Acrobat 9: The 10,000 mile review - Part 1

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Box_acrobat_9_pro_112x112It has been a long time coming, but The Complex Litigator has completed its review of Adobe’s latest version of Acrobat, which is version 9. Because of the length of this review, it will be posted in separate parts, over several days.

The Family of Acrobat 9 Products

According to Adobe, the Adobe Acrobat 9 product line includes 4 distinct products: Adobe Reader, Adobe Acrobat 9 Standard, Adobe Acrobat 9 Pro, and, at the top of the line, Adobe Acrobat 9 Pro Extended. Adobe Reader remains the free program used to view, as opposed to create, digital documents in the pdf format. Adobe Reader is not discussed in this review. As for the rest of the product line, I will focus this review on features that are more likely to be of interest to legal practitioners.

Executive Summary

Everyone is busy. I know that I often jump to the end of product reviews to get to the heart of the reviewer’s conclusions and findings. To make things simple for everyone, I am putting my concluding thoughts at the top of the review. Readers who want more detail about certain features can read through the series of posts that will discuss my impressions of this software.

I whole-heartedly recommend that attorneys using Acrobat upgrade to Acrobat 9. I also strongly recommend that you invest, at minimum, in the Pro edition if you haven’t yet jumped in as an Acrobat user. All variations of the 9.0 Acrobat series add tools that are valuable additions to law office workflow. For example, the ability to split large pdf files by file size, pages, or bookmarks cannot be properly valued until you or your support team have attempted to upload a 50MB pdf file to a court electronic filing system with a 10MB (or smaller) size limit on file sizes. Other features, such as shared document reviews with remote parties via acrobat.com, are likely to be adopted first by the tech-savvy but deserve your attention.

At the higher end of the product line, Acrobat 9 Pro offers additional tools of interest to legal professionals, such as advanced support for the new PDF Portfolio feature. This tool allows the creation of what amounts to an electronic document collection, with cover pages and layout templates. The collection is encapsulated in a PDF wrapper, like a zip file, but with interactive properties for the recipient. In addition, the PDF Portfolio tool can be used to organize and review case documents as a cost-effective alternative to major case management software, such as Concordance or Summation.

Acrobat 9 Pro Extended offers, as a major feature, the ability to covert PowerPoint presentations into a flash-embedded PDF document, complete with narration if desired. The value of this approach is that presentations can be made available online to clients, potential clients, or other professionals as a downloadable PDF that will play the presentation in the newest version of Reader. The incremental cost of choosing to upgrade to Pro Extended is minimal, and I would just spend the extra $40 or so for the Extended version upgrade. If you do not presently have Acrobat, consider whether the PowerPoint conversion feature matters in your professional activities as you choose between the $399 Pro version or the $629 Pro Extended edition.

I also recommend Acrobat 9 for the massive load time improvement. While I will discuss this issue in detail below, it is sufficient for this summary to note that the load time in my experience is probably three times faster. Slow-loading software is irritating. Acrobat 9 significantly corrected a source of irritation that had existed with several of the prior version of Acrobat.

My one word of caution is a consequence of the many features in all versions of Acrobat 9. If you’ve never used Acrobat, jumping into version 9 would probably seem like using MS Word 2007 as your first word processor or Excel 2007 as your first spreadsheet program. Acrobat 9 is a mature software product. I could not begin to relate the number of option settings for various features through Acrobat 9. I suspect that this program would seem somewhat overwhelming to a new user interested in moving beyond default settings. For example, a new user would not easily discover how to activate the ClearScan text smoothing feature when running OCR on a document (Go to Document>OCR Text Recognition>Recognize Text Using OCR, then select Edit and choose ClearScan option). There is nothing that can be done to eliminate this issue. Acrobat 9 is organized well, and has good support features built into the product. Beyond that, you may wish to explore Adobe’s Acrobat for Legal Professionals blog for legal industry-specific tips.

Highly Recommended by The Complex Litigator.

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Comcast (ab)using oligopoly power to interfere with movie downloading

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Comcast came under fire in April 2008 for throttling BitTorrent traffic on their network, even when network congestion was not an issue.  (Daniel A. Begun, The FCC v. Comcast, Round 2 (April 25, 2008) hothardware.com.)  BitTorrent peer-to-peer traffic describes distributed download services where a computer requesting a file (often a large file, like a movie) both downloads tiny pieces of the file from multiple users on the internet and provides other downloaders with access to those same pieces.  The argument from Comcast was that torrent traffic was all illegal content, such as pirated software and movies, but that is no longer true.

