May 28, 2009

Lawsuit Claims Costco Employee Repeatedly Held Against Her Will

A lawsuit which seeks class action status was filed against Costco Wholesale Inc. claiming violations of California wage and hour laws. Mary Pytelewski, a full time employee at a San Diego area Costco store for over 10 years filed the suit.

costco.jpgPytelewski alleges that Costco company policy requires employees to clock out and then remain locked in the store for 15 minutes while managers close the store each night. In addition to wage and hour violations, her attorneys state that Costco’s practice of locking the employees inside the store after they clock out is the equivalent of false imprisonment. The lawsuit seeks $50 million in damages.

When Pytelewski complained about the practice she was "rebuffed and ridiculed at every turn." Then she was given a negative evaluation, and a supervisor was assigned to her cash register at closing time to watch her.

Her attorney David Sanford stated "Costco makes the false claim that locking these employees inside its warehouses until store managers and supervisors complete their closing routines is necessary for store security."

By my calculations, IF Ms. Pytelewski was a full time employee who was prevented from leaving 15 minutes a day, 5 days per week, 50 weeks per year for 10 years that would equal 37,500 minutes. That is 625 hours, or the equivalent of over 78 eight hour workdays without hourly or overtime pay.

If the allegations are true, I wonder how many other Costco employees will join the lawsuit, in California as well as other states.

May 24, 2009

Lawsuit Filed Between Sex Toy Party Business Rivals

Brown Bag Party of Costa Mesa, California filed a lawsuit in California Federal Court against competitor Pure Romance of Loveland, Ohio. The lawsuit accuses Pure Romance of false advertising, unfair competition, libel and interference with business. Brown Bag Party is seeking at least $75,000 in damages.

Brown%20Bag.jpgBoth companies are national competitors in the sex toy, home party business.

According to the lawsuit, at a Las Vegas convention for independent contractors earlier this year, Pure Romance representatives and owners disseminated information that Brown Bag Party was in bankruptcy, going out of business and being acquired by Pure Romance.

Attorneys for Brown Bag say those statements are untrue.

The lawsuit alleges that the statements were made in an attempt to convince independent contractors to sell Pure Romance products and not those of Brown Bag Party. It also alleges that those making the statements knew they were untrue when they made them.

Pure Romance has also filed a lawsuit against women in Hamilton County Ohio who dropped their Pure Romance affiliation and switched to hosting parties for Brown Bag. That suit has been transferred to federal court.

Continue reading "Lawsuit Filed Between Sex Toy Party Business Rivals" »

May 17, 2009

Lawsuit Filed Against New York Law Firm Chadbourne & Parke Over Legal Research Fees

California attorney Patricia Meyer has filed a lawsuit on behalf of a former Chadbourne & Parke client alleging overcharging of fees related to legal research. The complaint alleges unfair business practices, unjust enrichment, fraud and deceit.

legal_research.jpgFormer client J. Virgil Waggoner retained the Chadbourne law firm in 2002. His bill totaled $108,000.00, of which $20,000 was for legal research related to his matter. Ms. Meyer claims the research should have been only about $5000. The lawsuit alleges that Chadbourne billed Waggoner for research on an hourly basis, while paying the research on a flat fee basis.

Ms Meyer states that the practice of profiting from costs, without disclosing the practice in the client retainer agreement violates rules of professional conduct set forth by the California and American bar associations. There was no such disclosure made to Mr. Waggoner.

In a statement, Chadbourne partner Thomas Hall paints a different picture: "We adamantly deny this claim of Mr. Waggoner, with whom we ended our relationship over four years ago. It is telling that Mr. Waggoner -- a Texan who had retained our New York, not California, office -- filed suit in California only after his New York malpractice lawsuit against Chadbourne was dismissed and only after we sued him in New York for unpaid fees."

Ms. Meyer said the reason the lawsuit was filed on March 2, but not served on Chadbourne & Parke until May 1 is because she did not want to compromise other investigations alleging similar claims. She went on to say that similar lawsuits are in the pipeline, and she has evidence that shows at least a dozen other law firms are overcharging clients for legal research.

Continue reading "Lawsuit Filed Against New York Law Firm Chadbourne & Parke Over Legal Research Fees" »

May 16, 2009

Class Action Lawsuit Filed Against KB Home Alleges Inflated Appraisals

While this lawsuit is newsworthy, the allegations against residential developer KB Homes are echoes of previous lawsuits.

Most recently, this lawsuit filed in Federal Court in Phoenix claims the builder conspired with Countrywide Financial to inflate appraisals for home sales in Arizona and Nevada. The lawsuit estimates the average appraisal was inflated by $20,000 for over 14,000 homes built by KB in Nevada and Arizona.

money_house.jpgMore homeowners are expected to join the lawsuit filed on behalf of all who purchased KB homes in Arizona and Nevada since 2006 and used Countrywide as the lender.

Historically, KB (formerly known as Kaufman Broad) owned its own mortgage company, KB Home Mortgage Company. In 2005 the US Department of Housing and Urban Development (HUD) fined KB $3.2 million for poor mortgage underwriting practices. By that time, KB had sold its mortgage company to Countrywide Financial.

About a month later (August 2005) the US Federal Trade Commission (FTC) fined KB $2 million for violation of a 1979 FTC agreement related to arbitration clauses in its contracts.

In 2008 this blog posted “KB Home and Countrywide Sued Over “Inflated” Appraisals” related to similar and identical issues involving California homeowners.

California Attorney General Edmund G. Brown Jr. filed a lawsuit against Countrywide in June of 2008 (amended in July 2008) alleging shocking loan practices. Brown stated "In one case the company approved an adjustable rate mortgage to an 85-year-old disabled veteran with such a low credit score and high debt that he defaulted in less than six months."

R.I.P. Countrywide: In January, 2008 Bank of America bought Countrywide for $4 billion in stock. In April, 2009 Bank of America announced the end of the Countrywide name. It will now simply be called Bank of America Home Loans.

May 15, 2009

California Attorney General Jerry Brown Files Suit in Property Tax Reassessment Scam

Earlier this week, the following lawsuit was filed in San Diego Superior Court “PEOPLE OF THE STATE OF CALIFORNIA VS. SEAN MCCONVILLE” by the California Attorney General’s office.

The lawsuit alleges that brothers Sean and Michael McConville and their companies Property Tax Reassessment and Property Tax Adjustment Services targeted tens of thousands of California property owners in an effort to fraudulently obtain $179.00 from each while promising to lower their property taxes through reassessment.

Click on images below to view actual letter:

AssessmentLetter1.jpgAssessmentTH2%2Cjpg.jpg

The problems were numerous. According to the lawsuit the McConville brothers’ companies mailed out letters that implied a connection to a government agency, looked like bills, offered services for $179.00 that are available at little or no cost directly from all county assessors, and allegedly failed to deliver services when paid.

According to Attorney General Jerry Brown “These scam-artists ripped off thousands of homeowners for property reassessment services readily available free of charge.” He continued “This lawsuit seeks to end the deception and blocks these companies from continuing to scam homeowners.”

Brown’s suit seeks an end to the scam and at least $2.5 million in civil penalties.
The Ventura County District Attorney’s Office charged one of the brothers last week, Sean McConville, with 20 felony counts for criminal conduct stemming from his property tax reassessment operations.

And this was not the McConville brothers first brush with the law. On April 16, 2008 the California Department of Corporations filed enforcement actions against the brothers and ALG capital. Those documents are available HERE.

Homeowners who believe they have been victimized by this or any other property tax scam should contact the California Attorney General’s Office at: 1-800-952-5225 or their local County District Attorney.

May 1, 2009

Wolfgang Puck’s Spago Sued over Bathroom Injuries

Spago patron Marjorie Linden claims that in 2007 she had to use the ladies room during lunch at the famous Beverly Hills restaurant. Linden claims that the condition of the restroom was deplorable with the floor covered in urine and feces.

Spago.jpgHer lawsuit states that while using the only usable toilet, which had no lock on the door, an unfortunate and preventable series of events left her with significant injuries.

As TMZ.com tells the story: “…Linden claims she had to use one of her hands to hold the door closed while she took care of business on the throne. But mid-squat, with her hand stuck firmly on the handle, another woman allegedly yanked the door open causing Linden to fall "face-first onto the tile floor."

The lawsuit claims that Linden messed up her knee, broke her back and caused serious mental damage.

Spago reps state that cleanliness of their bathrooms has never been an issue. "In our 27 years of business we've never had an issue close to this ... that portion of the claim is totally without merit."

October 24, 2008

Court of Appeal Reverses Discrimination Award Against Larry Flynt Publications

In 2000 Elizabeth Raymond was hired as an executive assistant by Larry Flynt Publications Inc. (L.F.P.). Raymond signed an agreement to the terms of her employment as outlined in the L.F.P. employee handbook. That handbook contained a provision in which Raymond agreed that any dispute for sexual discrimination or harassment would be submitted for arbitration.

Flyntpublications.jpgWhen Raymond was fired in 2002, she filed suit alleging sexual harassment in violation of the Fair Employment and Housing Act. L.F.P. filed a motion to compel arbitration, which was granted.

The arbitrator found L.F.P. liable for creating/maintaining a hostile work environment and awarded Raymond $175,000 in compensatory damages and punitive damages of $500,000 against Larry Flynt and $250,000 against L.F.P.

The arbitration agreement signed by Raymond also contained the following judicial review clause: “Any party may apply to a court of competent jurisdiction for entry of judgment on the arbitration award. The court shall review the arbitration award, including the ruling and findings of fact, and shall determine whether they are supported by competent evidence and by a proper application of law to the facts. If the court finds that the award is properly supported by the facts and law, then it shall enter judgment on the award; if the court finds that the award is not supported by the facts or the law, then the court may enter a different judgment (if such is compelled by the uncontradicted evidence) or may direct the parties to return to arbitration for further proceedings consistent with the order of the court.”

