california business litigation blog
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The Third Circuit Court has ruled in favor of a Pennsylvania school district in a lawsuit brought by the family of a student who was assaulted on a school campus. The assault occurred in the 2012-2013 school year at Chester High School, which is within the boundaries of the defendant in the lawsuit, Chester Upland School District.

Stop school violence road signThe victim was Alphonzo Green, a high school freshman at the time of the assault. Chester High had abolished the issuance of student identification cards, and was not requiring visitors to register at the office or wear a pass. A trespasser entered the campus on a day that is referred to as “National Fight Day” with the apparent object of assaulting several students. Green was one of these.

Green’s father, Alphonzo King, filed a lawsuit against the school district, citing their lax security policies as having caused the attack on his son. According to the complaint, Green’s civil rights had been violated and the district had fostered a dangerous condition when it did away with the ID card requirements. Thus, the complaint argued, Green’s due process was violated.

A district court decided in favor of the defendant, but King chose to appeal to a higher court. The three judge panel sided with the lower court, finding that the claim did not meet four criteria that would have proven the school district’s liability. Mainly, the judges relied upon whether or not the district’s decision not to provide student identification cards was an affirmative act that created a situation that was dangerous for the plaintiff. They concluded that the omission of ID cards did not constitute an affirmative act.

Moreover, the judges felt that the plaintiff couldn’t demonstrate how the physical assault was a “fairly direct” consequence of the school’s refusal to issue ID cards. The plaintiff could only succeed with this claim if he proved that the lack of student ID cards somehow provided the impetus for the physical assault. Arguing that the attack was the result of “random criminal conduct,” the judges decided that the district bore no liability in the incident.

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An online charter school in Ohio filed a lawsuit against the state’s Department of Education in an effort to block an attendance audit.

The Electronic Classroom of Tomorrow, known as ECOT, advertises that it enrolls more than 15,000 students. This means that the facility is larger than most of the traditional public school districts. The tremendous number of students entitles ECOT to approximately $107 million in annual funding from the state.

ECOT is unlike traditional schools in that students log on via the Internet. Officials from the Department of Education want to audit ECOT’s attendance records to determine whether or not they genuinely have 15,000 students and whether or not those learners are meeting the 920 hours threshold that is mandated by state law. This means that students would have to log in for approximately five hours each day.

ECOT consultant Neil Clark argues that students are not required to complete 920 hours of classroom time. He asserts instead that 920 hours of learning opportunities are required to be presented. Moreover, Clark says that the government never asked for “documentation of log-in durations” in prior audits to determine how much funding ECOT would receive. Clark also suggests that the government is trying to retroactively apply new standards that do not apply because of the contract between ECOT and the government.

ECOT is not the first charter school to experience political turmoil recently in Ohio. In 2015, a smaller online school was found to have misrepresented its attendance numbers, with the result being that they had to return 80 percent of the money they had received from the state.

Officials at ECOT may be trying to avoid a similar fate. However, they are wise to ask that the Department of Education live up to an existing contract. Neil Clark declares that the school “successfully passed audits in 2003, 2006, 2011 and ten other audits” that were conducted by a different accrediting body. According to his statements, ECOT is not against being audited, they simply want the government to do so within the terms of their contract.

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Sometimes, the only appropriate way to respond to a lawsuit is by filing a countersuit. At least, that seems to be the philosophy of Groupon, Inc. The story began a few months ago when International Business Machines, better known as IBM, filed a lawsuit against Groupon. IBM claimed that Groupon, which is an e-commerce marketplace that connects subscribers with merchants in their local area, infringed four of its patents.

Balance in digital background / A concept of technology law or tIBM claimed that at least two patents that are related to its late-1980s telecommunications service Prodigy are clearly infringed by the technology upon which Groupon bases its services. In their complaint, IBM asserts that they deserve compensation from Groupon for the newer company’s use of IBM’s patented technology. An IBM spokesperson notes, “Over the past three years, IBM has attempted to conclude a fair and reasonable patent license agreement with Groupon.” Frustrated in these efforts, IBM filed a lawsuit in Delaware where the company is organized.

Groupon chose to file a countersuit in Illinois, where it has its home base in Chicago. Among other charges in the complaint, Groupon skewers IBM as a “relic of once-great 20th Century technology firms.” Moreover, Groupon asserts that the technology giant “has now resorted to usurping the intellectual property of companies born this millennium.” A spokesperson from Groupon said in an emailed statement to journalists that: “Unfortunately, IBM is trying to shed its status as a dial-up-era dinosaur by infringing on the intellectual property rights of current technology companies, like Groupon.”

Groupon alleges in its countersuit that IBM actually infringes its patented technology with its WebSphere Commerce software. Merchants can use WebSphere to track customer orders and sales as well as offer special deals and pricing based on the customer’s current geographic location. Groupon insists that much of this technology has already been patented by them, which entitles them to royalties from the “billions of dollars in revenue that IBM has received” from their unfair use of Groupon’s technology.

The outcome of these cases remains pending, but the situation highlights the need to protect intellectual property and perform appropriate due diligence before developing new technology.

