ZH Law Announces Apple Adapter Settlement

Zeldes & Haeggquist, LLP is proud to announce the settlement of a nationwide consumer class action against Apple, Inc.   You may be able to participate in this settlement which has both a cash refund component and a replacement program, so please take a moment to review the following.   Zeldes & Haeggquist has been appointed class counsel in this case.  Plaintiffs brought this case on behalf of a proposed nationwide class of Apple MacBook & MacBook Pro owners. Plaintiffs allege that the “MagSafe” adapter, the power cord which comes with the MacBook and MacBook Pro computers, is defectively designed and manufactured. These alleged defects may cause the cable of the adapter to fray, spark, overheat, melt, cease functioning and occasionally catch fire.  Apple disputes these claims.

In September 2011 the federal court in the Northern District of California granted preliminary approval of a proposed settlement of this case.  Please consult this website for more information on how you can file a claim, and additional information about the settlement.  You can call the claims administrator at 888-332-0277.  You also can call us for more information.

The settlement will provide cash payment for purchasers of MagSafe adapters that meet certain requirements, and it will also provide replacement adapters at no charge.  The current deadline to submit a claim is March 21, 2012.

Congress says both employers and employees will benefit from these new regulations. From an attorney’s standpoint Condon McGlothlen from the firm Seyfarth Shaw said ”More disability lawsuits can be expected to be filed and importantly, those lawsuits wil be become much harder to defend against at an early pleading stage.” A rise in disability lawsuits in 2011 may not be directly attributed to these new regulations; Bloomberg reports that 25,000 disability discrimination claims were filed in 2010 up from 21,400 in 2009. Gary Phelan an attorney with Cohen and Wolf whose clients are mostly employees, said on the Law Blog that “in those cases where there are close calls about where an individual meets the definition of disability, more employees will be covered under the ADA.” If these  new regulations would be detrimental to businesses why would the chamber off commerce sign off on the ADAAA? Michael Eastman, director of labor law for the chamber of commerce told Bloomberg that the new disability terms should not harm companies.

Even with Congress and the chamber of commerce’s assurances, companies should be gearing up for new disability claims from employees now these regulations are in act.

The California Supreme Court has made clear, however, that the “continuing violation doctrine” may apply to a claim for retaliation, which allows liability for unlawful employer conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period.  But the Fourth District Court of Appeal in Trovato v. Beckman Coulter, Inc., 2011 WL 18819 (Jan. 5, 2011), recently held that if a party wishes to rely on the continuing violation doctrine, they better be prepared to offer competent evidence that the conduct occurring outside of the statute of limitations is in fact sufficiently connected to the unlawful conduct within the limitations period. 

In Trovato, according to the undisputed evidence, the last act of alleged harassment and retaliation against the employee, occurred on or about January 31, 2007, when the alleged harasser gave the employee her performance review.  Therefore, the employee’s administrative complaint had to be filed within one year from January 31, 2007.  The employee’s administrative complaint, however, was filed with the DFEH on May 8, 2008, more than three months too late. 

In attempting to use the continuing violation doctrine, the employee submitted a conclusory declaration that she continued to report to the alleged harasser after January 31, 2007, until she resigned in May 2007, and that this alone was sufficient to connect it to the unlawful conduct within the limitations period.  The court found that the employee did not identify any specific acts of harassment or retaliation occurring after January 31, 2007.  In contradiction to the conclusory statements in her declaration, the employee had earlier testified at her deposition that no specific acts of harassment or retaliation occurred after January 31, 2007.  The Court found that it was “clear the statute of limitations ran on her claims.”

What does this mean?  If you are planning on relying on the continuing violation doctrine, you better be prepared to back it up with competent evidence that the conduct occurring outside of the statute of limitations is in fact sufficiently connected to the unlawful conduct within the limitations period.

 Sony knew about, and concealed, Sony’s defective trackpad

 The Court found that “Plaintiffs have alleged that Sony knew about a material fact, the defective trackpad, from numerous consumer complaints, but concealed that information from Plaintiffs.”   Order at 8.  Plaintiffs also alleged that “if they had known about the defect, Plaintiffs never would have purchased the notebooks at the prices they paid.”  Id.

