California Business Litigation Blog

Another chapter recently opened in the Facebook lawsuit chronicle. The plot of this latest litigious episode pits the popular social media site against a large class of angry litigants.

A comprehensive research study is the apparent catalyst of controversy. Authored by Tilburg University researcher Arnold Roosendaal, the report revealed that Facebook uses its famous “Like” button to track unsuspecting web surfers’ online activity. CLICK HERE to download report.

The piece also posited that Facebook discerns member identities via cookies that are covertly installed while users visit sites that display the “Like” icon. IP addresses thereby obtained are purportedly used to track Facebook members’ online activity.

Further research disclosed that similar cookies are also installed on non-members’ computers by sites that feature the “Facebook Connect” login platform. Intercepted data is then used to track subsequent visits to participating sites.

Personal privacy is the crux of the most recent Facebook litigation. The plaintiffs (California residents Ryan Ung, Chi Cheng and Alice Rosen ) assert that Facebook violated the reasonable expectation of privacy in one’s personal web-browsing history.

Another Facebook lawsuit was recently dismissed with leave to refile. The suit alleged that Facebook surreptitiously transmitted users’ personal data to online marketers via embedded header codes. Virtual advertisers obtained Facebook users’ names, ages, gender, and other personal data without prior user consent. This practice was in clear violation of Facebook’s stated privacy rules.

Yet another case in the long line of social media lawsuits against Facebook is on appeal to the Ninth Circuit. The Plaintiff-appellants are protesting a Facebook lawsuit settlement stemming from Facebook’s unauthorized dissemination of members’ e-commerce transactions.

According to the Wall Street Journal, Twitter and Google also admit to tracking web users’ surfing activities without the prior activation of a widget or icon. Google and Facebook both claimed to “anonymize” such compiled data, however.

Such assertions are akin to a former President’s admission of having smoked marijuana without inhaling. Why would social network sites expend considerable resources to furtively capture personal identifying data - to accomplishing nothing except its nullification by “anonymization?“

The online community must actively oppose practices that compromise personal security through pervasive invasions of individual privacy. Given the overall litigious climate in contemporary American society, social media lawsuits may be the most effective ammunition in the battle against Big Brother.

Indisputably, the internet’s vast commercial and informational capabilities serve many beneficial functions. Effective checks and balances are essential, however. Moderation is the best means of maintaining the best balance between personal and pecuniary freedoms.

Continue reading "Facebook Lawsuit Forces Fans to Face the Facts " »

A lawsuit has been filed in the New York courts by Manhattan mom, Nicole Imprescia, against a posh, private preschool for not doing enough to prepare her four-year-old daughter, Lucia, for an Ivy League education.

Charging $19,000 a year for tuition, the York Avenue Preschool promises to provide Upper East Side children with a custom-tailored, age-appropriate education in art, music, physical activities and language. Imprescia claims the school’s laid-back teaching style caused them to fail in delivering on their promises. She says this could have sabotaged Lucia’s opportunity to be accepted into an elite private school and thus irrevocably hindered her chance to be accepted into a top U.S. college.

Although the year-round school offers its young pupils access to teachers with master’s degrees in early childhood education, the curriculum is largely the same as any preschool classroom – learning the alphabet, singing songs and finger painting – except for the French lessons given to the four-year-old children.

Imprescia claims her daughter wasn’t properly prepared for the standardized Educational Records Bureau (ERB) entrance test used by highly-competitive private elementary schools in New York City, including Dalton, Chapin and Spence. Instead, Lucia and her peers were taught their colors and shapes.

The Imprescia family lawyer is equating the situation to theft and false advertising, saying Imprescia was duped into believing the thousands of dollars would be money well spent on a first-class education. Imprescia says her daughter was forced to mingle with two-year-olds and basically spent her days playing instead of learning. She pulled her daughter out of the school less than one month after enrolling in the fall of 2010.

Imprescia is seeking class action status for the lawsuit. The case has also sparked widespread debate in media outlets and online about the cost versus the quality of an elite education and the high expectations that are being placed on very young children to succeed.

York Avenue officials released their own statement to the media, saying these are the first charges brought against the preschool in its 30-year history and that they hope Lucia has found a school that better fits her needs.

As hard as it might be, try to imagine a phony (yet official looking) law enforcement officer showing up on your doorstep to collect a debt. Using official looking documents, he intimidates you into making payment, surrendering property in lieu of payment, or “Summons” you to court. The court isn’t actually a court, but looks like one complete with someone who looks like a judge presiding over your “Case”.

Those are some of the allegations against Unicredit America Inc., an Erie PA based debt collector.

