April 27, 2016

Woman Wins $13 Million in Slip and Fall Lawsuit Against Lowe's

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.

April 14, 2016

Class Action Lawsuit Filed Against Nordstrom and HauteLook for Selling Counterfeit Rolex Watches

A class action lawsuit has been filed against online flash-sale retailer HauteLook. Plaintiffs claim that they were sold purportedly genuine Rolex watches at a substantially reduced price. However, the watches they received were damaged or contained inferior replacement parts.

Rolex%20NOT%2088997580-001.jpgClass representative Vahdat Aghdasy purchased what he believed was an authentic Rolex watch from the HauteLook website. A large part of HauteLook's appeal is that they claim to sell 100% authentic merchandise straight from the designer or manufacturer. Accordingly, customers are led to expect a certain level of quality. The vintage Rolex watches that the website offers from time to time were no different. HauteLook specifies that the watches are sold "as is," meaning that there may be some level of damage.

Nonetheless, the company promised to provide certified appraisals of each watch after it was purchased. Aghdasy and other class members received an appraisal from a company calling themselves Swiss Watch Appraisers. However, they note that there is no contact information for the company except for a telephone number that is disconnected. The lawsuit alleges that the appraisal certificates are fraudulent and that the watches have never been appraised.

Moreover, HauteLook's claim that the watches are 100% authentic is also coming under fire. Consumers are finding that their watches contain inferior, non-Rolex parts and that the watches do not come from the brand as promised by the website. Instead, plaintiffs believe that the watches are coming from various jewelry stores and other retailers.

Plaintiffs are seeking damages against HauteLook and Nordstrom, the company that purchased the web retailer in 2011. The basis for the lawsuit includes common law fraud, breach of implied and express warranties, unjust enrichment and conspiracy to commit fraud. Plaintiffs argue that HauteLook significantly misrepresents the actual value of the watches. Accordingly, they are seeking actual damages and exemplary and/or punitive damages in addition to attorney fees and interest.

Rolex, a company known for vigilant protection of its intellectual property rights, has yet to comment on the lawsuit. It would not be surprising if the Swiss watch-making company decided to sue HauteLook and Nordstrom as well.

April 1, 2016

Companies Sue for Rights to MOVA Technology

Technology plays an amazing role in Hollywood's movies. Many of the most popular movies are visually stunning thanks to an array of high-tech gadgets. Today's moviegoers are pretty savvy, and they are very familiar with the idea of motion capture, the process through which markers are placed on an actor's body so that their movements can be faithfully recorded. A related technology, known as MOVA, is now the subject of more than one lawsuit.

Trademarks%2047837347-001.jpgMOVA works like motion capture, but it's focused on the actor's face. Phosphorescent makeup is applied to an actor's face, and then specialized software and hardware work together to convert even the subtlest of facial expressions into data. The technology has already been used on many movies such as "Guardians of the Galaxy," "Terminator Genisys," "Deadpool" and more. MOVA is so successful that it received a Scientific and Technical Oscar award at a ceremony in early 2015. The trouble is, there seems to be quite a bit of disagreement about who developed MOVA and who actually owns the rights to it.

The first lawsuit came in February of 2015 when a Chinese tech company known as Shenzhenshi Haitiecheng Science and Technology, or SHST, filed a lawsuit in California against a company called Rearden LLC. The plaintiffs claimed that Rearden was wrongfully claiming ownership of MOVA. In the complaint, SHST alleges that ownership of the MOVA technology shifted several times in the months leading up to receipt of the Oscar. The technology was originally developed by inventor Steve Perlman, but SHST argues that he sold it to another organization. The assets traded hands two or three more times before coming to SHST.

Perlman and Rearden LLC have now launched a countersuit, claiming that SHST has committed various patent and copyright violations. Ultimately, Rearden's complaint seeks to block the release of movies that use the MOVA technology until the courts can resolve who actually owns the rights to the invention. Legal consultants believe that the suit won't be able to block the distribution of current films, but it may halt production on some before a settlement is reached.

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March 25, 2016

We are Always Looking for One or Two More Good Clients . . . Even When Business is Great

One of the questions I hear frequently is about whether we are accepting new clients.

While the short answer is “Yes”, here is some additional information which many people find interesting.

Great%20Fit%20Gears%2039896521-001.jpgOur law firm, Sylvester Oppenheim & Linde is committed to client service and quality legal representation for each and every client. That means that we only accept clients who we feel are a good match for our expertise, experience and areas of practice.

I learned a long time ago that we can’t be all things to all clients, but we can be all things to some clients: and those are the ones we welcome and serve in an exemplary manner.

The purpose of this blog is to provide helpful information to anyone who reads it. On our website, you will find another example of our “Be of Service” attitude by reading our Home Page Article “Eleven Questions to ask BEFORE Hiring a Business Attorney”. You will also find a list of our practice areas on that page.