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Fireworks%2039914849-001.jpgThe team at Sylvester, Oppenheim & Linde and the California Business Litigation blog  wish all of our clients, friends, business associates and blog readers a very safe and extremely fun 4th of July Holiday!

In observance of Independence Day our office will be closed Monday July 4th.

Enjoy your holiday, stay cool and keep your pets indoors!

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Home improvement retail giant Lowe’s has agreed to pay an $8.6 million settlement to disabled workers that the company fired. The agreement was reached after the federal government’s Equal Employment Opportunity Commission filed a lawsuit against the company in California.

Gardne center worker in a wheelchair holding a flower pot in a greenhouse

The settlement money will be distributed to former Lowe’s employees who were fired from the company between January 1, 2004 and May 13, 2010. Eligible employees were terminated after exceeding the company’s 180-day or 240-day medical leave policy. All of the affected employees were either disabled, “regarded as” disabled or were associated with someone who was disabled.

While Lowe’s stipulated a maximum leave policy of either 180 days or 240 days, officials with the EEOC argued that the policy was not in line with the Americans with Disabilities Act, or ADA. In fact, the EEOC charged that Lowe’s “engaged in a pattern and practice of discrimination” against employees who were disabled. Moreover, the lawsuit argued that Lowe’s routinely failed to provide adequate accommodations for disabled workers.

Also as a part of the settlement agreement, Lowe’s is required to hire ADA consultants who can help to reshape the company’s leave policies and assist them to address accommodation issues. Lowe’s will be required to create a system for recording and tracking employee requests for accommodation and how those requests are dealt with. Additionally, staff and management members across the company will be asked to undergo training related to ADA issues.

Lowe’s executives argue that they revamped their leave policies and more closely examined their compliance with ADA in 2010. Nonetheless, they agreed to this settlement to further the effort to comply with all facets of the ADA.

Lowe’s situation acts as an important lesson to other employers who are not sure if they are in compliance with all applicable aspects of ADA. Hiring a consultant or seeking legal advice before a serious problem arises is the best way to avoid a costly lawsuit from the EEOC or a former employee. Proactive measures toward offering accommodations and not violating ADA medical leave policies are important for any company that is seeking long-term success.

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Pausing to remember and honor America’s fallen service members is a practice dating back more than 100 years. Since the days of the Civil War, humble Americans have gathered together on Memorial Day to remember and pay tribute to all who have fought and selflessly surrendered the precious gift of life, so that other could live free.

Memorial%20Day%20Arlington%2052881007-001.jpgAgain we gather this Memorial Day, as a nation solemnly united in remembrance of the fallen defenders of our great nation. Freedom is not free. It has come at great cost, paid for with the lives of our sons and daughters, husbands and wives, sisters and brothers, friends and comrades.

Every American owes a great debt to the courageous men and women who have selflessly given their all to defend and protect our way of life. And while giving back to the extent they deserve is impossible, celebrating their memory and honoring their most selfless deeds offers a start.

As barbecues, picnics and other activities take place this weekend, we must remain ever-cognizant of the expensive price tag that comes along with these daily freedoms we enjoy. Those who made the ultimate sacrifice so that we may live free of tyranny and fear believed in something greater than themselves. They believed in the American way of life and were willing to die protecting it.

This Memorial Day, pause to reflect on the absolute selflessness of the 1.3 million members of our nation’s military who paid the price needed to ensure our way of life endures, And let us not forget the families whose pain will never go away, but may lessen with our thanks and prayers.

God Bless our fallen, their families, and the men and women in uniform all over the world.

Courtesy Veterans of Foreign Wars (VFW)

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Megan Messina, a 42 year-old executive at Bank of America, is suing her employer for gender discrimination and whistleblower retaliation. The complaint was filed in a Manhattan federal court in May of 2016.

Gender%20Discrimination%20105366239-001.jpgMessina began working at Bank of America in 2007. Before that, she spent a decade at Salomon Smith Barney. Her education and experience enabled her to attain a position as the co-head of the structured credit products division. The complaint alleges that Messina was treated unfairly by Bank of America from the beginning of her employment. In particular, her complaint outlines the interview she had with her supervisor when she was promoted to her current position.

She alleges that the supervisor asked her questions about the color of her eyes and whether or not she dyed her hair during the meeting. Moreover, Messina points out that while her male co-head met with the supervisor up to three times a day, she met with him exactly twice in her entire tenure. The complaint also argues that Messina was not included in important department emails and meetings, despite the fact that surveys showed she was outperforming many of her male co-workers.

Messina compares her own pay to that of her departmental co-workers, all of whom are male. In particular, she notes her $1.5 million 2015 bonus, comparing it to the $5.5 million received by the male co-head of her department. The complaint also details several department business deals that may have run afoul of the law. When Messina brought these matters to the attention of supervisors, she was essentially told not to rock the boat. Ultimately, she was forced by the bank to take a leave of absence.

