How many times have you answered your phone only to find out that someone has ‘pocket dialed’ you by accident. Suddenly you find yourself privy to a conversation that really is none of your business…but you listen because…heh—you’re human! And you’re wondering the whole time, “could I go to jail for this?” Ok, not really, but you clearly feel like you’re eavesdropping…
Well, the law’s a funny thing, at the risk of stating the obvious. Take the recent case of an executive, one James Huff, who accidentally called his assistant and for the next 90 minutes not only did she listen to the call, she took notes. When Huff found out he sued her but the law ruled in her favor…finding that Huff did know how to prevent this kind of thing from happening and therefore had no expectation of privacy. What? Seriously?
Ok, the backstory, short version—well, shortish—in October 2013, Huff traveled to Bologna, Italy for a work conference along with his wife Bertha, and a colleague. At the time, Huff was chairman of a local board that oversees the Cincinnati/Northern Kentucky International Airport (CVG). At some point on their trip the two men went out onto a hotel balcony to discuss work-related issues and personnel matters. Huff calls his executive assistant Carol Spaw, on her cellphone, to ask her to make dinner reservations. (Wouldn’t an email have been a better idea—on a number of fronts?) The call didn’t go through so Huff calls Spaw on her office phone. All good there. BUT—a few moments later Spaw’s cell phone goes off and low and behold it’s Huff’s phone, which redialed the number and got through. That call was 91 minutes, and Huff was not aware of it—at all.
Spaw listened to the entire conversation (not a busy day I’m guessing) Huff was having with his colleague. Oh—BTW—Spaw realized her boss had no idea he’d redialed her and the call had gone through. Her interest got piqued when she heard the two men discussing the possible replacement of Spaw’s boss. Oh great.
Spaw believed that the conversation illustrated the two men’s attempt to unlawfully discriminate against her boss, and she felt that it was her duty to take handwritten notes of the call. She instructed another colleague to do the same. Wow.
About 70 minutes later the balcony meeting between the two men ended and Huff, still blissfully unaware that his cell phone is broadcasting his every word and deed, goes back to his hotel room and has a conversation with his wife. (Thank god that’s all they had). Huff and his wife discussed the conversation Huff had just had with his colleague and some personal matters as well. Spaw—still on other end back in Kentucky, managed to record the last four minutes of the conversation on an iPhone that was brought to her. She then shared the notes and the recording with other board members. Oh holy sh*tty sh*t sh*t!
Now, I would have thought that Spaw had violated the law but apparently not. Cut to a couple of months down the road and the proverbial sh*t hits the fan back in Kentucky. The Huffs sued Spaw for unlawfully intentionally intercepting the call and disclosing those interceptions, an alleged breach of the 1968 wiretap law known as “Title III.”
Are you sitting down? Spaw won summary judgment in January 2014. Predictably, the Huffs appealed. The District Court in Kentucky found that the Huffs did not have a reasonable expectation of privacy in that circumstance.
The court found that Huff could not sue Spaw for violating a federal wiretap law, largely due to the fact that he was aware of steps that he could have taken to prevent a pocket dial, such as locking the phone, which he failed to do.
“James Huff did not employ any of these measures,” the court concluded. “He is no different from the person who exposes in-home activities by leaving drapes open or a webcam on and therefore has not exhibited an expectation of privacy.” That seems a little far-fetched to me.
Interestingly, the Sixth Circuit overturned the portion of the suit pertaining specifically to Bertha Huff.
“Because Bertha Huff made statements in the privacy of her hotel room, was not responsible for exposing those statements to an outside audience, and was (until perhaps the final two minutes) unaware of the exposure, she exhibited an expectation of privacy,” the judges found.
The appellate court agreed with the portion of the lawsuit pertaining to James Huff (dismissing it), but it reversed the lower court’s decision and sent back Bertha Huff’s portion for review.
The experts are concerned about this ruling, specifically about the role technology will play in civil liberties violations going forward, and how much onus is placed on the individual to protect their rights to privacy.