Pennsylvania Attorney General Tom Corbett filed a consumer protection lawsuit against Unicredit America Inc. The lawsuit accuses Unicredit of using deceptive tactics to mislead, confuse or coerce consumers. These tactics include the use of fake "hearings" allegedly held in a company office that was decorated to look like a courtroom.

In conjunction with the lawsuit, the Attorney General's Office has also filed a petition for special and preliminary injunction. The injunction seeks court action to freeze all Unicredit assets; prohibit the company from engaging in any debt collection; immediately cease all bogus hearings or depositions; and to provide detailed information about company bank accounts, assets and business records.

"This is an unconscionable attempt to use fake court proceedings to deceive, mislead or frighten consumers into making payments or surrendering valuables to Unicredit without following lawful procedures for debt collection," Corbett said. "Consumers also allegedly received dubious 'hearing notices' and letters - often hand-delivered by individuals who appear to be Sheriff Deputies - which implied they would be taken into custody by the Sheriff if they failed to appear at the phony court for 'hearings' or 'depositions'."

When Craig Kleffman received 11 email messages offering broadband phone services from Vonage and noticed that they came from a variety of domain names, he found a lawyer and filed a lawsuit. Kleffman felt that these emails were spam (also known as junk emails) and as such a violation of a California spam law that prohibits marketers from sending messages with misleading headers.

While the emails might be annoying, the California Supreme Court ruled this week that they were not spam, and did not violate California law.

Justice Ming W. Chin wrote on behalf of a unanimous court: "We find that a single e-mail with an accurate and traceable domain name neither contains nor is accompanied by 'misrepresented … header information' ... merely because its domain name ... is 'random,' 'varied,' 'garbled' and 'nonsensical' when viewed in conjunction with domain names used in other e-mails.”

He continued: "An e-mail with an accurate and traceable domain name, makes no affirmative representation or statement of fact that is false."

And concluded: “…we hold that, on the undisputed facts of this case, sending commercial e-mail advertisements from multiple domain names for the purpose of bypassing spam filters is not unlawful under section 17529.5(a)(2).”

The ruling (which may be viewed HERE) will likely make it more difficult for internet users to sue email marketers in California, which has an anti-spam law that is broader than the federal Can-Spam law. Generally, the federal law (which bars individuals from suing for spam violations) overrules most state spam laws. There's an exception for state laws to be used when dealing with fraud.

Continue reading "CA Supreme Court Rules in Favor of Vonage in Spam Lawsuit" »

The website Yelp has been accused of trying to extort money from companies. The company is a customer review website and the class action lawsuit filed in court states that Yelp is extorting companies through high pressure sales tactics. The lawsuit, filed in Los Angeles federal court, alleges unfair business practices.

The lawsuit states that employees from Yelp contact the businesses that are listed on the website and request or demand that the company makes monthly payments to Yelp in order to have the negative reviews removed or modified. Yelp allows users to post favorable or negative customer reviews on the website about local businesses.

The law firms filing suit state that many of the businesses that have reviews from customers and are contacted by Yelp are small companies. The companies feel they have no choice to pay in order to protect further harm on their businesses.

However, the question that the lawsuit needs to answer is whether or not Yelp is offering to run a positive advertisement for the company above the negative reviews or if the company is offering to remove those reviews for a payment. If it is the second, this could be considered extortion since the payoffs to Yelp prevent the website from doing harm to the business.

The lawsuit is based on the California Unfair Competition Law, which dates to 1933 and is a broad law covering a large number of unfair business practices including any type of untrue or misleading advertising.

Cats and Dogs Animal Hospital is the plaintiff in the case. The veterinary hospital asked Yelp to remove false and defamatory review from the listings at the website. The website reviewed to remove the review, but the company’s sale representative called the veterinary hospital numerous times demanding that the hospital pay a hefty $300 payment in order to have the negative reviews hidden or removed from the website.

According to the lawsuit filed, a sales person contacted the hospital and stated that if a one year advertising subscription was purchased that the website would “Hide negative reviews on the Cats and Dogs Yelp.com listing page, or place them lower on the listing page.”

Further, it promised the animal hospital that if it purchased this type of subscription, no negative ads would appear in Google or other search engines. The hospital would also be able to choose a tagline and choose the order in which customer reviews appeared on Yelp.com.

Although the hospital is named the plaintiff in the case, the law firm handling the lawsuit has heard from numerous other small business owners who claim to have experienced the same type of extortion.

Vince Sollitto, vice president of Yelp states that the allegations are false and that many businesses advertise on Yelp when they have negative and positive reviews on the site.
Yelp is one of the largest customer review websites in the world. Each month more than 26 million people read and use the user generated content. The website contains more than eight million reviews.

