Some critics expressed fears that individual entrepreneurs connected to the internet industry and their start-ups would face additional exposure and liability because of SOPA.  SOPA, however, provided broad immunity to “any director, officer, employee, or agent” of any “entity”  for “any act” “reasonably designed” to comply with SOPA.  That broad grant of immunity would have protected individuals and companies from retaliatory lawsuits arising out of their compliance with SOPA.   

Prior Restraints?  Harvard constitutional law professor Laurence Tribe and other law professors expressed concerns that SOPA/PIPA would act as a prior restraint on First Amendment rights, meaning that it would act as a prophylactic bar on free expression, without any judicial oversight.   Section 2(a)(1) of SOPA, however, unmistakably limits SOPA so that “nothing in this Act shall be construed to impose a prior restraint on free speech or the press.”  SOPA thus appears to seek harmony with constitutional First Amendment rights, not cause conflict with them, as other law professors have noted.  Further, as any legal analyst would know, there are numerous examples of First Amendment protections not automatically being provided for certain types of speech, like hate speech, fighting words, imminent threats, and obscenity.  Does the sale of counterfeit products online constitute “speech” that is entitled to First Amendment protection? What if the website is a foreign producer of counterfeit goods that infringes on the rights of American copyrightholders? A number of the criticisms of SOPA/PIPA on First Amendment grounds fail to take some of these considerations into account. 

Lack of Notice/Due Process.  Some commentators asserted that SOPA would be the death-knell for due process, fair notice and the right to a hearing before deprival of a substantive right (like the right to property).  These concerns appear to be exaggerated.  Section 102(b)(3) of SOPA requires that notice of the US Attorney General’s lawsuit be made to the registrant registering the offending domain name, in accordance with the Federal Rules of Civil procedure.  Further, the tools provided to rightholders are substantively no different than in the DMCA.  Individual copyrightholders are already permitted to contact internet service providers and seek take-downs of infringing content without acquiring a court order or providing the offender the right to appear in a due-process hearing beforehand.  But that raises the same point made above – is there a substantive due process right to  provide infringing products or services online? Is this an activity that should be considered a constitutionally-protected component of “life,” “liberty,” or “property”?  

The Unofficial Coroner’s Report   
How SOPA/PIPA could be construed as a wholesale “censorship of the Internet” is not quite clear.  In the larger scheme of copyright enforcement legislation, SOPA/PIPA arguably would not have been any more or less transformative than the Digital Millennium Copyright Act (DMCA), enacted in 1998, which was both revolutionary and marvelously ahead of its time when passed into law, especially considering the comparatively unsophisticated technological challenges to copyright enforcement the DMCA was intended to thwart, as they existed in the late 1990s.   The anti-circumvention and take-down  provisions of the DMCA, even today, remain viable and strong tools in the anti-infringement arsenal.   In fact, the DMCA operates similarly to SOPA.  Pursuant to the DMCA, take-down notices may be issued by rightsholders to websites, registrars, and hosting providers, requiring them to take down infringing content within a specific time period, in the same manner as SOPA.  This occurs without court order, without “due process” or “hearing.” Despite all of the commotion about SOPA/PIPA, the DMCA seems to work effectively in curbing infringement, without a great deal of abuse by copyrightholders, while providing safe harbor for unintentional storage of infringing content by service providers.  The reason why SOPA/PIPA were met with such resistance, even though they are substantially similar to laws already in existence, is because most corporate internet giants came into existence long after the DMCA was enacted, and simply learned to live with its provisions. 

