California ballot proposition results at 10:24 p.m.

As of 10:24 p.m., California's statewide ballot proposition results are as follows: 

Proposition	Yes %	No %
20 Redistricting of Congressional Districts	64.9	35.1
21 State Park Funding. Vehicle License Surcharge	39.5	60.5
22 Prohibit State From Taking Some Local Funds	63.9	36.1
23 Suspend Air Pollution Control Law (AB 32)	41.9	58.1
24 Repeal Allowance of Lower Business Tax Liability	39.4	60.6
25 Simple Majority Vote to Pass Budget	53.7	46.3
26 2/3 Vote for Some State/Local Fees	55.6	44.4
27 Eliminate State Redistricting Commission	39.1	60.9
19 Legalize Marijuana in CA, Regulate and Tax	43.9	56.1

Still doomed. 

Current California ballot proposition results

As of 9:29 p.m., the election returns on California's ballot propositions is as follows: 

Proposition	Yes %	No %
20 Redistricting of Congressional Districts	65.6	34.4
21 State Park Funding. Vehicle License Surcharge	38.7	61.3
22 Prohibit State From Taking Some Local Funds	64.3	35.7
23 Suspend Air Pollution Control Law (AB 32)	42.6	57.4
24 Repeal Allowance of Lower Business Tax Liability	38.6	61.4
25 Simple Majority Vote to Pass Budget	53.0	47.0
26 2/3 Vote for Some State/Local Fees	56.4	43.6
27 Eliminate State Redistricting Commission	38.7	61.3
19 Legalize Marijuana in CA, Regulate and Tax	43.1	56.9

All I can say is that California is doomed to quicker death if Proposition 25 passes.  But bankruptcy will be a great practice area here until everyone leaves the state.

Adobe announces Acrobat X and related service enhancements

Earlier today Adobe announced the soon-to-be-released Acrobat X family of products.  Having seen a demonstration of some pre-release features, I can say that Acrobat X looks like it will accomplish several important things from the standpoint of legal practitioners.  For example, the automation tools will increase the ease with which attorneys and support staff process documents.  PDF Portfolios receive several enhancements, including the ability to control the order of documents in the PDF Portfolio (if you haven't used this feature, it is essentially using the PDF as a wrapper around a number of different document types - the documents are packaged much like an electronic binder, complete with a cover page and designer color schemes).

Acrobat.com will add an explicit tool to do what I've been manually using it for since Acrobat.com first went live.  The SendNow tool will allow users to send large files that might not successfully move through e-mail systems.  The SendNow tool will provide delivery receipts, a helpful addition for document delivery.

Personally, I am also interested in the prospect of SharePoint integration.  Combined with improvements to SharePoint functions and improved SharePoint features available through Office 2010, SharePoint might make a very serviceable substitute for the pricey document management services that target the legal industry.

I will be sure to give Acrobat X a test drive when it is available and let you know how quickly you should look to update your stale version of Acrobat.  Here's a hint that doesn't even require a test drive - if you are using Acrobat 7 or below, you must rush to upgrade; if you are using Acrobat 8, you should give some serious thought to upgrading at your earliest convenience.  I'll let you know if you get enough out of the jump from Acrobat 9 to Acrobat X to justify the same recommendation that I give for versions 8 and below.

Curious about Pineda v. Bank of America? See how it went for yourself.

Yesterday the California Supreme Court heard oral argument in Pineda v. Bank of America.  Here is a portion of the Court's official extended summary of the case:

Pineda filed suit against Bank of America, alleging a violation of Labor Code section 203, on October 22, 2007 — more than a year after his injury. The Supreme Court is asked to decide whether his suit was timely filed. Pineda argues that a three-year statute of limitations applies to actions under section 203, relying on the following language: “Suit may be filed for these penalties at any time before the expiration of the statute of limitations on an action for the wages from which the penalties arise.” Defendant Bank of America disagrees, interpreting the same language to apply only when a plaintiff sues for both unpaid wages and section 203 penalties. Because Bank of America paid Pineda his final wages, albeit late, and Pineda now seeks only section 203 penalties, Bank of America reasons that a one-year statute of limitations applies and Pineda’s suit is barred as untimely.

The case was argued as part of an educational outreach session.  The Court heard argument in the Court of Appeal Courthouse in Fresno. Hundreds of students from all 9 counties in the Fifth Appellate District were given the opportunity to see the Supreme Court in operation.

You can view the oral argument at The California Channel.  Jump to about the 7:30 mark in the video to find the start of the matter.

Update on 2010-10-06 20:40 by The Complex Litigator

In my haste to publish, I left out one important detail.  My colleague, Greg Karasik, argued the case for Plaintiff Pineda.

Surreptitious "flash cookies" track web activity, are hard to remove, and are now the subject of class action lawsuits

You likely have heard of "cookies," the small bits of code stored by websites in your browser.  Cookies allow sites to look up your preferences when you return, or present different content to new visitors.  Cookies can improve your internet experience, but they can also be used to track your movements across websites.  Generally speaking, this is often accomplished through "third-party cookies," which belong to an advertising site, and not the website you are visiting.  When you visit subsequent sites that have relationships with an ad network, that network can ask your browser if it is storing one of its cookies.  If it is, the network can assemble a profile of your internet activity.