On a related note, a recent article on TechCrunch.com states that Yelp owners walked away from a Google buyout offer worth over half a Billion dollars in December 2009.

Continue reading "Lawsuit Alleges Yelp Extorting Money from Business Owners" »

New York and 14 other states are filing suit against the company Amgen Inc, the largest biotechnology company in the world. The claim is that the company devised and used a nationwide kickback scheme to boost the sale of drugs. The company, along with AmerisourceBergen Corp, is charged with providing medical providers with a kickback for increasing sales of the company's product Aranesp, an anemia medication.

In order to accomplish this, the companies encouraged medical providers to invoice third party payers for Aranesp, including Medicaid, says New York Attorney General Andrew Cuomo. The rewards included retreats and other services.

Aranesp is the third largest drug in sales for the company, producing some $3.1 billion in sales. The company lost sales since 2006 (at which time the product was the company's top sales maker) due to the discovery of a link to increased rates of heart attack and death in kidney patients. Aranesp has sold more than $11 billion since its first sales in 2001. The FDA has approved the product to treat anemia associated with renal failure and chemotherapy induced anemia.

David Polk, who is the spokesman for Amgen, states that the allegations are without merit. The U.S. Department of Justice issued a subpoena of AmerisourceBergen, who claims they are cooperating fully with the demands.

Other jurisdictions that are joining in the law suit include the District of Columbia, Florida, Hawaii, Illinois, Indiana, Louisiana, Massachusetts, Michigan, Nevada, New Hampshire, Tennessee and Virginia. The case was filed in a Massachusetts court.

Microsoft has returned virtually all Sidekick user data, including contact information and other personal data to users. Nevertheless, there are likely to be pending lawsuits filed against the company.

On Saturday, Microsoft informed users that it had lost all data and backup systems in a system wide crash. The company now says that it has restored that data, but it appeared to be weary of issuing such a message early on.

Microsoft vice president Roz Ho provided an open letter to customers of the Sidekick stating that only a small number of users are still without their personal data. However, such a warning may not be enough to keep customers. In recent conversations at T-Mobile's website, talk was about leaving the company. Users seemed to be interested in filing a class action lawsuit against Sidekick and owner Microsoft.

More so, there was evidence that some of the messages posted on the website from Sidekick users unhappy with the company were deleted or moved in some fashion after mention of the lawsuit.

The social media outlets are teaming with information. On Twitter, the micro blogging website, mention of Sidekick lawsuits was the talk of the day, including mention of several pending lawsuits in California and in Washington. One such case filed in California, was filed by a mother whose teen daughter lost photos and song lyrics in the loss of data.

Another lawsuit was filed in Atlanta, by a woman, Maureen Thompson, says that the companies she named (including T-Mobile, Microsoft and Danger the manufacturer of the device) were negligent and failed to meet advertised promises to customers. Attorney John Jablonski, speaking about the case, said that it was likely that such cases would lose merit, since the data was restored.

T-Mobile employees are not speaking of the case and claim they have no comment in regards to the online complaints from customers. The company does seem to have kept customers informed and on Monday, temporarily halted all sales of the Sidekick smartphones. In addition, the company offered affected customers one month free service from the company, plus a $100 T Mobile gift card.

It is not clear how many Sidekick users have filed or plan to file lawsuits against the company, nor how many people may still be affected by a loss of data. You may view the California lawsuit HERE, compliments of SeattlePI.com.

The Kindle is an eBook reader heavily marketed by the company. While it is a new device and one that is selling well, the company promoting it, Amazon.com, has faced a lawsuit on behalf of the product already. The company has settled a lawsuit brought on by the deletion of two eBooks, George Orwell's Animal Farm and 1984.

The company deleted the material for the eBook reader's accounts, who had paid for them, and refunded the customer's cost. Amazon cited that there were problems regarding the copyright use of the material. In September, Amazon announced that it would replace the deleted eBooks for anyone who purchased them, and that they would offer $30 gift certificates for those who did not wish to receive the eBooks again. The Kindle also allows for users to place notations within the eBooks for their personal use. Amazon also stated these would be restored.

Just this month, Amazon also has announced that it will settle a lawsuit brought on by two Kindle users who saw deletions of these materials. The company is paying $150,000 to a Michigan high school student named Justin Gawronski and a man named Tony Bruguier. Their attorney has stated that the two will not see any of the funds, but will instead donate the money to charity.

The settlement was filed in the U.S. District Court in Seattle on September 25th. It was a closed settlement and no further details were made available. The attorney for Gawronski and Bruguier was quoted as saying that he believes Amazon has learned an important lesson from this lawsuit.