Regardless, the bottom line is Huff could have taken less than a minute to lock his phone and the whole thing would never have happened. While technology is changing our lives, we haven’t changed with it and human nature is—well—predictable—most people would probably listen in.
As for the Huffs pursuing any further action, their attorney, Aaron VanderLaan, wrote: “We have not made a final decision as to seek further review by an en banc panel of the Sixth Circuit, and we are not aware of whether Ms. Spaw will seek further review.”
Now, where’s that lock function on my phone…
Priceline’s “Name Your Own Price” …may be rebranded as “Name Your Own Settlement” if this goes to court. The internet-based hotel booking company is facing a proposed consumer fraud class action lawsuit alleging it conceals known, mandatory resort fees from “Name Your Own Price” bidders, misleading thousands of customers about the actual price of their bookings. Something to do with hidden resort fees—ringing any bells folks?
Filed in in Connecticut federal court by lead plaintiff Adam Singer, the Priceline lawsuit contends that travelers who use Priceline’s “Name Your Own Price” feature to bid on hotel rooms, end up paying undisclosed fees to Hilton and other hotels on top of what they offered.
“This conduct renders the ‘Name Your Own Price’ option illegal and deceptive,” the complaint states. “Due to defendant’s conduct, a consumer is not ‘naming his own price’ for a hotel stay at all.”
In the complaint, Singer states he used the “Name Your Own Price” option to find a hotel in Puerto Rico within his budget. Priceline matched him with a Hilton property and presented with a contract, which quoted his offer price plus $60.68 in taxes and fees, which he accepted.
However, the Priceline lawsuit contends that when Singer went to check out of the property, the hotel had added $66 in mandatory resort fees in addition to the price he had agreed to pay through Priceline, prior to his stay. The lawsuit alleges that Singer was not informed in advance of those fees as Priceline didn’t adequately inform him that any resort fees would be included in the total price for his accommodation.
“Priceline could easily have programmed its Name Your Own Price bidding system to account for resort fees which it knew full well would be charged and thus match consumers only with hotels truly willing to accept their bid amounts,” the lawsuit states. “Instead, it affirmatively chose to delete resort fees from ‘total’ ‘taxes and service fees,’ in order to make it appear to consumers that they were getting a better deal than they truly were.”
The lawsuit further claims that Hilton benefits from Priceline’s deception because it charge guests, after the fact, more than they would knowingly consent to pay.
“By the plain terms of the Priceline.com booking contract, Hilton had no right to charge mandatory resort fees on that booking,” the complaint states. “By recovering an additional, baseless fee in the form of the resort fee, defendants are able to reduce its advertised room rates by the amount of the resort fee without any negative impact when price-conscious consumers compare rates across hotels.”
Singer is seeking to represent a class of Priceline “Name Your Own Price” customers allegedly misled by the booking site’s silence on resort fees and a subclass of consumers who booked Hilton stays that cost more than expected for that reason.
The case is Singer v. The Priceline Group Inc. et al., case number 3:15-cv-1090, in the U.S. District Court for the District of Connecticut.
They’re Baaaack...Here’s one for the record books, apparently, and likely in more ways than one.
A $388 million settlement has been agreed between JPMorgan Chase and a group of investors who alleged the bank misled them regarding the level of risk associated with certain investments. Specifically, the securities lawsuit refers to $10 billion worth of residential mortgage-backed securities (MBS) sold by JP Morgan Chase before the financial crisis of 2008. Remember those?
The lawsuit was brought on behalf of investors and two pension funds, namely Laborers Pension Trust Fund for Northern California and Construction Laborers Pension Trust for Southern California. In the lawsuit, they alleged the values of their investments were severely impacted by the losses incurred on the mortgage bonds during the financial crisis. (Whose investments weren’t impacted by MBS fraud?)
According to a statement issued by JP Morgan Chase, this settlement represents, on a percentage basis, “the largest recovery ever achieved in an MBS purchaser class action.” And that’s something they’re proud of?