Comcast backed off of its packet content-based throttling plan, but phase 2 is here.  "The new system, which is now in place, monitors the amount of downstream traffic a user consumes and not what that traffic is actually composed of."  (Daniel A. Begun, Comcast's New Network Throttling Now In Place (January 6, 2009) hothardware.com, via digg.com.)

Comcast would like consumer to believe that this throttling is about protecting its network from bandwidth hogs, like large file downloaders.  What is more likely the motivation for this second effort at throttling is the desire to keep its the lucrative video-on-Demand service free from competition created by other download services, like Netflix.  This is just more anti-competitive behavior from your friendly neighborhood cable company.  Don't forget that comcast also imposes a 250GB monthly cap on users.  A high definition movie could consume 5-10GB of capacity in one download.  These moves are intended to discourage customers from looking beyond Comcast for video-on-demand.  Somebody ought to do something about this behavior.

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Cable set-top box class action against Time Warner are centralized in New York

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I recently reported on proposed class action suits filed against Time Warner in California and Kansas, among other states.  That background information about those class action can be found in this post, but, in a nutshell, the suits challenge as unlawful the inability of consumers to purchase their set-top boxes outright.  On December 8, 2008, the MDL consolidated six class actions in the Southern District of New York.  (In re Set-Top Cable Television Box Antitrust Litig., ___ F.Supp.2d ___ (December 8, 2008).)

Via ClassActionDefenseBlog.

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Don't be crabby about it, but plaintiffs can absolutely, positively discover class member identities and contact information in California, according to Crab Addison, Inc. v. Superior Court

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Greatsealcal100The Second Appellate Division, Division Seven, has had its hands full with class action-related decisions. In this post, I listed some of the significant decisions to issue from that Division, including Puerto v. Superior Court (2008) 158 Cal.App.4th 1242 and Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554. As luck would have it, Division Seven was asked to decide yet another matter involving the right of putative class members to obtain identity and contact information for putative class members, in Crab Addison, Inc. v. Superior Court (Martinez) (December 30, 2008).

This case is of interest because it includes an extra twist on the basic issue of class member identity discovery. The Petitioner, Crab Addison, Inc. (“CAI”), contended that the trial court should have used, if anything, an “opt-in” notice because it had provided forms to each employee regarding the release of their contact information in non-specific situations to non-specific third parties:

“[CAI] argued that its employees had a heightened expectation of privacy as to their contact information based on forms they signed regarding release of their contact information. Based on this heightened expectation of privacy, CAI claimed, if the court were to consider disclosure of the employees’ contact information, it should do so subject to an “opt in” notice requirement. That is, the employees would be contacted and only those who chose to “opt in” to the lawsuit would have their contact information disclosed to Martinez.

(Slip op., at pp. 3-4.) Noted by the Court at one point in its discussion, these “releases” were not signed by employees at the time they were first hired. They were provided by CAI to its employees after the plaintiff had propounded discovery seeking the identity of the putative class members. (Slip op., at pp. 16-17.) In any event, after recapitulating its Puerto decision in great detail, the Court turned to the last question before it:

“ This brings us to the key question in this case: the effect of the release forms. CAI argues that these forms gave their employees a heightened expectation of privacy in their contact information, requiring that the contact information be given greater protection and making an “opt in” notice procedure proper. We are unconvinced by this argument.

(Slip op., at p. 13.) To answer that question, the Court relied heavily upon the policy pronouncements in Gentry v. Superior Court (2007) 42 Cal.4th 443.

“ Gentry highlights the importance placed on the rights of employees to bring class action lawsuits to enforce their statutory rights to overtime pay. So high is the importance of these rights that courts may invalidate contractual provisions that infringe upon them.

Gentry also highlights the dangers of placing in the employer’s hands the responsibility for notifying employees of the pending litigation and requiring employees to opt in to the litigation. Current employees may decline to opt in to the litigation for fear of retaliation by their employer. This in turn could immunize the employer from liability for violation of statutory wage and overtime requirements. This would violate the public policy protecting employee rights.

(Slip op., at pp. 15-16.)  The Court essentially declared release forms like that used by CAI unconscionable.  Finally, the Court compared the circumstances before it to the facts in Alch v. Superior Court (2008) 165 Cal.App.4th 1412, review denied October 28, 2008, noting that, if anything, the privacy intrusion in Alch was noticeably greater. (Slip op., at pp. 18-19.)

