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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.

If your lawsuit or legal problem involves business issues, you may find it helpful to visit our website.  Once there you will find the following information: “Eleven Questions to Ask BEFORE Hiring a Business Attorney”.  It has always been one of our most visited web pages.

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

DT%2019867194%20scale-001.jpgThe 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.
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A U.S. magistrate judge has made an important ruling that will allow plaintiff’s counsel to serve notice of a lawsuit on the defendant via Twitter. The ruling may help to set precedent in similar cases where a party in the U.S. wants to sue a foreign defendant.

Magnified illustration with the word Social Media on white background.

The case at hand was brought by St. Francis of Assisi. A non-profit that provides help to refugees, the organization wanted to sue the Kuwait Finance House, Kuveyt-Turk Participation Bank and an individual named Hajjaj al-Ajmi. Service on the first two defendants was relatively straightforward, but the plaintiff was having difficulty locating al-Ajmi.

St. Francis of Assisi was alleging that the three defendants had funded a Christian genocide in countries like Syria and Iraq. However, service of the complaint had to be completed before the case could proceed. Al-Ajmi had already been identified by the United Nations and the U.S. government as a financier of terror group ISIS. He is known to have organized numerous Twitter campaigns to raise funds for the organization under several different Twitter handles.

That’s why counsel for plaintiffs petitioned the judge for the opportunity to serve the complaint on al-Ajmi via Twitter. Traditional methods had already failed. Plus, because Kuwait is not a signor of the Hague Convention, it wasn’t possible for service to be completed through some sort of centralized or government authority.

Ultimately, U.S. Magistrate Judge Laurel Beeler granted the plaintiff’s request to serve notice via Twitter. Writing that Twitter was “reasonably calculated to give notice” and that the effort “is not prohibited by international agreement,” Beeler opened the door not only for St. Francis of Assisi, but also for other plaintiffs who want to serve a lawsuit on a foreign national that seems to be able to avoid service by regular means.

The ability to serve a lawsuit via Twitter doesn’t guarantee that al-Ajmi will respond or that he will ever pay any money that the court may decide is owed to the plaintiffs. Nonetheless, the fact that such unconventional service is being allowed may prove to be beneficial for other plaintiffs in similar situations.

 

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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” attitude by reading our Home Page Article “Eleven Questions to ask BEFORE Hiring a Business Attorney“. You will also find a list of our practice areas on that page.

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

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

Richard Oppenheim

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Most people think Snapchat is just a fun messaging app. They use it to send photos and videos that self-destruct seconds after being viewed. Snapchat also features an app that makes it possible to creatively alter photographs. Known as “Lenses,” this app is what makes it possible for the photo’s subject to sport floppy dog ears, hearts instead of eyes or a floral headband. Now, this capability is at the center of a potential class action lawsuit.

Magnified illustration with the word Social Media on white background.

Illinois residents Jose Martinez and Malcolm Neal filed a complaint in Los Angeles in May of 2016, arguing that Snapchat violated their state’s Biometric Information Privacy Act. The law is aimed at preventing biometric identifiers from falling into questionable hands and sprang from concerns about how the necessary technology used to collect biometric identifiers might be used without the user’s knowledge or permission.

The lawsuit contends that Snapchat is collecting and maintaining detailed biometric information on their customers. This is being done without the knowledge and consent of the users, which is contrary to Illinois’ law.

Snapchat categorically denies the allegations, arguing that their service is not capable of collecting complex biometric information that would allow them to identify the face of one user as opposed to another. Instead, they say that the technology involved is merely for object recognition, which makes it possible for the program to determine which objects in a photo are faces and where the eyes, nose and mouth are located. Moreover, Snapchat denies that they are in any way storing the data that is used in the Lenses app.

Snapchat is not the first social media platform to be sued over similar technology. Both Facebook and Google are facing legal battles relating to face-recognition software that automatically identifies particular people in photographs.

This lawsuit is only in its beginning stages. It was moved to the federal courts in July 2016, and Snapchat may be facing stiff fines if their software is determined to be guilty of violating Illinois’ law. This incident demonstrates the powerful need for businesses to understand the laws of states where they will be operating.

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An online charter school in Ohio filed a lawsuit against the state’s Department of Education in an effort to block an attendance audit.

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The Electronic Classroom of Tomorrow, known as ECOT, advertises that it enrolls more than 15,000 students. This means that the facility is larger than most of the traditional public school districts. The tremendous number of students entitles ECOT to approximately $107 million in annual funding from the state.

ECOT is unlike traditional schools in that students log on via the Internet. Officials from the Department of Education want to audit ECOT’s attendance records to determine whether or not they genuinely have 15,000 students and whether or not those learners are meeting the 920 hours threshold that is mandated by state law. This means that students would have to log in for approximately five hours each day.

