Technology Revolution For The Legal Field

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The times, they are a changin'.  Alameda County is set to allow the a real-time web-based video feed of a complex personal injury trial.  This event touches on issues of technology, complex litigation and class actions.  Courtroom View Network will webcast the trial and host archived video on its website.  Next week I should have some sample video to share.  Check back here throughout the week for more information and access to video samples.

Here is some background information from Courtroom View Network's press release about this unusual event:

Courtroom View Network, the company that pioneered showing trials of interest to legal and financial professionals over the Internet, is showing live coverage of the welding fumes liability trial, Thomas v. Lincoln Electric Co. (Case No. RG0722122) in Alameda County (Oakland) Superior Court. The Thomas trial marks the first time allegations that a worker became ill from exposure to welding rod fumes has been heard by a California state court jury. The Thomas case is also the first time Courtroom View Network has been admitted to Webcast a trial from Alameda County.

The plaintiffs allege that welding rod manufacturers knew since 1932 that welding fumes are toxic. They also contend that the industry did not adequately warn welders that the fumes could cause various neurological disorders. Thomas alleges he has suffered “severe physical and emotional injuries” from welding fume exposure. The defendants deny all the allegations.

There is also a pending national class action suit involving thousands of plaintiffs who claim they were injured by welding rod fumes. Four “bellwether” trials have been held; one jury awarded $20.5 million in damages and another $2.4 million. The two other trials resulted in no damages being awarded.

Courtroom View Network is showing the Thomas trial on its Web site, www.courtroomlive.com.  The trial is aired in full, without commercials or commentary. The trial will also be indexed for on-demand viewing.

Courtroom View Network brings three years of experience of Webcasting high-stakes civil litigation to the Thomas trial. Courtroom View Network has covered multiple legal proceedings across the country, including such cases as “Jose Adolfo Tellez et al v. Dole Food Company Inc et al” and “Norman Turner v. Chevron Corporation” in Los Angeles Superior Court. Courtroom View Network’s target audience are members of the legal and financial community who require instant, comprehensive coverage of litigation that affects their business.

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Sprint settles early termination fee (ETF) claims and topclassactions.com helps consumers get their share

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The Complex Litigator previously reported on Sprint's win before a jury and loss in a related Court trial on claims arising from Sprint's practice of charging Early Termination Fees (ETFs) to consumers.  Now, Sprint has apparently reached a settlement of those claims, and TopClassActions.com is provinding consumers with a helping hand.  Visit their page explaining the Sprint settlement, and you will be walked through the claim-form process with loving care.

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A Flurry of iPhone Class Actions

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This blog reported in September that Apple and AT&T were facing a flurry of proposed class action lawsuits regarding the performance of the iPhone 3G on AT&T's higher speed network.  On November 12, 2008, another class action suit joined the ranks of those complaining about the iPhone 3G's ability to function correctly on AT&T's 3G network, but this lawsuit also complained that the casings on the iPhone 3G are defective and prone to cracking.  (Slash Lane, Apple sued over hairline cracks in iPhone 3G casings (November 14, 2008) www.appleinsider.com.)

Once again, who knows what will come of the casing complaint.  Apple was reportedly replacing any phone that showed evidence of hairline fractures.  My iPhone 3G is still looking sharp, but I don't (1) drop it, (2) drop it, (3) drop it, (4) put it in my pocket and sit on it, (5) drop it, (6) put it in my backpack and crush it with books, (7) drop it, or (8) catch it with my foot when I drop it and try to keep it from hitting the ground, resulting in it flying through the air and slamming into a brick wall and then falling to the ground.  But that's just how I am with gadgets - overly cautious.

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NebuAd and ISPs named in class action suit over "Deep Packet Inspection"

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Combine class actions and cutting-edge technology (two topics of interest to me in different ways) and you have what I consider to be the ideal subject matter for blog pontification.  On November 10, 2008, 15 consumers filed a putative class action lawsuit against NebuAd, Inc. and certain Internet Service Providers (ISPs) over the use of NebuAd's "Deep Packet Inspection" (DPI) technology.  (Sam Diaz, NebuAd, ISPs, named in class action lawsuit (November 11, 2008) blogs.zdnet.com.)  A copy of the suit is hosted here.

Perhaps you don't know much about computers on a technical leval and are wondering why this should interest you.  Perhaps you know that you can connect to the Internet but don't know much about what happens after electrons fly out of your home over a DSL line or a Cable line or (please, no) a dial-up internet connection.  If you take nothing else away from this post, know that Deep Packet Inspection is evil.  Be horrified by it.  If you hear of such a program coming to an ISP near to you, protest like your life depends on it.