Los Angeles Superior Court Judge Kenneth R. Freeman’s found the “Judicial Review” clause unenforceable and upheld the $925,000 award in favor of Elizabeth Raymond. Larry Flynt and L.F.P appealed.

The Court of Appeal ruled yesterday in favor of Judicial Review, reversed Judge Freeman’s ruling and remanded the case for consideration of the Flynt defendants’ legal challenges to the award.

The Court of Appeal’s opinion may be found HERE.

Continue reading "Court of Appeal Reverses Discrimination Award Against Larry Flynt Publications" »

October 13, 2008

David v. Goliath: Redbox Sues Universal Studios Home Entertainment

Redbox Automated Retail, LLC (Redbox) has built a growing business renting DVDs for only $1 per day from their bright red kiosks. In the lawsuit filed in Federal Court on October 10, Redbox claims that Universal Studios Home Entertainment (USHE) and 3 subsidiaries are trying to force changes that will constrain Redbox and its business model.

redbox.jpgIn a meeting on August 26, USHE gave Redbox until close of business on August 27, 2008 to agree to the following:

Redbox is immediatedly prohibited from renting any DVDs for 45 days after the public release date

Redbox must limit the number of copies of USHE DVDs in any particular kiosk

Redbox is prohibited from selling any USHE DVDs and must destroy all previously rented copies

Under the currently successful Redbox business model, Redbox stocks new release DVDs in kiosks on the date of public release, in large quantities and sells previously viewed DVDs for $7 as early as 12 days after release.

This model is in large part responsible for the growth of Redbox from 125 kiosks in 2004 to over 6500 at the end of 2007. The projections for 2008 call for 12,000 kiosks.

Putting teeth in their “my way or the hi-way” proposal, USHE stated it will terminate relationship with both Redbox DVD distributors; VPD and Ingram.

Instead of agreeing to the new terms, Redbox filed suit in Federal Court. In the suit, Redbox is claiming that UHSE and subsidiaries have violated the Sherman Antitrust Act and are misusing copyright laws.

Redbox is asking for the court to award the following relief:

a. A declaration that Defendants' conduct constitutes copyright misuse, and
thereby renders copyrights for Universal DVDs - however marketed, sold
or distributed - unenforceable during the period of misconduct;
b. Injunctive relief prohibiting USHE from engaging in any efforts to limit
the supply of Universal DVDs to Redbox;
c. A declaration that the Revenue Sharing Agreement and USHE's
threatened action against VPD and Ingram violate the Sherman Antitrust
Act;
d. Damages to the full extent permitted by law;
e. Attorneys' fees and costs; and
f. Such further relief as this Court deems just and appropriate.

October 3, 2008

Court of Appeals Answers Age Old Question....Employee or Independent Contractor?

In Varisco v.Gateway Science and Engineering, the California Court of Appeals upheld a Los Angeles Superior Court ruling which determined that Al Varisco was in fact an "Independent Contractor", not an employee of Gateway. Plaintiff Varisco alleged that the “at will” clause in his contract with Gateway established employee status.

990816_team.jpgFrom the opinion, which can be found HERE:

"Appellant Al Varisco sued respondent Gateway Science and Engineering for wrongful termination of employment and similar causes of action, all of which depended on the allegation that he had been Gateway's employee. Gateway moved for summary judgment on the ground that Varisco was not an employee, but an independent contractor. The trial court found for Gateway, and we affirm. All the undisputed facts add up to an independent contractor relationship. A single clause in the parties' letter
agreement which allowed either party to terminate at will did not transform that relationship into an employment relationship."

The Court of Appeals reviewed the following to before affirming Varisco’s status as an “Independent Contractor”.

Control is the principal factor in determining whether an individual worker is an employee or an independent contractor. "An independent contractor is 'one who renders service in the course of an independent employment or occupation, following his employer's desires only in the results of the work, and not the means whereby it is to be accomplished.' Thus, the most significant question in the independent contractor/employee determination is "'whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.

Case law has identified secondary indicia of the nature of the relationship. These are:

(a) whether the one performing services is engaged in a distinct occupation or
business;

(b) the kind of occupation, with reference to whether, in the locality, the work is
usually done under the direction of the principal or by a specialist without supervision;

(c) the skill required in the particular occupation;

(d) whether the principal or the worker
supplies the instrumentalities, tools, and the place of work for the person doing the work;

(e) the length of time for which the services are to be performed;

(f) the method of payment, whether by the time or by the job;

(g) whether or not the work is a part of the regular business of the principal;

(h) whether or not the parties believe they are creating the relationship of employer-employee."

Related Citations may be found in the opinion document. If you have questions related to employment law problems, feel free to contact Sylvester, Oppenheim & Linde.

Please Note: While the above information can be beneficial for the purpose of employment law, the IRS definition of Independent Contractor status remains to be a question best answered by a Certified Public Account (CPA) or Tax Law professional.

September 19, 2008

EEOC Issues Q&A Guide to Performance and Conduct Under the ADA

This month the U.S. Equal Employment Opportunity Commission released a comprehensive document designed to reduce confusion related to the performance and conduct of employees protected by the Americans with Disabilities Act.

cooltext402161481.jpgEmployers will be pleased to see that this document clearly answers many ADA related performance and conduct questions. The document includes 30 questions with answers using 48 examples of actual cases, documented by 90 footnotes.

For your convenience, you will find the Table of Contents below, including direct links to each section. You will find the entire document HERE. As always, if you have questions related to employment lawsuits, feel free to contact me.

TABLE OF CONTENTS

I. Introduction

II. Basic Legal Requirements

III. Application of ADA Legal Requirements to Performance and Conduct Standards

A. Performance standards

B. Conduct standards

C. Questions pertaining to both performance and conduct issues

D. Seeking medical information when there are performance or conduct problems

E. Attendance issues

F. Dress codes

G. Alcoholism and illegal use of drugs

H. Confidentiality issues arising from granting reasonable accommodation....

I. Legal enforcement

In case you missed the latest EEOC religious discrimination guidelines, you can read about them HERE.

September 5, 2008

US Court of Appeals Upholds Employment Contract Despite Language Barrier

After being terminated by Sun Constructors (Sun) in 2006, Juan Morales filed a wrongful termination lawsuit. Sun claimed that Morales was bound by an arbitration clause in the employment agreement signed upon his employment. Morales claimed that since the agreement was in English, he did not understand its terms when he signed it, thus he could not be bound by it since he does not speak or understand English. The District Court agreed with Morales. Sun appealed.

1068786_major_const.jpgAccording to the opinion written by Judge Michael A. Chagares of the US Court of Appeals Third Circuit, when Morales was hired in 2004 he passed a written exam in English and attended a 2 ½ hour orientation which explained the employment agreement. Sun provided a bilingual employee to translate for Morales during the orientation. The bilingual employee testified that he did not specifically explain the arbitration clause to Morales.

Judge Chagares ruled in favor of Sun, and remanded the case back to District Court with instructions to enter a stay pending arbitration. In his opinion, Judge Chagares cited an 1875 US Supreme Court decision, Upton v. Tribilcock that said: "It will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained."

Judge Chagares continued “Morales, in essence, requests that this Court create an exception to the objective theory of contract formation where a party is ignorant of the language in which a contract is written. We decline to do so. In the absence of fraud, the fact that an offeree cannot read, write, speak, or understand the English language is immaterial to whether an English-language agreement the offeree executes is enforceable.”

August 15, 2008

California Supreme Court Rejects Validity of Most Non-Competition Agreements

On August 7, 2008, the California Supreme Court unanimously ruled in Edwards v. Arthur Andersen that the state legislature effectively restricted the ability of employers to prevent employees from working for competitors.

483868_leather_chair.jpgThe Opinion States: “We conclude that Andersen’s noncompetition agreement was invalid. As the Court of Appeal observed, “The first challenged clause prohibited Edwards, for an 18-month period, from performing professional services of the type he had provided while at Andersen, for any client on whose account he had worked during 18 months prior to his termination. The second challenged clause prohibited Edwards, for a year after termination, from ‘soliciting,’ defined by the agreement as providing professional services to any client of Andersen’s Los Angeles office.” The agreement restricted Edwards from performing work for Andersen’s Los Angeles clients and therefore restricted his ability to practice his accounting profession.”

With a few exemptions primarily related to the sale of a business, the court essentially voided all California non-competition agreements.

California Business and Professions Code Section 16600 states:

Except as provided in this chapter, every contract by which
anyone is restrained from engaging in a lawful profession, trade, or
business of any kind is to that extent void.

Still in effect are the protections for the employer in the Uniform Trade Secrets Act which prevent employees from “stealing” the employer’s client list.

This case also takes on issues related to “employee release” agreements often signed upon termination of employment.

The Supreme Court held that employee release agreements in which the employee releases the employer from “any and all” claims do not waive statutory protections provided to the employee in Labor Code Section 2802.

Continue reading "California Supreme Court Rejects Validity of Most Non-Competition Agreements" »

August 6, 2008

US Court of Appeals Upholds Termination of Employee Found “Sleeping” on Job

David McNary suffers from Diabetes and Graves’ Disease. He worked for Schreiber Foods as a sanitation employee on its dairy equipment. His co-workers knew of these conditions and would occasionally pitch in to help when he needed it. He was free from any work restrictions related to his health.

Nap-IMG_5344.jpgIn September 2005, while cleaning trash compactors, McNary felt dizzy and light headed. He left the compactor area, put his feet up on a table and closed his eyes.

Two supervisors found him with his head back, his mouth open, and his eyes shut. McNary explained his medical conditions and denied he was sleeping. The Company subsequently terminated him for sleeping on the job.

In January, 2006 McNary filed a complaint against Schreiber alleging a violation of the Americans with Disabilities Act (ADA). McNary claimed discrimination based on his physical condition. He also claimed to have informed management and co-workers about his conditions and need to take brief breaks to relieve eye pain and dizziness.

