May 27, 2016

A Memorial Day Message: Pause to Remember and Honor America's Fallen

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)

May 20, 2016

Female Bank of America Executive Files Discrimination Lawsuit

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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May 13, 2016

Facebook Sued Over Sending Unsolicited Text Messages

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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May 6, 2016

California Jurors Who Violate Internet and Social Media Rules Could Be Fined

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.

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.