The U.S. Court of Appeals for the Tenth Circuit has revived a lawsuit by an Oklahoma man who objects to the image of a Native American sculpture on the state's license plates because its message conflicts with his Christian beliefs. The Associated Press reports that the court decided that Keith Cressman "can sue the state over its Indian 'rain god' license plate, ruling that the depiction of a noted sculpture on 3 million license plates could be interpreted as a state endorsement of a religion." (Turtle Talk, the blog for the Indigenous Law and Policy Center at Michigan State University College of Law, has the filings in the case.)
Oklahoma's license plate, unveiled in 2008, depicts artist Allan Houser's sculpture "Sacred Rain Arrow." According to Cressman's suit, the sculpture is based on a Native American legend and shows an Apache warrior shooting an arrow into the sky so that the "rain god" or "spirit world" would answer prayers for rain in a time of drought.
Cressman claims in his suit that the sculpture tells "the story of a Native American who believes in sacred objects, multiple deities, the divinity of nature, and the ability of humans to use sacred objects to convince gods to alter nature." Its message, the suit says, "promotes pantheism, panentheism, polytheism, and/or animism and promotes particular Native Americans' social and cultural practices that accept these ideas."
Cressman, the Tenth Circuit opinion says, "adheres to historic Christian beliefs," including the principle that "there is only one true God." He "refrains from adopting or endorsing any message he believes might imply his approval of contrary beliefs, such as that God and nature are one, that other deities exist, or that 'animals, plants, rocks, and other natural phenomena' have souls or spirits."
Unwilling to display the image of the "Sacred Rain Arrow" sculpture on his car, Cressman opted for specialty license plates, which cost more and required renewal fees. Cressman claims that, to avoid the additional fees, he considered using the standard license plate and covering the offending image, but was told by state officials that he could be fined for doing so.
Cressman filed a lawsuit in 2011 against a number of state officials, alleging violations of his First and Fourteenth Amendment rights. A federal district court dismissed the suit in May of 2012, finding that Cressman had failed to state a "compelled speech" claim under the First Amendment.
The Tenth Circuit on Tuesday reversed the order dismissing Cressman's complaint, finding that he plausibly alleges a claim of compelled speech under the U.S. Supreme Court's ruling in Wooley v. Maynard
-- a 1977 case in which a Jehovah's Witness challenged New Hampshire's use of the state motto, "Live Free or Die," on its license plates. In that case, the court found that the state could not force individuals to either "use their private property as a 'mobile billboard' for the State's ideological message" or pay a criminal penalty.
The opinion discusses whether the display of the license plate constitutes "symbolic speech" that qualifies for First Amendment protection, and whether it conveys a "particularized message." Symbolic speech claims, the court said, "depend on circumstances and context."
"Perhaps few viewers of the Oklahoma license plate image would perceive the particularized message Mr. Cressman alleges. But at this stage, without any evidentiary development, we must accept his allegations otherwise as true," the opinion states.
The circuit held that Cressman has also "plausibly alleged that he is compelled to speak because the image conveys a religious/ideological message, covering up the image poses a threat of prosecution, and his only alternative to displaying the image is to pay additional fees for specialty license plates that do not contain the image."
Cressman, the panel court concluded, "has alleged sufficient facts to suggest that the 'Sacred Rain Arrow' image on the standard Oklahoma license plate conveys a particularized message that others are likely to understand and to which he objects."
Posted by Laurel Newby on June 12, 2013 at 04:39 PM | Permalink
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An actress who starred in a popular advertisement for a New York personal injury law firm has filed a suit alleging that the agency that produced the spot licensed the ad and her image to law firms around the country without her knowledge and without compensating her. She's seeking close to $1 million in compensation from the agency and the other law firms that licensed the ad.
Elena Aroaz appeared in a 2009 advertisement for Trolman, Glaser & Lichtman that spoofed gold-digging personal injury plaintiffs. The ad, called "Machete," featured Aroaz sitting at a table discussing an injury in grave tones, with mournful piano music as the background score. "The pain was excruciating," she says. "It's like I had this huge, really sharp machete chopping down on me every time I tried to move."
Soon, the nature of the wound is revealed: "It was the worst paper cut I ever had. They made that paper way too sharp." Aroaz raises one index finger with a green bandage on it, saying, "Someone has to pay." Text on the screen reads, "There are some cases even we can't win." As the contact information for the law firm appears, a voiceover says: "If you've been injured, call us. But keep in mind, you really need to be injured."
