December 19, 2016 – Firm partners Randy Erlewine and Nick Carlin today filed a class action in the federal district court in San Francisco on behalf of employees of car-sharing service Uber Technologies. The lawsuit alleges that Uber promised these employees – many highly sought-after software engineers and other technology workers – the most valuable type of stock options (commonly referred to as “Incentive Stock Options”) as part of their employment contracts, but after they joined the company, granted far less valuable options (commonly referred to as “Non-Qualified Stock Options”), and that Uber acted to prevent employees from exercising their options at the promised times. The lawsuit further alleges that Uber misrepresented the terms of the options and never had any intention of honoring its promises. This lawsuit comes on the heels of the firm’s victory against Uber in a parallel state court action on similar issues arising under California’s Private Attorney General Act for violations of the California Labor Code. Despite Uber's argument that its stock option compensation promises were unenforceable, San Francisco Superior Court Judge Harold E. Kahn sided with the firm's client and overruled Uber’s effort to defeat the claim against it based on those promises, allowing the case to move forward on the theory that those promises were false when made and therefore a violation of state statutory law. Further proceedings in that action are pending. For news coverage of the case, click here.
December 15, 2016 – Firm partner David Given, who led the effort in a Boston federal court last month to defeat the trademark infringement claims of BOSTON multi-hyphenate Tom Scholz against his former bandmate and friend, Barry Goudreau, for using the word mark “Boston” to describe his former affiliation with the band, today filed papers in that same court seeking recovery from Scholz of over $800,000 in defense costs and fees incurred by Goudreau in the case. Those papers rely upon a 2014 Supreme Court opinion which clarified the applicable standard for such an award in cases arising under a provision of the federal Patent Act identical to the federal Lanham Act, under which Scholz brought his infringement claims. Goudreau supported his request for fees with evidence the federal jury did not hear, including Scholz’s litigation history, and aimed to show that Scholz brought a weak to non-existent Lanham Act case against Goudreau for reasons having nothing to do with protecting his “Boston” mark but rather to suppress speech about the circumstances of singer Brad Delp’s suicide. Reporting in the Boston Herald (which Scholz also sued in another unsuccessful state court case) suggested that Delp’s “dysfunctional professional life” with Scholz may have led to his untimely death. Further proceedings in the matter are pending.
December 9, 2016 – Oxford University Press has published firm partner David M. Given’s article “US copyright termination: re-monetization’s final frontier” in the November 2016 issue of its Journal of Intellectual Property Law & Practice. In the article, David discusses the copyright termination provisions of U.S. law and how foreign composers and recording artists can employ them to recapture rights to songs and sound recordings. The article updates and revises a paper David gave last June at the MIDEM conference in Cannes, France on the same subject, later published in The Monetization of the Global Music Business. David’s article appeared just days before important developments in U.K. law on the same subject, when the High Court of Justice (Chancery Division) handed down its judgment against members of the band DURAN DURAN in an action over copyright termination in that band’s songs. That judgment can be found here.
December 6, 2016 – In a significant victory for the firm today, Federal District Court Judge John A. Kronstadt ruled almost entirely in the firm’s favor on The Honest Company’s Motion to Dismiss in the firm’s consumer class action against the company. Plaintiffs alleged that Honest deceptively marketed and sold products as "natural" when in fact they contained synthetic, non-natural ingredients, and sold sunscreen as "effective" when it was not effective in preventing sunburns. In his order, Judge Kronstadt ruled that a reasonable consumer would be deceived by Honest’s labeling, as a consumer would read a “natural” label and assume that the product contains no synthetic or non-natural ingredients. Judge Kronstadt also upheld the firm’s breach of warranty claims and claims relating to other mislabeled "natural" products that plaintiffs did not directly purchase. The court also ruled that the Complaint adequately alleged the sunscreen claims. While Honest argued that “effective” is a vague and unspecific term and therefore could not misrepresent the ineffective sunscreen, Judge Kronstadt ruled that the express purpose of sunscreen is sun protection, and therefore a consumer would rely on the sunscreen for protection from the sun. The case, Shane Michaels v. Honest Company, Inc., is led by firm partner Nicholas A. Carlin and is pending in the Central District of California in Los Angeles. The matter’s next hearing before the court is set for March 20, 2017.