Foot Locker Gets Clocked. Here’s a long-deserved bit of good news for Foot Locker employees. Final approval of a $7.1 million settlement has been granted, ending a long-running wage and hour class action against Foot Locker Inc. The lawsuit, brought by Foot Locker workers, alleged the retail shoe chain violated the Fair Labor Standards Act (FLSA).
Specifically, the plaintiffs alleged that Foot Locker workers were not compensated for maintenance work and time spent working before opening and after closing. Further, the lawsuit claimed that company employees were forced to do work off-the-clock or have their paid time cut in order to complete their tasks.
According to the allegations, Foot Locker directly tied the compensation of its store managers to its labor budget set by the corporate office, in order to enforce the compensation policy. If the managers exceeded the budget, they were punished, according to the original complaint filed in 2007 by named plaintiff Francisco Pereira.
The nationwide FLSA class includes all current and former Foot Locker employees who worked at least one hour from March 2007 to March 2010 in the US as a retail employee but not as an assistant store manager or higher. A separate Illinois class includes any retail employee excluding assistant store managers and above who worked in the state from October 2005 to May 2011.
The case is In Re: Foot Locker Inc. Fair Labor Standards Act (FLSA) and Wage and Hour Litigation, case number 2:11-md-02235, in the U.S. District Court for the Eastern District of Pennsylvania.
Ok – That’s a wrap folks…See you at the Bar!
A family affair, and a tragic one at that, is keeping the Fischler family attorneys busy. One murder, one suicide and two lawsuits, if I’ve got it right. The whole mess reads like a Greek tragedy. In fact, Daniel Gotlin, defense attorney for Jonathan Schwartz, the oldest son and alleged murderer of philanthropist Barbara Weiden Schwartz told the press, “This is a family tragedy.” That’s putting it mildly, I think.
The public saga began in 2011, when Barbara Weiden Schwartz Fischler was allegedly stabbed to death with a kitchen knife by Jonathan, who happens to be schizophrenic. Shortly thereafter, Schwartz–Fischler’s second husband (that would be Fischler) almost obliterated her $5.8 million estate on risky short-sales (is there such a thing as a safe short sale?) Then, a little while later, her second son committed suicide.
Recently, Jonathan was recommitted to the Department of Health and Mental Hygiene after results from his psychological testing showed he is not well enough to stand trial for the murder of his mother. “He has a history of psychological illness,” said Gotlin. In March, the 44-year old son was sentenced to an upstate psychiatric hospital after a jury found him “not criminally responsible by reason of mental disease” for the murder.
According to media reports, mother and son got into a row over her smoking habit. (Usually that’s the other way around). Out came the kitchen knife, which Jonathan apparently used to repeatedly stab his mother.
Now, Jonathan’s father, Steven Schwartz, is suing his son, The New York Post reports. Schwartz, who divorced Fischler years ago, is also suing on behalf of the second, deceased son, Kenneth Schwartz, who committed suicide in 2013 after learning that his stepfather, Burton Fischler, had nearly wiped them off the financial map. FYI—Barbara was the daughter of Norman Weiden, a financial guru who ran a charity which his daughter took over after his death.
Still with me?
By 2013, only about $700,000 was left in Barbara’s estate. Looks like somebody else made a killing here.
Last year, the management of Barbara’s estate was removed from the care of 63-year old Burton M. Fischler to husband number one. Steven Schwartz is a retired Merrill Lynch executive so one may hope he knows better. If all goes according to plan, the civil suit will provide Steven Schwartz with the younger son’s share of whatever money he may be awarded in his lawsuit against son number one.
Kenneth Schwartz committed suicide at 39, beside himself over his potential financial situation and grief, presumably. “For the last decade of her life, my mother generously paid all my bills and was my sole source of financial support, so much so that I rarely received mail at my own apartment,” he stated in his lawsuit against his stepfather.
“Believing that I would probably inherit a few million dollars from my mother, reassured me that in the midst of the tragedy, I would at least have enough money to live on,” he stated in the suit.