The ad had a companion spot, "Power," in which a tearful man describes his "pain and suffering" at the hands of the power company when an outage interrupted the best video game of his life. The two Trolman, Glaser & Lichtman advertisements were featured in a 2010 New York Times article for their noteworthy use of (intentional) humor in promoting personal injury legal services. A post on the Lawyerist blog just a couple of months ago included the ads as examples of successful viral video legal marketing.
The New York Daily News reports that Aroaz claims in her suit, filed in Manhattan Supreme Court, that she was paid $600 to appear in the ad and was told that it would air for a year on cable TV in New York. Instead, the suit alleges, the Levinson Tractenberg Group licensed the ad to law firms in New Mexico, Washington, Louisiana, Massachusetts, Kansas, South Carolina and Colorado, earning $250,000.
According to her suit, after Aroaz found out that her face was on a billboard in Arizona, she confronted Levinson Tractenberg and was paid another $1,500 in 2012, the Daily News writes. Aroaz says she later discovered that the firm had paid $20,000 for the rights.
The New York Post reports that Aroaz's suit claims the ads are still airing and "turn a very large profit at the expense of and to the detriment of the plaintiff." She also claims she has been typecast as a result of the ads, the Post writes.
Posted by Laurel Newby on June 11, 2013 at 04:38 PM | Permalink
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While several new health studies concerning breastfeeding are making the rounds, the topic has also been generating headlines in the employment law context, thanks to a recent Fifth Circuit ruling (as reported in Texas Lawyer's Tex Parte Blog) involving the firing of a woman because she wanted to use a breast pump at work.
According to the opinion, when Donnicia Venters spoke to her boss at Houston Funding about using a breast pump at work upon her return from maternity leave, her request was met with a long pause, then the news that her position had been filled. The Equal Employment Opportunity Commission brought a Title VII action against Houston Funding, alleging the company had discriminated against Venters based upon her sex.
U.S. District Court Judge Lynn Hughes (who has recently made news and caught bloggers' attention for allegedly racially insensitive comments) granted summary judgment in favor of Houston Funding, finding that Venters' firing did not constitute sex discrimination because "lactation is not pregnancy, childbirth, or a related medical condition." While "cramping, dizziness, and nausea" are conditions related to pregnancy, Hughes wrote, lactation does not make that list. After Venters gave birth, the opinion stated, "she was no longer pregnant and her pregnancy-related conditions ended."
Some took issue with this conclusion (including the Texas Medical Association), and the Fifth Circuit has now registered its disagreement, vacating and remanding Hughes' opinion. The circuit found that the EEOC's claim that Venters was fired "because she was lactating or expressing milk" stated a cognizable sex discrimination claim under Title VII. "An adverse employment action motivated by these factors clearly imposes upon a woman a burden that male employees need not -- indeed, could not -- suffer," the opinion states.
The Fifth Circuit held that "lactation is a related medical condition of pregnancy" under the Pregnancy Discrimination Act. However, in a concurring opinion, Fifth Circuit Judge Edith Jones distinguished between Venters' case and one in which a female employee might request "special accommodations" because of lactation, which Jones said would not be guaranteed under the act.
"It follows that if Venters intended to request special facilities or down time during work to pump or 'express' breast milk, she would not have a claim under Title VII or the PDA as of the date of her lawsuit," Jones wrote. "Indeed, if providing a plaintiff with special accommodation to pump breast milk at work were required, one wonders whether a plaintiff could be denied bringing her baby to the office to breastfeed during the workday."
On the HealthLawProf Blog, law professor Leslie Francis writes that, although the Fifth Circuit ruling "is apparently a favorable one for women and children, it also reveals ongoing mismatches between anti-discrimination law in the US and the health needs of workers and their families."
"The PDA prohibits differential treatment on the basis of sex but does not require any accommodations for pregnancy or lactation," Francis states. "Venters won not because she asked for time to express milk but because her employer disapproved of her breastfeeding." Anti-discrimination law, she writes, "all too often regard[s] breastfeeding as a 'lifestyle' rather than a health issue."
In a post about the case on the ACLU's Blog of Rights, Galen Sherwin echoes this concern about the lack of legal support for workplace accommodations, writing that, despite "overwhelming public health justifications for breastfeeding, women who want to continue nursing when they return to paid work often face obstacles that force them to choose between their jobs and what they think is best for their babies."
