Author: Scripta Ad Astra Staff
This is part two of a three-part series on federal district court opinions in California related to the CFAA. The first part can be found here. The third part will be posted on Friday, July 25, 2014. Stay tuned and check it out.
Enki Corp. v. Freedman, 2014 U.S. Dist. LEXIS 9169 (N.D. Cal. Jan. 23, 2014)
Judge: Paul S. Grewal, United States Magistrate Judge.
Author: Katy M. Young
As summer comes to an end and we all go back to school in one form or another, it is time to revisit the good old to-do list. Is an estate plan on your to-do list? If you are a business owner, an estate plan that addresses business succession is critically important. If you own a home, the only way to avoid probate is by creating a trust. If you have children, an estate plan is the only way to ensure your control over who becomes your child’s guardian should anything happen to you. Ad Astra Law Group, LLP is offering a back to school special on estate plans completed in August and September 2014.
What is an estate plan? Ad Astra Law Group, LLP offers a comprehensive estate plan package that will protect you, your loved ones, and your assets should tragedy strike. We’ll prepare a trust and a will to address what happens when you pass away. We also create advance health care directives and powers of attorney to protect you in case you become incapacitated. Our lawyers will educate you about the process, guide you through tough decisions, and perform a signing ceremony with a notary to complete the estate plan package. The whole process takes about a month from start to finish.
The attorney fees for probate cases are set by law and are quite high, plus the probate process can take as long as a year or more. For most people, we can create a comprehensive estate plan for about 1/3 of the minimum probate attorney fee and save you the hassle of dealing with probate while grieving. For estate plans completed in August and September 2014, we are offering a 20% discount. Creating your estate plan will bring you peace of mind and it is a great investment in your family’s future. Contact us today to discuss your estate planning needs!
Author: Scripta Ad Astra Staff
This week, we will have a three-part series on all of the substantive district court opinions in California regarding the Computer Fraud and Abuse Act (“CFAA”) (18 § U.S.C. 1030) for the first part of 2014 – January through June. We are concentrating on California because that is where most of the Ninth Circuit opinions are generated – not surprising given that Silicon Valley and many technology firms are located in California and within the Ninth Circuit’s jurisdiction.
The CFAA is important to businesses small and large because it provides them the opportunity to seek recourse for unauthorized access to data and information they store and protect on their internal servers or on the cloud. CFAA violations address outside computer “hackers” as they are commonly perceived in the media, but also “inside” hackers: former employees or business partners that have found ways to access information from their former business associates which they are no longer supposed to view. The CFAA does not address how information is used once it is acquired, but only covers the initial access of information that one has no authority to view or exceeded his or her authority in so viewing.
Over the next week – Monday, Wednesday, and Friday – we will provide a roundup of the first six months of published California federal opinions regarding the CFAA.
Oracle Am., Inc. v. TERiX Computer Co., 2014 U.S. Dist. LEXIS 561 (N.D. Cal. Jan. 3, 2014)
Judge: Paul S. Grewal, United States Magistrate Judge
Author: Wendy Hillger
An Uber driver filed a complaint against Uber Technologies, Inc., asserting she was an employee of the ride-hailing company and thus owed back-wages and employee expenses. Uber has consistently maintained that its drivers are independent contractors. The California Labor Commission disagreed, and ruled recently that Uber is an employer.
The California Labor Commission examined the numerous factors identified by the Supreme Court (S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341) to evaluate the relationship between the driver and Uber. The commissioner noted that Uber maintains a substantial amount of control over its drivers: such as the equipment they must use (an Uber-provided iPhone), the fares they can charge, the model of cars they drive, and, to some extent, how often they work. Uber also does not allow drivers to negotiate their percentage of the fare and thus controlled their wages.
Uber was ordered to have to pay its employee reimbursable expenses and interest in the amount of $4,152. Uber did dodge a bullet by being spared from having to pay the driver an hourly wage, liquidated damages or waiting time penalties for this employee. The employee failed in her burden of proof on these issues by not providing the commissioner with her pay records.
The decision was appealed in the San Francisco County Superior Court on June 16, 2015, in the matter of CGC-15-546378. A copy of the Order is HERE. A timeline for the Superior Court’s ruling is unknown, but if the Labor Commission’s Order is upheld, the decision will have wide-ranging impacts upon the ride-hailing company and its competitors like Lyft.
For information as to whether your company may be improperly classifying its workers as independent contractors, please contact Ad Astra Law Group LLP.