In January 2013, about six months after learning that he could no longer count on his mother’s support, Kenneth killed himself. “I had lost both my brother and my mother to an act of unspeakable violence that I will never understand,” Kenneth wrote to the court six months before he committed suicide.
Adding to all this misery is the fact that Barbara was “almost completely housebound and largely bedridden with many health problems, including battles against addiction to the many painkillers she was prescribed for her medical problems,” according to Kenneth’s lawsuit.
Prior to killing his mother, Jonathan lived down the hall in the family’s luxury apartment. According to his brother, he was a total recluse, remaining locked in his room even when Kenneth came to visit.
The stepfather also had his problems. “Burt worked as a wealth management advisor, had been married twice before, and had relatively few financial resources of his own,” Kenneth stated. His stepfather approached Kenneth just days after Barbara’s death, asking him to relinquish control of his mother’s estate, which, against his better judgement and his deceased mother’s wishes, he did. Now the picture gets a little clearer. Barbara had signed a post-nuptial agreement with Burton that prevented him from overseeing her finances after her death.
According to court documents, Burton claimed that his wife “wanted to take higher than average risk” and said he was playing the market with a “long-term strategy.” And now there’s no one left to disprove that.
Ah but for the best laid plans of mice and men, and for the attorneys who must make sense of it all.
Save Money. Live Better…? Words to live by…except for…Walmart got hit with a discrimination class action lawsuit this week, filed by an employee alleging the company denies its staff benefits for same-sex spouses. Filed by Jacqueline Cote, the lawsuit claims that Walmart repeatedly denied medical insurance for her wife before 2014, when the retail giant started offering benefits for same-sex spouses.
The back story…Cote and Simpson met in 1992, while they were both working at Walmart in Augusta, Maine. They subsequently moved to Massachusetts and remained employees of Walmart. They were married in May 2004, days prior to the legalization of same-sex marriage in that state.
In 2007, Smithson quit her job at Walmart to take care of Cote’s elderly mother. As a result Cote attempted to have Smithson added to her employee health plan the following year.
In 2012, Cote’s wife was diagnosed with ovarian cancer, which resulted in the couple incurring $150,000 in medical bills.
According to the proposed Walmart class action, Cote tried to enroll her spouse online, but the system wouldn’t let her proceed when she indicated her spouse was a woman. When she sought an official explanation, she was told that same-sex spouses were not covered. Cote continued to try and have Smithson enrolled in her Walmart employee health plan every year thereafter including the year Smithson was diagnosed with cancer.
The lawsuit seeks damages for the couple and any other Walmart employees who weren’t offered insurance for their same-sex spouses. A federal commission concluded that Walmart’s denial amounted to discrimination and said in May that Cote could sue.
Although no other Walmart employees are named in the suit, it seeks damages for those who come forward. Further, the suit seeks damages for Cote and her wife, Diana Smithson, and it asks Walmart to acknowledge a legal responsibility to continue offering benefits for same-sex spouses.
What’s Gerber been Puffing On? Gerber, famous maker of healthy baby foods and an instantly recognizable household brand, got slapped with a consumer fraud class action lawsuit alleging the company is misleading parents into buying a product that is far from nutritious. The product? Graduates Puffs food for toddlers. Puffs? Really?
According to the Gerber Graduates lawsuit, the packaging for Puffs is dominated by pictures of fruit or vegetables: juicy peaches, slices of ripe banana, nutritious sweet potatoes. But the ingredients list belies these pictures. Banana-flavored Puffs contain no bananas, only a trace amount of banana flavoring. Sweet potato-flavored Puffs don’t contain actual sweet potatoes, or any other vegetable, only miniscule amounts of sweet potato “flavor.” The closest thing to a fruit or vegetable in Puffs is a very tiny amount of dried apple puree, powder, in other words.