"At a fundamental level, workplace policies that are structured around an “ideal” worker who never gets pregnant, gives birth, or breastfeeds -- in other words, a male worker -- look an awful lot like institutionalized sexism," Galen writes.
Posted by Laurel Newby on June 10, 2013 at 05:11 PM | Permalink
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It's not unusual for judges and prosecutors to fail to see eye-to-eye on criminal sentencing issues. But it might just be a first for a federal judge to send an email comparing herself to a comic book character known for morphing into a large, green, superhuman "Hulk," and warn lawyers in the U.S. Attorney's Office, "You won't like me when I'm angry." The email has, not surprisingly, garnered some interest -- as has the resignation of the prosecutor who received it.
The Des Moines Register (via the Sentencing Law and Policy blog and ABA Journal) has the story of the clash between U.S. District Judge Stephanie Rose and prosecutors in the Southern District of Iowa U.S. Attorney's Office over sentencing in several criminal cases. Rose, who was confirmed as a federal judge last September in a U.S. Senate vote of 89-1, is the country's youngest federal judge at 40 years old. She had been a longtime federal prosecutor and served as the U.S. Attorney for the Northern District of Iowa before her appointment to the bench.
The Des Moines Register reviewed recently unsealed emails sent between Rose and federal prosecutors concerning the case of a convicted drug dealer named Bryan Holm. In that case, the Register reports, "Rose ordered prosecutors to provide evidence that could extend Holm's prison sentence on a weapons charge. When they refused, citing a plea agreement they had signed, Rose called a police officer to the stand, questioned the officer herself and imposed a sentence that was two to three years longer than what prosecutors had contemplated."
Several hours after the sentencing hearing, Rose sent an email to Shannon Olson, the appellate chief at the U.S. Attorney's Office. The message, which had the subject line "Hulk," read: "You know how Bruce Banner says 'You won't like me when I'm angry?' There's a lesson in there for all attorneys. Enjoy that transcript."
Along with reports on the email, news broke this week of Olson's resignation from the U.S. Attorney's Office. The Des Moines Register reported Thursday that a spokesperson for the U.S. Attorney's Office confirmed that Olson no longer works for the office but declined to discuss the circumstances of her departure.
In court documents related to an appeal of Holm's sentence, Holm's attorney Dean Stowers suggests that the "Hulk" email might have been related to Olson's potential role as a witness in an age discrimination suit brought by a former assistant U.S. attorney, as well as to a clash over sentencing in several cases.
The Des Moines Register writes
that Rose has been at odds with the U.S. Attorney's Office in several
other criminal cases as well, and that she corresponded by email in
January with U.S. Attorney Nicholas Klinefeldt to express her
frustration with what she called "global issues" with prosecutors'
“I'm troubled by your office's occasional refusal to provide relevant
discovery information to the United States Probation Office," Rose wrote
to Klinefeldt. "I'm baffled by similar refusals to provide relevant
sentencing information to me." She cited several criminal cases in which
she said prosecutors refused to provide evidence that could have
increased defendants' sentences.
In the filing regarding Holm's case, Stowers writes that the "Hulk" email "has to be construed as a strong caution to Olson and her prosecutor colleagues to not do something that would make the Court 'angry' because that would cause the Court to react like the 'Hulk'. One can fairly assume the Court was not intending physical assault or destruction of property, but was alluding to the use of the Court's judicial power against those that made the Court 'angry'."
Stowers argues that the email "suggests the Court was acting out of anger in the Holm sentencing and that the anger displayed itself in the Court's actions during the sentencing. It appears Mr. Holm is a victim of crossfire between the Court and the Government."
Posted by Laurel Newby on June 7, 2013 at 04:37 PM | Permalink
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Last week we discussed an Illinois judge who, after being arrested on drug and firearms charges, ended up at a court hearing wearing cut-off jean shorts and a T-shirt bearing the slogan, "Bad is my middle name." Not the most appropriate ensemble, to be sure, but here (via Jonathan Turley) is the story of a litigant who took the concept of questionable courtroom attire to the extreme. A New Jersey man attended a family court hearing this week wearing a Nazi uniform. Yikes. On the other hand, the outfit did coordinate nicely with his Hitler-esque mustache and swastika tattoos.
