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Agrochemical giant Monsanto, which is now owned by Bayer, is facing a slew of lawsuits based on its popular Roundup weed killer. Roundup contains an herbicide called glyphosate. Critics argue that this herbicide is carcinogenic and responsible for causing numerous cases of cancer.

949759_dollar_signCalifornia plaintiff Edward Hardeman sued Bayer-Monsanto on the grounds that use of Roundup contributed to his diagnosis with non-Hodgkin lymphoma. Hardeman owns property consisting of more than 50 acres. For 25 years, he sprayed the property with Roundup to control poison ivy and other invasive plants. Attorneys estimate that he used 6,000 gallons of the product throughout those years.

When Hardeman was diagnosed with cancer, it didn’t take long for him and his doctors to start taking a closer look at his habitual use of Roundup. Bayer-Monsanto currently is dealing with in excess of 11,000 lawsuits in the U.S., all of which argue that the glyphosate used in the product causes cancer in people.

Recently, a jury agreed with Hardeman’s conclusion that Roundup caused his illness. Their decision is said to be based on scientific evidence, which is in line with another jury decision from last year. In that case, the plaintiff was a landscaping employee with a public school district. The jury concluded that Roundup was responsible for the plaintiff’s terminal illness, awarding him almost $290 million. Eventually, the verdict was reduced to $78.5 million, a decision that is currently on appeal.

In the second phase of the current trial, plaintiffs will have to demonstrate that Monsanto had knowledge of the possibility that glyphosate could cause cancer and they did not provide adequate warnings. Presiding judge Vincent Chhabria unsealed documents that allegedly demonstrate that Monsanto worked to discredit independent scientific research that showed their product was unsafe. Moreover, the documents may indicate that Monsanto executives persuaded officials at the EPA to approve glyphosate contrary to the scientific evidence.

The outcome of this case remains in the balance, as does the outcome of the thousands of similar lawsuits. It seems Monsanto did a poor job of protecting their customers and in doing so failed to protect themselves.

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A decision in a California lawsuit may have implications for retail employers who require workers to be available for on-call shifts. Under the decision, it may be wise for such employers to consider whether or not their employees are entitled by law to compensation for their time when they are requested to “report to work” by telephone.

clock-overtime-110616811-001Ward v. Tilly’s, Inc. is a class action lawsuit filed by Skylar Ward, an employee of retail chain Tilly’s. The plaintiff alleges that her employer institutes a policy of on-call shifts in which employees are required to call in two hours in advance to ask the employer if they are needed. In the complaint, attorneys argue that such an obligation triggers an employer responsibility to compensate the employee for their time under the California Industrial Welfare Commission’s Wage Orders.

The Wage Orders state that when an employee complies with a requirement to report for work, they are entitled to half of their usual pay or no less than two-hours’ pay. Tilly’s policy stated that employees should assume that they were scheduled to work up until the moment they were told that they weren’t needed. This meant that employees would have to schedule their time as if they were going to be working, leading to arrangements for childcare, giving up social engagements and being unable to schedule academic courses.

Under Tilly’s policy, employees could be disciplined for failing to call in or for refusing to work an on-call shift. Such actions received the same discipline as missing a regularly scheduled shift.

Ward’s complaint was refused by the trial court. An appeal brought the case before the Court of Appeal, which reversed the trial court’s findings two to one. Appeal judges determined that reporting for work under the definition in the Wage Orders means “presenting oneself as ordered.”

The dissenting opinion argued that the Wage Order’s intent applied to the employee’s physical presence at the store. Nonetheless, the outcome of this matter demonstrates the need for employers to review their pre-shift call-in policy to bring it in line with the findings in Ward v. Tilly’s.

If you are an California employer or business owner with questions about any legal issue feel free to contact me, attorney Richard Oppenheim at 818-461-8500 or via the Contact form on this page.

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Facebook is dealing with a massive class action lawsuit that may see them refunding millions of dollars to parents who were the victims of so-called “friendly fraud.” The complaint alleges that since around 2011, Facebook has permitted minors to unwittingly make multiple transactions on their parent’s credit card through playing online games at the social media platform’s website.