The suit alleges that parents trying to buy healthy and nutritious snacks for their toddlers have trusted Gerber’s reputation and package presentations, paid Gerber’s premium prices based on that reputation, and, in exchange, unwittingly provided their toddlers with empty calories. Far from the healthy treat the labels and Gerber’s reputation suggest, Puffs are little more than flour and sugar. Doesn’t sound like brain food to me…
The lawsuit was filed in the Superior Court of California, San Francisco County, and is titled Gyorke-Takatri, et al., v. Nestle USA, Inc. and Gerber Products Company.
Huge Settlement for a Huge Loss…and a cautionary tale in more ways than one…a Florida jury awarded a $24,057,83.00 verdict in a wrongful death lawsuit involving The Riverside Hotel in Fort Lauderdale. In 2012, a newlywed couple were visiting the hotel on their honeymoon. They were killed by a speeding car. The lawsuit alleged that the Riverside Hotel had actual or constructive knowledge that motor vehicles regularly and routinely exceeded the posted speed limit in proximity to the hotel property.
Michael and Alanna DeMella, who were seven months pregnant, checked into the hotel and went to the pool. According to media reports they had stepped into the cabana restroom moments before the incident. Mrs. DeMella was killed on hotel property while in an on-site pool cabana, by Rosa Kim, who drove into a structure on hotel property utilized by hotel guests in the pool area as she used excessive speed on the adjacent road.
In hearing the evidence, the civil jury entered a verdict that found the Riverside was 15% responsible for the tragedy and that they should pay that portion of the verdict.
That’s a wrap folks…See you at the Bar!
When the going gets tough the tough get going—off to the public water fountain, in this case. California resident, Tom Selleck, of previous Magnum PI fame and lately Blue Bloods, decided to tackle the drought conditions in a creative, if not arguably illegal manner and made use of a public water hydrant to irrigate his parched farm in Southern California.
Selleck owns a 60-acre ranch and avocado farm in nearby Hidden Valley. The drought, which has been ongoing for the past four years, is likely decimating his crops. While there could well be a lot of other people in the same boat, who either didn’t come up with idea or didn’t have the funds or balls to pull it off, Selleck did, and it didn’t go unnoticed.
What exactly did he do? He hired a commercial water tanker to fill up from a public hydrant in Thousand Oaks, CA, at least a dozen times over a two year period. Nice. All this water poaching began in 2013, apparently.
It is, or was, a very wild-west kind of move on Selleck’s part. Or maybe it’s just called looking after your own a$$. However you want to call it, officials hit him with a lawsuit accusing him of pilfering water from a public hydrant to irrigate his farm.
According to the civil complaint filed by the Calleguas Municipal Water District in Ventura County Superior Court, the District documented seven separate occasions when a water tanker showed up, filled up and left. The complaint stated that the water was taken to “the Hidden Valley area, where the Selleck property is located,” between Sept. 20, 2013, and Oct. 3, 2013.
The district sent a cease-and-desist letter to Selleck and his wife, Jillie Mack, on Nov. 26, 2013, but all for nought, as the same truck again siphoned water on Dec. 16, 2013, according to the lawsuit. Ok, that takes some cojones. And not in a good way.
According to officials, Selleck’s ranch is located outside the Calleguas district, so he should be using his own groundwater supply. I’m betting he already thought of that.
Weirdly, the lawsuit is not about the money, apparently. The value of the water was next to nothing, that is in the eyes of the district. The actual cash value the district could reportedly sell 325,000 gallons of water for is as low as $1,200, according to Eric Bergh, manager of resources for the Calleguas Municipal district. The district was asking Selleck to pay $21,685.55 for investigators it hired and court costs. So, effectively, he got away with taking the water?
But low and behold—they’ve reached a settlement. I’m guessing it’s got something to do with the publicity—not the kind anyone wants, let alone a 70–year old actor—who plays a good guy on TV.
Interestingly, the local sheriff’s department investigated the claims but couldn’t establish that a crime had taken place, according to Capt. John Reilly. So stealing public property isn’t a crime? According to Bergh, “It’s about equity and fairness and protecting the resources for the people who are paying for it.” Isn’t that why we have laws? Or am I missing something here…