Heath Campbell and his family gained notoriety in December 2008, when employees of a ShopRite supermarket refused to spell out the name of their 3-year-old son on a birthday cake. That name: Adolf Hitler Campbell. Heath Campbell said at at the time that he named his son after Adolf Hitler because "no one else in the world would have that name." Indeed. He said that those who would object to such a moniker "need to accept a name. A name's a name. The kid isn't going to grow up and do what (Hitler) did." And the Campbells stuck to the same theme in naming Adolf's siblings, JoyceLynn Aryan Nation and Honszlynn Hinler Jeannie.
The birthday cake flap (which Turley at the time called the "mein kake" controversy) prompted an investigation into the family by New Jersey's Division of Youth and Family Services. The Campbell children were taken into state custody in January 2009. A fourth child, Hons, was taken by the state just hours after his birth in November of 2011.
The Campbells have appealed unsuccessfully for the return of their children. Heath Campbell says that the couple has since separated and that the three older children have been adopted. At the hearing this week, Campbell was seeking visitation rights to the youngest son.
When the Campbell children were taken away from their parents, the parents claimed that the decision was based solely on the children's names. (Sadly, it seems the family's situation involves a number of other issues. The Hunterdon County Democrat has a full report on allegations of domestic abuse.)
However, Heath Campbell contends that he's been separated from his children simply because of his political beliefs. "Basically, what they're saying is because of my beliefs and I'm a Nazi, that us people don't have any constitutional rights to fight for our children," Campbell said.
The Jonathan Turley post posits that the case "raises a
significant free speech issue. Most of us view this Nazi obsession to be
weird and unbalanced. However, it is also a form of political
As for the Nazi uniform, Campbell said he hoped a court wouldn't be influenced by his appearance. "If they're good judges and they're good people, they'll look within, not what's on the outside," he said.
Posted by Laurel Newby on June 5, 2013 at 04:39 PM | Permalink
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A new survey from Lawyers.com has been making the rounds on law blogs this week, due to its somewhat surprising revelation that, even amid seemingly constant headlines about the shaky job market greeting today's law grads, nearly two-thirds of parents hope that their children will pursue careers in the law.
The survey results were based on 1,001 phone interviews conducted in English and Spanish. Of survey respondents with children in their household, 64 percent said they hope their kids will grow up to be lawyers. Respondents were also asked about whether they would like to have a lawyer as a son- or daughter-in law. A majority of mothers surveyed -- 55 percent -- liked the idea, while future father-in-laws were less keen, with only 38 percent saying they were interested in having their child marry a lawyer.
"Being a lawyer means being a respected professional, and that's something that parents want for their children," Larry Bodine, editor-in-chief of Lawyers.com, is quoted as saying. “Despite the tough economy facing the next generation, it's exciting to note that nearly two-thirds of parents would be happy with a law degree in their child’s future."
But some commentators find the results more alarming than exciting. In a discussion of the survey on Above the Law, Staci Zaretsky is incredulous that the survey respondents seem to be "ignoring all the warnings that have been trumpeted from Above the Law to the New York Times, heedless of the spate of lawsuits that have been filed against law schools over their allegedly deceptive employment statistics, and paying no mind to the horror stories about young lawyers drowning in student loan debt."
Notably, the survey results show a divide based on household income. Eighty percent of parents who make less than $25,000 per year said they'd like for their children to become lawyers, as compared with only 54 percent of those with household incomes over $75,000. For some bloggers discussing the issue, this suggests a troubling knowledge gap about the current status of the legal profession.
"Obviously, there is a dangerous lag in information about career paths among the classes," suggests a post on the Law And More blog. "Upscale parents know that their children will make a good living through becoming entrepreneurs or being employed in the fields of engineering, information technology, and math. Law had been fine, they know. But not any more."
Zaretsky expresses this concern in the ATL post: "Being a lawyer these days is a tough row to hoe, and if you’re hoping your children will be able to have a 'rags to riches' story in the law, you should probably start fixating on another dream career for them."
Posted by Laurel Newby on May 31, 2013 at 04:36 PM | Permalink
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Employment law blogs, including Porter Wright's Employer Law Report and Ogletree Deakins' Employment Law Matters, have been discussing an Advice Memorandum recently released by the National Labor Relations Board that addresses when an employee may be fired over negative comments about an employer on social media, and when such messages constitute "protected concerted activity" under the National Labor Relations Act.
The case involves private Facebook group messages written between current and former employees of Tasker Healthcare Group (doing business as Skinsmart Dermatology). During a group message discussion initiated to organize a social event, one employee took the opportunity to express some dissatisfaction with her supervisor and with the company in general.
