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The Walt Disney Company recently suffered a setback in a California federal court. Specifically, a judge has denied Disney’s request for a preliminary injunction against Redbox that would have forced the DVD-rental company to stop reselling the download codes for digital copies of the studio’s films.

redbox-1Redbox’s movie rental kiosks have become a familiar part of the landscape in recent years. Consumers stop by these kiosks for the latest releases. For the most part, Redbox has distribution deals with the major movie studios that allow them to profit by renting out the studios’ films. However, Redbox has no such agreement with Disney.

Accordingly, Redbox purchases Disney-distributed movies from retailers, then slips them into their kiosks for customer rental. Disney and other movie studios frequently put new films in combo packs that feature DVD and Blu-ray copies of the films along with a download code for getting a digital copy. In addition to renting DVDs and Blu-rays, Redbox has been selling the download codes on slips of paper that are obtainable at their kiosks.

When Disney found out about this practice, they immediately launched a lawsuit. Among the charges in the complaint were copyright infringement, false advertising, unfair competition, tortious interference with customer contracts and breach of contract. Redbox quickly countersued, arguing that the studio was trying to stifle possible competition for its soon-to-be launched digital streaming service.

Not only has a federal judge denied Disney’s request that Redbox be stopped from re-selling download codes, but also the judge says Disney is actually misusing copyright law. On each Disney movie combo pack, consumers will find language stating that the download code cannot be sold or transferred. The studio argued that this constitutes a legally binding contract, but the judge did not agree. In fact, the judge said that there is no law that prevents what Redbox did. After the “first sale,” which was the lawful purchase of the combo pack, the owner is then free to dispose of the copies as they wish.

Copyright law can be incredibly nuanced. Work with a skilled business attorney to protect your intellectual property rights.

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When a corporation hires a coach for an executive, that executive probably expects to hone skills that enable her to take on a more advanced role. However, that was not the experience had by Denise Stilwell, a former executive at Twentieth Century Fox.

Gender-Discrimination-105366239-001Stilwell began her employment with Fox in 1999. By 2013, she had been promoted to a vice president position in enterprise rights management. The position came with a four-year contract, which included a promise of promotion to a senior vice president position within the first two years.

Her immediate supervisor accepted a voluntary retirement package in 2016, which meant that she began reporting to Fox CFO Dean Hallett. Shortly after the change, Stilwell was summoned to Hallett’s office. She expected to be given a promotion. Instead, Hallett informed her that she “smiled too much,” and that an executive coach was going to begin working with her.

That coach was Jack Zwissig from Zwissig and Associates. Zwissig allegedly told Stilwell that her “smile is fake,” that she laughed too much and that people generally didn’t like her. Most troubling of all is Stilwell’s assertion that Zwissig told her that she should “lift her skirt.”

Stilwell reported Zwissig’s comments to Hallett, calling them sexist and improper. Almost immediately, she was reassigned to another executive vice president, Joanie Wallace, who refused to meet with her for months. Abruptly in January 2017, Stilwell was fired because her department wasn’t moving in the right direction.

Recently, Stilwell filed a lawsuit naming her former employer, Zwissig and Zwissig’s firm as defendants. The complaint levels charges of gender discrimination, retaliation and hostile work environment, among others. If she prevails, the plaintiff hopes to collect unspecified damages for loss of future earnings and benefits as well as emotional distress.

This situation acts as a vital reminder that all complaints regarding possible harassment and discrimination must be followed up on swiftly and thoroughly. Failing to do so often exacerbates the situation to a point that is difficult to control. Working closely with a qualified employment attorney is the best way to prevent these circumstances from occurring.

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James Damore, a former Google employee who made headlines last year after his written diatribe regarding why women are barred biologically from being successful at engineering, is making headlines again for suing the company.

Gender-Discrimination-105366239-001In his long and considerably detailed complaint, Damore alleges that the tech giant discriminates in its hiring policies against white, conservative men. He accuses the company of having hiring quotas for workers who are female or belong to an ethnic minority. Citing meetings in which department managers are singled out and chastised for not having reached their quota of female or minority workers, Damore says that it is difficult for a white man who does not hold liberal views to get ahead at Google.

Among the charges, Damore says that Google actively discriminates against white male employees who have “perceived conservative views by Google.” The complaint goes on to state that Google has a practice of disciplinary action against employees who “expressed views deviating from the majority view at Google on political subjects raised in the workplace ….”