Plaintiffs’ allegations should be accepted as true

Throughout the Opinion, the Court rejected defendants’ attempts to dispute the factual allegations of the Complaint, finding that Plaintiff’s well-plead facts must be accepted as true.  The “Court must accept the truth of all well-pleaded factual allegations, draw any reasonable inferences from those allegations, and construe the complaint in the light most favorable to the plaintiff.”  Order at 3.  Accordingly, the Court rejected defendants’ contentions that the defect may have been caused by problems with the software, rather than the trackpad.  Order at 4.

Breach of express warranty claims are upheld

The Court upheld Plaintiffs’ breach of express warranty claims, even though one of the plaintiff’s computers was still within the warranty period, because Plaintiffs sufficiently alleged that Sony and Best Buy had “significant opportunities to repair or replace the notebooks and failed to do so in breach of their obligations under the warranties.”  Order at 4.

 Privity was not required for Plaintiffs’ breach of implied warranty claims –

 Defendants Sony and Best Buy argued that Plaintiff’s breach of implied warranty claims should be dismissed because Plaintiffs purchased the VAIO notebooks from Best Buy, rather than Sony, and thus there was no “privity of contract.”  The Court rejected Defendants’ contention because Plaintiffs had alleged that they were a third party beneficiary of a contract between the manufacturer, Sony, and third-party retailer, Best Buy. Order at 5. 

 Sony VAIO notebooks were not fit for their intended purpose –

The Court found that Plaintiffs sufficiently alleged that the VAIO notebooks were not fit for their intended purpose because the trackpads caused numerous problems rendering the computer unusable.  The court rejected Defendants’ argument that the notebooks could still be used for their intended purpose if used with an external mouse, finding that this assertion “contradicts the allegations of Plaintiff’s complaint.”  Order at 6.

 Court upheld Magnuson-Moss Warranty Act claim

 The Court rejected Sony’s contention that the Magnuson Moss claims should be dismissed because there were fewer than 100 named plaintiffs, finding that the Class Action Fairness Act (“CAFA”) provides an alternative basis for federal jurisdiction over Magnuson-Moss claims. Order at 6-7.

 Court upheld Consumer Protection Claims

  The Court also upheld Plaintiff’s claims for violation of California’s Consumer Legal Remedies Act (“CLRA”); Unfair Competition Law (“UCL”), New Jersey Consumer Fraud Act and Florida’s Deceptive and Unfair Trade Practices Act.  The Court found that contrary to Sony’s assertion, “Plaintiffs have alleged a fraudulent omission by Sony, i.e., Sony’s exclusive knowledge of and concealment of the notebooks’ defective trackpad.”  Order at 8.

 Picture from:  www.notebookcheck.net

In so holding, the Court recited the standard: “A demurrer to class allegations may be sustained without leave to amend only if it is clear ‘there is no reasonable possibility that the plaintiffs could establish a community of interest among the potential class members and that individual issues predominate over common questions of law and fact.’”  Gutierrez, 187 Cal. App. 4th at 975 (internal citations omitted).  Indeed:  

Judicial policy in California has long discouraged trial courts from determining class sufficiency at the pleading stage and directed that this issue be determined by a motion for class certification.  ‘In order to effect this judicial policy, the California Supreme Court has mandated that a candidate complaint for class action consideration, if at all possible, be allowed to survive the pleadings stages of litigation.’ 

Id. at 976 (internal citations omitted).  The wisdom of permitting the action to survive demurrer is elementary.  “It is clear that the more intimate the judge becomes with the character of the action, the more intelligently he may make the determination.  If the judicial machinery encourages the decision to be made at the pleading stages and the judge later decides against class litigation, he divests the court of the power to later alter that decision.”  Id.   Thus, “because the sustaining of demurrers without leave to amend represents the earliest possible determination of the propriety of class action litigation, it should be looked upon with disfavor.”  Id. at 976-77.   

Although there may be circumstances in which granting a motion to strike or sustaining a demurrer without leave to amend a class action complaint will be appropriate, such as in mass tort litigation, “class suitability should not be determined by demurrer” in wage and hour disputes.   Id. at 980. 