Among other comments, the employee (who the NLRB memo refers to as the Charging Party) wrote that the company is "full of shit ... They seem to be staying away from me, you know I don't bite my [tongue] anymore, FUCK … FIRE ME … MAKE my day …" No other current employees participated in that part of the conversation, but later on, one employee did write that "it's getting bad" at Tasker and that "it's just annoying as hell. It's always some dumb shit going on."
The morning after the exchange, one of the employees who was included in the message string but remained silent during the discussion showed the Facebook exchange to the employer. As Sara Hutchins Jodka writes in the Employer Law Report post, Tasker "took Charging Party up on her request to be fired," saying it was clear that she no longer cared to work there, "and indeed made her day."
The employee filed a charge claiming that her termination violated a provision of the National Labor Relations Act that protects concerted activity on behalf of employees to improve wages or working conditions. In the Advice Memorandum, NLRB Associate General Counsel Barry J. Kearney recommended dismissal of the charge, finding that the employee's comments "merely expressed an individual gripe rather than any shared concerns about working conditions."
The memo stated that the employee's comments "merely reflected her personal contempt," and that there was no evidence that her co-workers interpreted them as an expression of shared concerns. The later posting from the co-worker about the employer being "annoying as hell" was found to be "ambiguous" and unrelated to the fired employee's earlier comments.
On Barnes & Thornburg's Currents blog, Doug Oldham contrasts the Tasker case with an April NLRB decision holding that clothing manufacturer Bettie Page Clothing unlawfully fired three workers based on a conversation on Facebook. In that case, the workers criticized their supervisor in a series of Facebook posts and discussed bringing a book on worker's rights to the store. The NLRB held
that the posts constituted protected concerted activity, since they "were complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management's refusal to address the employees' concerns."
The takeaway from the Tasker case? Attorney-bloggers examining the issue warn that employers should still be wary about firing employees based on their online complaints. Jodka writes on the Employer Law Report that the case "demonstrates that even when an employee's comments on social media are so outrageous that they literally ask the employer to fire the employee, the employer must still do some analysis to determine whether the comments may constitute concerted protected activity under the NLRA."
Posted by Laurel Newby on May 30, 2013 at 04:18 PM | Permalink
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An Illinois judicial scandal involving drugs, death and some truly unfortunate courtroom attire has been gaining steam this week.
An arraignment was held Tuesday for St. Clair County probation worker James Fogarty, who is accused of selling cocaine to two county judges, Joseph Christ and Michael Cook. Christ died in March while on a hunting trip with Cook at a lodge owned by Cook's family. A coroner on Friday confirmed that Christ's death was due to cocaine intoxication. Christ, a longtime prosecutor, was sworn in as a judge only 10 days before his death. He was 49 years old and a father of six.
Cook, a 43-year-old St. Clair County circuit judge, has not been charged in connection with Christ's death, but was arrested last week on charges of heroin possession and using a controlled substance while in possession of a firearm, the St. Louis Post-Dispatch writes. Cook resigned from the bench on Wednesday, the Belleville News-Democrat reports. A letter submitted by his attorney stated that Cook "was away in treatment."
Cook pleaded not guilty at a hearing Friday, appearing in court wearing cut-off jean shorts and a T-shirt bearing the message "Bad is my middle name." That was apparently the ensemble Cook had been sporting when he was arrested several evenings earlier at the home of a friend and former client, Sean McGilvery, who was also charged with heroin possession and intent to distribute.
Fogarty, the probation worker who allegedly sold drugs to the two judges, pleaded not guilty to federal drug charges Tuesday. The Associated Press reports that FBI Special Agent Joseph Murphy filed an affidavit stating that Fogarty admitted that he repeatedly sold cocaine to Cook and Christ, and that he sometimes used the drug with them. Murphy's affidavit states that, "Fogarty snorted cocaine with the two judges at times on golf trips and at least once at the Cook family's lodge where Christ later died," the AP writes.
According to the affidavit, the AP reports, "The day before Cook and Christ went off on
the hunting trip from which Christ would not return alive, Fogarty snorted cocaine with the judges before giving the rest of the 'eight ball' -- an eighth of an ounce, or 3.5 grams -- of the drug to them for $140 apiece."
