Tinder Doesn’t Like “Older” Folks and The Appellate Court “Swipes Left.”

Tinder No Old Guys“Swipe Left”


Tinder, Inc. owns and operates the smartphone-based dating application, Tinder. The original app began, and is still offered, as a free online dating service. It presents users with photos of potential dates. The user can swipe right to express approval, or swipe left to express disapproval. In March 2015, Tinder released a premium service called “Tinder Plus,” which allows users to access additional features of the app for a monthly fee.

Plaintiff, Allan Candelore, commenced this action on behalf of himself and a putative class of California consumers who were over 30 years old when they subscribed to Tinder Plus. The complaint alleges that Tinder charges consumers who are age 30
and older $19.99 per month for Tinder Plus, while it charges consumers under the age of 30 only $9.99 or $14.99 per month for the Tinder Plus features.1 Candelore sued for age discrimination in violation of the Unruh Civil Rights Act (Civ. Code, § 51; the
Unruh Act or the Act) and the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.; the UCL).2 The trial court sustained Tinder’s demurrer without leave to amend, ruling in part that Tinder’s age-based pricing practice did not constitute arbitrary or invidious discrimination because it was reasonably based on market testing showing “younger users” are “more budget constrained” than older users, “and need a lower price to pull the trigger.”

But, as discussed below, the Unruh Act provides broad protection against arbitrary age-based price discrimination. No matter what Tinder’s market research may have shown about the younger users’ relative income and willingness to pay for the service, as a group, as compared to the older cohort, some individuals will not fit the mold. Some older consumers will be “more budget constrained” and less willing to pay than some in
the younger group. We conclude the discriminatory pricing model, as alleged, violates the Unruh Act and the UCL to the extent it employs an arbitrary, class-based, generalization about older users’ incomes as a basis for charging them more than
younger users. Because nothing in the complaint suggests there is a strong public policy that justifies the alleged discriminatory pricing, the trial court erred in sustaining the demurrer. Accordingly, we swipe left, and reverse

1. Overview of the Unruh Act
“Enacted in 1959, the Unruh Act secures equal access to public accommodations and prohibits discrimination by business establishments. Its predecessor, our state’s first public accommodations statute, became law in 1897.” (Harris, supra, 52 Cal.3d at p. 1150.) “The 1897 act was patterned in part after the National Civil Rights Act of 1875 (18 Stat. 335, ch. 114, §§ 1-2) which guaranteed to all persons within United States
jurisdiction ‘the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement . . . .’ ” (Harris, at p. 1150, fn. 3.)

The Unruh Act provides that “[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business
establishments of every kind whatsoever.” (§ 51, subd. (b).) The Act’s “fundamental purpose” is “to secure to all persons equal access to public accommodations ‘no matter’ ” their personal characteristics. (Harris, supra, 52 Cal.3d at p. 1169.) To accomplish this purpose, the Act prohibits “arbitrary discrimination by business establishments.” (In re Cox (1970) 3 Cal.3d 205, 216 (Cox); Sargoy, supra, 8 Cal.App.4th at p. 1043 [the Act renders unlawful “arbitrary, invidious or unreasonable discrimination”].)

Although its text identifies particular kinds of discrimination – such as sex, race, and national origin – this list is “illustrative, rather than restrictive,” and the Unruh Act’s
proscription against arbitrary discrimination extends beyond these enumerated classes. (Cox, supra, 3 Cal.3d at p. 212; Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 730, 732 (Marina Point).) Nevertheless, the enumerated categories, bearing the
“common element” of being “personal” characteristics of an individual, necessarily confine the Act’s reach to forms of discrimination based on characteristics similar to the statutory classifications – such as “a person’s geographical origin, physical attributes, and personal beliefs.” (Harris, supra, 52 Cal.3d at p. 1160.) The “personal characteristics” protected by the Act are not defined by “immutability, since some are, while others are not [immutable], but that they represent traits, conditions, decisions,
or choices fundamental to a person’s identity, beliefs and selfdefinition.” (Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 842–843 (Koebke).)