Social-Media-37877338-001Kids love to play games like Angry Birds, Barn Buddy, Ninja Saga and others on Facebook. Frequently, they log in to the website using their parent’s Facebook account, though they also may have an account of their own. If the parent lets the child use their credit card to make an in-game purchase just once in one of Facebook’s games, the system stores the card number. Subsequently, the child makes multiple charges as they play, sometimes adding up to hundreds or thousands of dollars that parents may not be aware of until weeks later.

Evidence suggests that Facebook was aware of the loophole and that employees took a fairly hard line against allowing refunds for a practice that they referred to as “friendly fraud” or “FF.”

A paper trail from within Facebook shows conflicting viewpoints on the practice. One email from a Facebook employee mentions that game developers should be counseled to block friendly fraud transactions. Other internal documents reveal that Facebook actually educated developers about friendly fraud and encouraged them to enable such practices in their games.

When parents were stonewalled in their attempts to get refunds from Facebook, they contacted their credit card companies in attempts to invalidate the charges made by their children. Once again, internal Facebook documents show that the company was aware of an inordinate number of chargebacks associated with games like Angry Birds. However, there was concern that taking steps to minimize or eliminate friendly fraud transactions might also interfere with legitimate transactions.

The California lawsuit is still ongoing, but the recently published documents concerning it are illuminating. Business owners and executives may want to consider the transparency of their transactions and how well they communicate pricing strategies to customers in order to avoid similar confusion.

If you a California business owner with a legal challenge or issue, I invite you to call and let’s find out whether we are a great fit for each other. I can be reached at 818-461-8500 or via the Contact form on this page.

Richard Oppenheim

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When a worker suffers an on-the-job injury, what sort of accommodation is her employer legally required to make to ensure her ability to return to work? The law is deliberately vague on this subject, generally stating that employers must make “reasonable” accommodations. Failing to do so can lead to legal headaches.

Wrongful-TerminationThat’s the case for Dignity Health in California. Dignity manages St. John’s Pleasant Valley Hospital. Virginia Hoover had been working at the hospital for approximately 24 years as a radiologic technologist. In 2014, she suffered an injury to her shoulder while moving some equipment. The hospital granted her a leave of absence for recovery.

By August 2014, Hoover was cleared to return, but she was given limitations. She wasn’t supposed to lift anything heavier than 15 pounds with her non-dominant left arm and she was not permitted to raise that arm above her head. However, Hoover claims that Dignity made no effort to accommodate these restrictions. She was fired in December 2014 after her employer concluded that she couldn’t perform her duties.

Hoover filed a lawsuit against Dignity in 2016. Recently, a jury awarded her just over one million dollars for lost wages and emotional distress. The plaintiff claimed that Dignity had wrongfully terminated her and discriminated against her based on her age. Among the claims, Hoover says that another employee with similar restrictions had been accommodated by the hospital to remain in their position.

Dignity argued that they accommodated Hoover by granting her a leave of absence and then working with her to return to her duties. However, supervisors ultimately concluded that she wasn’t capable of performing the essential functions of her job.

In such cases, the law states that employers must find alternative work for an employee, but no documents from the lawsuit indicate whether or not this was attempted.

If you are an employer and one of your workers gets injured on the job, do you know how to comply with the relevant laws? Failing to do so can result in a costly lawsuit and negative publicity. If you are an California employer or business owner with questions about on the job injuries or any legal issue feel free to contact me, attorney Richard Oppenheim at 818-461-8500 or via the Contact form on this page.

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Shareholders Sue Mindbody Over Acquisition Deal

Shareholders in software company Mindbody are suing the company for breach of fiduciary duty. Plaintiffs claim that the company’s proposed acquisition by Vista Equity Partners provides plenty of compensation for Mindbody executives and the board of directors but leaves stockholders out in the cold.

Vista Equity Partners is a private equity company that focuses on acquiring promising software and tech companies like Mindbody. In December 2018, Vista and Mindbody reached an acquisition agreement that is valued at $1.9 billion.

Lawsuit-64354059-001The next month, public shareholder in Mindbody Joseph Schmit filed a lawsuit against the companies in San Luis Obispo Superior Court. Among the claims, Schmit alleges that Mindbody and its board “breached their fiduciary duties of loyalty, good faith, due care and disclosure” with their acceptance of the acquisition deal.