 What killed SOPA/PIPA does not appear to have been substantive.  Rather, its death appears to be due to an astonishing oversimplification and reframing of complex issues into a singular crusade “against Internet censorship” allegedly propagated by nefarious Hollywood media moguls seeking to squelch freedom, free speech, the American way of life – right down to fears that the Internet as a whole would be brought to a screeching halt.  When cast in those terms, it is not hard to see why lawmakers lost both battle and war.  Nothing seems to be as effective in riling up public support more than perceived threats to “freedom,” as abstract and disingenuous the allegations may be.   The death of SOPA/PIPA was thus not only a substantive coup for opponents, it revealed a tremendous flash of public relations brilliance.  What could it be, other than sheer genius, for corporate tech giants to mobilize ordinary Americans from all segments of society by recasting a power struggle with other corporate giants as a “threat” to individual digital freedom and constitutional liberties.  The truth is that SOPA/PIPA would have resulted in the significant expenditures of fees, time, resources, and manpower for internet service providers who make infringing content available to American users – whether it is through streaming content, server-stored material, peer-to-peer networks, search terms, advertising, links, or other means.  It should be remembered that Google, YouTube, FaceBook and other providers of Internet entertainment and content are not charitable operations  – they are powerful multi-million dollar conglomerates who have profited substantially from making content available to internet users, and are now being asked to take responsibility for the portion of that content that infringes on the rights of American copyrightholders.  Now that the dust has settled, ordinary Americans  may come to realize that in the battle over SOPA/PIPA, they were collateral to the ongoing war between Big Tech and Big Media – a fight to keep making millions while minimizing financial bloodletting in a bad economy, full of sound and fury, but signifying little for the average middle class.   

 The Nails in the Coffin.  There should be no mistake – there are significant portions of SOPA that are defensible and would go a ways in protecting U.S. copyright holders from infringement occurring by foreign sites dedicated to profiting from the copyrighted works of American individuals and companies.  But that does not mean that SOPA/PIPA, as proposed, did not have serious flaws.  The nails in the coffin of the legislation, for better or worse, resulted largely from vague language that was both overbroad in prohibiting fair uses of copyrighted material, and creating expansive secondary liability for service providers.   

Overbroad/Vague/Ambiguous.  For example, SOPA/PIPA defined secondary copyright liability using terms like “facilitate” or “enable,” which are vague and not easily ascertainable.   For example, would YouTube be “facilitating” copyright infringement by not vigilantly policing the content uploaded to its site?  What about streaming video sites that do not store content on their servers but simply make the content available in peer-to-peer networking groups or through links?  Because of the vagueness of the language, whether or not certain conduct would be deemed to violate SOPA/PIPA would have to be determined through lawsuits that would no doubt be long, expensive, and time-consuming.  Congressional leaders need to bring better clarity to the syntax of future bills. 

Protections for Unknowing Infringements.  SOPA/PIPA need not only more precise language, but amendments to include safe harbor provisions for internet service providers who do not have actual knowledge of infringements.  As the recent Veoh decision has foreshadowed, there is no reason to believe that, if asked to rule on the matter, courts would not find the same and thereby limit the reach of SOPA/PIPA through interpretative judicial authority. 

Penalties for Knowing Misrepresentations.  The DMCA contains penalties for copyrightholders who knowingly misrepresent alleged copyright violations. SOPA similarly provides for damages in the event a copyrightholder makes material misrepresentations about infringing sites. PIPA, however, lacks these protections.  All future incarnations of SOPA/PIPA need to include broad provisions curtailing malicious or knowing abuses of the provisions so as to provide a remedy to defendants wrongly accused of breaching them. 

Resurrection?
It is unlikely for SOPA/PIPA to rest in peace permanently.  Already, there are discussions of revisiting earlier bills and manipulating them to accomplish similar goals.  With a resurrection planned and almost certainly expected in one form or another, ordinary netizens would be served best by ignoring corporate rhetoric on both sides the next time these issues surface, and instead, carefully considering the real motives, incentives, and outcomes proposed by the new legislation.  The issues are not always as simple as “free speech for the masses” and lawmakers on both sides of the aisle must take it upon themselves to educate voters about the real stakes that exist not for multimillion dollar corporations, but for individuals.   

 Generally, under US copyright laws, a garment generally cannot be copyrighted, but an original design or fabric pattern may be considered intellectual property that can be covered by copyright or trademark.  Some reports, however, are that over the last several years, LA Printex has apparently brought over 200 lawsuits asserting fabric copyright infringement.

