July 18, 2014

FTC Sues Amazon Over Unfair Billing Practices

The FTC has sued Amazon over its in-app billing practices. In the lawsuit, the FTC alleges that parents have been unlawfully charged millions of dollars by allowing their children to play with apps on smart phones and other devices.

Smartphone%20%26%20baby%2052239469-001.jpgThe apps are frequently free to download. Although free play is possible, the availability of in-app purchases that provide access to higher game levels or other enhanced experiences are common. The trouble is, children can easily authorize these purchases with the touch of a button. No passwords or authorization are required. Without mom and dad's knowledge, it's easy for a kid to rack up hundreds of dollars of charges worth of in-app purchases.

When the credit card bill arrives, the parents often complain to Amazon. Although Amazon states that they have offered refunds to customers who complained about the practice, the FTC feels they haven't gone far enough. In their complaint, the FTC levels accusations at Amazon of unfair billing practices that violate Section 5 of the FTC Act. T-Mobile and Apple have both been the subject of similar FTC lawsuits.

Andrew Devore, an attorney for Amazon, stated in a letter that the organization's in-app purchase policies are "responsible, customer focused and lawful." Moreover, he notes that Amazon utilizes "prominent notice of in-app purchasing ... (and) effective parental controls ..."

In a move that seems as if it was designed to help head off the litigation, Amazon made password entry a requirement for making in-app purchases that exceed $20 in March of 2012. However, the FTC seems to feel that this was a case of too little, too late. The two parties tried to reach an agreement before the lawsuit was filed. Amazon resisted the deal that the FTC proposed, particularly because they feel that their billing policies are at least as stringent as those recently enacted at Apple in response to another FTC lawsuit.

Both parties in the pending litigation seem motivated to maintain their stance. Time will tell what the resolution will be, and what effect it might have on the future of in-app purchases at Amazon and from other providers.

July 11, 2014

ABA Ruling Says Attorneys May Review Social Media Posts by Jurors

As more and more people establish a presence on social media websites, the line between the real world and the virtual world becomes increasingly blurred. That's true in many aspects of life, and it is particularly relevant when applied to jurors. In a recent ruling handed down by the American Bar Association (ABA), lawyers may rightfully review the social media postings of jurors and potential jurors. However, strict lines for appropriate conduct and ex parte communication have also been drawn.

Social%20Media%20Magnified%2044298834-001.jpgThe ruling by the ABA essentially says that it is appropriate for lawyers to peruse the social media postings of jurors at websites like Facebook and Twitter. However, it remains unethical for lawyers to make friend requests to these jurors or to "follow" their social media posts. It is believed that doing so would breach rules against ex parte communication. Accordingly, lawyers may lawfully review those posts that a juror chooses to make public. Such items as may be accessible only by the people designated as "friends" by the juror may not be reviewed by the lawyer.

Lawyers may be interested in reviewing such publicly available information in order to ascertain whether or not jury instructions are being adhered to. These postings may also be of interest during the jury selection process when an attorney may be looking for bias or prejudice.

The ABA feels that judges and lawyers in the courtroom should discuss social media expectations. Thus, a judge may instruct that it is inappropriate for jurors to make any social media postings during the course of a trial. Lawyers may monitor whether or not this activity is occurring. Jurors should also be instructed that their social media presence may be of interest to the parties involved in a lawsuit, and that their postings may be reviewed by attorneys involved in the case. The ABA feels that there will be fewer misunderstandings if clear rules regarding social media behavior are established early in the proceedings.

Continue reading "ABA Ruling Says Attorneys May Review Social Media Posts by Jurors " »

July 2, 2014

Happy 4th of July

Fireworks%2039914849-001.jpgThe team at Sylvester, Oppenheim & Linde and CaliforniaBusinessLitigation.com 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 Friday July 4th.

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

June 27, 2014

Minnesota Teen Sues School District and Police Over Tweet

An offhand, two word social media post has ignited controversy in Minnesota. Reid Sagehorn, who at the time of the post was a 17 year-old senior at Rogers High School in Rogers, Minnesota, responded to a Twitter post with a flippant comment. Though it took only seconds to post it, the fallout has lasted for months and has now become the subject of a lawsuit.

