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Pausing to remember and honor America’s fallen service members is a practice dating back more than 100 years. Since the days of the Civil War, humble Americans have gathered together on Memorial Day to remember and pay tribute to all who have fought and selflessly surrendered the precious gift of life, so that other could live free.

Memorial%20Day%20Arlington%2052881007-001.jpgAgain we gather this Memorial Day, as a nation solemnly united in remembrance of the fallen defenders of our great nation. Freedom is not free. It has come at great cost, paid for with the lives of our sons and daughters, husbands and wives, sisters and brothers, friends and comrades.

Every American owes a great debt to the courageous men and women who have selflessly given their all to defend and protect our way of life. And while giving back to the extent they deserve is impossible, celebrating their memory and honoring their most selfless deeds offers a start.

As barbecues, picnics and other activities take place this weekend, we must remain ever-cognizant of the expensive price tag that comes along with these daily freedoms we enjoy. Those who made the ultimate sacrifice so that we may live free of tyranny and fear believed in something greater than themselves. They believed in the American way of life and were willing to die protecting it.

This Memorial Day, pause to reflect on the absolute selflessness of the 1.3 million members of our nation’s military who paid the price needed to ensure our way of life endures, And let us not forget the families whose pain will never go away, but may lessen with our thanks and prayers.

God Bless our fallen, their families, and the men and women in uniform all over the world.

Courtesy Veterans of Foreign Wars (VFW)

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The EEOC has announced that a federal district court has denied a request by AutoZone to limit the scope of a nationwide disability discrimination case. The case was originated by the EEOC.

Discrimination%2040134433-001.jpgAutoZone argued that the EEOC did not conduct an adequate, “nationwide” investigation prior to filing suit and asked the court to limit the suit to only three stores.

“[T]he Court may not inquire into the sufficiency of the EEOC’s pre-suit investigation in order to ‘limit’ the scope of the litigation,” the court stated in its order, which was written by U.S. District Judge Robert M. Dow, Jr.

The order also cited the recent decision in Mach Mining, LLC v. EEOC, in which the Supreme Court stated that courts should not impose additional procedural requirements on such litigation beyond those established by Congress.

EEOC filed suit on May 9, 2014, alleging that from 2009 until at least 2011, the company assessed employees attendance “points” for absences, without permitting any general exception for disability-related absences. The complaint alleges, qualified employees with disabilities with even modest numbers of disability-related absences were fired, in violation of Title I of the Americans with Disabilities Act (ADA). The ADA prohibits disability discrimination in employment, which includes failure to provide reasonable accommodations to qualified individuals with disabilities.

John Hendrickson, regional attorney for EEOC’s Chicago District. Stated “This case alleges a serious violation of the law and should be decided on the merits. The Supreme Court’s recent decision in Mach Mining should put to rest efforts to deny employees their day in court based on unfounded arguments about administrative procedure.”
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All of us at Sylvester, Oppenheim & Linde wish you . . .2015%20Happy%20New%20Year%2072445917-001.jpg

The Joy of Family

The Gift of Health

Great Friends and Business Associates

And

The Best of Everything in 2015 and Beyond

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Car crashes are common, especially in the automobile-dependent American culture. It’s one of the reasons why drivers are required to hold a valid insurance policy. Typically, when a driver is at fault in an accident, their insurance policy covers damage to property and physical injuries that may have been suffered by the policy holder and any other involved drivers.

Insurance%20Sign%2061487280-001.jpgHowever, the rise of ride sharing companies is adding an interesting wrinkle to this model. One of these companies is Lyft, an app based service provider that’s found in dozens of cities. It’s like a friendlier alternative to taxi services with participating vehicles sporting a fuzzy, bright pink moustache in order to be identifiable. Users download the app, then request a pickup. A nearby driver is summoned, and arrives within minutes to take users to their destination. It sounds straightforward enough, but what happens when things go disastrously wrong?

On November 1, 2014, Lyft driver Shanti Adhikari was providing a ride for Sacramento resident Shane Holland and his boyfriend. It was about 1:25 in the morning. The rain was pouring down. It’s easy to imagine that visibility was poor. Adhikari was driving his Toyota Camry at about 65 miles per hour when he spotted a stalled Kia in the middle of the freeway. He swerved to avoid it, colliding with a tree before spinning around and colliding with another tree. Passenger Shane Holland was killed in the crash.

Officials are still trying to figure out who is at fault in the incident. The Kia was first struck by a car that fled the scene. While Adhikari was able to swerve and miss the Kia, other vehicles hit it subsequently. Was Adhikari responsible for the crash that killed his passenger? If so, then Lyft’s $1 million insurance policy should take responsibility for any damages. However, the highway patrol may find that the first vehicle that struck the Kia may bear ultimate responsibility. If that driver can be found, their insurance may be forced to pay. However, it is more likely that Lyft’s uninsured/underinsured liability coverage will be called upon instead.

With usage of ridesharing services like Lyft and Uber increasing daily, the courts will be called upon to answer more precedent setting questions like the ones to be presented in this case.

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A grant of $40 million seems like it would be sufficient incentive for a public school district and a teachers’ union to get along, but a situation in Pennsylvania is proving otherwise.

Funding%2061101867-001.jpgFour years ago, the Bill and Melinda Gates Foundation pledged $40 million to Pittsburgh Public Schools. The foundation hoped that the money would be used to turn the school district into a model of what can be achieved when quality teachers are found in every classroom.

Pittsburgh Public Schools was given the grant after its political and educational leaders committed themselves to working together. The union and the school district were significant parts of that commitment. Unfortunately, those two parties remain unable to reach an agreement on how teachers will be evaluated under the guidelines of the grant.