Our clients tell us that they appreciate our honesty, accessibility and guidance. And we appreciate our clients.

Back to the question. The answer is: “Yes, we are always looking for one or two new good clients.” If you have a legal issue, I invite you to call and let’s find out whether we are a great fit for each other. I can be reached at 818-461-8500 or via the Contact form on this page.

Richard Oppenheim

March 18, 2016

California's Charter Schools the Subject of Lawsuits

With a total of more than 1,200 charter schools, California has the largest concentration of these alternative learning institutions in the country. Students and their parents may choose a charter school if they are interested in a more creative curriculum and the higher potential for one-on-one interaction with students.

school%20bus%20%26%20child%2044980077-001.jpgCharter schools encourage students to reach enhanced academic goals. Sometimes these alternative learning centers prove to be a valuable asset for at-risk youth too. School resource officers in California have been known to divert students who have gang affiliations or who are being recruited by gangs to charter schools, a maneuver that often puts them back on the right path.

However, not everyone is thrilled with the prevalence of charter schools in California. There are no fewer than six lawsuits pending in Los Angeles and San Diego counties that, if successful, might shut down or relocate several charter schools. The main point of contention concerns so-called Satellite Facilities, which may also be referred to as Resource Centers or Meeting Centers. Supporters of these lawsuits claim that many of these facilities exist in violation of the 1992 act that created the charter school system.

Plaintiffs allege that California Education Code Section 47605 places geographic restrictions on where charter schools can be located. Charter school proponents counter that this restriction applies only to school campuses and not to Satellite Facilities. A representative from the charter schools, says that these facilities are, resource centers used for non-classroom based independent study. Accordingly, charter school supporters believe that they should be able to open such facilities without having to adhere to the location restrictions.

Defendants in the lawsuit believe the problem all comes down to money. Charter schools are becoming increasingly popular. Enrollment has soared at facilities across the state, taking away students from traditional schools. This means less funding for these schools and more funding for charter schools.

These lawsuits are still in the early stages. It seems unlikely that charter schools will be disappearing, but supporters may be in for a fight when it comes to preserving existing facilities.

March 10, 2016

Facebook Fights Lawsuit in Order to Use Faceprint Technology

Millions of people are Facebook users, and most of them post photos to the social media network. If you're one of them, then you're probably familiar with the technology that enables Facebook to ask you if you want to tag "William" and "Mary" when you post a photo of yourself with your friends.

Social%20Media%20Magnified%2044298834-001.jpgFacebook is able to provide this service thanks to its "Faceprint" software, which the company rolled out in 2010. Faceprint is a biometric database that measures unique characteristics in human faces to identify them. When a new picture gets posted, the software immediately performs a scan to look for matching profiles in its biometric database, which allows it to suggest tagging other individuals.

Many Facebook users are troubled by what they believe is the invasiveness of the technology. This is particularly true in Illinois where members of the social network have filed a lawsuit saying that the use of the software violates state law. Illinois' Biometric Information Privacy Act stipulates that companies must obtain written consent for gathering this kind of information. Moreover, companies are required to create and publish a schedule for destroying any data gathered.

Facebook counters the lawsuit by arguing that only the laws of California can be used to lodge legal disputes with the company. The social networking giant goes on to say that all Facebook users accept an agreement in which they consent to disputes being governed by California's laws. Hence, the claimants in Illinois do not have a valid case.

This particular suit involves Facebook users Carlo Licata, Nimesh Patel and Adam Penzen, but it's not the first or the only one of its kind. An earlier lawsuit filed by Frederick Gullen, who is not himself a Facebook user, was rejected by an Illinois judge because the company's connections with the state are too tenuous. However, a similar case against Shutterfly in Illinois has been allowed to move forward because the Internet-based photo company actively offers its services to Illinois residents.

Time and the Courts will decide if this latest Illinois lawsuit against Facebook will be allowed to move forward.

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February 26, 2016

Lyft Settles California Lawsuit Without Classifying Drivers as Employees

A settlement agreement between ride-service firm Lyft and its drivers may set a precedent for similar litigation against Uber. Both Lyft and Uber provide services in which customers use their smartphones to hail a ride from participating drivers. Neither company classifies its drivers as employees, instead calling them independent contractors. The organizations argue that the arrangement allows drivers to determine when, where and for how long they work. Drivers enjoy the flexibility to work as little or as much as they wish.

LYFT%20Nissan-001.jpgHowever, classifying drivers as independent contractors means that the drivers are responsible for the costs of doing business. Gas and vehicle maintenance, for instance, are entirely at the expense of the driver. If the drivers were employees, then Lyft would be responsible for these costs.