Schmit believes that the deal was engineered to benefit Mindbody executives and board members without giving appropriate consideration to the financial interests of shareholders. The company went public in 2015, and stocks traded at an all-time high of $43.85 in May 2018. However, the acquisition deal will make the company private again. Vista will pay just $36.50 per share.

Schmit argues that Mindbody is a company on the rise. While the stocks may be trading today at approximately $36.50 per share, he believes that profits will skyrocket. The acquisition locks out shareholders from financially benefitting from that profit.

In the lawsuit, Schmit details that Mindbody executives and board members will receive huge payouts because of the deal. One executive stands to take home $61 million while another may receive just over $11 million. Several other executives and board members stand to earn a few million dollars each.

Qatalyst Partners LP, an investment bank, advised Mindbody on the terms of the agreement and whether or not it was fair to all involved. The bank also acted as an adviser to Apptio Inc. which was acquired by Vista in November 2018.

Several other law firms are looking for plaintiffs who feel they may have been injured by this deal, which may mean that Mindbody and Vista could be facing a class action lawsuit.

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Multi-level marketing company LuLaRoe is going through rocky times. Not only is the company’s number of consultants down to fewer than 35,000 after reaching a high of 77,000 in February 2017, but also the organization is facing a massive lawsuit from its chief supplier, Providence Industries.

1504001-Gavel-Money-2The lawsuit was filed in November 2017, with the plaintiff stating that LuLaRoe had failed to pay its bills since May. Initially, plaintiffs sought damages of $49 million based on $34 million in products that Providence sent to LuLaRoe for which they were never paid. The rest of the amount was for storage of other products at LuLaRoe’s request.

Now, Providence has increased their demand to $63 million as the lawsuit drags on. In new filings, they allege that LuLaRoe is quietly liquidating goods. Providence is asking for a writ of attachment to prevent this. Their initial request for such a writ was denied months ago, but this one is supported by the testimony of nine former LuLaRoe consultants, each of whom alleges that they’ve been waiting for months to receive refunds on returned products after giving up their positions as consultants.

To further support their argument, Providence says that the defendant has a history of not paying their bills and that the organization is likely insolvent. LuLaRoe has not commented on these allegations, but Providence asserts that the company’s founders are hiding financial assets in a series of shell companies. Based on comments made by the founders, Providence believes that they may try to leave the country with the funds.

While LuLaRoe makes no comment on the pending litigation, they do appear to acknowledge that things haven’t gone well in the past. Recent social media videos posted by the founders show them talking about a history of flawed products and how they are entering an era of “LuLaRoe 2.0.” They insist that if consultants stay with them, they will see tremendous financial gains.

A business attorney may be able to provide the needed guidance for most new companies. Many potential business problems can be avoided by using an experienced business attorney during early planning and strategizing.

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

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

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

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

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

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

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

Richard Oppenheim

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Sidecar, a former competitor in app-based ride-sharing services, recently launched a lawsuit against Uber. The complaint alleges that Uber used illegal anticompetitive strategies to drive its rivals out of business so that it could monopolize the industry.

Sunil Paul, who was the CEO of Sidecar, writes on his blog that “It was never a fair fight.” He goes on to argue that customers are now stuck paying higher rates and being forced to choose Uber because of that company’s illegal practices.

scales-and-gavel-90061933-001Uber was established in 2009. At the time, they specialized in providing black-car rides that were summoned via an app. Sidecar began offering paid shared rides in 2012. In their complaint, plaintiffs state that their company fostered many innovations including estimations for trip duration and fares. Uber then launched UberX in 2013, which offered a similar paid ride-sharing service. This soon made up the bulk of Uber’s business.

In the complaint, lawyers note that Uber began engaging in predatory pricing practices in an effort to stifle competition. It’s alleged that the company was subsidizing passenger fares as well as driver payments.

Additionally, Sidecar alleges that Uber engaged in a campaign of fake ride requests, with these requests either being subsequently canceled or being taken by a representative of Uber who would try to convince the driver to switch allegiances. Back in 2014, Lyft made similar accusations against the ride-sharing giant. Those charges were substantiated at the time.