Although it probably won’t, this decision, coupled with those before it, should signal to defendants that the issue of discoverability of class member identity and contact information is settled. Instead, it is more likely that we will see experiments with variations of the Release form used in this case to see if there is any way to thread the needle and force an “opt-in” notice procedure.

A thorough discussion of this decision can also be found at the UCL Pracitioner.

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The Trial Practice Tips Weblog: another blog worth bookmarking

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It has been a while since this site's Blogs of Note section saw an update.  That is a reflection of the demands of work and life, and not a comment on the state of the legal blogosphere, which is exploding with new content.  However, one long-established blog (heading into its sixth year) couldn't escape the recognition that it was due forever:  The Trial Practice Tips Weblog.

Class action litigation is, ultimately, about bringing a case to trial  (though it happens rarely).  To get to that mythical trial, a great deal of preparation is required.  The Trial Practice Tips Weblog offers advice that applies to all phases of civil litigation and encourages lawyers to prepare smarter and better.  Congratulations to The Trial Practice Tips Weblog for its longevity and quality.

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Judges in Los Angeles county will likely lose over $40,000 in county benefits after taxpayer challenge

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Greatsealcal100Salaries for judges in California are "prescribed" by the legislature via constitutional mandate. In Sturgeon v. County of Los Angeles (October 10, 2008) the Court of Appeal (Fourth Appellate District, Division One) all but declared unlawful a substantial benefits package provided by Los Angeles county to its superior court judges. The Court of Appeal reversed a summary judgment granted to Los Angeles county in a taxpayer suit challenging the payments by Los Angeles county. The Court summarized the conclusion:

“Section 19, article VI of the California Constitution requires that the Legislature "prescribe compensation for judges of courts of record." The duty to prescribe judicial compensation is not delegable. Thus the practice of the County of Los Angeles (the county) of providing Los Angeles County superior court judges with employment benefits, in addition to the compensation prescribed by the Legislature, is not permissible. Accordingly, we must reverse an order granting summary judgment in favor of the county in an action brought by a taxpayer who challenged the validity of the benefits the county provides to its superior court judges.

(Slip op., at pp. 1-2.) The benefits in question are not insubstantial:

“In sum, in addition to the salary, benefits and retirement prescribed by the Legislature, in fiscal year 2007 each superior court judge in Los Angeles was eligible to receive $46,436 in benefits from the county. This amount represented approximately 27 percent of their prescribed salary and cost the county approximately $21 million in fiscal 2007.

(Slip op., at p. 3.)  On December 23, 2008, the California Supreme Court declined to review the decision.  Based on the analysis in the opinion, it seems unlikely that the result will be anything but a ruling that Los Angeles must terminate the benefits package.

While the outcome may be constitutionally correct, the result is not ideal.  It is already difficult enough to entice qualified candidates to leave behind lucrative private practice for the often thankless work of the judiciary.  A loss of over $45,000 in benefits won't help.  As maxims go, "you get what you pay for" is one of the habitually accurate ones.  How many judges on the fence will now hit the eject button for the greener pastures of private mediation and arbitration?

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Private actions under the California’s Consumer Credit Reporting Agencies Act are preempted by the Fair Credit Reporting Act

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Greatsealcal100There has been a fair bit of speculation that the weak economy would generate a substantial amount of consumer class action activity in areas of finance, including lending, consumer credit and debt collection.  In California, the door to one such area was slammed shut, absent action by the California Supreme Court or the United States Supreme Court.  In Liceaga v. Debt Recovery Solutions LLC (December 29, 2008) the Court of Apppeal (First Appellate District, Division One) held that the federal Fair Credit Reporting Act completely preemted private rights of action under California's Consumer Credit Reporting Agencies Act. 

“Plaintiff and appellant Rebecca Liceaga, apparently the victim of identity theft, filed a complaint against Debt Recovery Solutions, LLC, a collection agency, for damages that she claims were caused when it furnished to a consumer credit reporting agency information about her which it knew or should have known was inaccurate. The complaint alleged a violation of California’s Consumer Credit Reporting Agencies Act, Civil Code section 1785.1 et seq. (CCRAA). The trial court granted defendant’s motion for judgment upon the pleadings upon the ground that any private right of action provided by the CCRAA is preempted by the corresponding federal Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) (FCRA)).

In this appeal we are called upon to determine whether the FCRA preempts private rights of action as to “furnishers” of wrongful information and whether, if so, Congress has specifically excepted California actions from preemption. We conclude that private actions under the CCRAA are preempted, without exception, by FCRA.