Refusing to classify drivers as employees has further benefits for Lyft. They aren't responsible for withholding taxes, providing insurance or meeting minimum wage standards. Lyft drivers argued that they should be afforded the protection of regular employees, especially since they could be deactivated from the service without prior knowledge or consent. The contention caused them to file a lawsuit in California.

That lawsuit has now settled before reaching the trial phase. Lyft will still not classify drivers as employees, but it will have to accord them greater consideration and protection. Among this consideration is providing notice when a driver will be deactivated from the service. Lyft is now required to provide a reason for the deactivation, such as poor ratings from customers. Drivers now have the ability to appeal a deactivation decision and may be able to reverse it.

As part of the settlement, Lyft is required to pay its drivers $12.25 million and offer some benefits that are more commonly associated with regular employees. However, the company's business model remains intact.

It is a settlement that is being studied with great interest by Uber, which is the subject of a similar class action lawsuit that is due in court in June. At this point, it is not known whether Uber will seek a settlement or allow the case to go to trial.

February 19, 2016

California Judge Orders Controlled Release of Data Concerning Public School Students

In a controversial response to a 2012 lawsuit, the private records of approximately 10 million public school students is about to be released to attorneys. The lawsuit was filed as a joint effort by the Morgan Hill Concerned Parents Association and the statewide California Concerned Parents Association. Both groups cited concerns regarding the disposition of services to intellectually and physically disabled children as the basis for the lawsuit.

Blackboard%20%21%21%21%2053226367-001.jpgThe plaintiffs allege that they requested data from the California Department of Education on numerous occasions. They wanted to take a survey of the test scores and mental health assessments to prove that disabled students were not receiving the education and assistance that are guaranteed to them under federal law. Parents involved in the groups believed that students were being systematically deprived of these rights.

When the Department of Education denied requests, even though members of the student advocacy groups stated that they weren't seeking specific information about individual students, a lawsuit was filed. Now, Judge Kimberly Mueller has ruled that data dating back to January 2008 should be released to lawyers for the plaintiffs. The data will include Social Security numbers, addresses and other sensitive information. According to the order, no more than 10 people will have access to the data which will be accessed and managed by a court-ordered individual. Once the survey has been conducted, the data must be either destroyed or returned to the Department of Education.

Parents who object to the release of their children's information have until April 1 to file the paperwork. However, it seems that many school districts remain unaware of the order and accordingly are not able to get the word out to parents who might not want their children's data to be shared. Complicating the problem is the large number of immigrant parents in the state who speak little or no English. The state's Parent Teacher Association is considering asking for an injunction that would at least slow down the release of information so parents have a better opportunity to decide whether or not to allow their children's information to be released.

February 12, 2016

University of Central Florida Sued After Data Breach

Various people connected to the University of Central Florida appear to be the victims of a cyber attack. The breach occurred over an extended period of time, but university officials made a public announcement about it on February 4, 2016. An estimated 63,000 Social Security numbers were stolen in the attack.

Hacked%2090366158-001.jpgAlumni and former student government leaders Anthony Furbush and Logan Berkowitz have filed a lawsuit against the school in Orlando. The suit alleges that UCF knew of the data breach as early as December of 2015, yet officials failed to provide notification until February of the following year. Moreover, the complaint states that UCF did not adequately protect sensitive information.

This attack on UCF is one more in an ongoing stream of cyber threats occurring in schools across the country. In the past year alone, multiple attacks on the University of Maryland, Penn State University, the University of Virginia and others demonstrate that hackers are becoming more adept at their craft as well as targeting educational institutions on an increasing basis.

The current incident at UCF is being investigated by a joint task force consisting of members of UCF's own police unit along with the FBI. Reports suggest that while Social Security numbers were stolen, there is no evidence that the hackers obtained any kind of financial information.

That appears to be small comfort to people like Furbush and Berkowitz, who are now more vulnerable to identity theft. UCF mailed out letters to everyone whose information may have been compromised in the breach and a call center has been established to field further questions and concerns.

With cyber attacks on university databases on the rise, this litigation against UCF may just be the tip of the iceberg. It seems clear that more colleges and universities will find themselves the target of a hacker, and that can easily lead to a lawsuit. This only highlights the imperative nature of protecting data, which in turn protects institutions and corporations from being sued.


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February 5, 2016

Class Action Lawsuit May Bring Greater Transparency to PayPal

PayPal may soon bring to an end an ongoing class action lawsuit that it has been fighting since 2010. Parties to the case, known as Zepeda vs. PayPal, have reached a tentative settlement agreement over allegations that the online payment company utilizes an unlawful freeze on accounts.