Google’s own diversity reporting makes Damore’s claims seem at least partially spurious. The company’s latest reports say that their workforce is 69 percent male and 56 percent white. What is more, their technical employees are 80 percent male and 53 percent of these workers are white. This may make it difficult for Damore to support his claims in court.

At the same time, Google is being sued by four female former employees who say that the company openly discriminates against women, paying them less than male counterparts and making it more difficult for them to advance to more responsible positions. In fact, the government is already investigating Google for suspected discriminatory practices against females and minorities.

Google seems to be embattled on all sides thanks to these lawsuits. Their position is a stark reminder of how important it is to develop hiring, promotional, disciplinary and firing practices that are in strict accordance with the law. Working closely with a business and employment attorney is an excellent way to ensure that your company does not run afoul of the law.

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The line that divides free speech from school speech is one that often gets blurred. In an age where multitudes of information is available at the touch of a finger, the situation becomes even more complex. When a student creates an Instagram account that is rife with racist statements and images of classmates, are his efforts protected by the First Amendment?

zero-tolerance-at-schoolOne student at Albany High school in Albany, California created such an Instagram account in November 2016. He invited a handful of friends to access the derogatory pictures that he had taken of other students, most of whom were African-American girls. Along with his friends, he made racist comments. Some of his friends “liked” the images.

The Instagram feed was discovered in March 2017. The students who had been targeted by the account were threatened with violence in many of the posts. When school officials reviewed the account, punishments were swift. The account’s creator was expelled in June. Other students received suspensions. An anti-racism rally was held on the day that the suspended students returned. Concurrently, another faction of students decided it was time for a session of “restorative justice.” The suspended students were essentially forced to walk a gauntlet of screaming, angry students, some of whom became violent. One of the students who was returning to school after being suspended had his nose broken in the incident.

The students who were punished for their involvement filed a lawsuit that named the school district, several officials, employees at the school and board members as defendants. Recently, Judge James Donato issued a ruling on part of that lawsuit. He agreed with the defendants’ assertions that the punishments had been reasonable as they were levied by the district in the case of most of the students. However, he ruled that other students who had not targeted specific students with their posts were too harshly punished.

Other claims must be decided in this complex case. When it comes to questions of free speech, it is always best to stay on the side of caution, especially when schools or the workplace are involved.

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A majority of Americans rely on coffee to get them going. They expect to get a jolt, but should they also expect a cancer diagnosis? That’s the question behind a long-pending California lawsuit.

Coffee-Poison-80413335-150x150In 2010, an advocacy group called Council for Education and Research on Toxics (CERT) sued Starbucks and other coffee producers and retailers for not including a cancer warning label on their product. The Council is empowered to sue under a law from 1986 which was officially called Proposition 65. Also known as the Safe Drinking Water and Toxic Enforcement Act, the law says that advocacy groups, citizens and lawyers may sue on behalf of the state.

In the case at hand, the Council says that much of the coffee consumed in California includes a carcinogen called acrylamide. The chemical is present in numerous foods, such as french fries, and is introduced naturally to coffee as a byproduct of roasting.

Lawyer Raphael Metzger is leading the charge, just as he did a few years ago when he won a case in which manufacturers of potato chips agreed to remove acrylamide from their products. His goal is for all businesses that make and sell coffee to use a clear and direct warning label so that consumers are informed that they will be ingesting acrylamide.

Some coffee companies already provide such a warning, but there are concerns that the wording is vague or that the label is not placed prominently enough to adequately warn consumers. Businesses in the coffee industry have been fighting the lawsuit for years. Their lawyers have argued that acrylamide is not present in large enough quantities to cause harm.

However, Superior Court Judge Elihu Berle did not think that the defense had presented sufficient evidence in support of their case. It is up to the defense to demonstrate that the chemical would not cause even one excess case of cancer per 100,000 people. The judge contended that the defense failed to do this.

This long-pending lawsuit is bound to continue. Speak with a business attorney to ensure that your products bear all appropriate warning labels.

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When an individual or a company obtains a trademark registration in the U.S., they are granted certain rights and protections. If they discover that another party is using a mark that is the same as or confusingly similar to their registered trademark, then they have a right to bring legal action against the alleged infringer. This concept is at the heart of a lawsuit against well-known outdoor outfitter company L.L. Bean.