Social%20Media%2037877338-001.jpgIn January of 2014, Sagehorn was asked by an anonymous Twitter user whether or not he had ever made out with a 28 year-old physical education teacher at Rogers High School. Sagehorn replied, "Actually,yes." Although he insists the comment was made in jest, school district officials took it seriously. Charging that his remark damaged the reputation of the teacher, the principal at Rogers High suspended Sagehorn for five days. Another five days were later tacked on before even more days were added, resulting in a suspension of about seven weeks.

The local police also got involved in the melee. They opened a criminal defamation investigation against Sagehorn. Although no charges were ultimately filed, Sagehorn contends that the felony investigation further harmed his reputation.

While enrolled at Rogers High School, Sagehorn was a member of the National Honor Society and a star athlete. He was in the midst of his senior year when the Twitter controversy began. Overcome with humiliation, Sagehorn withdrew from Rogers and graduated from another local high school. Nonetheless, the fallout from the suspension and the investigation by police continues to haunt him.

That's why Sagehorn recently filed a lawsuit that names various school district and police officials as defendants. The lawsuit seeks damages for the harm done to Sagehorn's reputation. His lawyers claim in the complaint that Sagehorn's posting in no way posed a threat to the teacher. Moreover, he made the post on his own time without using any school resources. Accordingly, his lawyers believe his First Amendment rights were violated by the actions of the school and the police. The outcome of this case may well set a precedent for how schools respond to student use of social media.

June 20, 2014

Parents Sue School Psychologist Over Birth Control Prescription

Parents whose teenage daughter was prescribed birth control pills without their knowledge or consent are suing a high school psychologist and his wife. Anthony and Eva Jackson, plaintiffs in the suit, name James Tosto and Dawn Tosto as the two individuals who allegedly conspired to allow their daughter to obtain birth control pills without seeking their consent.

Birth%20Control%20Pills%20%2048509844-001.jpgJames Tosto works as a psychologist for the Peekskill School District in New York. His wife, Dawn, works at the Hudson River Community Health Center, an off campus clinic to which the underage student was transported in June of 2011. Once there, she underwent a physical examination before being prescribed birth control pills. She took the pills home and took several days' worth of them before her parents discovered them.

The Jacksons are concerned that their daughter was removed from the school campus, received a physical examination and a prescription without their knowledge or consent. Under New York State law, health services to minors cannot be administered without parental consent. As the Jackson's attorney contends, that is precisely what happened in this case. Moreover, the Jacksons fear that other underage students may have received similar health services without the knowledge of their parents. In the complaint, plaintiffs allege that their filing is: "on behalf of all other parents whose children were subject to physical examinations" and "given access to and/or distributed birth control without the parents knowledge, consent or opportunity to opt out...".

In an unusual twist, the plaintiff Anthony Jackson is also an employee of the Peekskill School District, though he does not work at the same school where James Tosto is a psychologist. It appears that Jackson is currently on leave from his position as a teacher and coach at Woodside Elementary School. His daughter has since graduated from high school, but her parents are clearly still troubled by the events of 2011.

The Jacksons are hoping to win their attorney's fees in addition to compensatory and punitive damages in the suit. The school district has yet to comment as they have not been served with the complaint thus far.

Continue reading "Parents Sue School Psychologist Over Birth Control Prescription " »

June 13, 2014

Underperforming California Schools the Subject of ACLU Lawsuit

In late May, the ACLU filed a class action lawsuit in Alameda Superior Court. The case, entitled Cruz et al. v. State of California, alleges that students in seven public schools receive inadequate learning time over the course of their educational career.

Blackboard%20%21%21%21%2053226367-001.jpgAt the heart of the problem is a disparity in the quality of education received by students participating in different portions of the state's education system. Many students in California attend well-funded schools that offer a wealth of class options. The presence of teachers and administrators is predictable, and close tracking of qualifications keeps students on the road to graduation and prepared to enter college.

However, other California students are not so fortunate. They participate in a volatile school system where there are not enough teachers and administrators seem to come and go. These schools have few resources and less money. They aren't able to offer challenging curriculum and, in some cases, students are given free periods or assigned to finish administrative tasks when there aren't enough classes to take.