Related Stories:
http://articles.latimes.com/2006/jan/15/business/fi-fabric15 
LA Printex Industries, Inc. v. Forever 21 et al., Case No. 2:12 cv 166 JFW
LA Printex Industries, Inc. v. The Wet Seal, Inc. et al. Case No. 2:12 cv 31 JST
LA Printex Industries, Inc. v. Ross Stores, Inc. et al. Case No. 2:12 cv 165 ODW
LA Printex Industries, Inc. v. Seven Licensing Company, LLC et al. Case No. 2:12 cv 168 JAK

Hanna Dodkin, Courtesy of Daily Mail UK

Unfortunately, there is not much information about the Hydra Executives show available, other than it was a “competitor” of “The Apprentice,” filed in UAE and featured back in the spring of 2009, pitting eight American entrepreneurs against United Kingdom counterparts.  The show was founded and hosted by UAE real estate tycoon Sulaiman Abdul Kareem Mohammad Al-Fahim, apparently a repeat contender on the list of the “World’s Most Influential Arabs.”

The public version of the complaint does not appear to be available yet for download, but it will be interesting to see how Richard Best responds.  For further proof that no good deed goes unpunished, the reports are that Best had donated $100,000 of the earnings to the United Nations to help combat malnutrition after receiving the prize money.  Interestingly enough, Best does have the finale episode available on his website (linked to a YouTube channel), which will make interesting evidentiary fodder.

Jan. 5, 2012 Update: Courthouse News Service has obtained some more details to this story.

Richard Best, Courtesy of His Website

The Phone Dog case is interesting because it does not involve a trademarked or copyrighted slogan, mark, or logo of the employer, Phone Dog. According to court documents, Noah worked for Phone Dog as a video blogger and reviewer of products.  Apparently, as part of Noah’s work for Phone Dog, Noah collected more than 17,000 twitter followers.  When Noah resigned his position in October of 2010, he changed his twitter handle from @PhoneDog_Noah to @noahkravitz.  There is a disagreement between Noah and Phone Dog about whether Phone Dog ever asked Noah to give up his twitter account entirely.  Phone Dog’s lawsuit was filed because Phone Dog believed that Noah was using his twitter account (with its 17,000 followers) to continue marketing and advertising on his own, to some of the outlets he had marketed and advertised to during his employment with Phone Dog, such as Fox News Live and CNBC’s  Street Signs. There were no contracts or agreements between Noah and Phone Dog restricting him from using his twitter account post-departure.

The Phone Dog case is a good example of why it is a good idea for employers and employees to have clear expectations (and agreements) about the ownership of social media accounts, and whether collecting “friends” or “followers” is being done for the benefit of the company pursuant to job descriptions or expectations, or whether it is an independent venture of the individual employee, separate and distinct from his or her job duties.  In this case, there seems to be fair arguments on both sides.

For Personal or Business Use?  It is unclear whether Noah was pursuing twitter followers (arguably, we may never know whether followers sought to follow Noah the individual or “Noah the Phone Dog employee”) independently or as part of the practice as one of Phone Dog’s product reviewers and bloggers.  Certainly, having a wide audience following was both favorable for Noah as well as Phone Dog.

Substantive Content.  It is also unclear whether Noah’s tweets were in large part employment-related, in terms of content, or whether they conveyed personal messages.  In taking a quick peek at the most recent ones, it appears that Noah tweets, and tweets often, about a variety of topics, not just those about his employment or Phone Dog:

What is the Proper Analogy? Another looming question that could be answered, if the Phone Dog case is assessed on its merits, is whether social media friends or followers are more akin to a company’s “customer lists,” which might be protected as a trade secret, or whether they are more similar to simply a list of contacts.  After all,  individuals who leave their employment to not “unlearn” their acquaintences, and barring non-solicitation or non-compete provisions in an employment agreement, are free to contact their list of contacts.

Public Relations Elements.  For Phone Dog, an unintended consequence of the lawsuit may end up being bad publicity.  Regardless of how meritorious their claims may be, to the public, it may simply appear to be a powerful employer flexing its muscles and intimidating a former employee, whether it is to set an example, or truly recover the Twitter “followers.”  This would not be the first time a lawsuit in the technomedia space has generated more (negative) publicity than may have been desired.