Because we may reasonably infer that this generalization does not hold for all
members of the respective age classes (see, e.g., Pizarro, supra, 135 Cal.App.4th at p. 1176), we may also infer that Tinder’s pricing model will, in some cases, result in older individuals who earn less than some younger users being charged more than twice what those younger users must pay to access the Tinder Plus features. A blanket, class-based pricing model like this, when based upon a personal characteristic such as age,
constitutes prohibited arbitrary discrimination under the Unruh Act. (See Marina Point, at p. 740 [“ ‘Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply,’ ” italics

Consistent with Marina Point, we conclude Tinder’s alleged discriminatory pricing model cannot be justified by a generalization about the relative incomes and budget limitations of the two implicated age groups.

As alleged, Tinder’s pricing model discriminates against users age 30 and over, and the complaint’s allegations do not compel the finding that this discrimination is justified by a strong public policy in favor of such differential treatment. While we make no judgment about the true character of Tinder’s pricing model, or whether evidence exists to establish a sufficient justification for charging older users more than younger users, we
conclude the complaint’s allegations are sufficient to state a claim for age discrimination in violation of the Unruh Act. The trial court erred in sustaining Tinder’s demurrer to the Unruh Act claim

The Complaint States a Claim for Violation of the UCL

The UCL prohibits, and provides civil remedies for, “unfair competition,” which includes “any unlawful, unfair or fraudulent business act or practice.” (Bus. & Prof. Code, § 17200.) Its purpose “ ‘is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services.’ [Citations.] In service of that purpose, the Legislature framed the UCL’s substantive provisions in ‘ “broad sweeping
language” ’ [citations] and provided ‘courts with broad equitable powers to remedy violations’ [citation].” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 320.)

As discussed, the Unruh Act protects “all persons” from status-based discriminatory business practices that operate to deprive innocent individuals of “full and equal accommodations, advantages, facilities, privileges, or services in all business
establishments of every kind whatsoever.” (§ 51, subd. (b); Marina Point, supra, 30 Cal.3d at p. 740.) Insofar as the complaint sufficiently alleges a violation of the Act and the public policy it embodies, a claim for violation of the UCL has also been stated.

And, with that, the trial court was reversed and the matter remanded for further proceedings.

It ‘s important to note that the court did not preclude Tinder from alleging other, non-discriminatory reasons for its pricing structure. So,we would anticipate a second bite at the apple by Tinder.

Eric Papp, Esq.

Visit us at www.ca-nvlaw.com


Legal Zoom Sued for Offering Legal Services without a Law License

Legal Zoom Sued for offering legal services without a law licenseComplaint Alleges LegalZoom engages in the Unauthorized Practice of Law

In this lawsuit, filed on December 19, 2017, the plaintiffs, a law firm and attorneys that offer United States Patent and Trademark (USPTO) searches and services for its clients alleges that Legal Zoom, an entity not licensed to practice law anywhere in the United States, is, in fact, practicing law without a license.  The complaint alleges that, “LegalZoom.com, Inc. is a Delaware corporation (“LegalZoom”)…[and that] LegalZoom is not a law firm in the United States and is not authorized to practice law in any state. LegalZoom is not a registered or bonded legal document assistant under California Business and Professions Code, sections §6400 et seq.”  The complaint also alleges that, “Defendant Brian S. Lee (“Lee”) is a co-founder of LegalZoom, and a suspended California attorney.”

The gist of the complaint is that, “…LegalZoom has recently boasted that it has filed more than two-hundred fifty thousand (250,000) trademarks before the United States Patent & Trademark Office on behalf of customers. (Forbes article, October 9, 2017,
Exhibit M ). In addition, LegalZoom’s co-founder Brian P. Y. Liu admitted that he created LegalZoom with his co-founder to provide legal services.”

Well, that certainly sounds like practicing law especially when the USPTO states that the unauthorized practice of law includes, “Consulting with or giving advice to an applicant or registrant in contemplation of filing a trademark application or application-related document” as well as, “Preparing or prosecuting an application, response, post-registration maintenance document, or other related document.”  So, at first blush, the complaint appears to have merit and LegalZoom appears to have a big problem. California State Law is clear on the matter as well – California Business and Profession §6125 – Unlawful Practice of Law. No person shall practice law in California unless the person is an active member of the State Bar.