Following discovery, The District Court found that Schreiber provided a legitimate nondiscriminatory reason for McNary’s termination; sleeping on the job in violation of company policy and granted Schreiber’s motion for Summary Judgment.

McNary appealed.

The United States Court of Appeals for the Eighth Circuit stated “We review de novo the district court's grant of summary judgment to [Schreiber]. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.”

Notably, the Court of Appeals added,

"[F]ederal courts do not sit as a super-personnel department that reexamines an entity's business decisions." One reason we emphasize this point is that a number of plaintiffs present a sympathetic situation in which the employer's judgment in imposing discipline may appear poor or erroneous to outsiders. It is tempting to think that the role of the federal courts is to offer a remedy in that sort of case. Whether we might believe that [Schreiber] was unduly harsh in its treatment of [McNary], however, is not a matter to be considered in deciding this appeal. Our authority is to determine only whether there is a genuine issue for trial on the question whether [Schreiber] discharged [McNary] because of his [disability].

It could be inferred from that statement that McNary might have seen a better result if he had claimed that Schreiber failed to provide reasonable accommodation for his disability. But, he sued for wrongful termination and lost in District Court and on appeal.

McNary v. Schreiber Foods, Inc. (8th Cir. 8/1/08)

May 2, 2008

Ebay Sues Craigslist for Diluting Equity

Internet Auction Giant eBay filed a lawsuit last month against Craigslist, the online classified site which draws over 20 million unique visitors per month. When news of the lawsuit surfaced, details were unavailable as the lawsuit was not made public. A redacted version has just been released and is available HERE.

449px-Craigslist01.jpgAccording to eBay, the reason behind filing the lawsuit is that Craigslist directors Craig Newmark and Jim Buckmaster (also CEO), have unfairly entered into transactions that diluted eBay’s economic interest in the company by more than 10 percent. EBay alleged that both the directors have breached their fiduciary duties.

EBay claims that its equity in Craigslist has been diluted from 28.4 % to 24.85 %. With less than 25% of the company, eBay can no longer place a director on the Craigslist board.

Five days after the lawsuit was filed, Craigslist (headquarters shown above) fired back at eBay, calling the lawsuit unethical and “smelling of a hostile takeover”. Even in the lawsuit, eBay makes it clear that it would welcome the opportunity to purchase all of Craiglist.

Through its acquisitions, eBay has illustrated that it wants to be in the online classified business in a big way. Last year Kijiji (created and launched by eBay in 2005) was made available in select US cities.

Will David triumph over Goliath or will Goliath end up owning David?

Continue reading "Ebay Sues Craigslist for Diluting Equity" »

April 16, 2008

Google Sued by the Borings for Invasion of Privacy

Internet giant Google has been sued by Aaron and Christine Boring for taking photographs of their property for Google Maps Street View feature. The problem is that the photos were taken from a private road.

Google%20StreetView%20Flikr.jpgFor those who have not yet experienced Google Street View it is a feature of Google maps that allows users to actually “visit” the street via the internet through photographs providing a 360 degree view.

Not all cities have this Google feature available yet, but the Boring’s property was included last year. The images are captured by a car similar to the one seen above with an array of cameras mounted to its roof.

Google spokesperson Larry Yu said that the company has a policy of only taking photos from public streets. He also said that concerned citizens can contact the company if they want a photo taken down. Yu added “"We absolutely respect that people may not be comfortable with some of the imagery on the site. We actually make it pretty easy for people to submit a request to us to remove the imagery."

In this case, damages may be difficult to prove since Google is not the only place on the web showing an image of the Boring’s home. The Allegheny County real estate Web site has a photo, a description of the home and the couple's name. The site contains similar information, including pictures, of nearly every property in the county.

The Smoking Gun has a copy of the photos (which are no longer on Google Streetview), a copy of the lawsuit (including the Boring’s home address) and a photo from the Allegheny County website.

Continue reading "Google Sued by the Borings for Invasion of Privacy" »

April 9, 2008

Woody Allen Sues American Apparel Over Billboards

Academy Award winning director Woody Allen filed a lawsuit in U.S. District Court in Manhattan seeking $10 Million from American Apparel for use of his image without permission. The lawsuit states that the actor and director does not endorse commercial products or services in the United States.

WOODY-ALLEN-RABBI-large-1.jpgAllen’s image (shown at right courtesy of Frillr.com), appeared on two billboards in New York and Los Angeles for one week in May 2007. Allen appears as a Hasidic Jew, a character from his movie “Annie Hall”. The lawsuit calls the billboards "especially egregious and damaging."

In a statement, American Apparel defended their use of Allen’s image as “Social Parody” protected by the First Amendment. They also stated “We had no intention of selling garments through the use of Mr. Allen’s image … We will make every effort to resolve this with Mr. Allen in an amicable way.”

In addition to its clothing line, American Apparel, based in Los Angeles is known for its colorful CEO Dov Charney and its political efforts in favor of immigration reform.

Was this “Social Parody”, infringement or just an effort to generate publicity? While we may never know for sure, I predict it will go away quietly with a monetary settlement.

April 1, 2008

How Will Magic Castle/AMA Lawsuit Affect Its Future?

For over 45 years the Magic Castle has been the clubhouse of the Academy of Magical Arts (AMA). On February 21, 2008 the AMA flied a lawsuit against Magic Food & Beverage Inc., a company with an affiliation to Magic Castle Park LLC, the owner of the property, which has been for sale since last year. Although not a subsidiary of Magic Castle Park LLC, Magic Food and Beverage Inc. is affiliated through corporate officers and/or executives common to both entities. This information is based solely on the complaint filed, Case No: BC 385828, in Los Angeles Superior Court.

800px-MagicCastle01.jpgThe lawsuit includes 4 “Causes of Action” as follows:

• Trespass

• Trespass to personal property

• Assault

• Injunctive relief

The following sentence is heresay: AMA members have been told that the AMA wants to stay in the building known as the “Magic Castle”. NOTE: If the AMA governing board would like to make a formal statement to the contrary, I will post a retraction here.

Here is the question. If you were a tenant (AMA) in a 100 year old building (known as the Magic Castle) which was a small part of a parcel of land (10 plus acres) currently for sale and positioned for total redevelopment, would it be smart to sue those affiliated with your landlord if you wanted to stay?

This lawsuit appears to indicate the contrary. Personally, it would be unlikely that I would sue anyone affiliated with my landlord if I wanted to stay.

Following the filing of this lawsuit, the plaintiff (AMA) filed an ExParte application for temporary restraining order and an order to show cause RE: preliminary Injunction.

From the Court Document: “The Court has read and considered the above stated Ex Parte Application.

After argument of Counsel, the Application is denied.”

Continue reading "How Will Magic Castle/AMA Lawsuit Affect Its Future? " »

March 25, 2008

EBay Settles “Buy It Now” Lawsuit With MercExchange

MercExchange filed a lawsuit against online auction giant eBay in 2001 claiming eBay’s “Buy It Now” infringed on MercExchange patents and technology. In 2003 a jury awarded MercExchange $35 million in damages. The judge reduced the jury award to… $25 million. A federal judge certified the penalty and eBay threatened appeal.

inflatable-ebay-logo.jpgDuring the above proceedings MercExchange tried to block eBay’s use of “Buy It Now”. In 2006 the Supreme Court made a landmark decision to allow eBay to continue use of “Buy It Now”. Before this ruling patent owners were virtually always granted court orders to block infringements. These actions to block use typically lead to faster more lucrative settlements for the patent owners.

Since the Supreme Court ruling in eBay’s favor, judges throughout the US have denied requests for court orders to block use where the infringer was not a competitor of the patent owner.

Financial terms of the settlement were not disclosed by either party. EBay said it would buy three patents from MercExchange related to “Buy It Now”/fixed priced sales as well as related technology. EBay General Counsel Mike Jacobson stated “The agreement gives us access to additional intellectual property that will help improve and further secure our marketplaces.''

This Supreme Court decision adds a new aspect to the trend written about previously on this blog whereby infringers are strategically using the court system to buy intellectual properties and/or licenses to use intellectual properties.

March 11, 2008

LifeLock Sued by Experian for Deceptive Business Practices

Most of us have seen the LifeLock advertisement in which company CEO Todd Davis reveals his Social Security number and then speaks about the effectiveness of the company’s protections. Experian’s lawsuit claims that LifeLock’s ads are fraudulent and misleading. Experian also claims that LifeLock’s primary means of protecting its 600,000 clients is filing a fraud alert every 90 days for each LifeLock client.

49277_data_protection_cd-rom.jpgA fraud alert is a notice/flag put on your credit report through the consumer reporting agencies. This flag establishes that as part of any credit approval process, you need to be notified.

Experian claims LifeLock’s practice of filing fraud alerts on behalf of clients is illegal because, under the Fair Credit Reporting Act, “fraud alerts can only be requested by the individual consumer or an individual acting on behalf of the consumer."

Further the lawsuit claims, adding four alerts per year for 600,000 LifeLock members to Experian’s database will degrade the effectiveness of legitimate fraud alerts over time. Credit grantors could lose the ability to distinguish between fraud alerts added by consumers who legitimately believe that identity theft is imminent and those added by LifeLock. The complaint alleges that credit grantors will have reason to doubt the credibility of all fraud alerts and their effectiveness for consumers legitimately impacted by fraud and identity theft will be severely compromised.

The complaint against LifeLock was filed by Experian in the U.S. District Court for the Central District of California.

March 4, 2008

Allianz Agrees to $10 Million Settlement With CA Insurance Commissioner

Allianz Life Insurance Co. is reportedly the largest seller of annuities in California. According to the Department of Insurance, Allianz allegedly used deceptive sales tactics to mislead thousands of elderly people into purchasing unstable and/or unsuitable annuities. Many of those mislead were over 80 years old!