(Slip op., at p. 1.)  The opinion that follows is a fairly standard analysis under the Supremacy Clause.  It is a loss for consumers, since economic downturns and debt collection misconduct have been known to loiter in each other's company.  Actions by California are not preempted, but it is a metaphysical certainty that cash-strapped California won't be keeping up with the prosecution of CCRAA actions at a level consistent with the likely rate of abuse.

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Comcast, Time Warner sued for anti-competitive prohibition on set-top box purchases

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The cell phone companies like providing subsidized handsets because the long-term contracts are worth more to them than the subsidy they provide on the hanset.  Cable companies use their oligopoly position to provide hardware through an entirely different model.  They "rent" consumers the hardware customers need for digital and enhanced services (movies on demand, information services, etc.).  Customers can't buy the set-top box on the open market and still receive the full set of services from their cable provider.  Those fees add up when a customer has multiple televisions on which enhanced services are desired.


As it turns out, consumers are challenging this scheme as an illegal tying arrangement, alleging Sherman Act violations, among other things.  In August 2008, class action lawsuits were filed in, among other states, California and Kansas, challenging Time Warner's practice of preventing customers from purchasing their set-top boxes.  You can read some background on those suits here.

Now Comcast is in the crosshairs.  Ars Technica reports, via Multichannel News, that Comcast was sued in late November for similar anti-competitive practices.  (Nate Anderson, Comcast sued for not selling set-top boxes, Cable-CARDs (December 26, 2008) arstechnica.com.)

Let me just add, on a personal note, that I can't think of a more deserving industry.  Earlier tonight I spent some time unplugging (to reset) the pathetic set-top box that I received from Time Warner after they took my beautiful MOXI boxes from me (while I sobbed uncontrollably).  As I noted in a June 4, 2008 post, Time Warner acquired Adelphia in my part of Southern California.  Time Warner then set about pushing their junky boxes with their junky menu systems on anyone that had Adelphia equipment.  The conspiracy theorist in me thinks that they intentionally fried my two boxes, which both "failed" within a month of each other.  Of course, it could have been bad luck.  But since I can't go out and buy the control box I want, I'll never know.

Suits like these broke the AT&T phone monopoly (back when you couldn't buy a home telephone of your choosing).  If these suits have any effect on the cable industry and its anti-competitive behaviors, I'll be a big fan.
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Marin v. Costco Wholesale Corporation explains how to calculate overtime on certain bonuses

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Greatsealcal100One might be tempted to conclude that all of the novel issues surrounding overtime pay would long ago have been exhausted.  But being that this is a law blog, and seeing as how this blog emphasizes developments in California law, you already know that this is a post about a new issue in overtime litigation.  In Marin v. Costco Wholesale Corporation (December 23, 2008), the Court of Appeal (First Appellate District, Division One), in a case of first impression, reviewed the lawfulness of Costco's formula for calculating overtime pay on semi-annual bonuses paid to hourly employees.

First, some clarifying information is in order.  The bonuses at issue in Marin were "nondiscretionary" bonuses that were paid out based upon the number of hours that certain long-term employees worked during the six months period before the semi-annual bonus dates.  (Slip op., at pp. 1-2.)  This type of bonus is distinguished from discretionary bonuses (such as year-end bonuses issued only when the employer declares a bonus) because nondiscretionary bonuses are, essentially, deferred compensation tied in some way to production (which, in this case, is simply the hours worked).  The Court explained generally how Costco's plan functions:

“Costco pays a formulaic bonus, based on paid hours, to long-term hourly employees. To be eligible for the bonus, paid in April and October, these employees must: (1) have been paid a specified number of hours for continuous service—8,000 hours (approximately four years) for those hired before March 15, 2004, and 9,200 hours (approximately 4.6 years) for those hired after that date; (2) generally be at the top of their pay scale; and (3) have been employed by defendant on April 1 for the April bonus and October 1 for the October bonus. The maximum semi-annual base bonus amount is $2,000 for those with less than 10 years of service, $2,500 for those with 10 to 14 years of service, $3,000 for those with 15 to 19 years of service, and $3,500 for those with 20 or more years of service.

To qualify for the maximum base bonus, the employee must have been paid for at least 1,000 hours in the six-month period preceding April 1 and October 1. Bonuses are prorated for those paid for less than 1,000 hours; the formula for the base bonus is thus: hours paid up to 1,000 ÷ 1,000 × maximum bonus amount.