Messina’s case illustrates important points that employers must be aware of. It’s sensible to treat all allegations of wrongdoing seriously. Moreover, it’s important to be proactive when it comes to matters of equal treatment and compensation. Doing so can prevent an employer from occupying a similar position to the one in which Bank of America now finds itself.
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Facebook is facing a federal lawsuit based on their practice of sending text messages to people who have been given recycled cell phone numbers.

search%20cell%20phone%2061969338-001.jpgWashington, D.C. resident Christine Holt is not a Facebook member. Nonetheless, when she got a new cell phone number, she began receiving text messages from the social network. The messages asked Holt what she was up to and kept her up to date on the activities of her “friends.” Holt requested that the company stop sending her text messages, but the practice continued.

Because Holt’s new cell phone number was previously used by someone else, it seems likely that the text messages are actually aimed at that prior user, who probably granted Facebook with permission to send messages. However, Holt never granted such permission, and she became annoyed when her requests that the company desist seemed to fall on deaf ears.

Holt hired Edelson, PC to represent her in a potential class action lawsuit. The complaint speculates that there may be thousands of potential class members who are receiving the same nuisance text messages. The practice is particularly troublesome because many of these people are not Facebook users. This provides them with extremely limited options when it comes to contacting the company. Ostensibly, the new owner of the cell phone number should be able to text “stop” to the offending number, which should effectively remove them from the autodial list. When this doesn’t work, frustrated people are left with little choice but to take legal action.

Under the Telephone Consumer Protection Act, it is illegal for companies to embark on a text-messaging campaign without first obtaining written permission from the recipient. Violation of this law can result in a $500 fine per incident. With the social network sending multiple messages to potentially thousands of cell phone users, the damages to the company could be significant.

This situation makes it clear that it is always best to proceed with caution when it comes to contacting potential customers via text messaging. Relying on obtaining written permission is always the best way to go to avoid potential legal action.
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In an age where smartphones, social media and the Internet have led to improved connectivity, California legislators are looking for ways to prevent jurors from violating the rules. Judges issue strict instructions to jurors that they must not perform any Internet research regarding the case they are deciding. Moreover, jurors are told in no uncertain terms that they are prohibited from discussing the case on social media.

scales%20and%20gavel%2090061933-001.jpgThese warnings are often to no avail as an increasing number of jurors are being caught making social media posts or doing online research in violation of the orders. Jurors who are caught breaking the rules may be held in contempt of court. Typically, this means that misbehaving jurors are dismissed without much in the way of consequences. When a juror is dismissed, there is a good chance that a mistrial will be declared, leading to spiraling court costs and hundreds of wasted hours.

The new measure, which is currently before the California Assembly, is the first of its kind in the nation. If it passes, it would give judges the ability to immediately issue a citation to jurors who break the rules about Internet research and social media postings. The new process would be much easier and more efficient than the process for finding a juror in contempt. Just as importantly, it would empower the judge to levy a fine of up to $1,500.

Internet and social media use by jurors has been an increasing problem in recent years. Across the country, juror infractions have led to verdicts being overturned and mistrials being declared. Louisiana State University’s Press Law and Democracy Project kept a close eye on such events until recently. That’s because these violations used to be relatively rare. Now, they are so common that participants decided the effort was “more trouble than it was worth.”

This legislation seems to have broad-based support and appears to be on the way to the governor’s desk for approval. If this happens, it seems inevitable that other states will soon consider taking similar measures in an effort to crack down on wayward jurors.

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Executives at Lowe’s Home Improvement stores may be forced to re-evaluate their safety policies after a jury awarded a victim who was injured at one of their locations a multi-million dollar verdict.

Wet%20Floor%20Caution%20101639883-001.jpgKelly Henrickson, a 41 year-old mother of three, was shopping at a Lowe’s store in Las Vegas when she received the injury. Hendrickson was in the store’s garden center looking at palm trees in July 2013 when she fell on a “slimy, wet substance.” The substance was leaking from the bottoms of several planters in the area.

Employees had placed a yellow, three foot tall cone in the vicinity, but Hendrickson argued that it was obscured from plain view, which is why she did not see it until she was already falling.

Hendrickson hit her head on the concrete floor in the accident, fracturing her skull and injuring her neck. Brain damage has caused her to permanently lose the abilities to taste and smell. Moreover, she suffers from chronic headaches and experiences difficulties with balance. Hendrickson has also received medical treatment for depression and anxiety. Her dream of becoming a school bus driver has fallen by the wayside.

Hendrickson filed a personal injury lawsuit against the store in an effort to receive compensation for her medical bills, lost wages and pain and suffering. Attorneys for Hendrickson also sought punitive damages, citing an ongoing record of falls at Lowe’s stores throughout the Las Vegas vicinity in the last five years.

A jury awarded Hendrickson approximately $13 million as a result of the litigation. This falls short of the amount that the plaintiff and her attorneys were seeking because the jury chose not to award punitive damages. They decided that the retailer was 80 percent responsible for the accident while Hendrickson was responsible for the remaining 20 percent.

Plaintiff’s lawyer Sean Claggett said that Lowe’s is “still not getting it right because they don’t care about it.” Nonetheless, Hendrickson’s attorneys count this decision as a victory, and they expressed their hope that Lowe’s might change their safety policies and practices in the wake of the verdict.