The result is a student body that receives very little quality education time. Essentially, though they may spend years attending school, their learning and accomplishments are far below the standards set at other, better equipped schools. Students at underperforming schools may lag behind their peers by months in terms of learning time. Moreover, the progress of students in these schools is often not tracked adequately. Many seniors get closer to graduation only to be surprised that they have not earned all the necessary credits. Others graduate, but feel they are unprepared to continue their education.

The lawsuit (available HERE) hopes to address these issues by providing greater equality in educational opportunities. A main claim in the suit argues that the state is in violation of the California constitution which requires equal protection to all learners. The ACLU contends that the state has long been aware of the problems plaguing these schools, but has yet to address the issue meaningfully. If successful, the suit would establish a system for tracking where students are lagging behind their peers and would quickly move to correct these issues.

June 6, 2014

AutoZone Sued by the EEOC . . . Again

Auto parts retailer AutoZone is in hot water with the Equal Employment Opportunity Commission (EEOC). The government entity recently filed its fourth lawsuit against the company for violations of federal law.

AutoZone%20Logo-001.jpgThe lawsuit stems from the firing of an employee at AutoZone's Ottawa, Illinois location. The complaint alleges that the employee had Type 2 diabetes, and would sometimes have an adverse insulin reaction that would cause him to have to leave his shift early. Under federal law, these absences were protected, but AutoZone's policies failed to take this into account.

Instead, employees across the country were subject to a points system that kept track of their absences. Any employee who racked up 12 points was subject to termination, and no guidelines were in place for workers with disabilities. This means that workers who had a legitimate, legally protected reason for being absent were essentially being given demerit points that contributed to their eventual termination.

The EEOC has sued AutoZone three other times in recent years. In the other lawsuits, an employee had been passed over for promotion because of a visual impairment. The second lawsuit involved an employee whose disability made it impossible for him to mop floors without injuring himself. The company insisted that he perform the task anyway, and his subsequent injury formed the basis for the suit. The third case was filed on behalf of an employee whose disability meant that she was restricted to only lifting objects below a specified weight, a restriction which the company refused to acknowledge.

This latest EEOC litigation against AutoZone is also based on the claims of another employee who says he protested the company's neglect of federal laws that protect workers with disabilities. The employee also filed charges with the EEOC against the company, and claims to have been fired by AutoZone as a result.

EEOC already attempted a pre-litigation settlement with AutoZone which did not succeed. Its next step was to file the lawsuit claiming violations of Title I and Title V of the ADA. The case will be decided in the U.S. District Court for the Northern District of Illinois by Judge Marovich.

May 30, 2014

Lawsuit Settlement to Make School Transitions Easier for Autistic Students

Children with autism face a number of challenges. It isn't easy for them to relate to others, and life changes can prove distinctly distressing for them. That's why a practice of moving autistic children from one school to another in the Philadelphia School District with little warning was so troubling.

Special%20ed%20brain%20puzzle%2048932564-001.jpgParents whose autistic children attended public school in Philadelphia called the practice the "autism shuffle." Children in kindergarten through eighth grade were subject to being moved from one school to another in order to receive the support they required. Some schools simply weren't equipped to deal with the needs of autistic children as they advanced through grade levels. Essentially, the district had divided the support services into three categories. One for kindergarten through second grade, the next for third through fifth and the last for sixth through eighth. When a child was moving beyond the service level provided at their current school, they would be abruptly sent to another one. Parents had no input, and the transitions were often alarmingly difficult for the children.

A class action lawsuit was filed in an effort to improve the practice. Recently, a settlement was reached between the parents with autistic children and the school district. District officials have agreed to halt the practice of immediately moving children from one school to the next. Under the new deal, parents will be informed by January if the district expects their child to attend a different school in the fall. A formal notice letter will be sent out in June.

Parents have the right to meet with district officials to discuss the changes and, unlike before, they have plenty of time to do so. The new agreement also makes it easier for teachers to help their vulnerable students prepare for changes on the horizon. Best of all, the students themselves have time to adjust to the idea of attending school in a different environment. They may have time to visit the school before the term begins to familiarize themselves with their new surroundings. The decision appears to be a win for the students and the district.