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Zeldes & Haeggquist, LLP

“We are gratified that the grand jury has made official what our coalition has been stating. To meet public health standards, as well as to respect the basic dignity due to all people, San Diego must take responsibility and increase the number of public bathrooms open 24 hours a day. The need is particularly acute in the East Village, an area with many homeless services and a large homeless population,” said Rachel Jensen, a downtown attorney, President of the Girls Think Tank and a co-director of the Basic Dignity Coalition along with longtime homeless advocate David Ross. Ross received an award at the event.  The San Diego County grand jury released a report entitled Homeless in San Diego, concluding that homelessness has reached the “tipping point” and “not only is the problem a blight on our community, it is a blight on our humanity.” The report says that the City of San Diego could be liable for an “outbreak of illness caused by unsanitary conditions” and that additional toilets would “reduce fecal deposits and urine odors” downtown. Ross says that his two temporary “porta-potty” locations downtown have been used some 300,000 times since their placement in 2008. Ross added, “Several years ago, another grand jury on homelessness in San Diego came to similar conclusions.  I sincerely hope San Diego’s leaders finally take decisive action – then we can proudly call ourselves residents of America’s Finest City.” And City Council seems primed to do just that!  See Memo by Councilwoman Marti Emerald supporting GTT’s proposal and campaign: http://girlsthinktank.org/wp-content/uploads/2010/05/CityCouncilMartiEmeraldMemoPortlandLoos.pdf. 

Helen Zeldes and Alreen Haeggquist are on the board and advisory board of the Girls Think Tank.  www.girlsthinktank.org

Trump University markets itself as a University driven by the mission to “train, educate and mentor entrepreneurs on achieving financial independence through real estate investing.” It is anything but. Indeed, in January, 2010, the Better Business Bureau gave Trump University a D-minus rating, and the New York Department of Education recently demanded that Trump University remove “University” from its title, insisting that the “use of the word ‘university’ by your corporation is misleading and violates New York Education Law and the Rules of the Board of Regents.”

The class action lawsuit, filed in the U.S. District Court for the Southern District of California, alleges that Trump University made materially misleading misstatements in its advertising and in its real estate seminars, in violation of federal and state law. According to the Complaint, Plaintiff and class members who attended Trump University’s real estate investing classes were promised a “complete real estate education,” a “one year apprenticeship,” a one-on-one mentorship, practical and fail-safe real estate techniques, a “power team” consisting of real estate agents, lenders, personal finance managers, property managers and contractors, and were assured that although the seminars cost as much as $35,000, they would make the money back in their first real estate deal, and could make up to tens of thousands of dollars per month or more. Plaintiff and class members did not receive what they bargained for.

The Complaint alleges that instead of receiving a “complete real estate education,” each seminar was merely an “infomercial” to up-sell the student to purchase an additional Trump Seminar. The “one year apprenticeship” consumers were promised was actually just a 3-day seminar; the one-on-one year-long mentorship consisted of a 2-1/2 day excursion to view properties, and “mentors” recommended real estate deals in which they stood to financially benefit, and then quickly disappeared and failed to return calls.

“One of the most disturbing practices Trump University engaged in during these seminars was to tell students to raise their credit card limit ‘4 times’ during the break, presumably to make real estate purchases,” said Plaintiff’s attorney, Amber Eck of Zeldes & Haeggquist, LLP. “In fact, after students had raised their credit card limits, Trump University representatives told the students to use their newly increased credit limit — not to purchase real estate – but to purchase the next Trump “Gold” seminar – for $35,000.”

“It’s really disappointing in this economy to see the lengths that Trump will go to play on the fears of seniors – cajoling, ‘How many of you lost a lot of your 401k investment in the market? How many of you are retired? How many of you want to leave a legacy or property to your kids?” said Helen Zeldes of Zeldes & Haeggquist, LLP. “Praying on people’s fears to sell them empty promises is not just wrong, it’s illegal.”