Two University of Phoenix enrollment counselors filed a lawsuit in 2003 alleging that their raises and prizes awarded to them where done based on the number of students they enrolled in the school. They filed a lawsuit against the school. The corporate executives in charge during this period of time are now at different schools, but the case is left unsettled, as of yet.

It is possible that the University of Phoenix parent, Apollo Group Inc, will seek a settlement in the case, before the case is set to be heard in a court of law in March of 2010. The company has not disclosed any terms of a settlement, but some experts believe it could be as high as $250 million, which equates to 25 times the record fine the school had to pay the U.S. Department of Education in 2004, on similar charges.

The school will likely seek out a settlement in the hope of avoiding a very public trial and to dismiss any allegations that similar practices are still occurring. The school is known for its aggressive recruiting tactics. In a time where the American consumer is unwilling to forgive big business corruption, the school would be foolish, some say, to go to trial.

The University of Phoenix is an incredibly sized school. Since it became a for profit school in 1976, it has been an ideal share to own on the stock market. In addition, it has over 420,000 students and its annual revenue is now near $4 billion. It is the largest recipient for federal financial aid to the tune of $3.2 billion in one school year alone.

The case came to head in 2003, when two enrollment counselors filed a lawsuit, on behalf of the federal government, charging that the school defrauded the government by paying recruiters salaries based on the number of students enrolled. Federal law bans schools from offering this type of incentive.

The school itself fought the charges and claimed that the two employees were disgruntled former employees trying to make something small into something big. A judge ruled in 2004 to dismiss the case, but it was restated two years later on appeal. The case is similar to one filed by the U.S. Department of Education in 2004. At that time, the school was fined $9.8 million based on their recruitment practices. In that case, the University of Phoenix did not admit any wrong doing.

Continue reading "University of Phoenix Case Settlement May Be Near" »

Dannon Co was sued for claiming that its yogurt had added health benefits over the competition. The class action lawsuit was filed in Los Angeles federal court last year. It claimed that the company falsely represented Activia, Activia Lite and DanActive products. The class action lawsuit claims that the company tried to convince people of the added health benefits of its probiotics bacteria in an effort to encourage people to purchase the more costly product.

The LA Times reports that Dannon has settled the lawsuit. It also agreed to a $35 million fund to be set up to reimburse consumers who purchase these products. The company does not admit to any wrongdoing in the case. It settled the case to, "avoid the distraction and expense of litigation" says the company's spokesman Michael Neuwirth.

The probiotics products are designed to add "good bacteria" to the human intestinal tract. In healthy, young adults, these good bacteria help to keep the body healthy by destroying microorganisms and helping with digestion. The probiotics often need to be supplemented in older people. In the U.S.to claim on a label that a food contains probiotics, it must have proven health benefits through research.

The company has agreed to amendments to its labeling practices. It will make the scientific names of the probiotics more visible on the label and will remove the term "immunity" from the labels of DanActive products. The current label claims that the DanActive product offers a positive benefit to the digestive tracts immune system.

Those who purchased the DanActive products will be able to receive up to $100 per customer, according to the LA Times. Consumers will need to submit a claim form, which must be approved.

The company launched the Activia and DanActive lines in 2006 and 2007 in an effort to boost the yogurt industry. They account for 40 percent of the company's business.

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.

Both 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" »

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.

Former 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" »

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:

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.

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.

Allen’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.

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.

A 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.

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!

An 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.

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.

Plaintiffs 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!

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!

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.

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.

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" »

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.

The 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.

Two California men, Fred Greaves and Dave Gatley filed suit in San Diego County Superior Court. In the suit, which seeks class action status, the men claim Apple MacBook advertising promised displays capable of delivering up to 16 million colors (and 8 bits per channel). The suit states that the displays are only capable of 6 bits per channel which deliver ONLY about 262,144 colors.

The suit also alleges that Apple chastized customers for being too picky about their assessment of the quality of the display, and also told customers that they were imagining the complained about defects.

This lawsuit is an interesting blend of facts to generate sales for Apple (the number of colors) and facts which may have greater legal merit (6 bits vs 8 bits per channel). After all, who among
us can actually see over 260,000 different colors let alone 16 Million?

The other aspect of this suit which contribute to how this settles out will be the assertions that Apple told customers they were too picky or they were imagining the defects. It's one thing to not deliver on a product as promised and Apple could have complicated the problem ennormously if they denied the source of the problem and blamed customers' perceptions and imaginations.

False advertising will always be an interesting part of business law and our trial practice.