949759_dollar_sign.jpgAn annuity is a contract between a person and a financial institution (insurer) in which the person makes at least one payment and in turn receives "tax-deferred growth of earnings" back from the insurer.

California Department of Insurance officials conducted an examination into Alliance which revealed that in 2004/2005 Allianz replaced 126 existing annuities with financially unsuitable annuities for elderly clients.

In addition to the $10 Million penalty, Allianz agreed to implement a “suitability review” for customers over 65 to insure they are “fully aware of the products they are purchasing."

California Insurance Commissioner Steve Poizner stated “This landmark settlement ends years of aggressive and misleading marketing schemes targeted to our most elderly and vulnerable. The fact that Allianz used deceptive practices and high-pressure sales tactics to lure and cajole seniors into buying unsuitable policies is appalling. However, today's settlement represents a real change for the industry and is a tremendous victory for all California seniors."

Anyone with questions regarding insurance matters can contact the California Department of Insurance consumer hot line at (800) 927-HELP or visit http://www.insurance.ca.gov.

February 26, 2008

CA Court of Appeal Affirms EMT’s Protection Under MICRA

In a lawsuit filed by a Los Angeles Police Officer injured while accompanying an arrestee being transported by ambulance, the Court of Appeal upheld the trial court’s decision that the ambulance driver was protected by the Medical Injury Compensation Reform Act (MICRA).

Officer Randy Canister was injured during the ambulance ride when the ambulance hit a curb, alledgely to avoid a car while enroute to a hospital. Canister was not wearing a seatbelt. Immediately following the accident, Canister provided a written statement which stated that he had not worn a seat belt as a “tactical” decision. He later recanted that statement and claimed that he did not know the ambulance had seatbelts and no one told him.

530378_ambulances.jpgCanister claimed that Emergency Ambulance Service (EAS) was operating the ambulance negligently, and that driving the ambulance was not within the scope of protection provided to emergency health care providers under MICRA.

EAS presented evidence that all ambulance drivers in California, including the one driving at the time of this accident, must have special licenses issued by DMV to operate an ambulance. EAS also presented relevant case law and precedent illustrating that driving an ambulance was within the definition of “professional services” protected by MICRA.

In the opinion by Justice Madeleine Flier, the Court of Appeal rejected Canister’s argument, concluding that EMTs are healthcare providers, and that any negligence by EMTs in driving an ambulance constitutes professional negligence.

Some cases simply should not be appealed and this was one of them.

Every good trial attorney knows which of his/her cases should go to trial,

Continue reading "CA Court of Appeal Affirms EMT’s Protection Under MICRA" »

February 18, 2008

Lawsuit Can Proceed Over Color of Grocery Store Salmon

The California Supreme Court reversed a decision by the Court of Appeals allowing a class action lawsuit to proceed over disclosure of chemically color enhanced salmon sold in many California grocery stores. Named in the lawsuit are Albertson’s Inc., Safeway Inc., The Kroger Co., Trader Joe’s, Costco Wholesale Corp., Whole Foods Market Inc., Bristol Farms Inc., Ocean Beauty Seafoods Inc., and various subsidiaries.

930548_salmon_filets.jpgPlaintiffs in Los Angeles, Alameda and Monterey counties consolidated lawsuits in 2004 claiming that the named stores sold fish with chemical additives canthaxanthin and astaxanthin. The additives allegedly changed the grayish color of farm raised salmon to resemble the color of wild salmon. The lawsuit claims that the stores’ failure to disclose the use of chemical additives to consumers was misleading. The lawsuit also claims possible concerns exist over farm raised salmon and consuming artificial coloring agents.

Specifically the lawsuit contains causes of action for unfair or deceptive trade practices under the Consumer Legal Remedies Act; false and misleading advertising; negligent misrepresentation and unfair and unlawful business acts and practices in violation of the state’s Unfair Competition Law, which includes the Sherman Law.

In the unanimous opinion the justices held that the Federal Food, Drug, and Cosmetic Act does not preempt deceptive marketing claims under California’s Sherman Food, Drug, and Cosmetic Law because Congress explicitly intended to allow states to establish their own disclosure requirements and remedies for violations, and because the plaintiffs’ claims were based on state, rather than federal, law.

What is the true color of your salmon? Only your grocery store knows for sure, and until this lawsuit is resolved, they aren’t telling!

February 11, 2008

CA Court of Appeal Rules Yahoo Message Boards Will Remain Anonymous

Lisa Krinsky was formerly president and CEO of SFBC International in Florida. On a financial message board hosted by Yahoo, Krinsky was the target of some very negative, crude and vulgar comments. Krinsky filed suit against 10 pseudonymous posters for libel and interference with contractual/business relationships.

yahoo-logo.jpgThe problem was that she had to identify the people she was suing. Krinsky attempted to discover the defendants’ identities by serving a subpoena on Yahoo. Yahoo notified Doe 6 that it would comply with the subpoena in 15 days unless a motion to quash or other legal objection was filed.

Doe 6 then moved in superior court to quash the subpoena on the grounds that (1) plaintiff had failed to state a claim sufficient to overcome his First Amendment rights for either defamation or interference with a contractual or business relationship, and (2) plaintiff's request for injunctive relief was an invalid prior restraint.

Santa Clara Superior Court Judge Socrates P. Manoukian concluded that the totality of circumstances justified the relief Krinsky was seeking, and denied Doe 6’s motion to quash.

Doe 6 appealed.

On appeal, Justice Franklin D. Elia wrote for the court that posters to Internet message boards had a First Amendment right to shield their identity, and that this right could only be overcome if Krinsky could make a prima facie showing that a case for defamation existed.

Directly from the opinion, which can be found HERE “We thus conclude that Doe 6's online messages, while unquestionably offensive and demeaning to plaintiff, did not constitute assertions of actual fact and therefore were not actionable under Florida's defamation law. Because plaintiff stated no viable cause of action that overcame Doe 6's First Amendment right to speak anonymously, the subpoena to discover his identity should have been quashed.”

While we in no way condone the vulgarity and crudeness used by Doe 6 (as quoted in the opinion), we commend the California Court of Appeals for protecting our free speech rights related to the Internet.

February 8, 2008

KB Home and Countrywide Sued Over “Inflated” Appraisals

Deborah and Lonnie Bolden, and David and Dolores Contreras filed a lawsuit this week claiming that KB Home and a unit of Countrywide inflated appraisals, defrauding them out of tens of thousands of dollars.

904328_plastic_houses.jpgThe Boldens say they paid $70,000 more for their home than neighbors who used different appraisers. The lawsuit alleges that Countrywide and KB "conspired with affiliated appraisers to generate fraudulent" appraisal reports.

The Boldens' attorney, tells of a neighbor who had used their own appraiser and got KB to reduce the price of their home by $61,000. He also said that to keep houses at their contracted price, KB exaggerated appraisals during a falling market in 2005 and 2006.

The lawsuit seeks restitution, compensatory and punitive damages and class-action status for all California KB Home customers who bought homes from August 2005 to July 2006 and used Countrywide financing.

KB Home issued a statement saying "we believe that our full and complete investigation will show these allegations to be without merit."

This comes on the heels of a Whistleblower lawsuit filed against Countrywide KB Home Loans (joint venture) by former Regional VP Mark Zachary. In the lawsuit Zachary claims to have been fired after reporting that employees were using false income amounts and inflated appraisals to facilitate the closing of home loans.

Continue reading "KB Home and Countrywide Sued Over “Inflated” Appraisals" »

January 16, 2008

Cardiac Patient Rasheed Hunter Files Class Action Lawsuit Over Medtronic Recall

On behalf of Californians implanted with Sprint Fidelis leads, counsel for Rasheed Hunter announced the filing of a class action lawsuit. The leads are the wiring connecting an implanted defibrillator to the heart. Medtronic suspended use of the product on October 15, 2007 after 5 patient deaths were associated with the failure of the leads.

457881_usb_cable_4.jpgIn the lawsuit, Mr. Hunter seeks to hold Medtronic responsible for all diagnostic and medical charges as well as possible (corrective) surgical expenses caused by the faulty devices.

Medtronic believes that the risk is small. From their letter to patients: “Patients with a Sprint Fidelis lead are more likely to experience complications from removal than from a problem with a Sprint Fidelis lead.” They go on to suggest that reprogramming might serve to further mitigate the problem in their letter to physicians.

According to the Medtronics website, there have been over 268,000 Sprint Fidelis leads implanted to connect the life saving defibrillators to patients’ hearts.

Sadly this is truly a no win situation for everyone involved. Medtronic acknowledges the small failure rate and the deaths linked to it. They further acknowledge that they concur with the opinion of the Independent Physician Quality Panel which believes it is inappropriate to prophylactically remove Sprint Fidelis leads except in unusual individual patient circumstances.

January 9, 2008

EZ Lube Settlement Allows Customers to Watch Car Repairs

Orange County Superior Court Judge David T. McEachern Monday approved a $5 million settlement, stemming from a 2004 investigation by the state's consumer agency that investigates complaints against automobile repair shops. The settlement also includes 5 years probation, and closed circuit cameras allowing waiting customers to watch service being performed on their vehicles.

259976_car_repair.jpgIn 2003 KNBC/TV in Los Angeles conducted undercover investigations at numerous EZ Lube locations in Southern California. Some of its undercover video has even turned up on You Tube. In 2004 the California Bureau of Automotive Repair started its own investigation.

There is currently a statement on the EZ Lube website (click on Main Menu, Company Info then select Press & News) dated 9/27/2006: “You may have seen recent news reports that the Bureau of Automotive Repair (BAR has charged EZ Lube with violations of the Automotive Repair Act). We are writing to assure you that the BAR’s accusations are wrong and that our commitment to our customers is unwavering.”

According to EZ Lube’s press release dated 12/31/07 (courtesy of KNBC) EZ Lube is implementing a $6 Million Plan for Customer Assurance.

