California Supreme Court agreed to hear certified question about employer exit searches in Frlekin v. Apple

The California Supreme Court has agreed to weigh in on the issue of whether time spent on security searches is compensable.  Here is the Court's description of the issue:

Frlekin v. Apple, Inc., S243805. (9th Cir. No. 15-17382; ___ F.3d ___, 2017 WL 3723235; Northern District of California; Nos. C 13-03451 WHA, No. C 13-03775 WHA, C 13-04727 WHA.) Request under California Rules of Court rule 8.548, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. The question presented is: “Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages or bags voluntarily brought to work purely for personal convenience by employees compensable as ‘hours worked’ within the meaning of California Industrial Welfare Commission Wage Order No. 7?”

Justice Chin was recused and did not participate in the decision.  Between this and other issues currently before the California Supreme Court, we will see more changes in wage and hour litigation in the next few years.

District Court denies motion to stay proceedings and compel arbitration while Concepcion is pending

United States District Court Judge Ronald M. Whyte (Northern District of California) denied a motion to compel arbitration, dismiss claims, or stay the matter.  Weisblatt v. Apple, Inc., 2010 WL 4071147 (N.D. Cal. Oct. 18, 2010).  The suit concerns the change away from the unlimited data plan associated with the Apple 3G-enabled iPad.  AT&T Mobility LLC moved to compel arbitration and to dismiss all claims against it.  In the alternative, AT&T Mobility moved for a stay pending a Supreme Court decision in AT&T Mobility LLC v. Concepcion, --- U.S. ----, 130 S.Ct. 3322, 176 L.Ed.2d 1218 (2010) (No. 09-893).  Defendant Apple joined in the motion to stay.

The Court denied the motion, without prejudice, saying:

Given the likelihood that the Supreme Court will speak directly to the class action waiver issue in Concepcion, compelling arbitration at this point would be unwarranted. Even though plaintiffs' arguments regarding the unconscionability of the class action waiver may have less merit under New York law, a Supreme Court decision in Concepcion is still likely to simplify the issue. Accordingly, ATTM's motion to compel arbitration is denied without prejudice.

Slip op., at 3.  The Court went on to hold:

On balance, the court finds that a stay is unwarranted. That said, the claims with respect to ATTM will likely be affected by the Supreme Court's decision in Concepcion.  Accordingly, it makes little sense to begin discovery with respect to the claims focused on ATTM. Also, the court at this time declines to decide whether plaintiff Hanna's iPhone 3GS arbitration agreement now applies to his iPad dispute. In any event, Concepcion is likely to clarify the enforceability of the iPhone 3GS arbitration agreement as well as the iPad arbitration agreement.

Slip op., at 4.  The Court then limited discovery to written discovery against Apple.

Why Apple is full of it

Today Apple held a news conference of sorts.   The ostensible purpose was to respond to concerns about the antenna design in the new iPhone 4.  The real purpose was to see if everyone is as stupid as Apple seems to think we are.

Consider just the following  two contentions about iPhone 4:

  1. It has the best reception of any iPhone to date.
  2. The iPhone 4 drops less than one additional call per 100 drops, when compared to the 3GS (according to AT&T data on call drops)

Apple attempted to use the second contention to describe the antenna problem as an illusory issue, suggesting that the drop rate is so close to the 3GS drop rate that it is just a part of life with a cell phone, and not a design error.  This is false.  Apple touted the antenna in the iPhone 4, and independent testing of the phone has confirmed that, when you aren't touching the call signal zone of death, the iPhone 4 has better reception than its predecessors.  This is not surprising, given the big external antennas on the iPhone 4.

But if the iPhone 4 has a substantially better antenna, it should show a noticeable improvement in the drop rate.  It does not.  Based on Apple's own claims, I have to conclude that the most probable explanation for these observed results is that the external antenna holds calls longer, but suffers precipitous signal failure.  In other words, the design flaw slightly overwhelms the overall improvement in the antenna over the long haul.  You will probably have fewer drops in high signal strength areas, but you will drop more calls in low signal strength areas if you hold the phone like any normal person would.

I have an iPhone 3GS.  It is a very nice phone.  I have looked appreciatively at the iPhone 4.  But I don't like being called an idiot, and my intended upgrade to the iPhone 4 is going on the back burner.  I will give Windows Phone 7 a very thorough examination before deciding whether to give Apple another chance.  This isn't a problem with all smartphones (I also have a Blackberry Bold 9700, which has no such problem - for that matter, neither does my iPhone 3GS).  This is apparently a problem with a phone that was designed first and foremost with materials and appearance in mind.

My advice to Apple:  if you are going to go to the trouble to hold a news conference to address a widely-reported potential flaw in the normal use-case design of one of your flagship products, don't view that time as your chance to offer contradictory assertions as you bitterly deny that anything unusual is going on with your new phone.  It is just insulting.  Just admit it, say you will work on a fabrication correction to the issue, and move on.  A bit of humility goes a long way with the average consumer; Apple evidently has none.  Here's your free rubber bumper (you crybabies).

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.

Dragon Dictation is now available in the iPhone app store

Dragon Dictation, which is a simplified version of the PC software, Dragon NaturallySpeaking, is now available in the iTunes App store.  And, for some limited amount of time, it is FREE.

What You See:

This application is simple, but very nice.  At launch, all you see is a button, with text that reads, "Tap here and dictate."  Go on, tap!  The application immediately begins recording what you say.  When you are finished, press another button, and the speech-to-text conversion occurs.  Once you have text, you can either edit the text or export it to e-mail on your phone, text messaging, or the clipboard.  If you don't like the virtual keyboard, this program offers a way to write a significant amount of text in a hurry.

It Works:

In my testing, it was shockingly accurate.  Admitedly, I tested the application is a quiet room, with no significant background noise.  Dragon Dictation recognized punctuation and "new line" commands.  I'm still amazed at the quality of the recognition from a phone.  A phone.