December 1, 2016 – San Bernardino County Superior Court judge Donald Alvarez sided with the firm and denied the summary judgment motion of John Elway's Crown Toyota in the firm's ongoing battle to enforce wage rights of a group of auto mechanics working at the Southern California auto dealership. Firm lawyers Brian Conlon and Nick Carlin successfully convinced Judge Alvarez that a PAGA representative action for some 50 mechanics could proceed to trial notwithstanding the settlement of individual claims for back wages. Elway argued that the individual settlements deprived those mechanics of standing to sue under PAGA (the California Labor Code Private Attorney General Act). Conlon and Carlin countered that PAGA was enacted to deputize employees to act on behalf of the State of California to impose penalties on employers who violate labor regulations, and therefore settlement of individual wage claims does not affect the right of the state and its deputized employees to enforce those regulations. Judge Alvarez agreed with the firm and denied Elway’s motion, scheduling a trial-setting conference for Dec. 9th.
November 1, 2016 – A Massachusetts jury returned a unanimous verdict today in favor of firm client and famed lead guitarist Barry Goudreau on trademark infringement claims brought against him by former bandmate Tom Scholz, who sued Goudreau over use of the moniker "former original member" in describing Goudreau's participation in the multi-platinum selling band BOSTON. The eight-person jury found no likelihood of consumer confusion resulting from advertising for another band employing that description and the current incarnation of the band BOSTON, now led by Scholz. That band had its two biggest hit records in the 1970s while Goudreau was still a member, with Goudreau appearing on both records ("Boston" and "Don't Look Back") and touring extensively behind their releases. Goudreau left the band following differences with Scholz, signing an agreement relating to his departure in 1983. Firm partner David Given, together with local counsel, argued that advertising referring to Goudreau as a "former original member” of BOSTON stated historical fact and that use of the BOSTON mark was appropriately accurate and therefore lawful. Federal district court judge Denise J. Casper, who presided over the seven-day trial, has retained jurisdiction to consider Goudreau's counter-claim against Scholz for unfair and deceptive trade practices under Massachusetts state law. Further proceedings on that claim are pending.
October 20, 2016 – The Ninth Circuit Court of Appeals denied today Apple’s bid for review of an order granting class certification in the firm's long-running data privacy case against it over the alleged surreptitious harvesting of iDevice users' address book data. The firm opposed Apple's petition to the Ninth Circuit, arguing that the trial court's decision to certify a nationwide class of almost half a million iDevice users who downloaded the Path app (triggering the automatic upload of vast quantities of private address book data to Path's servers) was legally sound. The Circuit Court's decision is a triumph for the firm, clearing the way for the case to proceed to trial against Path and Apple. The firm has pending a similar class certification motion against five other app developers, including Instagram, Twitter and Yelp, for classes ranging from 800,000 to potentially 8.5 million iDevice users. Further developments in the case are expected shortly.
September 20, 2016 – Firm partner Nick Carlin today filed a second complaint against The Honest Company, Inc., brought on behalf of a nationwide class of consumers contending that The Honest Company misleadingly labeled and marketed certain products as natural, when in fact those products contain synthetic, non-natural ingredients. This second lawsuit adds products not included in the firm’s first complaint on the same subject; it also covers products bought both online and in actual stores. Products listed in the latest complaint include Honest Shampoo and Body Wash, Honest Conditioning Detangler, Honest Bubble Bath, and Honest Dishwasher Packs. These products were marketed as natural, the complaint says, inducing consumers to pay a premium for and use the products on the false premise they were “honest” when in fact they not only contained non-natural ingredients, but in some cases contain chemicals rated as either highly or moderately hazardous by the Environmental Working Group. Any consumer who purchased and used Honest Company products between Sept. 20, 2012 and the present may potentially be a class member.
September 9, 2016 – Federal district court judge Jon S. Tigar issued a 21-page order today denying Yelp’s motion for summary judgment in the firm’s wide-ranging class action challenging the conduct by Yelp, Apple and various developers of applications for Apple devices over the surreptitious and improper upload of address book data from consumers’ iDevices. Judge Tigar rejected Yelp’s argument that class members gave consent to their address book data being accessed and uploaded as a matter of law, agreeing with the firm that there was a material factual dispute as to whether Yelp got effective consent to upload users’ address book data to its servers. Judge Tigar also agreed that the evidence the firm adduced in opposition to Yelp’s motion presented a triable issue of fact both as to whether users of Yelp’s “Find Friends” function had an objectively reasonable expectation that their address book data would remain on their phone and whether Yelp’s unauthorized uploading of contacts was highly offensive to a reasonable person. Judge Tigar’s decision sets the stage for a trial on the merits of these and other similar class claims against Apple and the rest of the app developer defendants. The court has set a further case management conference in the matter for Sept. 22nd. Plaintiffs’ omnibus motion for class certification against Apple and five of the remaining app developer defendants is pending; the court previously certified one such class against Apple and app developer Path in July.