LegalZoom, it is alleged, also illegally practiced law in its Trademark work by, “…provid[ing] legal advice to Plaintiffs by selecting classification and modifying the goods and services description from the template thereby applying specific law to facts” and “LegalZoom provided legal advice as to which trademarks found in the search report may conflict with the PIGGIEBANK trademark.”  The complaint also alleges that LegalZoom hides and/or disguises its involvement in the process so as to not not be detected in its illegal practice of law.  The seemingly endless LegalZoom violations include, “…non-lawyer assistants at LegalZoom prepared pre-filing searches for potentially conflicting marks for DRAWMARKIA mark and PIGGIEBANK without attorney review,” waiving client rights, and giving legal advice on a number of complex topics (much of which, it is alleged, was erroneous advice).

The complaint also alleges that LegalZoom illegally raised venture capital, fails to maintain client trusts accounts, performs no client conflicts checks, among a host of other legal and ethical violations.

The complaint further alleges that LegalZoom competes unfairly and directly with the plaintiffs by misusing and abusing Google Adwords; providing false and misleading advertising; creating misleading and misdirected webpages in offering its services, all to the harm of actual attorneys who must follow strict and stringent rules for the protection of the public (none of which apply to non-attorneys at LegalZoom.)

Given the above claims, the plaintiffs framed up the following causes of action against LegalZoom: 1. DECLARATORY JUDGMENT; 2. UNREASONABLE RESTRAINT OF TRADE IN VIOLATION OF SECTION 1 of the SHERMAN ACT, 15 U.S.C. §1;
NEGLIGENCE; and 7. BREACH OF FIDUCIARY DUTIES.  Of course, the plaintiffs demand a jury trial.   It will be interesting to see if the “celebrity” attorney Robert Shapiro, Esq. shows up in court and what impact, if any, he might have on the Jury’s deliberation on this very interesting lawsuit.

Eric Papp, Esq.

Visit: www.ca-nvlaw.com

When Youtube takes down your video, it’s not necessarily defaming you.

youtube violationBARTHOLOMEW v. YOUTUBE

In this case, the appellate court was  asked to decide whether a musician stated a claim for libel per quod against the popular video viewing Web site, YouTube. When YouTube decided to block access to Joyce Bartholomew’s video, it posted a statement that the video had violated YouTube’s terms of service, a statement which also provided a hyperlink to a list of examples and tips, a list YouTube called its “Community Guideline Tips.” In her complaint, Bartholomew alleged that both the statement notifying users that her video had been taken down and the Community Guideline Tips subsection harmed her reputation. The trial court sustained YouTube’s demurrer to the sole cause of action, libel per quod, without leave to amend. Bartholomew appeals.

Unfortunately, for the plaintiff in this case, because she could not link any of the items in the violation statement directly to her or by innuendo, her claim failed.  Moreover, and for the same reason, simply removing her video with, “the image of a distressed face and the following written statement. . . . ‘This video has been removed because its content violated YouTube’s Terms of Service.’ ” was not itself defamatory because [] the statement, “incorporated the Youtube Community Guidelines, they also incorporate a privacy policy from Google. They also include such requirements as allowing YouTube to update the user’s “YouTube Uploader,” (¶ 4.G), and prohibit such things as using YouTube for commercial purposes without prior written consent (¶ 4.D).”  Again, taken altogether, the Court held, “Given the sheer breadth of the items covered in YouTube’s terms of service, and even taking into consideration Bartholomew’s profession, we do not think that the removal statement can be deemed to subject her to “hatred, contempt, ridicule, or obloquy, or [cause her] to be shunned or avoided” or tend to “injure [her] in [her] occupation.” (Cal. Civ. Code § 45.).

And, with that, the plaintiff’s case was thrown out.

Eric Papp, Esq. 