For now, Noah’s legal team is attempting to have the case dismissed for failure to state a claim for relief.  A hearing has been scheduled for the end of the month, so there may be new developments coming in the near future as this case marches forward.

Google's Venice Beach Office

Perhaps in a rebirth of “trickle-down” economics, some news sites are reporting that the technological talent tucked away in the valleys of Northern California is now migrating southward toward “Silicon Beach.” 

Now that there is a new  Google office in Venice, there appears to be great praise for budding LA startups such as TrueCar, Riot Games, Parking in Motion, and others.

It remains yet to be seen how much further Google will expand in Venice in 2012. Back in 2003, Google acquired Applied Semantics, based out of Santa Monica, and only had about 12 employees working in the office.  However, the decision to expand into Venice was based on Google’s desire to “reproduce the unified feel of its main campus” in Mountain View.

There were two chief issues in dispute in the lawsuit: 1) whether the infringing videos were being uploaded onto Veoh’s servers without Veoh’s actual knowledge; and 2) whether Veoh’s practice of reformatting the videos uploaded by users and storing the various formats on its servers caused a violation of U.S. federal copyright laws and the DMCA.

In analyzing the Court’s decision, a couple of facts seemed to decide Veoh’s fate. First, the Court noted that Veoh was not participating or supervising each and every user’s uploading of videos (nor was it viewing those files); rather Veoh was using an automated process that automatically initiated when each user attempted to upload videos. Veoh’s automatic process would convert the video uploaded by the user into a more readable format (Flash 7) and made publicly accessible for streaming and downloading to the general public.

Second, the Court also determined that the “safe harbor” provisions of the Digital Millenium Copyright Act protected Veoh, because Veoh did not actually know that infringing videos resided on its servers. Veoh had received a demand letter at one point in time that infringing videos resided on its servers, but that letter was sent by the RIAA, not Universal. In fact, Universal never sent a demand letter, as set out by the DMCA’s notice protocol, notifying Veoh and putting Veoh on notice of Universal’s belief that infringing content was residing on Veoh’s servers. The Court also determined that there was no proof that infringing content continued residing on Veoh’s servers, once Veoh became aware of them.

It is important to note that the lawsuit brought by Universal was dismissed by the trial court in its beginning stages, and that dismissal was affirmed by the California Court of Appeals in the decision handed down a couple of days ago. So, it is very possible that Universal could undertake further investigation and bring claims against Veoh yet again in another lawsuit.

In the meantime, there are a few lessons that can be drawn from the Veoh decision for companies providing streaming videos or other filesharing:

• Take Demand Letters Seriously. Although Veoh did not receive a demand letter from Universal, businesses should be wary of receiving any demand letters asking to cease and desist from certain conduct because infringement is allegedly occurring. These kinds of notices are usually a prelude to legal action or other form of escalation, and a lawyer should be consulted if any such demand letter is received. Your lawyer will be able to help your company respond to the demand letter, and determine whether it is legally effective. In Veoh’s case, at one point in time before the lawsuit was brought, an email was sent by the CEO of Disney to Michael Eisner, who was a Veoh investor, notifying Eisner that content belonging to Disney was found on Veoh. However, the Court ruled that Disney’s email was ineffective at providing sufficient notice to Veoh of Universal’s belief that copyright infringement had occurred and had not been rectified.

• Is There Actual Knowledge of Infringing Material? If your company offers users or consumers an opportunity to upload content, video, or any other type of media to servers hosted by your company, be cautious about whether the uploading processes require manual approval by the company, or whether they occur and post to your company’s servers automatically. If your company representatives are actually screening uploaded content before it is made available publicly, they may want to be extra diligent in ensuring that no infringing works are being made available publicly.