September 8, 2016 – Firm partner David Given appeared in the federal district court in Boston today on behalf of former BOSTON guitarist Barry Goudreau in the trademark infringement case brought against him by Tom Scholz. Federal district court judge Denise Casper heard argument and ruled on a series of pretrial motions brought by both parties. Judge Casper asked for additional material on one evidentiary matter relating to certain advertisements referring to Goudreau as an “original” member of the band BOSTON, reserving her ruling on that subject; she also asked the parties to submit competing proposed verdict forms. Following the hearing, Judge Casper set the case for a five-day jury trial. Goudreau has his own claims against Scholz over the parties’ 1983 settlement agreement, which sorted out matters relating to Goudreau’s departure from the band following the multi-platinum success of its second album, “Don’t Look Back,” and which Goudreau says Scholz has breached by overstepping his rights to police his “Boston” word mark. Trial of the matter will begin Monday, Oct. 24th.
August 29, 2016 – Firm Partners Nick Carlin and Randy Erlewine today filed a class action complaint for wage theft and related labor code violations against Lithia Motors, Inc., the owner of DCH Auto Group, on behalf of a group on non-technician employees for wage and hour violations under California law. The complaint, filed in federal court in Los Angeles, alleges that DCH failed to provide meal and rest breaks to its employees, failed to pay overtime, and failed to provide proper wage statements. The Complaint further alleges that DCH knowingly committed fraud and conversion by falsifying time records to show that employees had taken meal breaks when in fact they had not, and seeks recovery of punitive damages. The case represents individuals employed at the dealerships in hourly, non-exempt positions, including office workers and service writers. The firm recently settled another case against DCH on behalf of a group of approximately 400 technicians (mechanics) for over $4 million; court approval of that settlement is pending.
August 26, 2016 – Firm Partner Nicholas Carlin was appointed today Co-Lead Interim Class Counsel today by Federal District Court Judge John A. Kronstadt in the firm’s consumer class action against The Honest Company. The plaintiffs in that lawsuit contend that The Honest Company, founded in 2011 by celebrity Jessica Alba and others, falsely advertised non-natural products as “natural” and that its sunscreen was not effective. The case, Shane Michael v. Honest Company, Inc., Case No. 2:15-cv-07059, is pending in the Central District of California in Los Angeles. The court has set a further hearing in the matter for March 20, 2017.
August 25, 2016 – Firm partner Nicholas A. Carlin announced today, by Notice of Settlement filed with the Los Angeles Superior Court, that DCH Auto Group and its parent company, Lithia Motors, Inc., have agreed to a class wide settlement of all wage and hour claims against them by current and former auto mechanic employees of their California DCH dealerships. The agreement acknowledges that previous payments made to some employees in the amount of $435,600 was a result of the litigation, and provides for payment of an additional $3.6 million to the class, bringing the total value of the litigation to the employees to over $4 million. As there are over 400 class members, this is an average of just under $10,000 per class member. The settlement amount is inclusive of attorneys’ fees, costs and class representative service awards. While court approval is pending, Mr. Carlin is expected to serve as co-lead counsel.
August 23, 2016 – Following the decision last month of Federal District Court Judge Jon S. Tigar certifying a class of approximately 480,000 users of the Path mobile app, the firm moved today in its capacity as interim co-lead counsel to certify similar classes of iDevice owners of certain other mobile apps downloaded from the Apple App Store before Feb. 2012. These apps include versions offered by Foursquare, Instagram, Kik, Twitter and Yelp that plaintiffs contend surreptitiously uploaded private address book data from their iDevices. The iDevice owners impacted by this practice could exceed 10 million in number. At the same time, the firm moved against Apple to certify a class of iDevice owners plaintiffs say were deceived in their purchases of Apple products by promises of privacy and security when, in fact, those products suffered from known vulnerabilities exposing private address book data to invasion and theft. The court has set both motions for a November 15th hearing.