Visit us at: www.ca-nvlaw.com

Facebook Not Required to Remove Negative Posts about Celebrity Country Artist

facebook suit

If it is True and a Matter of Public Interest, Facebook Does not have to Remove the Post

JASON CROSS et al., Plaintiffs and Appellants, v. FACEBOOK, INC.,

Plaintiffs are Jason Cross, also known as Mikel Knight, a country rap artist, and two entities affiliated with him. Defendant is Facebook, Inc. (Facebook). The dispute arises out of a Facebook page called ―Families Against Mikel Knight,‖ which page, plaintiffs claimed, incited violence and generated death threats against Knight and his team. Plaintiffs sought to have the page removed, Facebook refused, and plaintiffs sued, in a complaint that alleged six causes of action. Facebook filed a special motion to dismiss all six causes of action, arguing that they arose from protected activity and that plaintiffs could not show a probability of prevailing on any of them. The trial court held that the complaint was based on protected activity, that plaintiffs could not prevail on the first three causes of action, and granted the anti-SLAPP motion as to them. The trial court denied the motion as to the three other causes of action—claims alleging statutory and common law claims for violation of Knight‘s right of publicity, along with a derivative unfair competition law (UCL) claim—concluding that Knight had shown a probability of prevailing on them.

In order to promote his work, Knight’s marketing efforts included hiring of independent contractors who would travel throughout the country in vans that featured Knight‘s name and logo, promoting his music and merchandise. On June 9 and 16, 2014, two vans were involved in separate accidents when the drivers fell asleep at the wheel. The accidents had tragic consequences, including two deaths and one serious injury. Shortly after the accidents, a publicly available Facebook page called ―Families Against Mikel Knight‖ was created, apparently by a person (or persons) related to the victims. As to plaintiffs‘ version of what followed, their brief describes it this way: ―numerous commenters began posting statements inciting violence and death threats against Knight and members of his record labels . . . . Because of these comments, numerous members of Mr. Knight‘s promotion team were verbally threatened and physically assaulted. [¶] In addition to these threats and assaults, the unauthorized Facebook page also severely impacted Knight and 1203 Entertainment‘s business deals. In 2014 and 2015, Knight was in negotiations with numerous companies to sign lucrative deals involving his music. But once representatives from these companies, which included Nielsen SoundScan and the Dallas Cowboys football team, reviewed the content of the unauthorized Facebook pages, they backed out of these negotiations.‖ Sometime in late 2014, Knight informed Facebook of the comments and threats. And on June 5, 2015, Knight‘s attorney sent a letter to Facebook demanding that it remove the pages. Facebook refused. A lawsuit followed which alleged six causes of action, styled as follows: (1) breach of written contract; (2) negligent misrepresentation; (3) negligent interference with prospective economic relations; (4) breach of Civil Code section 3344; (5) violation of common law right of publicity; and (6) unlawful and unfair business practices, Business and Professions Code section 17200 (the UCL claim).

Facebook filed a demurrer, and a special motion to strike (anti-SLAPP motion). The anti-SLAPP motion contended that the complaint arose from the exercise of the constitutional right of free speech in connection with an issue of public interest, and that plaintiffs could not show a probability of success for two reasons: (1) the claims were barred by the Communications Decency Act; and (2) even if not, the claims were not viable under California law.

Finding that the lawsuit involved an issue of Pubic Interest and that the Plaintiff failed to demonstrate a likelihood of prevailing on the merits of their claims, the Appellate Court affirmed in part and reversed in part and remanded the case to the trial court with instructions to (1) enter an order granting the anti-SLAPP motion in its entirety and striking the complaint, and (2) hold a hearing, following further briefing, to award Facebook the attorney fees to which it is entitled under section 425.16.

Eric Papp, Esq. 

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Spokeo Needs to Get it Right

spokeo emojiIt May Be Free, But the Info on Spokeo Still Needs to be Accurate

Robins v. Spokeo (Spokeo III) (8/15/2017)

Spokeo, Inc., operates a website by the same name that compiles consumer data and builds individual consumer-information profiles. At no cost, consumers can use spokeo.com to view a report containing an array of details about a person’s life, such as the person’s age, contact information, marital status, occupation, hobbies, economic health, and wealth. More detailed information is available for users who pay subscription fees. Spokeo markets its services to businesses, claiming that its reports provide a good way to learn more about prospective business associates and employees.