The grant’s main purpose was to “reward exceptional teachers and retrain those who don’t make the grade.” Accordingly, teacher evaluations would be based half on in-class observation while the other half would be made up by other criteria like student performance on standardized tests and student surveys.

It is a complex evaluation structure, and teachers do not seem to feel that it is one that promises equity. In fact, a union official notes that the standard for teachers in Pittsburgh is tougher than that in other districts in Pennsylvania and across the country. A teacher who does not receive a satisfactory evaluation two years in a row may be subject to firing. Moreover, while the district wants to rely less on seniority when it comes to layoffs, the union argues in favor of the state law that makes seniority a prime concern when layoffs are being considered.

For now, the Bill and Melinda Gates Foundation is not withdrawing grant funds. However, it has been said that they continue to monitor the situation and have expressed frustration with the impasse between the district and the union. It seems clear that unless district and union officials can reach some sort of agreement on teacher evaluations, the grant funds may be put in jeopardy, and the overall losers in the situation will be Pittsburgh Public School students.

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A woman who worked for the Ohio County Sheriff’s Department in Wheeling, West Virginia is in the process of suing her former employer. In the suit, Sonya Olako, who worked as a secretary, alleges that she was fired from her position over a Facebook post.

Fired%2053061626-001.jpgThe post in question included Olako’s comments concerning her negative experience at a local restaurant. During her visit there, Olako’s iPhone was stolen, leading her to warn her Facebook friends to avoid the restaurant.

However, the restaurant is owned by a friend of Olako’s now former boss, Ohio County Sheriff Patrick Butler. When Olako returned to work on Monday after making the Facebook post, the sheriff fired her. Immediately, Olako called the human resources department to lodge a complaint. Workers there informed her that she had been suspended for one day. Subsequently, the sheriff informed Olako that she had been suspended for two days. At the end of the two day period, Olako returned to work only to be called in to a disciplinary meeting.

Upon inquiring whether or not her lawyer could be present for the meeting, Olako alleges that she was fired. Later, she received a letter from human resources citing job abandonment as the reason for her dismissal.

In the lawsuit, Olako avers that her right to free speech was violated and that she was wrongfully discharged. Breach of contract and intentional infliction of emotional distress are also cited as causes for action in the suit. The complaint was recently filed, and it seems likely that it will be some time before a decision is reached in the matter.
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On January 15, 2013, the Ohio State Board of Education adopted policies related to tracking the use of seclusion rooms and restraints in Ohio schools. According to StateImpact.npr.org the policies are non-binding.

padded%20room%2038681100-001.jpgIn reading the 11 page policy available HERE, it appears that the policy is actually a set of guidelines for Ohio school districts, with no description of any consequences for non-compliance.

Most often, the consequences for non-compliance for similar situations are lawsuits, many resulting in verdicts and settlements paid from funds much better used for education.

An Ohio investigation last year found that seclusion rooms were being used often as a punishment for students who misbehaved. There was also no requirement to notify parents of students who were secluded or restrained.

Under the new policy, seclusion rooms and/or restraints are to be used only when a student poses a threat to the safety of him/herself or others.

Further, the policy states that the schools must keep records of each instance when restraint or seclusion was implemented and why. Those records must be shared with the Ohio Department of Education (ODE) upon request and parents of the student involved in each incident. The parent(s) must be notified immediately and receive a copy of a written report about the event within 24 hours. The report is only made available to the parents and by request to the ODE. The report will never be made public.

While that sounds like a good plan to protect the students’ privacy, it creates an environment of secrecy for each school district where conceivably no one could know of misuse or over use of restraints and/or seclusion rooms.

Even with implementation of these new policies which take effect next school year, there is no reporting requirement for Ohio school districts other than when the data is requested by the ODE.

As a founding partner in a law firm regularly defending California school districts in lawsuits, I believe preventing lawsuits is much more cost effective than defending them. While this “policy” is a step in the right direction, there needs to be more accountability, a well-defined reporting structure and consequences in this important issue.
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The Superior Court of the State of California for the County of Los Angeles will be hearing a case in which two poker professionals are accused of using a bot, or robot, to play online casino games. The two men, Lary Kennedy and Greg Omotoy, won $80,000 while playing at Full Tilt Poker, an online gaming website. The company claims the two men used robots to win the money rather than using their own skill.

robot-poker-1.jpgOn the flip side, the two men claim that the company itself was the one using bots at the website. Robots have been used in many types of skill games, to pit human against robot. The most well known of these situations was with Deep Blue, a chess playing robot that was able to beat Garry Kasparov, the 1997 Chess World Champion. The machines perform the task of calculating moves endlessly, without tiring.

Kennedy and Omotoy have filed a lawsuit against Full Tilt Poker, and the numerous owners of the company. The claims include Fraud, RICO, Relief Under the California Business Professions Code Section 17200, Unjust Enrichment, Libel and Slander.

The lawsuit claims that the owners played a role in the coding, creation and the use of the bots to fill tables that would allow them to increase their revenue. The two allege that the use of bots is strictly prohibited by Full Tilt Poker’s terms of service. They are seeking restitution in monetary and non monetary forms. Compliments of Pokerati.com you will find a copy of the lawsuit HERE.

This case is another in the lineup that is nearly forcing regulation of online gambling. Although Full Tilt Poker has been involved in other cases over the last few years, it is unclear which direction the court will go when hearing this particular case.
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707642_police_motorcycle.jpgIn this California Court of Appeals case last month, the court ruled that although not everything hanging from a rear view mirror in your car is illegal, a tree shaped air freshener is illegal. As such, it gives police a valid reason to stop you.

The only reason this is posted on the California Business Litigation blog is this:
none of us want to invite a traffic stop.

Throw the air freshener under the seat and have a great new year!

– Richard Oppenheim