• Act Quickly. Under the Digital Millennium Copyright Act, safe harbor exists, in some cases, for service providers who are notified of infringement, as long as they “act expeditiously to remove or disable access to” the offending content. In Veoh, there was evidence that once he was notified about Disney’s copyrighted content being located on Veoh’s servers, Michael Eisner, a Veoh investor, notified the founder of Veoh to take down Cinderella III and various episodes of Lost “right away,” and the Court commented that Universal had no proof that this had not actually occurred. Acting quickly when notified of infringement can be construed as evidence of good faith by service providers.

• Consult Legal Counsel. The best and most appropriate way to respond to allegations of copyright infringement is going to be different based on the circumstances of each case and the facts. Companies should be wary about handling accusations independently and without the advice of legal counsel, as the penalties could be stiff and legal fees, should a suit arise, could be unpredictable.

The Veoh decision will not be the end of video-sharing copyright lawsuits. There are several other similar cases that are currently pending, in California, for example, the lawsuit brought against IsoHunt, a bit-torrent filesharing site, by Columbia Pictures. Further, the Stop Online Piracy Act, presently in Congress, could undercut the DMCA’s safe harbor provisions in the future.

 Preliminary approval of the settlement is being requested by attorneys for both sides, and is set for a hearing on January 20, 2012.  The Judge, Honorable Susan Illston, could opt not to approve the settlement on a preliminary basis, if the settlement appears insufficient in protecting the interests of class members.  Once the settlement is approved on a preliminary basis, notice should be provided to all indirect purchasers.  Individuals who disapprove of the settlement will have an option to “object” at the Fairness Hearing, and be heard.

Samsung, for one, does not appear to be fazed.  The company recently announced the half-phone/half-tablet Galaxy Note, which is slated to arrive in the United States next year.

 Warner Brothers is also being sued by an actor, Michael Alan Rubin, who alleges that the movie is based on his true life story, and that the makers of “Hangover II” “stole his life” and left him out of the financial profits generated by the successful movie.

 The Louis Vuitton lawsuit is pending in the Southern District of New York District Court (Cause Number 1:11-cv-09436-ALC).  As of the date of this post, Warner Brothers has not yet been served, so there is no telling whether Warner Bros. will seek to dismiss the lawsuit.

What is interesting about the case is that the ruling came after an in camera submission to the court of the plaintiffs’ Facebook page — apparently the Court assessed the nature of the first few pages of the Plaintiff’s Facebook page and determined that there was nothing worthwhile on the site that satisfied the relevance/”calculated toward the discovery of admissible evidence” test. 

The Sterling case presents some unique issues.   As any attorney probably knows, the value of receiving a multitude of records similar to the kind that resides on Facebook, MySpace, or Twitter, can be huge.  Often, there is no “smoking gun,” but when the activities on chronological or timeline-based records are compared to other records, inconsistencies could be uncovered that may ultimately prove to be very valuable to the defense.  The problem is that a single gold nugget of information could be buried deep within many pages of records.  If the Sterling Court only looked at the first few pages of records (there is no telling from the Court’s Order how recent, frequent, or abundant the Facebook entries were), there is every likelihood that the page could have been littered with social postings, events, family musings, and other information completely irrelevant to the kind of discovery pertinent to a lawsuit.  Records are not valueless or undiscoverable simply because they are abundant, or even mostly uninteresting.

Further, there is the potential for litigants to take advantage of “in camera” inspections of Facebook pages, especially once requested by the defense.  A party who has received a request for production of such information can often collect a plethora of comments, posts, likes, and other activity, which can drown out legitimately useful facts, simply by being more “active” than usual on social networking sites — especially in the 30-90+ days it often takes for discovery disputes to escalate past a meet/confer, briefing, and hearing.  By then, useful posts could be long gone or pushed back to page 10. 

There is no doubt that Facebook info can be very valuable. Who can forget the case of Kevin Colvin, the celebrated intern at Anglo Irish Bank, North America, who told his manager he had to miss work for a “family emergency” … which turned out to be a “fairy” emergency:

From Kevin’s Facebook Page:

What Kevin was doing with the can of Miniwax hardwood stain in the background, no one may ever know.