Articles Posted in Internet

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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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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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Most companies have websites today. In fact, there are few business owners who would consider operating without one. That is because consumers are placing increasing reliance as websites to serve as proxies for brick-and-mortar locations. They may expect to shop, procure coupons, order photographic prints or even refill prescriptions from a website that is connected to a retail location.

ADA-138029727-001Everyone appreciates the convenience of being able to take care of a few errands online. However, not every company has fully considered whether or not their website is equally accessible to all users. That problem is at the heart of a recent lawsuit in Florida in which a legally blind man prevailed over well-known grocery chain Winn-Dixie.

Juan Carlos Gill liked shopping at Winn-Dixie because of its affordable pricing and convenient locations. An ad on television alerted him to the fact that Winn-Dixie’s website provided the ability to get digital coupons and refill prescriptions. When he tried to take advantage of these conveniences using the enhanced online software that allows a sight-challenged person to use the Internet with ease, Gil discovered that the Winn-Dixie website was incompatible. Try as he might, he could not avail himself of the useful services on the website that were readily available to consumers who were not sight impaired.

Gil sued Winn-Dixie for violations of the Americans with Disabilities Act, or ADA. Eventually, a two-day bench trial was held with Judge Robert N. Scola, Jr. presiding. Judge Scola ultimately sided with the plaintiff based on what he says is the company’s violation of Title III of the ADA. A witness for Winn-Dixie had testified that the company was in the midst of establishing its website’s ADA policy, and that they had set aside $250,000 for the task. An expert witness for Gil argued that his firm could have made the conversions for as little as $37,000. What’s more, relatively little time would be necessary to make the website accessible to the vision impaired.

Winn-Dixie might appeal this decision, but it is a timely reminder that all company websites should be reviewed for ADA compliance.

One more note of interest: Late last month Gil filed another similar lawsuit. In his lawsuit Gil is asking a federal court to force the owners of Germain Arena in Florida, Gale Force Sports and Entertainment, to make its website accessible to blind internet users.

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A robust network can help to open the door to new professional opportunities. Increasingly, professional networks are being created and maintained in a virtual environment. While it is becoming more common for colleagues and former co-workers to connect to each other via social media, it is vital for employers and employees to understand how various employment agreements that they are a party to may affect their interactions.

Scales-of-Justice-Digital-94824052-001This concept is at the heart of a recent case in Illinois. A branch manager for Bankers Life & Casualty Co. named Gelineau left his employment to accept a position with a competitor called American Senior Benefits, LLC. After Gelineau began working with his new employer, he sent LinkedIn invitations to three of his former co-workers at the Warwick, Rhode Island office of Bankers Life. The trouble is that Gelineau had signed a non-solicitation agreement with his former employer. As is common with these agreements, Gelineau had promised not to solicit other Bankers Life employees to seek employment with other companies.

Bankers Life sued American Senior because they believed that Gelineau had violated his non-solicitation agreement. However, the court did not agree. The judge ruled that the LinkedIn emails were “generic” and “did not contain any discussion of Bankers Life.” Moreover, the email did not contain a “solicitation to leave their place of employment.” Instead, the email was merely intended to provide an opportunity for the former co-workers to keep their professional network as robust as possible.

According to the court, if Gelineau had included some kind of hint or suggestion that the Bankers Life employees should leave their current place of employment in favor of American Senior, then the outcome may have been different. Bankers Life was concerned that a listing of open positions at American Senior was included in Gelineau’s LinkedIn home page. Nonetheless, the court did not feel that Gelineau could be held responsible for what visitors to his LinkedIn page did once they were there.

Non-solicitation agreements are standard in many industries. With the changing communication landscape, it’s important to recognize what these agreements do and do not cover.

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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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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.

School-Bus-43843684-001

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.