In basic terms, computers find each other on the internet with numerical IP addresses.  You type in the name of a website.  Behind the scenes, your computer asks a Domain Name Server to translate "thecomplexlitigator.com", for example, into a numerical IP address.  Your computer then requests something from that address such as a website homepage.  The request is passed from router to router, out of your ISP's network and into other networks until it finds the server with the numerical address your computer requested.  That server then delivers the packets of data that comprise the reponse to your request.  Each packet has your delivery address in it.  Each packet makes its way to your computer on its own.  Your computer receives the response packets and reassembles the response, be it a webpage or a file download or something else, by putting the various packets back together in the correct order (they are sequentially numbered).

Your ISP knows that you have requested something from a particular site, but it doesn't know the details of what is passing back and forth between your computer and some server somewhere else on the Internet.  DPI, however, is a method by which NebuAd (or other companies) can peek inside packets and examine the contents of your communications in detail.  This gives far more information about your online activities than merely knowing the IP addresses that your computer visits.  "Having an IP address might tell the system what sites you visit on a regular basis, but for sites like Amazon.com, this is less than helpful. DPI gear can see exactly what pages on the site are being accessed, though, and it can scan those pages for keywords to use in building its profile."  (Nate Anderson, Charter "enhances" Internet service with targeted ads (May 13, 2008) arstechnica.com.)

Phorm, another company providing DPI services, has been given the green light to proceed in the United Kingdom.  While the technology is beyond the scope of this blog, Phorm's DPI technology is even worse than NebuAd because it essentially impersonates you on the Internet in a manner that is undetectable to you and the site you are visiting.  Where provided access by ISPs, Phorm will read the URLs visited, the search terms used by every user, and the content of every page visited. The resulting profiles are then sold to advertisers who are salivating at the thought of this highly specific targeting.  ISPs will share in the revenue with Phorm.

Imagine someone following you around a mall, noting every product that caught your eye, even for a moment, and then selling that information to every store in every mall you visit.  Then imagine walking into a different mall and realizing that every store already knew this information about you and actively solicited you to purchase competitors' products that are similar to what you viewed.  Don't let it happen to you!

[UPDATE:  Thanks to the reader who occasionally catches my typos.  I often have limited free time for posting, and proofreading is the first thing that gets sacrificed.]

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More on Brinker under review

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Wage Law also notes that the Supreme Court has GRANTED the Petition for Review in Brinker Restaurant Corporation, et al. v. Superior Court (Hohnbaum).  But Wage Law then asks a very intriguing question:  Will the DLSE update its enforcement manual that was revised immediately to reflect the decision in Brinker?  Wage Law guesses that the current administration will do nothing unless forced to do so by a Court decision.  My initial post on that enforcement decision can be found here.  Perhaps the California Labor Federal Federation will have something to say on a further update to the manual, after their strongly-worded criticism of the initial update.

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Lenders catch a break - Seventh Circuit rejects class-wide rescission under TILA

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With major segments of the financial industry wobbling on the brink (due to really bad judgment by a bunch of idiots turning shady mortgages into the next big investment vehicle), the lending industry caught a break today.  In Andrews v. Chevy Chase Bank (September 24, 2008), the Seventh Circuit Court of Appeals held, in a 2-to-1 decision, that rescissions under the Truth in Lending Act (TILA) were intended to be "a purely individual remedy that may not be pursued" on a class-action basis.  (Ruth Simon, Court Rejects Class Action on Option ARM Loans (September 24, 2008) online.wsj.com.)  This outcome is consistent with California's approach to the issue (Laliberte v. Pacific Mercantile Bank, 147 Cal.App.4th 1, 53 Cal.Rptr.3d 745 (2007)), and reflects what appears to now be the solid majority view as to whether rescission rights are available as a class-wide remedy under TILA.  Having personally pursued that issue through to a Petion for a Writ of Certiorari at the United States Supreme Court in Laliberte, I was hopeful for a while that Andrews might push the pendulum back and generate some interest for review.  Many prognosticators thought such a pro-borrower ruling was likely.  But, in light of the current mess swirling around the banking industry, I'd imagine that such a ruling in Andrews would have simply generated some emergency legislation that eliminated class-wide loan rescissions under TILA.

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Apple and AT&T continue to receive class action grief over iPhone 3G

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The benefit of having one's own blog is the ability to choose the content.  I happen to have an iPhone 3G.  I was one of those thralls to commerce that actually stood in line (admittedly, a short line) to get the Jesus Phone version 2.0.  That's why I am interested in all the class actions that have been filed against Apple and AT&T over the phone's performance and design.