ECOT consultant Neil Clark argues that students are not required to complete 920 hours of classroom time. He asserts instead that 920 hours of learning opportunities are required to be presented. Moreover, Clark says that the government never asked for “documentation of log-in durations” in prior audits to determine how much funding ECOT would receive. Clark also suggests that the government is trying to retroactively apply new standards that do not apply because of the contract between ECOT and the government.

ECOT is not the first charter school to experience political turmoil recently in Ohio. In 2015, a smaller online school was found to have misrepresented its attendance numbers, with the result being that they had to return 80 percent of the money they had received from the state.

Officials at ECOT may be trying to avoid a similar fate. However, they are wise to ask that the Department of Education live up to an existing contract. Neil Clark declares that the school “successfully passed audits in 2003, 2006, 2011 and ten other audits” that were conducted by a different accrediting body. According to his statements, ECOT is not against being audited, they simply want the government to do so within the terms of their contract.

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Sometimes, the only appropriate way to respond to a lawsuit is by filing a countersuit. At least, that seems to be the philosophy of Groupon, Inc. The story began a few months ago when International Business Machines, better known as IBM, filed a lawsuit against Groupon. IBM claimed that Groupon, which is an e-commerce marketplace that connects subscribers with merchants in their local area, infringed four of its patents.

Balance in digital background / A concept of technology law or tIBM claimed that at least two patents that are related to its late-1980s telecommunications service Prodigy are clearly infringed by the technology upon which Groupon bases its services. In their complaint, IBM asserts that they deserve compensation from Groupon for the newer company’s use of IBM’s patented technology. An IBM spokesperson notes, “Over the past three years, IBM has attempted to conclude a fair and reasonable patent license agreement with Groupon.” Frustrated in these efforts, IBM filed a lawsuit in Delaware where the company is organized.

Groupon chose to file a countersuit in Illinois, where it has its home base in Chicago. Among other charges in the complaint, Groupon skewers IBM as a “relic of once-great 20th Century technology firms.” Moreover, Groupon asserts that the technology giant “has now resorted to usurping the intellectual property of companies born this millennium.” A spokesperson from Groupon said in an emailed statement to journalists that: “Unfortunately, IBM is trying to shed its status as a dial-up-era dinosaur by infringing on the intellectual property rights of current technology companies, like Groupon.”

Groupon alleges in its countersuit that IBM actually infringes its patented technology with its WebSphere Commerce software. Merchants can use WebSphere to track customer orders and sales as well as offer special deals and pricing based on the customer’s current geographic location. Groupon insists that much of this technology has already been patented by them, which entitles them to royalties from the “billions of dollars in revenue that IBM has received” from their unfair use of Groupon’s technology.

The outcome of these cases remains pending, but the situation highlights the need to protect intellectual property and perform appropriate due diligence before developing new technology.

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Facebook is facing a federal lawsuit based on their practice of sending text messages to people who have been given recycled cell phone numbers.

search%20cell%20phone%2061969338-001.jpgWashington, D.C. resident Christine Holt is not a Facebook member. Nonetheless, when she got a new cell phone number, she began receiving text messages from the social network. The messages asked Holt what she was up to and kept her up to date on the activities of her “friends.” Holt requested that the company stop sending her text messages, but the practice continued.

Because Holt’s new cell phone number was previously used by someone else, it seems likely that the text messages are actually aimed at that prior user, who probably granted Facebook with permission to send messages. However, Holt never granted such permission, and she became annoyed when her requests that the company desist seemed to fall on deaf ears.

Holt hired Edelson, PC to represent her in a potential class action lawsuit. The complaint speculates that there may be thousands of potential class members who are receiving the same nuisance text messages. The practice is particularly troublesome because many of these people are not Facebook users. This provides them with extremely limited options when it comes to contacting the company. Ostensibly, the new owner of the cell phone number should be able to text “stop” to the offending number, which should effectively remove them from the autodial list. When this doesn’t work, frustrated people are left with little choice but to take legal action.

Under the Telephone Consumer Protection Act, it is illegal for companies to embark on a text-messaging campaign without first obtaining written permission from the recipient. Violation of this law can result in a $500 fine per incident. With the social network sending multiple messages to potentially thousands of cell phone users, the damages to the company could be significant.

This situation makes it clear that it is always best to proceed with caution when it comes to contacting potential customers via text messaging. Relying on obtaining written permission is always the best way to go to avoid potential legal action.
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In an age where smartphones, social media and the Internet have led to improved connectivity, California legislators are looking for ways to prevent jurors from violating the rules. Judges issue strict instructions to jurors that they must not perform any Internet research regarding the case they are deciding. Moreover, jurors are told in no uncertain terms that they are prohibited from discussing the case on social media.

scales%20and%20gavel%2090061933-001.jpgThese warnings are often to no avail as an increasing number of jurors are being caught making social media posts or doing online research in violation of the orders. Jurors who are caught breaking the rules may be held in contempt of court. Typically, this means that misbehaving jurors are dismissed without much in the way of consequences. When a juror is dismissed, there is a good chance that a mistrial will be declared, leading to spiraling court costs and hundreds of wasted hours.