Many people know that browser settings can be adjusted to reject third-party cookies.  Or, you can clear out all cookies stored in your browser.  Don't you feel safe now that you've cleared all those cookies?

Turns out that clearing cookies isn't enough anymore.  Adobe's flash technology allows sites providing flash video of any sort to store a code snippet on a user's computer when the user views that flash content.  These "Flash cookies" are larger in size than html cookies (100 kilobytes of information in the case of flash cookies, or 25 times what a browser html cookie can hold).  This added size allows for the storage of far more information about a user's internet activities.  Moreover, flash cookies can be used for one particularly despicable purpose - they can be used to restore deleted html cookies.  In other words, you think you actively protected your privacy by deleting all "cookies" (really, just the html cookies), and when a site that can read a flash cookie sees that you used to have a related html cookie on your browser, it can restore that deleted cookie.  Thus the recent trend to refer to these cookies as "zombie cookies," the cookies that cannot die.

This sneaky new form of visitor tracking has resulted in a number of class action lawsuit.  The New York Times reported on several such lawsuits in an article earlier today.  Wired reported on other suits in July of this year.  These days you need your own home IT support just to know whether you are being spied on by the websites you visit.

Worldmark v. Wyndham Resort: an e-mail address is an "address"

In Worldmark, the Club v. Wyndham Resort Development Corporation (August 23, 2010), the Court of Appeal (Third Appellate District) reviewed a case arising under the Corporations Code after a member sought access to membership records of nonprofit mutual benefit corporation Worldmark. Worldmark is a California nonprofit mutual benefit corporation owned by its more than 260,000 members. It owns vacation time share resorts throughout North America. Wyndham is an Oregon corporation that manages the operations of Worldmark's resorts pursuant to a management agreement.

Who cares, you say?  You do!  Consider the facts. A Worldmark member invoked section 8330 to demand that Worldmark "make available" to its members a petition proposing amendments to the corporation's by-laws. When Worldmark refused, the member demanded a right to inspect and copy Worldmark's membership records, including the email addresses of its members, for the purpose of distributing the petition. Email is one of the methods that Worldmark uses to communicate with its members. When Worldmark denied the demand, it proposed the use of a third party mail house to send the petition as a “reasonable alternative” that achieved the purpose in the demand.  The member petitioned and the Court denied the petition.

Who cares, you say again?  You do!  Why?  Because the trial court reversed, holding:

We shall conclude that the term "members'. . . addresses," in section 8330, subdivision (a) (1), which a corporation is required to disclose, is sufficiently broad to encompass email addresses in light of the section's purpose and in light of allied sections that allow a corporation to communicate with its members for the purpose of the corporation's business.

Slip op., at 3-4.  Now you care.  A court just said that an e-mail address is an "address."  I know.  This holding is limited to an interpretation of a provision in the Corporations Code.  But this is where it starts - the recognition that e-mail is now as much a means of communication as a phone number or a physical address.

If you still don't care, I can't help you.

Elena Kagan confirmed as newest Supreme Court Justice

By a vote of 63-37, the Senate today confirmed Elena Kagan as the newest Supreme Court Justice.  Predicting what will come of this is pointless, but several observations suggest that little will change immediately from this confirmation.  Kagan is believed to be liberal, but she replaces John Paul Stevens, the Justice viewed as the leader of the liberal segment of the Court.  Thus, she isn't likely to have an immediate impact on the idealogical balance of the Court unless she proves to be one of the occasional wildcard Supreme Court Justices that come along every so often.  In the long term, her age makes it likely that the seat will remain a liberal seat for many decades.

Supporting online whistleblowers is now subversive activity

A security researcher involved with the Wikileaks web site was allegedly detained by U.S. agents at the border for three hours and questioned about the whistleblower project as he entered the country on Thursday to attend a hacker conference in Las Vegas.  (Elinor Mills, Researcher detained at U.S. border, questioned about Wikileaks (July 31, 2010) news.cnet.com.)  In other words, discover the truth at your own risk.  While I believe that a sovereign nation may need to engage in covert activity for national security and national interest purposes, I don't support the almost unaccountable power used to examine those who learn about secret activities.

Court certifies Apple-AT&T monopoly abuse suit

United States District Court Judge James Ware, of the Northern District of California, certified certain claims in a class action lawsuit alleging that the 5-year iPhone exclusivity arrangement between Apple and AT&T created a monopoly of sorts.  WindowsITPro has additional, interesting comments here.  I feel like such a victim.  Luckily, they didn't get my money for the iPhone 4 yet, which apparently has a bit of an issue with its exposed antennas.

Video available from Federalist Society program on Business & Professions Code section 17200

On May 19, 2010, I participated in a panel discussion presented by the Federalist Society.  The theme of the panel discussion was "California's 17200 -- Its Use and Abuse."  The panelists were:

• Jeremy B. Rosen, partner, Horvitz & Levy
• William L. Stern, partner, Morrison Foerster
• Shaun Martin, Shaun Martin, Professor, University of San Diego School of Law, and,
• me

The Hon Michael Orfield (Ret.), served as the panel moderator.

Video of the panel discussion is now available on youtube here.

It was an entertaining discussion.  There was some irony in the fact that the defense-oriented panelists argued for more government enforcement and the plaintiff-oriented panelists argued for less government enforcement and more private-sector regulatory enforcement.  Fun times.