It was over 4 years between the KNBC investigation and the resolution which calls for a $5 Million settlement. Additionally there is the $6 million customer assurance plan, 5 years probation and more than 4 years of bad press on TV, in newspapers and on the internet. This is an illustration of how NOT to handle legal problems in a business.

Most business legal problems do not improve with age. EZ Lube should have started on resolving this problem in 2003. Their statement of 9/27/2006 could indicate that they were still trying to fight the government agencies at that time when they should have been well on the way to resolution.

Continue reading "EZ Lube Settlement Allows Customers to Watch Car Repairs" »

December 21, 2007

Apple Settles Patent Lawsuit with Burst

Could this be the licensing trend for the new millennium? In settlement of all patent infringing lawsuits between them, Apple and Burst announced a cash settlement of $10 Million to be paid to Burst upon signing of the “settlement”. Apple then gets non exclusive rights to all of Bursts patents except 4 (one issued and 3 pending) related to new DVR technology.

314241_i-pod_mini_blue_1.jpgBurst had claimed that Apple infringed patents related to transmission of compressed files in iTunes, QuickTime and the iPod. Apple claimed it possessed the technology before Burst applied for patents.

Turning back the clock, in 2005 Burst announced a $60 Million settlement with Microsoft, providing an end to patent infringement lawsuits between them and giving Microsoft nonexclusive use of Burst’s patent portfolio.

In this 2005 press release, Richard Lang, Burst CEO stated his intention to use the Microsoft proceeds in 3 areas of the business. Number 2 was “To Reserve a sufficient amount of operating capital to launch a vigorous ongoing enforcement of its patent rights against all infringing parties, as well as pursuing software licensing and other avenues available to the Company to maximize the return to Burst shareholders.

He would appear to be a man of his word. The question remains, are patent infringement lawsuits the new licensing vehicle for high tech companies? Ultimately time will tell but in my perception, the trend is clear.

December 14, 2007

California Supreme Court: “You Must File a Claim Before Suing the Government!”

The California Supreme Court took steps to clarify the process of suing a governmental entity that Courts of Appeal have disagreed on for years. The Supreme Court has clarified the requirement of the “Tort Claims Act,” requiring the filing of a demand prior to the institution of tort and contract litigation against a governmental entity.

678901_contract_2.jpgPrior to this ruling, Courts of Appeal in California presented contradictory rulings on the issue. Some ruled that the “Tort Claims Act” excluded contract disputes and others ruled that it included contract disputes with governmental entities.

To further clarify, the Supreme Court went as far as changing the name of the act. The new name is the “Government Claims Act”.

In a unanimous opinion, Justice Carol Corrigan wrote “Government Code section 905 requires that ‘all claims for money or damages against local public entities’ be presented to the responsible public entity before a lawsuit is filed. Failure to present a timely claim bars suit against the entity. (§ 945.4.) Here we hold that these requirements apply to breach of contract claims.”

The decision is available for review here on the California Supreme Court website.

To sum up, if you have a dispute with any public entity within the State of California, you are required to file a claim with that entity before filing a lawsuit. With this decision in place, failure to file a claim will provide the public entity the legal clout to have your lawsuit dismissed.

Continue reading "California Supreme Court: “You Must File a Claim Before Suing the Government!”" »

December 7, 2007

California Lawsuit Seeks Fair Emergency Room Billing Practices

Pamela Hope Cincotta and Joyce Kraus are plaintiffs in a class action lawsuit alleging price gouging at 2 different hospital emergency rooms. The class action lawsuit was filed December 3rd by attorney Ron Bochner against the California Emergency Physicians Medical Group (known today as CEP America).

803500_emergency_entrance.jpgFrom the lawsuit “…CEP provides emergency room professional services for many hospitals in California. It separately bills patients for such services. Plaintiffs are informed and believe and theron allege that in so billing patients, CEP has engaged, and continues to engage, in a pattern and practice of charging unfair, unreasonable and inflated prices for medical care to its uninsured patients who are generally the least able to pay these inflated and unreasonable charges. CEP also pursues aggressive collection techniques in charging these unfair, unreasonable, irregular and inflated prices. In doing so, they have attempted to collect, by various means, the unfair, unreasonable and inflated prices for medical care to CEP’s uninsured patients as debts in California.

CEP provides ER services to approximately 55 hospitals in California. The results of this lawsuit would likely affect prices and billing practices at all of those hospitals.

Dr. Wes Curry, president of CEP America, said "We're confident that our billing practices are proper."

Technically the lawsuit is a class action complaint for violation of California Unfair Business Practices Act; Consumers Legal Remedies Act; Breach of Contract and Breach of Implied Covenant of Good Faith and Fair Dealing; Unjust Enrichment.

California has approximately 7 million uninsured residents.

November 29, 2007

Will Brad Pitt be Sued by Universal?

What does the writers strike, the success or failure of the movie “State of Play” and contract law all have in common? They will all factor in to Universal’s decision about suing Brad Pitt in the future.

678902_contract_3.jpgPitt pulled out of the movie last month. It is believed that Pitt was unhappy with script rewrites and due to the writers strike and shooting schedule, further changes could not be made.

Universal issued this statement: "Brad Pitt has left the Universal Pictures production of State of Play. We remain committed to this project and to the filmmakers, cast members, crew and others who are also involved in making the movie. We reserve all rights in this matter."

There are an almost infinite number of factors involved in assessing any breach of contract lawsuit.

A few of the common ones in business contracts include: Which party drafted the contract? Are the terms clear and concise or subject to interpretation? Was there a “meeting of the minds”? Was there an exchange of value? Was there full disclosure or possible fraud?

Not being a mind reader (and not having seen the contract), I won’t try to predict whether Universal will file suit. But the last sentence in their statement “We reserve all rights in this matter." literally shouts that they are giving it serious consideration.

And the latest news? Russell Crowe has stepped in to take the lead in “State of Play”.

Continue reading "Will Brad Pitt be Sued by Universal?" »

November 21, 2007

Disney Sued by Disabled Guests Over Segway Ban

The Walt Disney Co., the world's largest theme-park operator, has been sued by three people who allege that the company's ban on Segway personal transporters at its theme parks is in violation of federal disability laws.

segway_tour_small.jpgNo one seems to be claiming that they were denied access to Walt Disney World or any other Disney Theme Park. The allegations seem to be that they (disabled guests who can stand but not walk long distances) could not use their Segways.

While not commenting on the lawsuit, Disney Spokesperson Jacquee Polak stated "Our primary concern is the safety of all our guests and our cast members. We have a long history of being a leader in creating accessible experiences for our guests with disabilities."

Depending on model and equipment, most Segways weigh between 110 and 120 pounds. Add the weight of a small rider at 140 pounds and you have a total weight of 250 pounds and above.

Imagine the injuries to Disney guests if a Segway traveling at a speed 10 to 12 mph accidently hit one or more guests.

Disney welcomes the use of manual and electric wheelchairs and 4 wheel power chairs by disabled guests. Disney even has them available for rental.

With the utmost respect for all people with disabilities, I agree with Disney on this issue. The safety of Disney guests is more important than the wishes of a few who want to see Disneyland on a Segway. Wheelchairs and powerchairs are far more safe in crowded venues.

November 14, 2007

California Attorney General Settles With AT&T Mobility

AT&T Mobility (formerly Cingular) will no longer charge their customers for any calls made after their phones are lost or stolen. In the complaint, Attorney General Jerry Brown alleged that the company violated California law, including Public Utilities Code section 2890, which bars phone companies from charging customers for unauthorized services.

260343_mobile_phone_thief.jpg“No cell phone company should profit from calls made by thieves or unauthorized users,” Brown said.

The agreement, a stipulated judgment, requires AT&T Mobility to inform each of their customers of their legal rights regarding lost or stolen phones. Under the agreement, AT&T must either credit the disputed charges or inform customers of their legal rights.

AT&T must notify customers--in writing--of these new requirements and assist customers to obtain credit for amounts already paid on lost or stolen phones, back to year 2003. AT&T will also pay the Attorney General's Office $500,000 for costs of the investigation and for the Unfair Competition Law Fund, administered by the California District Attorneys Association.

“This groundbreaking settlement makes AT&T the first cell phone company that has agreed to protect its customers from cell phone rip-offs and other unauthorized uses,” Brown said. “It is now time for the rest of the cell phone industry to step forward and follow AT&T’s example,” Brown added.

What will happen if the rest of the cell phone industry doesn’t follow AT&T's "example"? Well, the California Attorney General has never been known for his “wait & see” attitude.

November 6, 2007

Court of Appeals to Bank of America: When is a Vice President not a Vice President?

If you have ever wondered why so many employees at your bank carry the title of Vice President, the decision in Ramanathan v. Bank of America could shed some light. The California Court of Appeals reversed a trial court decision, which will allow Padmanabhan Ramanathan to move forward with his wrongful termination suit against Bank of America.

648752%20BofA%20Seattle.jpg The banks position was that the National Banking Act Sec. 24(Fifth) of the bank act bestows the power “[t]o elect or appoint directors, and by its board of directors to appoint a president, vice president, cashier, and other officers, define their duties, require bonds of them and fix the penalty thereof, dismiss such officers or any of them at pleasure, and appoint others to fill their places.”

The most entertaining part of the decision was found in the footnotes…… At oral argument, the Bank’s counsel argued that if the Bank chose to designate all of its employees, “including janitors, maintenance workers, everyone” as “vice presidents,” then they too would all be covered by the provisions of the NBA. The judge labeled this a “startling assertion”.

In spite of such a sound “legal” argument, Superior Court Judge Jeffrey W. Horner, writing on assignment for the Court of Appeal gave more weight to Ramanathan’s declaration that he had no employees working under his supervision, had no control over anyone else’s employment, was primarily involved in the design and development of software applications, and had nothing to do with banking operations or customer service.