At some point, Thomas Robins became aware that Spokeo had published an allegedly inaccurate report about him on its website. Robins then sued Spokeo for willful violations of the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq. FCRA imposes a number of procedural requirements on consumer reporting agencies to regulate their creation and use of consumer reports.1 The statute gives consumers affected by a violation of such requirements a right to sue the responsible party, including the right to sue (and to recover statutory damages) for willful violations even if the consumer cannot show that the violation caused him to sustain any actual damages. (See id. §§ 1681n, 1681o.)

Robins’s suit alleged that Spokeo willfully violated various procedural requirements under FCRA, including that Spokeo failed to “follow reasonable procedures to assure maximum possible accuracy” of the information in his consumer report. (Id. § 1681e(b).) He alleged that, as a result, Spokeo published a report which falsely stated his age, marital status, wealth, education level, and profession, and which included a photo of a different person. Robins alleged that such errors harmed his employment prospects at a time when he was out of work and that he continues to be unemployed and suffers emotional distress as a consequence.

On remand from the Supreme Court of the United States, the 9th Circuit noted that, “Robins is certainly correct that FCRA purportedly allows him to sue for willful violations without showing that he suffered any additional harm as a result. See 15 U.S.C. § 1681n. But the mere fact that Congress said a consumer like Robins may bring such a suit does not mean that a federal court necessarily has the power to hear it.”  As such, the question at hand is whether the inaccurate information, alone, can “establish an injury sufficiently concrete for the purposes of Article III standing.”

To establish such an injury, the plaintiff must allege a statutory violation that caused him to suffer some harm that “actually exist[s]” in the world; there must be an injury that is “real” and not “abstract” or merely “procedural.” (Spokeo v. Robins (Spokeo II) 136 S.Ct. 1540 at 1548-1549 (2016).)

In evaluating Robins’s claim of harm, the Court asked: (1) whether the statutory provisions at issue were established to protect his concrete interests (as opposed to purely procedural rights), and if so, (2) whether the specific procedural violations alleged in this case actually harm, or present a material risk of harm to, such interests.

As to the first question, the Court agreed with Robins that Congress established the FCRA provisions at issue to protect consumers’ concrete interests. The Court previously observed that FCRA “was crafted to protect consumers from the transmission of inaccurate information about them” in consumer reports. (Guimond v. Trans Union Credit Info. Co., 45 F.3d 1329, 1333 (9th Cir. 1995); see also Spokeo II, 136 S. Ct. at 1550 (Congress enacted FCRA to “curb the dissemination of false information”); S. Rep. No. 91–517, at 1 (1969) (“The purpose of the fair credit reporting bill is to prevent consumers from being unjustly damaged because of inaccurate or arbitrary information in a credit report.”).

Second, the Court must determine whether Robins has alleged FCRA violations that actually harm, or at least that actually create a “material risk of harm” to, this concrete interest. (See Spokeo II, 136 S. Ct. at 1550; Strubel, 842 F.3d at 190. Robins must allege more than a bare procedural violation of the statute that is “divorced from” the real harms that FCRA is designed to prevent. Spokeo II, 136 S. Ct. at 1549; Van Patten, 847 F.3d at 1042.)

In the end, the 9th Circuit held, “We are satisfied that Robins has alleged injuries that are sufficiently concrete for the purposes of Article III. As noted, we previously determined that the alleged injuries were also sufficiently particularized to Robins and that they were caused by Spokeo’s alleged FCRA violations and are redressable in court. (See Spokeo I, 742 F.3d at 412–14.) The Supreme Court did not question those prior conclusions, and we do not revisit them now. Robins has therefore adequately alleged the elements necessary for standing.”

The take away is that while all violations of the FCRA may not be enough for liability, in this case, Robins passed the hurdle and Spokeo will likely face a trial on the matter.

Eric Papp, Esq.

Visit: www.ca-nvlaw.com

Private Facebook information Remains “Private” – So Far

Quiet Court in Session“Private” Facebook Posts are “Private” 

FACEBOOK, INC., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; LANCE TOUCHSTONE, Real Party in Interest – (9/26/17)

Here, in Facebook v. Touchstone, a subpoena seeking to obtain “private” Facebook information is at stake. In this regard, real party in interest Lance Touchstone is awaiting trial in respondent San Diego County Superior Court (the trial court) on a charge of attempting to murder Jeffrey R. (the victim). (Pen. Code, §§ 664/187, subd. (a).) After the shooting incident, the victim has been active on his personal Facebook, Inc., (Facebook) account. He posted updates of his physical recovery from the hospital, requesting private messages over the Facebook messaging system. On the public portion of his Facebook page that is visible to all Facebook users, the victim posted updates of court hearings in this case, asking his friends to attend the preliminary hearing. In public posts the victim also discussed his personal use of guns and drugs, and described his desire to rob and kill people.