May 22, 2014

Federal Judge Rules: Teachers' Pay Remains Tied to Standardized Test Scores

In 2011, the state of Florida passed a law that changed the way teachers would be compensated. Student performance on standardized tests would now have a direct bearing on how teachers were evaluated and whether or not they would get pay increases. Simply put, teachers whose students fared better on standardized tests would receive better evaluations and better pay. Teachers whose students underperformed were likely to see the results in their paychecks.

Grades%20on%20a%20chalkboard%2033883975-001.jpgThe bill was not passed without controversy. In fact, Governor Charlie Crist initially vetoed the bill in 2010. The next year a new governor was in office, and the bill was passed. Lawsuits were filed almost immediately. Teachers in three counties filed suit, and they were joined by the National Education Association and the Florida Education Association. The lawsuit was initiated in the Gainesville Federal Court. Plaintiffs in the case argued that creating a connection between standardized test performance and teacher merit pay was unconstitutional.

The judge recently handed down a decision that was declared a victory by the state's department of education but was decried by the plaintiffs as disappointing. Essentially, Judge Mark Walker decided that although the evaluation system is unfair, it is not within his authority to overturn the law. He was forced to dismiss the lawsuit, writing that the case "is not about the fairness of the evaluation system." Instead, he based his decision on questioning "whether the evaluation policies are rational within the meaning of the law." In his decision, the judge found that the law was not unconstitutional.

Department of Education spokesman Joe Follick is happy with the dismissal, saying that the department is "pleased that we can put the focus where it should be -- ensuring all students receive the best education possible."

That single-minded focus may not yet be possible. Plaintiffs are still considering whether or not to appeal the decision. For now, teachers in Florida will continue to see compensation that is directly tied to standardized test scores, even if those scores come from test subject matter that is not instructed by the teachers who pay will be affected.

Continue reading "Federal Judge Rules: Teachers' Pay Remains Tied to Standardized Test Scores " »

May 15, 2014

Justice Department and eBay Settle Lawsuit

Most American workers take it for granted that they can change employers at their discretion. This provides opportunity to seek better wages and benefits, as well as the chance to find more meaningful employment. At the same time, potential employers have the right to recruit new talent, sometimes aggressively, from competing firms.

Ebay%20Campus-001.jpgHowever, many employers in California's Silicon Valley seem to have taken exception to these facts. In the ultra-competitive technology industries, giants like eBay, Google, Pixar and Apple entered into agreements by which they promised their competitors not to poach talent. Acceptance of the agreement meant that the people at Intuit could not recruit a person with a desirable resume at eBay. The result; employees at these firms were denied access to opportunities that would have advanced their careers along with salary and prestige.

The U.S. Justice Department took exception to these agreements, charging that they created an anticompetitive atmosphere. The Department filed lawsuits against several companies that participated in these agreements. Many of these lawsuits have already been settled, with eBay being the latest company to do so.

The settlement does not require eBay to admit to any wrongdoing. In fact, counsel for eBay insists that the agreements were "acceptable and legal." However, Assistant Attorney General Bill Baer says "the behavior was blatant and egregious." Under the terms of the settlement, eBay may not enter into any similar agreements for a period of five years. The company also reached a settlement with the California Attorney General in which it is liable to pay $3.75 million to workers at eBay and Intuit who may have been adversely affected by the recruitment freeze. The settlement in the Justice Department lawsuit is still pending approval by the court, which is expected to happen soon.

The Justice Department began investigating recruitment and hiring practices at Silicon Valley firms several years ago. As a result, a massive class action lawsuit that represents more than 60,000 employees has also been filed. Many years will likely be required before all of the lawsuits have been settled.

Continue reading "Justice Department and eBay Settle Lawsuit" »

May 9, 2014

Will New Bullying Lawsuit Bring Change to Las Vegas Schools?

In a new bullying lawsuit filed in Las Vegas, the American Civil Liberties Union is bringing charges against school officials. The ACLU says that they failed to stop a bully in a band class who acted viciously against two fellow sixth graders and even caused one of these students to think of suicide.