Continue reading "Court of Appeals to Bank of America: When is a Vice President not a Vice President?" »

October 31, 2007

If a Judge Adds a Poem to His Ruling, Should the Commission on Judicial Performance Open an Inquiry?

Because it’s Halloween here is a short entry about a creeping vine. Apparently this case arose after a woman brought suit against her neighbor for allowing a vine to grow on her property which damaged her roof. According to his attorney James A. Murphy, In December 2006 Superior Court Judge Loren E. McMaster tentatively ruled that one count of intentional infliction of emotional distress be dismissed. He outlined his reasoning in an order, and merely summarized the reasoning in a poem, which appeared at the end of his ruling.

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In a letter sent to the judge by Commission on Judicial Performance Staff Counsel Charlene M. Drummer dated Aug. 15, 2007, the commission notified McMaster of its decision to authorize an inquiry into whether action is warranted for his recital of a poem in a tentative ruling.

Judge McMaster complied with the commission’s Sept. 4, 2007 deadline to respond and a determination by the commission remains pending. Murphy, contends that the commission’s letter was not an accurate description of what had taken place and does not think further action by the commission is warranted.

Here is the poem:

Defendant planted a creeping vine
That crept and crawled and soon entwined
Itself in plaintiff’s roof, and made a mess
Causing plaintiff to suffer great distress
This lawsuit follows but leaves unsaid
Why plaintiff didn’t whack the vine instead

I believe, with very few exceptions (and this is NOT one of them) judges handle their difficult jobs extremely well and fairly. It has been my observation that most complaints about judges are made by lawyers who had not fully prepared for motions, hearings and/or trials.


October 25, 2007

Intel and Transmeta End Patent Lawsuits With Intriguing Settlement

In a David v. Goliath story with a surprise ending, Transmeta and Intel have settled their mutually opposing patent infringement lawsuits. Intel will pay Transmeta a total of $250 Million; $150 Million now plus $20 Million a year for the next 5 years.

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In addition to all pending lawsuits being settled, Intel will receive non exclusive rights to Transmeta’s entire patent portfolio (press release here). Transmeta gets an influx of cash and a guaranteed income for 5 years which will allow further research & development. Additionally, Transmeta can proceed without the threat of any additional patent lawsuits from Intel.

So who won? While it may be a little early to speculate, Transmeta is clearly better off than it was before the lawsuits were filed. Prior to this settlement, Transmeta’s market value was slightly over $40 Million. They have pretty much guaranteed their future for at least 5 years. In all likelihood, Intel will parlay their “investment” in Transmeta’s patent portfolio into profits which will exceed their cash outlay.

This is a textbook example of a settlement in a business lawsuit which not only stands to benefit both parties, but consumers as well.

One final note. Transmeta has 2 attorneys on it’s in house legal team while Intel’s in house legal team has over 200. I have long believed that in law, smaller is better because it allows much greater flexibility in litigation.

It’s nice to see that David won even if Goliath didn’t lose!

Continue reading "Intel and Transmeta End Patent Lawsuits With Intriguing Settlement" »

October 16, 2007

No Love for Apple and AT&T in Class Action iPhone Lawsuits

By the time you read this, there will likely be at least one more lawsuit filed against Apple and AT&T over the iPhone. While I believe that all lawyers are good and some are better, it is times like these that make me question some in the legal profession.

When lawyers take on a lawsuit where the plaintiffs are suing because the iPhone will do everything it was promised to do, but won’t allow use on other networks or with third party application software....it just ticks me off!

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Good lawyers DO NOT accept meritless lawsuits!

In case you don’t know, the Apple iPhone has been sold to only work on the AT&T network. There were never any other promises in any advertising or on the website. If you visit the Apple iPhone questions and answers web page you will find the following:


Can I “unlock” iPhone and use it with another wireless carrier?
AT&T is the exclusive wireless carrier for iPhone in the United States. If you currently use another wireless carrier, you can choose to transfer your number when you activate your AT&T account.

One of the toughest aspects of my practice is meeting with people who think they have a case and telling them they don’t. Countless times during an initial consultation with a prospective client, I have to tell them honestly that they have little or no chance of coming out ahead in a lawsuit. Most people appreciate our integrity.

Knowing where you stand before signing a retainer agreement or writing a check means that both you and your lawyer have a better chance of reaching a favorable result in your legal matter. This is one of the reasons for success on our clients’ behalf.

If your iPhone won’t fly a kite or will not do anything else it was not intended to do…call someone else. But if you want an honest appraisal of your current legal issue (always at no charge), call me today at 818-461-8500.

Richard Oppenheim

PS Additional helpful information may be found in questions 5 and 6 in our resource document “Eleven Questions to Ask BEFORE Hiring a Business Attorney”. You will find it on our website Home page.

October 9, 2007

Court of Appeal Affirms: Plaintiff Cannot Purchase Products Solely as Reason to Sue

California Women’s Law Center Executive Director Katherine Lee Buckland admitted to purchasing certain skin care products in the belief that they were being deceptively sold and with the intent of suing. Originally Los Angeles Superior Court Judge Robert Hess, sustained a demurrer joined by many of the more than 30 defendants (members of the American Herbal Products Association), and whom Buckland sued for negligent misrepresentation, fraudulent concealment and violations of unfair competition and false advertising laws as well as the Consumer Legal Remedies Act. Judge Hess also denied Buckland’s motion for a injunctive relief.

skin%20care%2064254_size1.jpg Buckland appealed, contending the trial court erred. She argued that her claims were legally tenable. The Court of Appeals disagreed.

Katherine Lee Buckland cannot sue for fraud, or under consumer statutes, because she did not rely on the alleged misrepresentations in choosing to purchase the products and did not suffer any “injury-in-fact,” Justice Nora Manella wrote for the Court of Appeal.

Simply stated, Buckland had no “standing”. Standing is a direct connection to a legal cause of action and was changed in California in 2004 by the passage of Proposition 64. Prior to that, the law allowed a private person not injured by an allegedly unfair or illegal business practice or by false advertising to seek equitable relief on behalf of the general public, which is essentially what Buckland stated she was trying to accomplish in her lawsuit.

Notably strange is that the.....

Continue reading "Court of Appeal Affirms: Plaintiff Cannot Purchase Products Solely as Reason to Sue" »

September 20, 2007

AOL & KaZaa Could be Added to RIAA v. Santangelo Lawsuit

The RIAA (Record Industry Association of America) has filed an estimated 20,000 lawsuits in the last 3 years against people (many of them unnamed “John Does”) for downloading music on P2P networks. One such lawsuit was filed against siblings Michelle and Robert Santangelo who have filed a motion to add AOL and Sharman Networks/KaZaa as third party defendants.

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In this legal strategy, the Santangelos are demanding approximately $3.9 million each from AOL & Sharman. Their claim is that AOL did not take any actions to block file sharing and did not warn Michelle and Robert about consequences. The revised Complaint also blames KaZaa for designing software which automatically shares downloaded files. It also alleges that both AOL and Sharman failed to pass on RIAA warnings related to the legality and consequences of file sharing.

If the Santangelos are successful other P2P defendants in RIAA suits would likely sue their internet service and file sharing network providers for damages. Further, it could lead to file sharing software providers and ISP’s changing how they handle file downloading and uploading on the internet.

The strategy of adding other parties (especially larger companies with deeper pockets) to business lawsuits has been around a long time. It requires a special set of conditions...

Continue reading "AOL & KaZaa Could be Added to RIAA v. Santangelo Lawsuit" »

September 5, 2007

SunRocket Files Lawsuit Against Vonage: Is Customer List Confidential?

SunRocket (or what is left of it) is suing Vonage over the acquisition and use of its customer list. The complaint alleges that SunRocket had discussions with Vonage regarding the purchase of certain SunRocket assets including its subscriber base and/or customer list. Prior to those discussions, which ultimately broke down, Vonage signed a confidentiality agreement. SunRocket claims Vonage violated the confidentiality agreement by obtaining and using its customer list without permission.

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Vonage, the number one VoIP provider in the US claims it obtained the list legally by purchasing the list from a third-party broker, Paradysz Matera. Charlie Sahner, a spokesman for Vonage stated “We obtained the subscriber list through an established broker, and we were assured the data was legally obtained and could be used without violating anyone's proprietary rights. There is no connection to the [confidentiality] agreement."

SunRocket said that its customer list is "one of its single most valuable remaining assets," and that Vonage's use of the list has caused "immediate and irreparable harm and injury" to the company. SunRocket has asked a judge to compel Vonage to return the list and award unspecified monetary damages.

Continue reading "SunRocket Files Lawsuit Against Vonage: Is Customer List Confidential?" »

August 31, 2007

Lawsuit 101: Understanding the Process of Business Litigation

We regularly receive requests to explain the process of litigation, which we always communicate (using dialog NOT monologue) to prospective clients during our initial consultation. We hope you will find our lawsuit synopsis helpful. Feel free to forward it to others and remember to contact us with any questions about any business or employment lawsuit.

The litigation process generally involves four (4) phases. The length of each phase varies with the legal and factual complexities of each case.

The initial phase takes place before anything is filed in court. The attorney meets with the client to determine the facts of the claim being advanced by the client or the client's defense to a claim brought by another. In either case, it is essential that the client meet with the attorney at the earliest opportunity as valuable rights may be lost by delay. Once the attorney meets with the client, the attorney will review any documents relevant to the matter, research the applicable law and possibly speak to witnesses in order to chart a course which is in the best interest of the client.

1504001%20Gavel%20%26%20Money%202.jpgThe next phase involves the filing of an initial pleading in court. Typically, this is the filing of a Complaint or an Answer to a Complaint. The discovery process begins, which may include serving the other side with written questions, called Interrogatories, obtaining evidence which may be in the possession of the adversary or some other party and taking depositions, the oral questioning of parties and witnesses.