Trademarks-47837347-001A good trademark acts as a source indicator for the products it covers. However, what happens when two companies in the same industry decide to adopt similar marks? Consumers may have difficulty differentiating the offerings of one company from those of its competitor. The result can mean lost sales and a tarnished reputation if the products are not as good as those of the competition.

Utah-based outdoor and mountaineering gear manufacturer Alfwear, which uses the KÜHL trademark as their brand name for outdoor clothing, brought the lawsuit against L.L. Bean based on their registration of “The Outsider” mark. The mark is registered for “rugged outdoor clothing, namely, belts, bottoms, hats, jackets, pants, shirts, shorts, T-shirts, tops,” and has been in use since June 2015.

Recently, L.L. Bean launched a marketing campaign with the tagline “Be an Outsider.” The company even filed a trademark application to register the mark “Be an Outsider” in June 2017. The phrase is being used in various advertisements across the country.

The lawsuit from Alfwear argues that these marks are too confusingly similar. Moreover, Alfwear believes that L.L. Bean deliberately choose their “Be an Outsider” phrase in an attempt to mislead, confuse or deceive consumers.

Among other relief, Alfwear is asking that L.L. Bean be ordered to stop using the phrase “Be an Outsider” altogether. The company is seeking damages for lost profits as a result of consumer confusion.

L.L. Bean has not publicly commented on the lawsuit, but it is natural to assume that they will be fighting against Alfwear’s claims. Intellectual property is one of a company’s most valuable assets, and protecting it with the help of a California business attorney is imperative.

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How well are anti-bullying policies being implemented in America’s schools? That question is at the heart of a case against Nevada’s Clark County School District. The parents who brought the case say that not only were they not informed about the bullying their sons suffered, but also that school officials did little to investigate or correct the situation.

schoolbullyingMothers Mary Bryan and Aimee Hairr had the assistance of the ACLU when they brought their lawsuit against the district. Their complaint detailed a horrific six months in 2011 during which both of their sons were relentlessly bullied by other students at Greenspun Junior High. According to the plaintiffs, the boys were “physically assaulted, sexually assaulted, harassed, bullied, [and] sexually discriminated against.”

Hairr says that she had no idea what was happening to her son. She knew that he was becoming increasingly withdrawn, wanting to spend time alone in his room rather than with his family. Bryan’s son began being bullied when he stood up for his friend. It was Bryan who eventually overheard the two boys talking about the abuse; neither child told the parents what had been happening to them.

The school also did not disclose the ongoing problem. “We all were in the blind,” said Hairr. Bryan said she would have been satisfied if administrators had been willing to talk to them about the situation before it turned into a lawsuit.

Now, a judge has ruled that the school district must pay $200,000 to each of the families affected by the bullying. Judge Nancy Allf argued in her decision that the school district had failed to protect the boys’ right to due process under the 14th Amendment.

The district may appeal, but it seems as though this case is already changing things. The district’s bullying policy is undergoing changes to make it more effective. However, Bryan and Hairr say that the changes will make little difference unless the district ensures that staff members comply with the policy.

Any anti-bullying policy is only good as far as it is implemented. Proper training and documentation can help districts to avoid lawsuits.

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Recently, California’s Department of Fair Employment and Housing, or DFEH, issued a revised “Workplace Harassment Guide for California Employers.” This essential publication should form the basis of every organization’s anti-harassment and retaliation policies. With the guidance of a qualified California employment attorney, most companies will be able to protect themselves from violating the guidelines described in the publication.

https://www.californiabusinesslitigation.com/wp-content/uploads/sites/283/2016/05/boy.girl_.-equality.jpgThe Guide is particularly useful to employers because it clearly describes the necessary elements of any anti-harassment program in California. Employers are recommended to develop a written policy that is given to all employees and is discussed at least once a year if not more often at company meetings. The Guide also offers counsel on how crucial it is for members of management to model appropriate behavior and responses to harassment complaints. Training for managers and supervisors similarly is recommended, as well as education for personnel who will be charged with handling complaints.

One of the most important tenets espoused by the publication is the need for a proper reporting system, and a means of ensuring that every report is treated as a high-priority item. This makes it possible for the employer to determine whether or not a full, formal investigation is required. One of the new Guide’s more useful sections educates managers and supervisors about how to investigate a claim. A prompt, thorough and impartial investigation is frequently able to head off more serious problems like harassment and retaliation lawsuits.