If you wish to discuss or participate in this action, or have any questions concerning your rights or interests, please contact plaintiff’s counsel, Amber Eck of Zeldes & Haeggquist, LLP at (619) 342-8000 or via e-mail at ambere@zhlaw.com.

Picture from http://images.google.com/images?hl=en&q=trump%20university&rlz=1R2GGLL_enUS335&um=1&ie=UTF-8&source=og&sa=N&tab=wi

The State obtains unclaimed property through California’s Unclaimed Property Law, which requires “holders” such as corporations, banks, and insurance companies to annually report and deliver property to the Controller’s Office if there has been no customer contact for three years.  This usually happens when the owner forgets that the account exists, moves and doesn’t leave a forwarding address, or dies and the heirs have no idea that the property exists.

The 7 most common types of Unclaimed Property are:

1.  Bank accounts and safe deposit box contents;

2.  Stocks, mutual funds, bonds, and dividends;

3.  Uncashed cashier’s checks or money orders;

4.  Certificates of deposit;

5.  Matured or terminated insurance policies;

6.  Estates; and

7.  Mineral interests and royalty payments, trust funds, and escrow accounts.

To find out if any of this money belongs to you, all you have to do is search California’s Unclaimed Property Database at http://scoweb.sco.ca.gov/UCP/Default.aspx.  Don’t pay unnecessary fees to companies that say they will return unclaimed money and property to you.  California’s State Controller’s Office will do it for free.   Just type in your name to see if you have any unclaimed money or property waiting for you.  Most states provide this service, so if you have lived in other states, you should go to that State’s Controller’s Office website and run the same search.  

I didn’t think I would have any unclaimed property, but I searched for myself and found over $140.  All you have to do is submit a claim form to the state, which is super easy and can be done online.  Then, you print out the form, sign, mail it in and wait for a check.  If you have over $1,000 of unclaimed money or unclaimed securities, you will need to to get your signature notarized before mailing in the claim form.  

I also ran some searches for my family and friends and found them money too.  Sounds like a scam, but I promise it’s not.  

If you have questions, let us know.  Happy hunting!

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1.         See if your name is available

So, you’ve got a great idea?  But now, you are unsure of what to do next.  A great starting point is to check to see if your name is taken.  Here are two good resources to do some intel:  (1) Search the county assessor/recorder/county clerk’s website http://arcc.co.san-diego.ca.us/arcc/services/fbn/search.aspx and (2)  Check with the California Secretary of State.  If you are thinking of starting an LLP, LLC, or corporation, you can mail in a name availability inquiry letter to the Secretary of State, and/or reserve a name for 60 days by filling out a Name Reservation Request Form. http://www.sos.ca.gov/business/be/name-availability.htm#checking

2.         Register it    

Once you’ve decided on a name, you will likely need to register it.  If you are not using your actual name (for example Tracy Fitzgerald Catering Supplies) you will need to register for a  fictitious business name with county assessor.  If you are going to be an LLP, LLC or corporation, you will register your entity with the Secretary of State.  To protect a name more fully, however, you will need to register for trademark protection.

3.  Grab your domain name

See if your domain is available; reserve your name on a domain registrar like www.godaddy.com. 

3.         Get your business licenses

All businesses in the City of San Diego must obtain a Business Tax Certificate (license) – including home based businesses, self-employed persons & independent contractors.

http://www.sandiego.gov/treasurer/taxesfees/btax/btaxhow.shtml

Businesses selling tangible personal property in the state of California must apply for Seller’s Permit/Resale Number, State Board of Equalization, 1350 Front Street, Room 5047, San Diego, CA 92101, (619) 525-4526 website: www.boe.ca.gov

Businesses engaged in selling goods by weight or volume must register the devices with the County Agriculture, Weights and Measures Office. Permits must usually be obtained by: import/export businesses, agricultural-related production, and businesses using pesticides. County – Agricultural, Weights and Measures Department, 5555 Overland Ave., Bldg 3, San Diego, CA 92122-1295, (858) 694-2739 www.sdcawm.org

Business engaged in: selling or handling food products, operating a pool or spa, handling hazardous materials, underground storage tanks, medical wastes, x-ray equipment, or waste handling must contact the Department of Environmental Health at the County.  County – Environmental Health, 1255 Imperial Ave., Third Floor, San Diego, CA 92101, Tel: (619) 338-2222, Fax: (619) 338-2377, www.sdcdeh.org

Other permits and licenses may also be required.