(Slip op., at pp. 1-2, footnote omitted.)  The Court then explained how the parties calculated overtime owed to certain employees:

“Defendant calculated the overtime owed on the bonus by dividing the employee’s maximum base bonus by the minimum number of paid hours required to achieve that maximum bonus (1,000) to determine a regular hourly bonus rate, and then by multiplying the number of overtime hours worked during the bonus period by one-half of that regular bonus rate. Plaintiffs contend that defendant was required to calculate the regular bonus rate by dividing the base bonus the employee earned by the number of straight time hours worked during the bonus period, and then multiply the number of overtime hours by 1.5 times that regular bonus rate.

For example, under defendant’s formula, an employee who achieves a maximum base bonus of $2,500 by virtue of being paid for 840 straight time hours, 100 overtime hours, and 100 vacation hours during the bonus period is entitled to $125 of overtime pay on the bonus, calculated as follows: $2,500 (maximum base bonus) ÷ 1,000 (paid hours required for maximum base bonus) = $2.50 (regular hourly bonus rate) × 100 (overtime hours) × 0.5 = $125. Under plaintiffs’ formula, the same employee would receive $477 overtime on the bonus: $2,500 (base bonus earned) ÷ 840 (straight time hours worked) = $2.98 (regular bonus rate) × 100 (overtime hours) × 1.5 = $447.

(Slip op., at pp. 3-4.)

Turning to the opinion's analysis, the Court examined Skyline Homes, Inc v. Department of Industrial Relations (1985) 165 Cal.App.3d 239, Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557 and the "Division of Labor Standards Enforcement’s (DLSE) 2002 Enforcement Policies and Interpretations Manual (Manual) distinguishing 'flat sum' bonuses (Manual § 49.2.4.2) from bonuses 'based on a percentage of production or some formula other than a flat amount' (Manual § 49.2.4)" in its search for a framework in which to evaluate Costco's plan. The Court concluded that no source of controlling law specified a formula for calculating overtime on the nondiscretionary bonuses issued by Costco:

“In sum, no California court decision, statute, or regulation governs bonus overtime, the DLSE Manual sections on the subject do not have the force of law, and the DLSE advice letters on the subject are not on point. Consequently, defendant’s bonus plan cannot be deemed to violate California law. While this conclusion is dispositive of plaintiffs’ state law claims, we proceed to explain why in practical effect defendant’s bonus plan comports with the rationales for the pertinent sections of the Manual.

(Slip op., at p. 13.)  The primary reason that Costco's bonus plan caused any difficulty is that it operates as a hybrid of a "production" bonus and a "flat amount" bonus when employees work more than 1,000 hours in the six-month period used to calculate the bonus: "Defendant’s bonus does not fit neatly into either of the categories the DLSE has posited: bonuses for a “flat sum, such as $300 for continuing to the end of the season, or $5.00 for each day worked” (Manual § 49.2.4.2) and bonuses earned each payday “based on a percentage of production or some formula other than a flat amount” (Manual § 49.2.4)." (Slip op., at p. 13.).

After examining the public policies surrounding overtime premiums, and the various incentives created by overtime premiums, the Court concluded that Costco's plan did not run afoul of those concerns in a way that required a court to declare Costco's plan unlawful:  "To recapitulate, defendant’s bonus is in the nature of a production bonus until the 1,000 paid hour threshold is reached, and while the bonus has some qualities of a flat sum bonus on hours paid thereafter, it does not encourage imposition of overtime during the post-1,000 hour period in a way that would support the use of the DLSE’s flat sum bonus formula even as to overtime worked during that period." (Slip op., at p. 17.)

Of note, the Court of Appeal concluded that section 49.2.4.2 of the DLSE's Manual governing "flat sum" bonuses is a void regulation under Tidewater, because it was not  "'a standard of general application interpreting the law the DLSE enforce[s],' and 'not merely a restatement of prior agency decisions or advice letters.'" (Slip op., at p. 12.)

Of further note, the appellate counsel on both sides of this appeal were highly qualified, so I assume that they provided the Court of Appeal with high-quality policy arguments in a case of first impression where even suggestive authority is sparse.

Other blogs noting the decision include What's New in Employment Law.

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Petition for Review denied in Johnson v. Glaxosmithkline, Inc.

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Greatsealcal100This blog briefly reported on a new opinion in Johnson v. Glaxosmithkline, Inc. (September 19, 2008). You can read that post here. A Petition for Rehearing was filed on October 7, 2008. It was denied the day it was filed. On October 14, 2008, the Court of Appeal modified its opinion, without changing the judgment. In a later post, I guessed (not a stretch) that a Petition for Review was coming. The expected Petition was filed with the Supreme Court.  Today, the Supreme Court denied the Petition as part of its weekly conference.

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