Bully%20Stop%20Violence%2053127538-001.jpgThe complaint, available HERE, was filed on Monday on behalf of the boys' mothers who want policy changes and unspecified damages in a jury trial. The Clark County School District (CCSD) officials being named include Superintendent Pat Skorkowsky, employees at Greenspun Junior High School and school board members as defendants. In addition, the lawsuit accuses the Nevada Equal Rights Commission of responding poorly with an investigation.

The lawsuit goes into great detail about how the two sixth graders were tormented extensively by bullies. The bullying started in Fall 2011 when the boys first entered sixth grade. For many months, the students suffered homophobic slurs and one was stabbed in the genitals with a pencil.

Now the two families are suing the Clark County School District. The parents wore purple wristbands that showed a specific message with hearts around the name Hailee and the phrase "Stop Bullying." Purple was Hailee Joy Lamberth's favorite color. Hailee Lamberth was another victim of bullying in the CCSD. She committed suicide last December leaving behind a note. She was 13 years old and an honors student who played soccer. Her death prompted the parents the two sixth grade boys to file the lawsuit in addition to the slow response from the school board and Equal Rights Commission.

The boys who are ages 13 and 14 are the same age as Hailee when she took her life.

"If we had done something sooner, maybe Hailee might still be alive," said Kyle Bryan in the lawsuit. "No child should have to consider ending their life because of bullying."

The ACLU of Nevada said that the lawsuit is an "unprecedented action" to protect students from bullying. Amanda Morgan, the ACLU staff attorney, stated that parents shouldn't have to bring a lawsuit to ensure that children are safe and that the school district and Equal Rights Commission failed the families of the two sixth grade boys.

May 2, 2014

U.S. Court of Appeals Rules: ADA Requires Request from Employee for Reasonable Accommodation

As a federal law, the Americans with Disabilities Act (ADA) is one of the most litigated laws that protects people from discriminatory practices. While the ADA does provide all kinds of protection, these are not automatic for anyone who is disabled. A recent federal court case demonstrated that fact. Under ADA, people with disabilities must go through a certain procedure in order to file a lawsuit.

Disability%2055444138-001.jpgIn order to prove that someone with disabilities was discriminated against under ADA, employees must show three elements have occurred. First,the employee has to provide evidence that he has a disability. In addition, the employee must show that he is qualified to perform the functions of the job as necessary. Lastly, disabled employees must show that he has suffered discrimination based on the disability.

In a court case brought up to the 10th Circuit Court of Appeals named Dinse v. Carlisle Foodservice, Douglas Dinse was a product engineer for Carlisle Foodservice Products suing his employer after he was terminated due to poor performance. This was allegedly because Mr. Dinse had serious health problems. Mr. Dinse decided to sue because he said that he was discriminated against because his employer failed to provide reasonable accommodations to help with his illness. The 10th circuit affirmed the district court's holding that employers only had to provide accommodations under ADA if the employee made an adequate request for reasonable accommodation.

The request lets an employer know that that the employee is disabled and needs the accommodation. Mr. Dinse had requested a laptop in order to perform his work while he recovered from surgery, but he didn't indicate that the request was because of the injury. Since Mr. Dinse did not make the right type of request under ADA, the 10th Court affirmed the district court's decision in favor of the defendant, Carlisle Foodservice.

Even though an employer may be aware that an employee is disabled, the company isn't allowed to be held liable under ADA unless the employee goes through the proper channels to report that they have a disability. They have to formally request a reasonable accommodation for their disability as Mr. Dinse found out when he lost his case.

From the Court documents:

“In this case, it is true that Carlisle never engaged Mr. Dinse in an interactive process, nor provided him with a reasonable accommodation. But we conclude based on the undisputed evidence that Mr. Dinse never asked Carlisle for an accommodation.”

“In other words, it is the request for an accommodation for an employee's disability that triggers an employer's duty to engage in the interactive process, not an awareness of a disability that may (or may not) necessitate an accommodation.”

“Dinse failed to provide Carlisle with legally adequate notice of his desire for an accommodation. As a consequence, Carlisle had no legal duty to attempt to provide Mr. Dinse a reasonable accommodation. And, as Mr. Dinse acknowledges, he was not qualified—without an accommodation—to perform his job.”