Believing nonpublic content of the victim’s Facebook account might provide exculpatory evidence helpful in preparing for trial, Touchstone served petitioner Facebook with a subpoena for the subscriber records and contents of the victim’s Facebook account, including timeline posts, messages, phone calls, photos, videos, location information and user-input information from account inception to the present date. Facebook filed a motion to quash the subpoena on the ground the Stored Communications Act (SCA) (18 U.S.C.2 § 2701 et seq.) prohibited disclosure of the victim’s account contents. In an accompanying declaration, counsel for Facebook stated that Touchstone could obtain the requested contents directly from the victim or by working with the prosecutor to obtain a search warrant based on probable cause. Touchstone opposed the motion on the grounds he had a plausible justification for requesting the contents of the victim’s account, he should be allowed to obtain the contents because law enforcement could do so by a search warrant, his constitutional right to a fair trial trumped the SCA, and he could not obtain the contents from other sources because the victim was uncooperative and the prosecutor had not obtained a search warrant. At oral argument, defense counsel represented that the prosecution refused to issue a search warrant for the material and that she has been unable to locate the victim to serve him with a subpoena. The trial court denied the motion to quash and ordered Facebook to produce the contents of the victim’s account for in camera inspection by a certain date.

In the end, the Court held, “The SCA expressly prohibits electronic communication service providers from “knowingly divulg[ing] to any person or entity the contents of a communication.” (§ 2702(a)(1).) This statutory prohibition is subject to limited exceptions, none of which apply. (§ 2702(b)(1)-(8).) As we have discussed, Touchstone’s constitutional challenges to the SCA lack merit. Accordingly, the supremacy clause (U.S. Const., art. VI) prohibits enforcement of the trial court’s order because “California’s discovery laws cannot be enforced in a way that compels [a provider] to make disclosures violating the [SCA].” (Negro v. Superior Court, supra, 230 Cal.App.4th at pp. 888-889.).”

Until the California Supreme Court finally decides the matter in Facebook1, which is pending before the High Court, Facebook “private” information will remain private.

Eric Papp, Esq.

Visit: www.ca-nvlaw.com

Yelp Ordered to Produce Documents Identifying Anonymous Negative Poster

Orange County Court House

Be Careful When Posting Negative Yelp Reviews to “Get Even.” It May Just Land YOU in a World of Legal Trouble.

In this case, Montagna filed a lawsuit against Sandra Jo Nunis and several Doe defendants alleging a single cause of action for trade libel. According to the first amended complaint, Montagna, an accountant, prepared a tax return for Nunis in 2015. Montagna initially quoted Nunis a “minimum” fee of $200 for the preparation of her return, based on her representation that her income was comprised exclusively of wages reported on a W-2 form, and she would require only a simple return. However, both Nunis’ income and the resulting tax return were allegedly more complicated than she had represented. As a consequence, Montagna charged Nunis $400 for preparation of the return, rather than the $200 fee he initially quoted. Nunis allegedly paid Montagna only $200, and refused to pay him more even after receiving “a collection letter” for the balance. And in November 2015, Nunis allegedly went online to the Yelp website and posted the following review of Montagna, using the alias Alex M.:

“Too bad there is no zero star option! I made the mistake of using them and had an absolute nightmare. Bill was way more than their quote; return was so sloppy I had another firm redo it and my return more than doubled. If you dare to complain get ready to be screamed at, verbally harassed and threatened with legal action. I chalked it up as a very expensive lesson, hope this spares someone else the same.”