After the iPhone 3G was released, there was a substantial bit of consumer grumbling that AT&T's faster 3G network was not univerally available.  On August 19, 2008, Alabama resident Jessica Alena Smith filed the first know class action complaint yesterday against Apple, "alleging that the new iPhone's 3G performance and reliability has been subpar, despite the claims made by Apple's aggressive marketing campaign."  (Jacqui Cheng, AT&T hit with yet another iPhone 3G lawsuit (August 20, 2008) www.arstechnica.com.)  Around the beginning of September, a second class action lawsuit was filed against Apple and AT&T.  ABC News reported:  "The main issue is that AT&T's 3G network isn't strong enough to support the millions of people who are iPhone 3G users," Michael Rott, a partner with the San Diego-based law firm Hiden, Rott & Oertle, LLP, told ABCNews.com. "Apple violated [California law] by misrepresenting the actual speed and performance of its 8G and 16G models."  (Ki Mae Heussner, IPhone 3G Draws Second Class Action Suit (September 4, 2008) abcnews.go.com.)

A third class action suit was filed in New Jersey.  A fourth, filed this week, alleges that the iPhone does not live up to Apple's and AT&T's claims of speed and performance and that the rear plastic housing in the iPhone 3G is defective, resulting in hairline cracks.  (Chris Foresman, iPhone 3G lawsuit blames Apple, AT&T for cracks, slow speed (September 23, 2008) www.arstechnica.com.)

I don't want to write off these class actions at such and early stage, but it seems to me that connectivity issues will vary widely by location, rendering class treatment over large geographic areas challenging at a minimum.  My ancecdotal experience is that the two software updates issued by Apple both improved the performance of the phone, including its 3G connectivity performance.  And while everyone is lamenting AT&T's terrible 3G coverage, I'm writing this post after connecting with my AT&T 3G modem when my cable internet was having issues tonight.  My iPhone works fine on 3G here, it works fine on 3G in Las Vegas, and it works fine on 3G in New Orleans.  Basically, the iPhone 3G is awesome (unless you have fat fingers, in which case you should look elsewhere and save yourself the pain of typing on a virtual keyboard).

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Media coverage of Martinez, et al. v. Regents of t...

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Martinez, et al. v. Regents of the University of California, et al. (September 15, 2008, Third Appellate District) is starting to generate a fair bit of press/media coverage:

This is just a sample of the dialog and reporting that are developing right now; more commentary will surely follow.

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Civil Rights Lawsuits

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On July 18, 2008, this blog reported on two class actions filed against Google for the alleged sale of "low quality" ads on parked domains and error pages.  The first such suit was filed by attorneys from the San Francisco-based law firm of Schubert Jonckheer Kolbe & Kralowec, including Kimberly Kralowec, author of the established and widely-read blog, The UCL Practitioner.  The second suit was filed six days later by the firm of Kabateck Brown Kellner.

It now looks like Google's woes have spread outside of California.  It has just been reported that JIT Packaging sued Google in a federal district court in Chicago.  (Google Hit with Another Suit For Fraud From PPC Program: Is this Final Straw For Domain Parking? (August 14, 2008) www.thedomains.com.)  The Domains wonders whether this will ultimately result in the demise of the domain registration industry.  If anyone has the power to force a change in the domain registration market, Google is on that short list.

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Commerce websites need to make themselves accessible to visually imparied visitors in a hurry

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The question of whether the Americans with Disabilities Act applies to websites has been simmering for several years.  (Sherry Karabin, Companies, Courts Debate Whether ADA Applies to Web Sites (September 6, 2007) www.law.com.)  The answer is coming into focus.  On Wednesday, after several years of litigation, Target Corp. agreed to a settlement with the National Federation of the Blind that calls for Target Corp. to pay out $6 million in damages and make its website fully accessible to blind customers.  (Evan Hill, Settlement Over Target's Web Site Marks a Win for ADA Plaintiffs (August 28, 2008) www.law.com.)  Judge Marilyn Hall Patel likely moved the parties closer to settlement after ruling that the ADA and California's Unruh Civil Rights Act both apply to businesses' websites.

Other companies have decided to avoid litigation (probably to foster more goodwill with consumers).  Amazon.com and RadioShack both agreed to make changes to their sites without protracted litigation.  Following Target's settlement, I think it is likely that online retailers can expect a rapid surge in litigation of this type.  And frankly, the only reason why I am not 100% certain that this area of litigation will explode is that Internet-linked issues seem to deter some otherwise confident litigators because of an irrational fear of all things digital.

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