Ad Astra’s Super (Lawyer) Stars

Since 2004, an independent company has researched and reviewed attorneys in California and each summer released a list of the top 5% of attorneys in the state. These top 5% of attorneys are dubbed Super Lawyers and the title is an enormous honor. Attorneys under 40 who have been practicing for less than 10 years who otherwise make the cut are called Rising Stars.

Ad Astra Law Group, LLP, is proud to announce that David Nied has again earned the Super Lawyer title, as he has every year since 2005. Keeping with our astral theme, Katy Young and Michael Dorsi proudly don the Rising Star label. This year is Katy Young’s second consecutive Rising Star award and Michael Dorsi’s first.

All of our lawyers are talented practitioners and together we make an unstoppable team. Congratulations to our Super Lawyers!

Court Declines to Enforce Uber’s Terms of Service

Scripta Ad Astra is extremely pleased to present a guest post by Nicole Syzdek.  Ms. Syzdek is an Associate with our friends at Brand & Branch LLP, who focus on branding (trademark protection, registration and enforcement), and provides advice on privacy and data security practices.

Author: Nicole Syzdek

On July 29, 2016, the Southern District of New York in Meyer v. Kalanick declined to enforce the arbitration provision of Uber’s Terms of Service on the grounds that the plaintiff did not have adequate notice of, and consequently did not consent to, Uber’s Terms. Since each online user interface differs, there is no bright-line rule to ensure the enforceability of your terms of service. Nevertheless, decisions like Meyer are instructive in helping business owners understand how to ensure that their own terms of service are enforceable if violated.

The central issue in Meyer v. Kalanick was whether the plaintiff actually agreed to Uber’s Terms of Service when he signed up to use Uber through his mobile phone. Below is an image of what the plaintiff saw prior to registration:

The court categorized this as a “sign-in wrap” since the user was notified of the existence and applicability of the Terms while registering as a user but was not required to view them. The court took issue with the appearance and placement of the terms of service language, which was located below the options to use PayPal or Google Wallet and stated:

 

By creating an Uber account, you agree to the 
TERMS OF SERVICE & PRIVACY POLICY

 

The court found that this language was in a font barely legible on a smartphone and not prominently displayed in relation to the color and size of the overall design of the registration screen. This layout, the court said, did not adequately draw users’ attention to the Terms of Service—let alone to the fact that by registering to use Uber, a user was agreeing to Uber’s Terms.

Why Should You Care?
As a business owner, it’s your responsibility to limit risk and keep your business running smoothly. One way to limit liability with respect to your websites and mobile applications is to have strong, enforceable terms of service. Your terms of service are your contract with your website visitors; they protect you by telling your customers what they are and are not allowed to do on your website or mobile app, and what they can and cannot expect from your website or service. Your terms should also enable you to ban users who violate these terms from your website, or terminate their accounts from your service.

Your terms of use are an incredibly important and powerful tool in managing your potential liability—but only if they’re actually enforceable.

The Uber decision makes clear that “click-wrap” agreements—which require a user to click through your terms of service—are the safest bet and most likely to be enforceable. By contrast, “browsewrap” agreements—burying your terms in a link at the bottom of the page or smartphone screen—are usually only enforced against other businesses that should be knowledgeable about the terms. “Sign-in wrap” agreements like Uber’s may be enforceable, but the notice of acceptance and link to the terms of service must be prominently positioned prior to the user completing the registration process.

 

Nicole Syzdek is an Associate at Brand & Branch LLP, focusing on intellectual property and technology matters, including trademark and copyright prosecution and enforcement, Trademark Trial and Appeal Board proceedings, licensing agreements, Internet policies, and privacy. She may be reached at nicole@brandandbranch.com.

To read additional posts visit www.brandandbranch.com

Courts Say the Darndest Things: Bill Cosby and the Public’s Interest in Litigation

Author: Michael Dorsi

Last summer, a federal judge in Pennsylvania ruled in favor of unsealing Bill Cosby’s sworn testimony concerning the use of Quaaludes (Methaqualone) in sexual assaults against women.[1] The result should stand as a warning to litigants: you cannot guarantee that a sealed document will remain sealed.

Both federal[2] and California[3] law permit filing motions under seal — out of public view — but both impose restrictions and somewhat unpredictable tests.

In federal cases, Federal Rule of Civil Procedure 26 controls. The Rule is very vague, stating “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . .” A similarly vague test applies in California.”[4] While cases on the subject give attorneys a guide on what subjects to address, outcomes remain difficult to predict.

The fact that both parties to a case agree to seal records is insufficient.[5] California law explicitly states “The court must not permit a record to be filed under seal based solely on the agreement or stipulation of the parties.”[6] Courts faced with two-party motions to seal often reject those motions, viewing it as their job to police the public interest in knowledge of what happens in courts.

What happened in the Cosby case is similar. Both parties had wanted certain records sealed. Due to an unusual posture (explored in Part II of this series), the Court did not rule on sealing until years later the Associated Press sought the records. When it comes to filing under seal, there are no guarantees, even years after a case is closed.

[1] See Order (link), Memorandum Order (link).

[2] Fed. R. Civ. Proc. 26(c)(1)(F), (H).

[3] Cal. Rules of Court 2.550, 2.551.

[4] Cal. Rule of Court 2.550(d) (“The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.”)

[5] See Savaglio v. Wal–Mart Stores, Inc., 149 Cal.App.4th 588, 600 (2007).

[6] Cal. Rule of Court 2.551(a).

Be advised of new federal Overtime Pay rules which start December 1st

Author: Wendy Hillger

The U.S. Department of Labor has revised its rules under the Fair Labor Standards Act concerning overtime pay.  As of December 1, 2016, the salary and compensation levels needed for white collar workers (executive, administrative, and professional categories) to be exempt from overtime compensation under federal law will more than double.

California employers need to be cautious, however, because California has a different salary threshold pegged to the state minimum wage that will increase over time.  Likewise, California maintains a different test for determining whether an employee is engaged in duties that are exempt from the overtime rules.  Hence, an employee may be exempt under federal law but not under California law. If you have questions, please call us at Ad Astra Law Group.