Sidecar shuttered operations in 2015 with its assets and technology being sold to GM. Reports suggest that GM is now using those items to develop a robot-driven taxi service. Meanwhile Uber is looking to go public in the first quarter of 2019. It’s one of the most highly anticipated IPOs to come along in recent years, and Uber executives feel that the timing of the lawsuit is suspicious at best.

After all, it’s been three years since Sidecar ceased operations, so why sue now? It may be that Sidecar’s former executives are hoping to undermine the public offering. Time will tell, but it may be difficult for Sidecar to substantiate its claims.

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Since 2004, PAGA has been a concern for California employers. The Private Attorneys General Act enabled workers to sue their employers for all Labor Code violations. This is normally the realm of the state’s Attorney General. However, lawmakers knew that they had a problem with underground businesses avoiding taxes and licenses. They hoped that empowering employees to sue their employers as if they were representing an agency would uncover unsafe working conditions.

1504001-Gavel-Money-3As many laws do, PAGA had unintended effects. Soon potential plaintiffs, and the attorneys representing them, discovered that they could sue for every violation under the sun. What’s more, the process was extremely profitable for everyone involved, except for business owners.

Suddenly, employers were being sued for minor, non-monetary violations. As an example, consider the case of the 99 Cents Only Stores. Cashiers sued for the right to have chairs at their workstations. The employees won, and the decision was upheld by the California Court of Appeal. This early case demonstrated how profitable such litigation could be.

Under PAGA, employees have the right to recover monetary penalties for an employer’s violation of any Labor Code. Prior to passage of the law, these civil matters would have to be brought by the State Labor Commissioner. PAGA also made it possible for fines to be imposed against employers for virtually every provision of the Labor Code.

Moreover, plaintiffs may recover 100 percent of their attorney’s fees. This meant that employees could address any perceived shortcomings in their working conditions, and that plaintiff’s lawyers were motivated to help them.

The California Business & Industrial Alliance is now suing California Attorney General, Xavier Becerra claiming that PAGA is unconstitutional. The plaintiff’s say that the state’s powers have been turned over to attorneys who are focused on personal gain. They claim that attorneys are using the law to avoid mediation and to extort millions of dollars from employers.

This lawsuit is new and nowhere near a resolution. However, it’s a reminder that employers should do their utmost to ensure compliance with Labor Codes, and it underscores the importance of working with a qualified business attorney.

If you are an California employer or business owner with questions about PAGA or any legal issue feel free to contact me, attorney Richard Oppenheim at 818-461-8500 or via the Contact form on this page.

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A class action lawsuit has concluded with Motel 6 agreeing to an $8.9 million settlement. Central to the litigation was the assertion that motel employees conveyed private information regarding Latino guests to officials working for Immigration and Customs.

on-brass-scale-32746330-001The claims in the lawsuit centered around two Motel 6 locations in Phoenix. Eight hotel guests claimed that their private data was given to ICE officials even though the officials didn’t have a warrant. Among the complaints were that hotel employees invaded the privacy of its guests and that the employees discriminated against the guests based on their national origin and race.

Motel 6 admitted in September that employees at its Arizona locations shared guest information with government officials. This transfer of information led to guests being detained or even deported on numerous occasions.

It was the Phoenix New Times that initially brought the practice to light. In the aftermath, public cries to boycott the Motel 6 brand became difficult to ignore. G6 Hospitality, which owns the Motel 6 brand, states that the actions of the employees in Phoenix do not represent company policy. In fact, the corporate office was unaware of the practice.

Subsequently, Motel 6’s corporate offices instituted a company-wide policy forbidding the sharing of information with law enforcement unless employees are compelled to do so. A warrant or subpoena must be presented before any information can be exchanged.

The Mexican American Legal Defense and Educational Fund represented the eight plaintiffs in the lawsuit. A spokesman for the organization says that upwards of $7.6 million of the settlement will go directly to the plaintiffs. An estimated $1.3 million will be used to pay for the costs of administering the settlement and for attorney fees. Those plaintiffs who were placed in removal proceedings stand to get the largest share of the settlement money.

With planning and some luck, most businesses never have occasion to deal with law enforcement. However, this case is a helpful reminder that it is wise to have policies in place so that employees will know how to react in the event of an encounter with law enforcement.