The new measure, which is currently before the California Assembly, is the first of its kind in the nation. If it passes, it would give judges the ability to immediately issue a citation to jurors who break the rules about Internet research and social media postings. The new process would be much easier and more efficient than the process for finding a juror in contempt. Just as importantly, it would empower the judge to levy a fine of up to $1,500.

Internet and social media use by jurors has been an increasing problem in recent years. Across the country, juror infractions have led to verdicts being overturned and mistrials being declared. Louisiana State University’s Press Law and Democracy Project kept a close eye on such events until recently. That’s because these violations used to be relatively rare. Now, they are so common that participants decided the effort was “more trouble than it was worth.”

This legislation seems to have broad-based support and appears to be on the way to the governor’s desk for approval. If this happens, it seems inevitable that other states will soon consider taking similar measures in an effort to crack down on wayward jurors.

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A class action lawsuit has been filed against online flash-sale retailer HauteLook. Plaintiffs claim that they were sold purportedly genuine Rolex watches at a substantially reduced price. However, the watches they received were damaged or contained inferior replacement parts.

Rolex%20NOT%2088997580-001.jpgClass representative Vahdat Aghdasy purchased what he believed was an authentic Rolex watch from the HauteLook website. A large part of HauteLook’s appeal is that they claim to sell 100% authentic merchandise straight from the designer or manufacturer. Accordingly, customers are led to expect a certain level of quality. The vintage Rolex watches that the website offers from time to time were no different. HauteLook specifies that the watches are sold “as is,” meaning that there may be some level of damage.

Nonetheless, the company promised to provide certified appraisals of each watch after it was purchased. Aghdasy and other class members received an appraisal from a company calling themselves Swiss Watch Appraisers. However, they note that there is no contact information for the company except for a telephone number that is disconnected. The lawsuit alleges that the appraisal certificates are fraudulent and that the watches have never been appraised.

Moreover, HauteLook’s claim that the watches are 100% authentic is also coming under fire. Consumers are finding that their watches contain inferior, non-Rolex parts and that the watches do not come from the brand as promised by the website. Instead, plaintiffs believe that the watches are coming from various jewelry stores and other retailers.

Plaintiffs are seeking damages against HauteLook and Nordstrom, the company that purchased the web retailer in 2011. The basis for the lawsuit includes common law fraud, breach of implied and express warranties, unjust enrichment and conspiracy to commit fraud. Plaintiffs argue that HauteLook significantly misrepresents the actual value of the watches. Accordingly, they are seeking actual damages and exemplary and/or punitive damages in addition to attorney fees and interest.

Rolex, a company known for vigilant protection of its intellectual property rights, has yet to comment on the lawsuit. It would not be surprising if the Swiss watch-making company decided to sue HauteLook and Nordstrom as well.

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Millions of people are Facebook users, and most of them post photos to the social media network. If you’re one of them, then you’re probably familiar with the technology that enables Facebook to ask you if you want to tag “William” and “Mary” when you post a photo of yourself with your friends.

Social%20Media%20Magnified%2044298834-001.jpgFacebook is able to provide this service thanks to its “Faceprint” software, which the company rolled out in 2010. Faceprint is a biometric database that measures unique characteristics in human faces to identify them. When a new picture gets posted, the software immediately performs a scan to look for matching profiles in its biometric database, which allows it to suggest tagging other individuals.

Many Facebook users are troubled by what they believe is the invasiveness of the technology. This is particularly true in Illinois where members of the social network have filed a lawsuit saying that the use of the software violates state law. Illinois’ Biometric Information Privacy Act stipulates that companies must obtain written consent for gathering this kind of information. Moreover, companies are required to create and publish a schedule for destroying any data gathered.

Facebook counters the lawsuit by arguing that only the laws of California can be used to lodge legal disputes with the company. The social networking giant goes on to say that all Facebook users accept an agreement in which they consent to disputes being governed by California’s laws. Hence, the claimants in Illinois do not have a valid case.

This particular suit involves Facebook users Carlo Licata, Nimesh Patel and Adam Penzen, but it’s not the first or the only one of its kind. An earlier lawsuit filed by Frederick Gullen, who is not himself a Facebook user, was rejected by an Illinois judge because the company’s connections with the state are too tenuous. However, a similar case against Shutterfly in Illinois has been allowed to move forward because the Internet-based photo company actively offers its services to Illinois residents.

Time and the Courts will decide if this latest Illinois lawsuit against Facebook will be allowed to move forward.
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