Once this phase has been completed, the case is ready to be tried. A trial may be in front of a Jury or a Judge and can vary in length depending upon the number of witnesses and quantity of exhibits offered. Under our system of jurisprudence, the plaintiff has the burden of proof. The plaintiff's case goes first. The defendant then has an opportunity to respond to the plaintiff's case with witnesses and evidence to support the defense. If the defendant has brought a Cross-Complaint, it is tried in the same manner. Otherwise, the plaintiff has an opportunity to put on a rebuttal case to counter the evidence offered by the defendant and, on occasion, a defendant may offer a sur-rebuttal to reply to the evidence offered by plaintiff in the rebuttal case.

The final phase of litigation involves the post-trial matters including motions to vacate or correct the judgment, appeals and efforts to collect on the judgment.

August 23, 2007

Court of Appeal to Santa Monica: Your Litigation Waived Your Right to Arbitration in Lawsuit

The case of City of Santa Monica v. Baron & Budd, B187425, simply stated, is a case about legal fees and retainer agreements. The City of Santa Monica hired attorneys, discharged attorneys and hired more attorneys. The retainer agreement in dispute included contingent fee provisions. It also had a clause stating that the attorneys were entitled to a reasonable fee if the contingent fee provisions could not be enforced. Further it stated that the amount of the fee was subject to arbitration before JAMS (Judicial Arbitration and Mediation Services).

The next 5 to 10 paragraphs could be spent describing the legal wrangling of a city government and 3 law firms. Instead I will just give the highlights.

425184_grant%20%2450.jpg Around the time the City of Santa Monica was resolving/settling the legal matter which caused it to hire outside counsel, the attorneys and the city realized there were disagreements about calculations and fees to be paid to outside counsel.

With no resolution at hand the city sued for declaratory relief in May 2004. It later amended the complaint to allege breach of fiduciary duties. Coming as no surprise, the lawyers cross-complained for their fees.

In May 2005, Los Angeles Superior Court Judge David Minning denied the city’s motion for summary adjudication. Five months later, the city moved to compel arbitration. Judge Minning denied the motion.

Court of Appeal Justice Robert Mallano said the trial judge was correct.

He cited the 17-month delay between the filing of the suit and the demand for arbitration, that the parties had extensively litigated the issues that would be the subject of the arbitration, and the prejudice the law firms would have suffered as a result of having to provide the city with more discovery than would have been required had the case been assigned to arbitration at the outset.

Los Angeles Superior Court Judge Frank Jackson, sitting on assignment, concurred in the opinion, while Justice Frances Rothschild concurred separately.

Continue reading "Court of Appeal to Santa Monica: Your Litigation Waived Your Right to Arbitration in Lawsuit" »

August 9, 2007

Corinthian Schools Denies Wrongdoing and Settles Lawsuit with Attorney General Jerry Brown for $6.5 Million

Corinthian Schools Inc. and Titan Schools Inc., subsidiaries of Santa Ana-based Corinthian Colleges Inc have reached a settlement with California Attorney General Jerry Brown to refund $4.3 million to former students, and pay $1.5 million for student debt cancellation. Additionally, Corinthian will pay $700,000 in civil penalties.

821422%20california_flag.jpg According to Hoovers.com (a D&B company), Corinthian had sales of $966.7 Million with net income of $41.5 Million in 2006. Their website states that they have 94 schools in 24 states with 65,000 students.

Corinthian is also required to cease offering 11 courses for 18 months, including the Pharmacy Technician program in Anaheim.

Here is Corinthian’s statement: "We disagree with the Attorney General's conclusions, but we are pleased to have this matter behind us. The agreement is not evidence of wrongdoing, and the company specifically denied any wrongdoing as part of the settlement. We are fully committed to providing quality education and job placement services for students and to being in compliance with state law and regulation."

Sometimes, it can be better to create a settlement which will allow your company to just get back to business. Would prolonged litigation have brought about a better result for Corinthian? We’ll never know. And considering that $6.5 Million is equal to about 2 months of Corinthian’s 2006 profit, this settlement was likely to be the best scenario in that it allows the school to focus on its business which can easily accommodate this “bump in the road.”

Trying to operate a business embroiled in litigation is like trying to play tennis in handcuffs. You may win a few points but you’re likely to lose the match.

Read more about the Value of Time and the true cost of business litigation.

August 2, 2007

VidiLife.com (LiveUniverse) Loses Antitrust Case Against MySpace.com

Can a social networking site like MySpace.com prevent its users from posting links to other competing social networking websites? According to U.S. District Court Judge A. Howard Matz, it can. In his ruling Judge Matz threw out the antitrust claim against MySpace.com declaring that the social networking site isn't required to display competitors' Web page links.

According to court documents, LiveUniverse alleges that MySpace prevents users from watching vidiLife videos that they or other users previously loaded onto their MySpace webpage, deletes references to vidiLife.com on MySpace and prevents MySpace users from mentioning “vidiLife.com.”

609312_dotcom%20FF.jpgThis may be the first antitrust case to address whether a social networking site can prevent its users from posting certain links. Representing MySpace, attorney Richard Stone stated ”MySpace doesn't prevent anyone from going to their competitors' sites, but, we have no responsibility to build a moving walkway to a competitor's store." Stone continued “And by including those links, MySpace would be risking exposure if sites such as vidiLife had any inappropriate content. “

LiveUniverse, owner of vidiLife.com was founded by Brad Greenspan. Mr. Greenspan was the founder eUniverse the company that created MySpace.com which was sold to Rupert Murdoch’s News Corp for $580 Million. According to Business Week, in that transaction Greenspan pocketed more than $47 Million.

Another VERY important aspect of this lawsuit is the lawsuit timeline.

The suit was filed on November 2, 2006. On November 22 MySpace filed a motion to dismiss LiveUniverse’s complaint. The court held a hearing on December 18 in which it granted that motion, but gave LiveUniverse an opportunity to clarify one premise of the complaint.

On January 16, 2007 LiveUniverse filed a First Amended Complaint (FAC). On February 5, MySpace filed the motion to dismiss the FAC.

The court held a hearing on March 5 and presented its decision on June 4, 2007.
In only seven months, this lawsuit went from initial complaint to resolution. Lawsuits do not have to drag on for years while depleting the assets of both parties. As was done here, good lawyers look for, create and act on opportunities to move toward resolution.

Continue reading "VidiLife.com (LiveUniverse) Loses Antitrust Case Against MySpace.com" »

July 13, 2007

Porsche Lessee Settles Lawsuit Against Auto Dealer... California Court of Appeals Remands Case Back to Trial Court RE: Attorney’s Fees

In a recent court of appeal decision (Kim v. Euro Motors, et al.), the Court held that notwithstanding the fact that a defendant settled prior to trial, it could be liable for attorney’s fees. Kim brought an action against a car dealer pursuant to the Consumer Legal Remedies Act (CLRA, Civil Code § 1750, et seq.) in connection with a Porsche Turbo that he leased from a dealer. During the first year of the lease, the vehicle was out of service for over 78 days, due to various problems. When the dealer was unable to fix the car to Kim’s satisfaction, he demanded that the dealer take the car back and refund to him all monies that he had spent. When his demand was refused, he brought an action against the dealer for damages and for recission of the lease. Kim ultimately settled with the dealer, short of trial and entered into a mutual general release and settlement agreement wherein, among other things, the dealer agreed to take back the vehicle, terminate the lease and pay a$10,000 lump sum settlement to Kim. Kim acknowledged that the payment was in full and final settlement of all claims with the exception of attorney’s fees and costs. The agreement contained the usual language that neither party admitted liability or that the other was the prevailing party.

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Kim filed an application for attorney’s fees, which was opposed by the dealer on the grounds that Kim was not the prevailing party. The trial court denied the application finding in light of the settlement, there was no prevailing party. Kim appealed.

Continue reading "Porsche Lessee Settles Lawsuit Against Auto Dealer... California Court of Appeals Remands Case Back to Trial Court RE: Attorney’s Fees " »

June 19, 2007

Principals of Litigation from Mike Dillon, General Counsel, Sun Microsystems Inc.

Today on his corporate blog “The Legal Thing, notes from a General Counsel”, I was pleased to see a view of litigation and its true costs which so closely mirrors the foundation on which we built Sylvester, Oppenheim & Linde. While our clients have heard our (very similar) version of Mike’s litigation principles, it is refreshing to see them communicated by such a highly respected General Counsel.

While I have never met Mike, I can tell that he is a truly outstanding General Counsel, not just from this blog post " On Litigation...(Azul Systems)" but also because he takes time to post items which could ultimately improve the public’s perception of the legal profession. And remember, Mike has nothing to sell. As a corporate officer of Sun Microsystems, his opinion is clean & clear, as is his writing.

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Here are Mike’s litigation principles:

No. 1 - You only litigate when you have an important interest to protect. Litigation is costly. Incredibly costly. But it is not the expense that is the real issue, it's the diversion of resources. Time employees spend reviewing e-mails and documents, educating lawyers and preparing for depositions is time away from the business. That's the real cost of litigation.

No. 2 - A non-judicial resolution is almost always preferable. When you file a complaint, you are turning over resolution of an issue to a third party - be it a judge, arbitrator or jury. To a great degree you lose control of the outcome.

No. 3 - You litigate when you have a high degree of confidence that you will prevail. Bluffing is for weekend games of Texas Hold'em . When you file suit, you need to have fully evaluated all aspects of the case to ensure that the outcome will be favorable.

No. 4 - You litigate to win. This means that your employees, board and management team fully understand and support the commitment (both financial and time) required to prevail. It also means having seasoned litigation counsel who understand your business and objectives.

Illustrating that Mike lives true to his word (another attribute of an outstanding attorney), he tells the story of Sun’s conflict with Azul Systems; how he tried to resolve it without litigation and how it progressed when that failed.