PayPal%20Corp-001.jpgMoises Zepeda and other members of the class are frequent sellers on eBay, the online auction website. They typically received payment via PayPal, which touted itself as being more secure and convenient than other payment methods. However, Zepeda and others noticed that the funds they received from buyers in their PayPal accounts were often subject to a hold of up to 180 days. PayPal claimed that the holds or account freezes were necessary to combat fraud. Plaintiffs didn't believe that the account freezes served any useful purpose. In addition, having their PayPal account frozen for an extended period of time made it difficult to do business.

The class filed the lawsuit in 2010, and it has required five years to even reach a tentative settlement agreement. While presiding over the possible agreement, the judge noted the "long and tortured history" that the parties to the case have endured. The proposed, approximately four million dollar settlement seems to be a step in the right direction, but only time will tell if it brings about any real changes. Thus far, PayPal has admitted to no wrongdoing, and they don't appear to be willing to make sweeping changes to their account freeze policies.

However, PayPal seems ready to agree to provide users with more information when a hold is placed on their account. Customer service callers can ask why a hold is in place, and now PayPal staffers must tell them the reasoning behind the hold if it does not violate security measures.

Time will tell if sellers are satisfied with these results. Considering how hotly contested the case has been up to this point, it will be a minor miracle if the settlement agreement is even finalized. Consumers may benefit from new disclosure standards that PayPal will have to comply with, allowing for greater transparency.

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January 29, 2016

California Bill Would Make Encrypted Smartphones Illegal

Jim Cooper, a member of the California Assembly, has proposed bill AB 1681. The bill is designed to outlaw the sale of encrypted smartphones beginning on January 1, 2017. Any retailer who sells an encrypted phone to a consumer after that date would be subject to a $2,500 fine for every violation of the act.

search%20cell%20phone%2061969338-001.jpgThis move to end unbreakable encryption on cell phones comes as a joint effort between law enforcement, politicians and victims of crimes. It seems that even when law enforcement gets a court order allowing them access to a suspect's smartphone, they usually can't get around the encryption software. This holds true for the manufacturers of the phone and the operating system. Executives from those manufacturers say that they have no means of successfully getting around typical smartphone safeguards.

Proponents of the bill are particularly concerned with stopping human trafficking. They argue that encrypted smartphones are used to carry out these crimes, yet police cannot use them for evidence because of encryption programs. Their hope is that pimps and other participants in human trafficking networks can be more easily caught and prosecuted when smartphone evidence is readily available.

Critics say that completely doing away with encryption is a mistake, not to mention a violation of fourth amendment rights. Encryption is what makes people feel secure when it comes to accessing or working with financial and other sensitive information on their cell phone. Without encryption, consumers would be more vulnerable to several varieties of identity theft and other violations.

Critics also note that selling fully unencrypted or easily decrypted phones is not necessarily a viable solution, especially since several encryption apps are readily available. It would not be difficult for a person to buy an unencrypted phone and then install encryption software that law enforcement and smartphone manufacturers may not be able to break, leaving police in the same predicament they occupy today.

Much debate is likely to ensue before the bill is voted on. Blanket solutions sometimes introduce more issues than they resolve, which may be the case with making encrypted smartphones illegal in California.

January 15, 2016

San Francisco Yellow Cab Co-Op to File Bankruptcy Amid Uber/Lyft Competition and Lawsuits

An ongoing series of setbacks appears to be forcing San Francisco-based Yellow Cab Co-Op to file for bankruptcy. Company executives sent a letter to each of the cab drivers who work for the co-op in December of 2015 that lays out a plan for the future. Drivers can expect to maintain their employment, but things may have to change dramatically for the co-op to be financially viable again.

Taxi%2028530953-001.jpgOne of the setbacks that is having a detrimental effect on Yellow Cab's bottom line is the upsurge of passengers using tech-based competitors like Uber and Lyft. Both of these apps are widely used on smart phones, enabling users to catch rides quicker and often at a lower rate than those charged by cab companies.

However, representatives from Yellow Cab argue that Uber and Lyft drivers are not subject to the same rigorous background checks that they must undergo. Also, cabbies opine that many of the drivers who work with Uber and Lyft just don't know the city streets as well as they do. Cabbies further cite their superior insurance protection as an additional reason why customers should choose their service over the services of their rivals.

The other setback that is affecting Yellow Cab's profitability is the amount of money they've had to shell out as a result of personal injury litigation. Company officials note that they have been ordered by courts to pay numerous sizable settlements in the last couple of years. One of these cases in particular, Fua v. Sanchez, resulted in an eight million dollar award to plaintiff Ida Fua. The left side of Fua's body was paralyzed when the Yellow Cab she was riding in crashed into other cars at 60 mph. This award, combined with other sizable judgments, severely impaired Yellow Cab's financial stability.

Yellow Cab is likely to file for Chapter 11 bankruptcy soon. This reorganization bankruptcy will discharge many of the company's debts, and neither drivers nor passengers should be affected. However, company officials say that they will need to hire more drivers if they want to become more profitable in the future.

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