Author: Wendy Hillger
The Honorable Cormac J. Carney ruled on July 16, 2014 that the death penalty system in California is unconstitutional. In a 29-page opinion, Judge Carney noted the system in California serves no penological purpose because of the extended period of time it takes to enforce it. Most Death Row inmates die of natural causes rather than at the hands of the state. There are nearly 750 inmates currently on Death Row, including San Quentin’s Ernest Dewayne Jones, the petitioner in this case. Given the problems with lethal injections, executions have been halted in California since January 2006.
The case at present only gives a reprieve to inmate Jones, but an appeal to the Ninth Circuit Court of Appeals by the Attorney General Kamala Harris is under review. A statewide order could come from the Ninth Circuit, and then the case could make its way to the United States Supreme Court. The death penalty was ruled unconstitutional in 1972 by the U.S. Supreme Court, but the Court later reinstated capital punishment nationwide four years later. Thereafter, the voters of California have instituted capital punishment three times.
If affirmed, Judge Carney’s ruling could end capital punishment in the state (temporarily if not permanently). Inmates on California’s Death Row, including Polly Klaas’ and Laci Peterson’s killers as well as other notorious serial killers, could see their penalties commuted to life in prison sentences.
We do not take a position on capital punishment. However, we do note that appeals in civil lawsuits take over 12 months to adjudicate. All appeals in death penalty cases are automatically presented to the California Supreme Court. The Supreme Court, like other courts, are struggling to keep up with the pace of cases filed. It is axiomatic that removing the need to review prisoner death penalty appeals would speed up all other appeals.
The United States District Court for the Central District of California opinion can be found here.
Welcome to Scripta Ad Astra, the blog of the Ad Astra LawGroup, LLP. Our firm specializes in business, employment, and real estate litigation. This blog will provide insight and updates on these practice areas, updates on the firm, and general musings from the firm’s attorneys. We hope you come back to visit us. Also, please feel free to reach out to us by email! Per aspera, ad astra!
Written by Keenan W. Ng
An interesting Computer Fraud and Abuse Act case was recently filed in Virginia. In AcmeBilling Company v. John Doe, Plaintiff, Acme, who maintains numerous websites hosted by GoDaddy, alleges cyber criminals in China stole its domain names. These cyber criminals stole the domain names by gaining unauthorized access to Acme’s domain management account and altering the domain registration records for accounts owned and used by Acme. While Acme was able to recover some of its domain names by working with GoDaddy, GoDaddy unfortunately informed Acme the Chinese domain name registrar who had 14 of their domain names refused to return the websites.
Written by Keenan W. Ng
Recently, the Ninth Circuit in Nguyen v. Barnes &Noble, Inc. held that “where a website makes its terms of use available via a conspicuous hyperlink on every page of the website but otherwise provides no notice to users nor prompts them to take any affirmative action to demonstrate assent, even close proximity of the hyperlink to relevant buttons users must click on—without more—is insufficient to give rise to constructive notice.”
In 2011, plaintiff purchased two Hewlett-Packard Touchpads from the Barnes & Noble website during a fire sale. Unfortunately, despite receiving a confirming email of his purchase, plaintiff’s order was cancelled due to high demand. Plaintiff filed suit alleging he had to purchase another tablet at a higher price. Defendant argued that plaintiff must arbitrate the matter per the browsewrap terms of use agreement.
Written by Keenan W. Ng
With Congress coming back from its summer recess, it will be focusing on a few cybersecurity related bills. One of the most controversial of these bills is the Cybersecurity Information Sharing Act of 2014 (“the Act”), introduced by Senator Dianne Feinstein (D-CA) and Senator Saxby Chambliss (R-GA) for the fourth consecutive year. The Act is supposed to “improve cybersecurity in the United Sates through enhanced sharing of information about cybersecurity threats, and for other purposes.” While some of the ideas and the language behind the Act seem reasonable and commonsense, the devil is in the details- or rather, the definitions in the Act- and could have some very interesting implications for individuals and businesses.
Author: Scripta Ad Astra Staff
On Tuesday, the Ninth Circuit affirmed a district court ruling in Levitt v. Yelp! Inc. dismissing an action by a group of small businesses that Yelp! extorted, or used extortionate sales tactics, to induce small businesses to purchase advertising with Yelp! in violation of the federal Hobbs Act (civil extortion) and the California Unfair Competition Law. The plaintiffs generally claimed that Yelp! sales people contacted them about purchasing advertising services in connection with their Yelp! pages. When the plaintiffs declined to purchase the advertising, the plaintiffs alleged that Yelp! manipulated its service to lead to a downgrade in the businesses ratings. The plaintiffs alleged that such tactics included removing positive reviews, re-posting negative reviews that had previously been taken down, allowing more negative reviews to appear first, and even authored negative reviews.