July 18, 2016 – Partner David Given will represent former BOSTON guitarist Barry Goudreau in a lawsuit brought against him by his former bandmate Tom Scholz. Scholz, who recently failed in his defamation lawsuit against the Boston Herald for its reporting on the suicide of band vocalist Brad Delp (in which Scholz contended that the paper’s reporting suggested that he was responsible for Delp’s suicide), brought a wide-ranging federal lawsuit against Goudreau in 2013 centering on Goudreau’s continued work as a performer outside BOSTON. Federal District Court Judge Denise J. Casper dismissed most of Scholz’s claims last year. Goudreau has counter-sued Scholz for breach of contract and related claims arising from a 1983 settlement agreement the two musicians made with one another following Goudreau’s departure from BOSTON. Judge Casper has set an Oct. 24th trial date in the matter.
July 15, 2016 – Federal District Court Judge Jon S. Tigar issued a 28-page order today certifying a class consisting of approximately 480,000 users of the Path mobile app who had their address book data uploaded from their iDevices between Nov. 2011 and Feb. 2012 without their knowledge or consent. Plaintiffs Lauren Carter, Stephanie Cooley and Jason Green will serve as class representatives for claims of invasion of privacy against Path and of aiding and abetting that privacy invasion against Apple arising from the surreptitious taking of their and other class members' personal address book data. Judge Tigar accepted the firm's arguments that class members had enough in common that their claims for nominal and punitive damages should be permitted to proceed on a class-wide basis. Judge Tigar's order appointed the firm class counsel and set an Aug. 16th hearing to determine a schedule for the remainder of the case through trial.
June 4, 2016 – David Given spoke at this year’s Marché International du Disque et de l'Edition Musicale (MIDEM), hosted June 3-6, 2016 in Cannes, France. David's talk, based on his article entitled “U.S. Copyright Termination: Remonetization’s Final Frontier” (included in the International Association of Entertainment Lawyers's publication The Monetization of the Global Music Business), elaborated on vehicles for copyright termination in the U.S. and techniques for recapturing royalty revenue in the U.S. and abroad. Now in its 50th year, MIDEM is the leading international business event for the music industry, bringing together artists, entertainment lawyers, and other entertainment and media professionals from dozens of countries.
May 5, 2016 – Plaintiffs filed papers today replying to app developer Path and app distributor Apple, urging that their claims of breach of privacy against Path and Apple be certified for class treatment on behalf of approximately 480,000 iDevice users who downloaded or installed versions of the Path app that surreptitiously uploaded address book data from those users’ iDevices. Installation of that app on those users’ iDevices resulted in the uploading of over 662 million pieces of information which Path held on a database and, the lawsuit contends, intended to use for data-mining, among other things. The court has set a June 14th hearing to consider the class certification of plaintiffs’ claims.
April 13, 2016 – Federal District Court Judge Susan Illston gave final approval today to the settlement reached last year in the Universal Music Group digital download class action. Following an hour-long hearing in which she carefully considered the settlement agreement’s merits, Judge Illston entered an order approving it. During the hearing, Judge Illston praised the firm’s “good work” and the resulting settlement as a “positive achievement” for the class of almost 1,700 recording artists, record producers and others who made successful claims and will therefore benefit from it. Under the parties’ agreement as approved, no less than $2.5 million dollars will be paid or credited to class members in retrospective relief, with prospective relief in the form of a perpetual royalty adjustment expected to result in millions of dollars more over time.
March 8, 2016 – Firm clients Rick James, Dave Mason, David Coverdale and others petitioned today for final approval of the settlement struck in the Universal Music Group digital download class action. That settlement provides for an $11.5 million fund to settle claims over the amount of royalties paid for the digital download of recorded music. It also provides for an across-the-board 10% increase in the royalty rate paid on those downloads in perpetuity and locks in certain other additional benefits in the calculation of that rate. Almost 1,700 royalty participants – consisting of recording artists, music producers and others – will participate in the settlement and receive both past and future relief as a result. A hearing on the clients’ motion for final approval is scheduled for April 13th.