Montagna alleged the following statements made by Nunis in the review were provably false: (1) the return he had prepared for her was accurate and complete; (2) he had not caused her to hire another firm to redo his work; (3) he was not negligent in preparing her return, such that her refund more than doubled; and (4) no one in his office screamed at, harassed, or threatened her. Montagna allegedly sent a demand to Nunis, asking she retract the Yelp review, or correct the false and libelous statements, and warned her that if she failed to do so, legal action might be taken against her. Nunis, however, allegedly failed and refused to either delete or correct her review and Montagna thereafter filed the lawsuit.

A subpoena was issued to Yelp to confirm the identity of the “anonymous” poster.  Yelp fought the Subpoena on a number of grounds, including “Freedom of Speech of the Poster,” and lost.  The Court held,

“We are unpersuaded by Yelp’s contention because we cannot agree with its characterization of the review. While it is true that pure expressions of opinion are not actionable, “[t]hat does not mean that statements of opinion enjoy blanket protection. [Citation.] To the contrary, where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation. [Citation.]” (GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 156 (GetFugu).)”

And, as such, the Court ordered, “…we conclude the latter finding was sufficient to support the trial court’s order compelling Yelp to produce the subpoenaed documents in the circumstances of this case.”

The lawsuit against the Yelp poster will proceed.

(YELP INC., Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; GREGORY M. MONTAGNA et al.(11/13/2017).)

Eric Papp, Esq.

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The “Black Box” in your car

The "Black Box" in your car. The Event data Recorder (EDR) If you have been in a car accident, be aware that there is a little known or utilized piece of evidence in later model cars, a “black box.” Technically, it is called the Event Data Recorder (EDR). While it doesn’t necessarily record everything, it may record such things as acceleration, deceleration, impacts, braking, if seat belts were used, speed at the time of the crash, steering angle and if the airbags were deployed. This “objective” data, might help to clarify witness statements. However, be aware that in some instances the data can be overwritten. So you might have to move quickly to preserve it.

Eric Papp, Esq.

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How “Secret” is Secret for a Trade Secret?

Top SecretReasonable Efforts to Maintain Secrecy is a Question of Fact
Whether reasonable secrecy efforts were made is a question of fact. (San Jose Const., Inc., 155 Cal.App.4th at 1543 (“[W]hether SJC made adequate attempts to keep its prospective project information secret is for the jury to measure.”); In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 306 (“[W]hether a party claiming a trade secret undertook reasonable efforts to maintain secrecy is a question of fact….”); Mattel, Inc. v. MGA Entertainment, Inc., 782 F.Supp.2d 911, 960 (C.D. Cal. Jan. 5, 2001) (“The determination of whether information is the subject of efforts that are reasonable under the circumstances to maintain its secrecy is fact specific.”). Here, for example, is the office or location in question; is office is “off limits;” do the computers have a password; is access restricted to certain people; are there non-disclosure or confidentiality agreements, even oral ones, in place? Importantly, secrecy efforts need only be reasonable under the particular circumstances involving a specific party, industry and situation. (DVD Copy Control Assn., Inc. v. Bunner (2003) 31 Cal.4th 864, 881(“The secrecy requirement is generally treated as a relative concept and requires a fact intensive analysis.”); see generally CACI No. 4404.) Here, the trade secret plaintiff may not be in the aerospace industry or computer software engineering firm. In this case, we may be talking about small, mom and pop operations. In such a circumstance, whether the security which was implemented by the trade secret Plaintiff was reasonable is a question of fact for the jury.

Eric Papp, Esq.

Can Information That is “Generally Known” Be a Trade Secret?

uniqueWhether Information is Generally Known is a Question of Fact

Whether the subject information is generally known to the public or competitors is a question of fact. (Thompson v. Impaxx, Inc. (2003) 113 Cal.App.4th 1425, 1430 (“The issue of whether information constitutes a trade secret is a question of fact.”).) Again, as the Altavion court held, “…even if some or all of the elements of Altavion’s design were in the public domain and thus unprotectable, the combination was a protectable trade secret if it was secret and had independent economic value.” (Emphasis original) (Altavion, Inc. v. Konica Minolta Systems Laboratory Inc. (2014) 226 Cal.App.4th 26, 47.)

So, the first inquiry is whether or not the information is “generally known” to the public or competitors.  However, even if some aspect is “generally known,” a novel or unique combination of the information may remove it from the “generally known” into a trade secret.

Eric Papp, Esq.