4.               Zoning & Permits

You must check with the City to see if the type of business you plan to operate is legal in the desired location. You can usually receive same day information on the status of your location if you have the proposed business address and a description of the business when you contact: City’s Development Services Department, 1222 First Avenue, Third Floor, San Diego, CA 92101

website: www.sandiego.gov/development-services/smallbus/

Zoning – (619) 446-5000

Permits – (619) 533-3089

If operating from home, you must follow the requirements for Home Occupations. You can obtain this information by contacting: Neighborhood Code Compliance  (619) 236-5500 website: www.sandiego.gov/nccd/zoning/home.shtml

 5.                   Prepare for the inevitable:  Taxes

Now that you are your own employer, you will need to be prepared to handle setting aside money for your own income tax, employment tax & depending on the type of business you are starting, business taxes.  Ask friends if they have a bookkeeper or CPA that they like.  Getting someone on board early on will save you money down the road – it costs a lot more for someone to sort out a room full of bankers’ boxes of random documents than set up a system for you from the outset.  We have a bookkeeper who comes to our office twice a month and picks up our receipts, bank statements, whatever else we need to give her and provides us with monthly statements.

6.                  Insurance

To reduce some of your exposure and liability (and most likely to comply with your lease agreement if you do not work from home), you should (or must) have some insurance policies such as workers’ compensation or general liability.  It makes sense to shop around for quotes on the best policy for your business, many insurance brokers can shop prices for you from several insurance companies.  We recommend getting more than one quote from more than one broker.  You may also be in a high risk industry, in which case you may need specialized insurance.  Talk to a broker about your specific needs.

7.                  Contracts

Put everything in writing:  set a policy from the outset that all contracts and business agreements of any type will be in writing (beware the handshake with a friend), record every transaction.  Think ahead to what kind of contracts you might you need. A partnership agreement?  Note for a private business loan?  Purchase agreement?  Non-compete agreements?  Employment contracts?  Don’t just pull agreements off the internet and use them without carefully reviewing them.  They were not written with your interests or needs in mind.  Make sure you have enforceable collections and attorneys’ fees provisions.  If you end up in Court, there are only two ways to recoup your attorneys’ fees:  by statute and by contract.  Make sure you are covered.  If you are uncomfortable asking people to sign a contract, you feel your business is too casual for such an agreement, all the more reason to standardize your practice from the get go.  You can comfortably tell your clients that “It’s nothing personal, it’s just our practice to put all our agreements in writing to avoid misunderstandings down the road.” 

8.                  Marketing Plan:  a roadmap to success

It’s never too late to draft a business plan and take marketing classes.  The world of business is changing as fast as the web changes.  If you aren’t up with the latest ways to get seen, you are missing the boat.  There are numerous small business resources in the city to help you along the way.  The San Diego Small Business Administration, the San Diego Chamber of Commerce, SCORE, among other

U.S. Small Business Administration

550 West “C” Street, Suite 550, San Diego, CA 92101

(619) 557-7250 website: http://www.sba.gov/index.html

City of San Diego, Office of Small Business

1200 Third Avenue, Suite 1400, San Diego, CA 92101

(619) 236-6700 e-mail: sdbusiness@sandiego.gov

website: www.sandiego.gov/economic-development/business-assistance/small-business/

9.                  Legal or Expert Assistance you might need

Think about whether you need specialized expert advice.  For instance, do you need a copyright or patent attorney to advise on your intellectual property?  Are you in a highly regulated industry?   It’s always better to investigate now then find out a problem with your business later.

10.              Free advice

You should always interview a prospective professional consultant before meeting with them – to save your time and theirs.  Nearly every professional you call will give you some amount of advice for free.  Most attorneys, accountants, bookkeepers, will, in the course of talking to you, address the questions you have and educate you about your concerns.  Make a few phone calls, it will be well worth your time.

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