DFEH’s revised Guide is essential reading for every employer in California. Its plain language and good coverage of relevant points make it the perfect resource for an anti-harassment and retaliation policy. A skilled California employment lawyer can help any company owner or executive put the finishing polish on the organization’s program. Too many companies make the mistake of not creating a written policy until it is too late.

Executives who want to improve the chances that their company will not become embroiled in costly, time-consuming litigation will want to discuss the Guide and how it can be used to craft an anti-harassment program specifically for their company with a qualified attorney.

The guide is only 9 pages long. If after reading it you have any employment law questions, feel free to contact me, Richard Oppenheim. I may be reached at 818-461-8500 or by using the “Contact Us” box in the right column.

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Years of highly contested, and well-publicized, litigation have made employers aware of the dangers of discriminating against workers based on gender, sexual orientation, race and religion. It’s not unusual for company executives to work with an employment attorney when they are developing or revamping their practices. Unfortunately, age discrimination tends to be overlooked.

Age-Discrimination-132214651-e1500063954245This oversight is coming to the forefront with litigation filed in the U.S. District Court in New Jersey. Plaintiffs allege that their former employer, AT&T, systematically shed older workers in an effort to gain a workforce that has more advanced technological skills. The complaint relies largely on the Age Discrimination in Employment Act, a 1967 law that protects applicants and employees who are 40 or older. Essentially, the law makes it illegal for companies to make hiring, firing, promotion and compensation decisions based solely on age.

Plaintiffs argue that AT&T relied on age-based stereotypes to purge older workers. The process involved notifying the older workers that they had been placed on “surplus” status. They had a set amount of time within which they must be accepted into an alternative position within the company. However, the plaintiffs say that the selection process for those alternative positions was biased against the older employees who had been categorized as surplus. When they were unable to find another position, the workers were laid off.

Some of these employees say that they received a severance check, and that they were told by AT&T that they would be unable to sue the company under anti-discrimination laws if they took the money. Lawyers for the plaintiffs say that’s not necessarily the case, especially if the notice given to employees did not contain certain stipulated language.

The former employees cite a company blog post that described AT&T’s “Workplace 2020” program, which admitted that age-based stereotypes are being weighed in employment decisions. According to plaintiff descriptions of the blog post, older workers are the employees of yesterday while younger workers are considered more desirable.

This litigation serves as a timely reminder for all employers to be mindful of their employment practices with respect to older workers.

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The one-time owner of a successful car dealership group in California has been awarded more than $256 million by a jury. Mike Kahn, who ran the Superior Automotive Group with dealerships in LA and San Francisco, fought Nissan Motor Acceptance Corp. for eight years before achieving this judgment. NMAC is the financing arm of the Nissan company, and its representatives say that they plan to appeal this verdict.

1504001-Gavel-Money-2During the financial crash of 2008-2010, many new-car dealerships were struggling. Superior’s were among these, but this wasn’t always the case. Nissan had recognized Superior as one of the top three dealership groups in the world prior to 2008. The company had sold more than $1 billion of inventory in the period between 2001 and 2008. That all changed with the economic downturn. Suddenly, consumers weren’t buying cars.

Typically, car dealerships finance the purchase of new cars through an organization like NMAC. The loan on the car is frequently paid back when the car is sold to a consumer. However, with cars not moving, dealerships everywhere were defaulting on these loans. Mike Kahn’s dealerships were among these. He reached out to NMAC, asking for them to not default him on his outstanding loans. The company agreed, and then proceeded with a default anyway.

Kahn sold one of his dealerships to cover some of what he owed to NMAC, but it wasn’t enough. More than 800 employees were put out of work when all seven dealerships had to close, and NMAC sued Kahn for an additional $40 million while also seizing all of his personal and business assets. A relationship that once thrived was now deeply contentious.

Kahn countersued and eventually prevailed after nearly a decade of litigation. A jury awarded him compensatory and punitive damages in what appears to be an indictment of large corporations deliberately putting local companies on the chopping block. NMAC plans to appeal the decision, so this saga is not over yet. Nonetheless, this is an apt demonstration of how an excellent partnership can quickly go wrong, making the requirement for careful planning and good contracts a necessity.