Continue reading "Principals of Litigation from Mike Dillon, General Counsel, Sun Microsystems Inc." »

April 25, 2007

Fraud Case Settled Against California Health Plan Vendor

PrudentChoice, an Irvine, Cal.-based seller of discount health plans, was charged with violating Vermont's Consumer Fraud Act. Attorney General William Sorrell said charges were based on the sale of plans to at least 89 Vermont residents at a cost of over $25,000. The problem was that PrudentChoice couldn't make good on its promises of discounts on services by physicians, hospitals, dentists and other health care providers.

Sorrell's office surveyed 24 customers, 21 of whom said they could not find a participating provider.

In the settlement, filed last week in Washington County Superior Court, PrudentChoice must pay the state $33,000 in civil penalties and $5,000 in costs.

The Associated Press quoted PrudentChoice attorney Craig Zimmerman as saying, "PrudentChoice has never had any unsatisfied members in the state of Vermont. PrudentChoice adamantly believes there's a place for discount health care in Vermont and in the United States."

This is another “Business 101” rule. Make sure that you can deliver anything your company sells. And if you discover you can’t, seek legal counsel and implement appropriate changes immediately.

For the record, although the charge was fraud, this could have been an example of the cart before the horse. The provider enlistment group may have missed a deadline for signing up health care providers (physicians, hospitals, dentists, etc.) and left the sales/marketing department uninformed. Although this scenario could look like fraud, it would have no fraudulent intent. This whole case could have been nothing more than poor internal communications and/or lack of clearly defined accountability.

In most well run companies, the executive team would know there was trouble long before any attorney general filed charges. Further, it is more cost effective to fix legal problems like the one above as soon as they are discovered.

The effect on a company’s bottom line can be tremendous.

April 10, 2007

California Judge Rules in Favor of Kaleidescape and Consumers

A California Superior Court judge ruled March 29th that a startup's media server does not violate the security technology used to protect DVD disks because the standard licensing contract and specifications for the technology are so poorly worded.

Rather than spend a lot of time analyzing the specifics of this case between Kaleidescape and the DVD Copy Control Association (DVD CCA), let’s just look at this from a contract law/litigation perspective.

Judge Leslie C. Nichols stated that the DVD CCA provided a license for its Content Scramble System (CSS) to Kaleidescape without including tech specs in the license agreement. Judge Nichols also stated "This [CSS spec] is a product of a committee of lawyers."

What can we learn from this? Sadly, this is very basic contract law.

Importantly, a contract is whatever the court says it is. Further, any ambiguities in a contract are held against the writer/creator/author of the contract.

Using the above case as an example, the judge held the DVD CCA responsible for its poorly worded licensing agreement (contract) and ruled in favor of Kaleidescape.

Lastly, contract lawyers usually fall into two categories.

Continue reading "California Judge Rules in Favor of Kaleidescape and Consumers" »

April 5, 2007

California Judge Gives Final OK to Yahoo Click Fraud Settlement

Last month final approval was given for a class action settlement involving “click fraud” that has Yahoo paying nearly $5 million in attorney fees and giving full credits to advertisers dating back to 2004.

The judge's action on Monday settles claims by Checkmate Strategic Group that Yahoo charged advertisers for clicks on online ads that were done in bad faith or fraudulent.

Although preliminary approval was given last summer, final approval for this settlement was held up by attorneys representing parties in a similar (Google) lawsuit in Arkansas. The California settlement releases Yahoo from all similar click fraud claims against it in other actions in all other states. That’s an offer Yahoo couldn’t refuse.

Reggie Davis, Yahoo's new vice president of marketplace quality stated “Final approval of the settlement validates the strength of Yahoo's click-through protection systems, and our commitment to delivering a quality experience to both our advertisers and our consumers. Our commitment does not stop here. Quality is a top priority for Yahoo, and we have a clear road map for how we're going to create the highest-quality search-advertising network in the industry."

Additionally, in my opinion final approval of this settlement allows Yahoo to put this resource draining litigation behind them, allowing Yahoo to focus on the future of the internet search business.

Putting litigation behind you is often a wise strategy in business.

Continue reading "California Judge Gives Final OK to Yahoo Click Fraud Settlement" »

March 30, 2007

Taco Bell Sued for Libel by California Farm

Boskovich Farms, Inc. filed a lawsuit in Orange County (California) Superior Court. In that lawsuit, Boskovich alleges that Taco Bell knew the green onions from its farm were NOT the cause of the E.coli outbreak that sickened 70 people, but continued to link the green onions to the outbreak. Thomas Girardi, a lawyer representing Oxnard based Boskovich Farms told the Los Angeles Times “Taco Bell engaged in an irresponsible and intentional crusade to save its own brand at the expense of an innocent supplier.”

Attorney Girardi went on to say, “The false connection between the farm and the fast food chain's E. coli problem has cost Boskovich millions of dollars of business."

Taco Bell stated, “We believed green onions may have been the source based on the presumptive positive testing, so we immediately removed them from our products to put public safety first. We later learned they were not the source of the E. coli outbreak."

The bottom line seems to be that that Boskovich green onions were clean, and Taco Bell is no longer using green onions in any of their food items.

It is highly likely that this lawsuit will come down to “Who said what and when?”

Meanwhile Boskovich announced that due to declining sales, green onions will no longer be grown on the 55 acre plot previously dedicated to the crop.

Continue reading "Taco Bell Sued for Libel by California Farm" »

March 19, 2007

Los Angeles: Motion for Summary Judgement Filed in Antitrust Lawsuit Against World Poker Tour Entertainment (WPTE)

A Motion for Summary Judgment was filed today in Los Angeles by attorneys for the 7 professional poker players (Howard Lederer, Annie Duke, Andy Bloch, Phil Gordon, and past World Series of Poker champions Chris Ferguson, Greg Raymer, and Joe Hachem),who are suing World Poker Tour Enterprises, Inc. (WPTE). Antitrust litigation is always an interesting area of law, and this lawsuit is no exception.

If you are not familiar with this lawsuit, the 7 top rated poker players contend that the WPTE agreements are illegal and are violations of Federal Antitrust laws.

Troublesome to the 7 (and their lawyers) is the release in the agreement. The release contains the following:

Player...hereby irrevocably grants to WPT the right to film, record, edit, reproduce and otherwise use Player's name, photograph, likeness, signature, biographical information, appearance, actions (including without limitation, revealing Player's hole cards), conversations ... and/or voice ... in, and in connection with, the Programs and/or the "World Poker Tour" ... and any and all derivative, allied, subsidiary and/or ancillary uses related thereto (including, without limitation, merchandising, commercial tie-ins, publications, home entertainment, video games, commodities, etc.), in whole or in part, by any and all means, media, devices, processes and technology now or hereafter known or devised in perpetuity throughout the universe.

Since each player must buy in to the tour (pay to play), the release signs over the players’ rights to the WPTE for FREE!


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No one can argue that the above release is “heavily restrictive”. The question for the court is whether it violates antitrust laws. Only time will tell how this ends, which is very much like every hand of poker ever played in history, and those to be played in perpetuity ….throughout the universe!

Continue reading "Los Angeles: Motion for Summary Judgement Filed in Antitrust Lawsuit Against World Poker Tour Entertainment (WPTE) " »

March 10, 2007

Business Lawsuits Heard in Their Own Court...Will California be next?

The State of Florida has just opened its third court devoted exclusively to business lawsuits. Do specialized courts provide better service and/or results to parties?

The cases to be tried in this new Tampa Court involve litigation where the amount in controversy is greater than $75,000 between business persons or entities. They typically relate to the internal affairs or governance of the business, non compete agreements, intellectual property and trade secrets.

The goals of this Florida state court are to increase affiance and access, decrease litigants costs and improve the understanding of business litigation issues.

While this is one way to try to unclog the court system, Nevada is taking a different path. A few years ago, they implemented a short trial program designed to resolve cases with less than $40,000 at stake, quickly with virtually no cost to the taxpayer. The short trials are only one day long and presided over by local attorneys whose fees are paid directly by the litigants. There are only 4 jurors and the trials take place in courtrooms on “dark” days. The appeals are very limited which translates to most results being final almost immediately. Best of all, trials are calendared within 120 days from when the parties choose the Judge Pro Temp.

The program has been a huge success in Nevada and is about to become mandatory for all cases which fall below the $40K threshold.

In conclusion, I believe the litigants will win in the Florida program. A judge who hears only Business Litigation cases is very likely to be better than one who hears a wide variety of cases.

In Nevada, everybody wins; the litigants, the judges whose calendars are relieved from the volume of small cases, the lawyers and of course the jurors and the taxpayers.

We live in a wonderful country and it is truly refreshing to see our court systems changing with the times.

Continue reading "Business Lawsuits Heard in Their Own Court...Will California be next?" »

March 5, 2007

Lawsuit finally settled…..after only 31 years of Litigation!

Lawsuits are time consuming. I know that some attorneys in Los Angeles, many throughout California and all the trial lawyers in our firm are focused on resolving lawsuits for our clients rather than stretching them out needlessly.

But whose fault is it if a lawsuit takes 31 years to resolve?

According to information from the Arizona Daily Star, tribal leaders from Arizona’s Tohono O’odham nation joined Governor Napolitano and Tuscon officials for a long overdue signing ceremony.

In the settlement, the tribe will be guaranteed 50-thousand acre feet of water each year at no cost, mostly from the Central Arizona Water project.

My opinion? This lawsuit just had too many players. Involved were City of Tuscon officials, State of Arizona officials, federal officials including the Department of the Interior and of course the Tohono O’odham tribal nation.

The moral of this story is simple. If and when considering litigation, remember to evaluate all the parties involved, as they will play a significant part in the outcome of your lawsuit. If time is of the essence, bureaucracies should be avoided.

Continue reading "Lawsuit finally settled…..after only 31 years of Litigation!" »