March 4, 2016 – In a brief two-page order issued today, Federal District Court Judge Jon S. Tigar sided with the firm’s clients and rejected Apple’s efforts to invade Plaintiffs’ iDevice data in a far-reaching class action against it involving the alleged surreptitious uploading of address book data by several highly-popular mobile apps available on the Apple App Store. Apple had sought production of the contacts data from Plaintiffs’ iDevices as well as certain other data files, telling Judge Tigar in its supporting legal memorandum that nothing showed this data “to be highly sensitive, or indeed, private at all” and that there is “no colorable argument for why such data could be considered private.” This filing comes as Apple is engaged in what the U.S. Department of Justice has termed a massive public relations campaign to burnish its privacy “brand” to defeat the federal government’s own effort to crack the iPhone belonging to one of the terrorists responsible for killing 12 people in San Bernardino late last fall. Apple’s appeal to Judge Tigar comes on the heels of a coordinated investigation by Apple and its lawyers into Plaintiffs’ personal and social media life, following the first class certification motion in the matter.
February 11, 2016 – Los Angeles Superior Court Judge Michael Johnson sided today with firm client and cult-rock band FAITH NO MORE, rejecting the motion of Manifesto Records and its President, Evan S. Cohen, to dismiss the band’s case against them as a so-called Strategic Lawsuit Against Public Participation (“SLAPP”). Judge Johnson ruled squarely with the band, accepting its position that the conduct at issue, involving the alleged intentional interference by Manifesto and Cohen with a circa 1989 settlement agreement that the band partnership made with former band vocalist Chuck Mosely, did not “arise from” protected First Amendment activity. (The prototypical SLAPP involves a meritless suit for defamation or similar claims in speaking out against a matter of public interest, for example, a local municipality’s consideration of a real estate development in its area.) In Judge Johnson’s view, the band’s interference claim did “not arise from creative musical works or a matter of public interest concerning FNM. It arises from two business contracts formed in 1989 and 2014.” Following a short hearing, Judge Johnson entered an order denying the motion, meaning the case will proceed forward. A further hearing in the case is scheduled for April.
February 11, 2016 – Sealed materials Apple and Path sought to keep secret are set to be released to the public per a court order entered today by Federal District Court Judge Jon S. Tigar. In a short five-page decision, Judge Tigar found that neither party made the showing necessary to keep certain internal documents – including communications among Apple personnel about the functionality of apps sold on the iTunes App Store – out of the public record in the ongoing case against these two companies and other app developers over their policies and practices in the uploading and harvesting of address book data from users' iDevices. Judge Tigar also declined to redact portions of plaintiffs' memorandum in support of their class certification motion against Apple and Path. Firm partner David Given argued that the effort by Apple and Path to foist these redactions on that document was a naked attempt to sanitize the public record, and opposed it in related papers filed with the court.
January 11, 2016 – Partner Nick Carlin appeared before Federal District Court Judge John A. Kronstadt in Los Angeles today in the false advertising case brought against The Honest Company by the firm in Sept. of last year. Judge Kronstadt set a date to hear The Honest Company’s expected motion to dismiss the firm’s complaint on behalf of a nationwide class of buyers of Honest Company products who say that The Honest Company marketed a host of such products as both “natural” and “effective” when, in fact, they were not. That complaint, recently consolidated with another legal action, was amended last week to add class plaintiffs, Honest Company products and legal claims. In an unexpected development, Judge Kronstadt allowed the firm’s clients to begin discovery into The Honest Company’s policies and practices in connection with their marketing and promotional claims. The case followed public reporting last year about sunscreen products that failed to work as advertised. The Court will hold its next hearing in the case in early May.
January 6, 2016 – Following a lengthy case management conference, Federal District Court Judge Jon S. Tigar agreed with the firm and issued an order today resetting the class certification motion against defendants Apple, Inc. and Path, Inc., in a wide-ranging breach of privacy case against these two companies and 10 other software developers over the alleged surreptitious upload of address book data from users’ iDevices. Judge Tigar will now hear that motion in early April. Defendants sought to delay that hearing on various procedural grounds. Partner David Given made the case that time was of the essence for the over 480,000 iDevice users who downloaded the Path app and had their address book data taken without permission. Until recently, the lawsuit was mired in a series of motions by defendants delaying class proceedings in the case by over three years. If Judge Tigar’s comments were any indication, the case may now proceed in an expedited fashion with additional class certification motions against other app developers expected later this year.