Cook has been released on bond and a trial date was set for July. He faces up to 10 years in prison on the possession and firearms charges. Cook's cases have been reassigned, and the state's attorney has filed ethics complaints against him. St. Clair County Chief Judge John Baricevic said both Cook's and Christ's criminal cases are being reviewed for any link to their illegal drug activities. "There is no indication there was a corruption of their bench duties, but the investigation is ongoing," Baricevic told the News-Democrat.
Additional revelations are likely to come. The News-Democrat writes that after Fogarty's hearing Tuesday, U.S. Attorney Steve Wigginton told reporters that the matter is "an ongoing investigation with lots of moving parts." The inquiry, Wigginton said, is "wide open and not limited to the St. Clair County Courthouse."
Posted by Laurel Newby on May 29, 2013 at 04:41 PM | Permalink
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I can't say that I've tried Taco Bell's Doritos Locos Tacos, but it seems as though I'm in the minority. The menu item introduced last year has been so popular that it's helped create 15,000 new jobs for the fast food chain, Taco Bell CEO Greg Creed says. More than 1 million of the tacos are reportedly sold every day, with more than 500 million sold since the product was launched. [This Fast Company article provides an in-depth look at the origins and impact of the chain's "disruptive faux cheese-dusted taco."] Creating a taco shell out of Doritos chips was clearly an inspired concept -- and a federal prison inmate is now claiming that idea was all his.
The Dallas Observer reports (via Consumerist), that Gary Cole, an inmate at a high-security prison in Colorado, filed a federal lawsuit in Texas this week alleging that Taco Bell stole his idea for the Doritos tacos. As proof, Cole offers a copy of a 2006 letter sent to his attorney, in which Cole recorded ideas for a number of potential products, including "Tacos [sic] Shells of All Flavors (Made of Doritos)." Among the other merchandise ideas listed were some items branded "Divas and Ballers," including body oils, "health mix" and hot sauces.
Cole claims that his idea for the Doritos tacos must have been stolen through the mail. After reading newspaper articles about the launch of the Doritos Locos Tacos, Cole took action, the Dallas Observer writes. He "wrote to the FBI demanding an investigation. To the IRS he wrote 'a check was made out to a person for a large amount by Taco Bell, Frito Lay, and Pepsi Co. Inc. for an idea or invention that was submitted to them by theft and fraud,' going on to ask for 'the person, the name, address, the amount of the check, how much taxes paid on the check.' He also sent a Freedom of Information Act request to Taco Bell calling for the release of any and all documents related to the invention of the Doritos Locos Tacos."
Among the intriguing items in Cole's handwritten complaint is some correspondence about the case from the Denver, Colo., office of Arnold & Porter. Cole apparently wrote to the firm in preparation for his suit, requesting copies of the 2006 letter with the product descriptions that he sent to his attorney, partner Ed Aro. The complaint contains a cover letter for the documents, and a letter from Aro that mentions the documents and also includes this helpful advice:
"Do not 'put a knife' to the staff. That won't do you, or us, any good. I understand your frustration, but we're working on the retaliation issue and would ask that you leave it in our hands."
It's not clear whether Cole's "knife" threat is related to the Doritos Locos case. The mentions of "the staff" and "retaliation" suggest that he might be juggling some non-taco-related legal issues as well.
Posted by Laurel Newby on May 17, 2013 at 04:53 PM | Permalink
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iPhone users (and other Apple devotees), take note. A proposed class action filed in California seeks $5 million in damages against Apple over allegations that the company knew about a latent defect in the iPhone 4's power button and failed to disclose it. But here's the twist: The plaintiff alleges that Apple not only knew that the power button would fail, it knew when the button would fail -- just after the expiration of the phone's one-year warranty period.
In her complaint, filed in federal district court, Debra Hilton says her iPhone 4 "suffered a terminal power button failure" 15 months after she bought it, and three months after her warranty expired. The only option that Apple's customer service offered her, she said, was to pay $149.99, plus shipping, for repair or replacement of the phone.
The alleged defect involves a flex cable connected to the phone's power button, the "premature deterioration" of which "causes the power button to become harder and harder to depress until eventually it becomes entirely unresponsive," according to the complaint. Hilton alleges that Apple "knew that this defect existed as of the time of the phone's manufacture, and that it would be substantially certain to exhibit itself within approximately 18 months of the phone's first use."
In a post about the case on the Abnormal Use blog, Nick Farr expresses skepticism that Apple "'rigged' the button to fail." The argument that the company would do so to sell more phones, Farr says, "lacks an understanding of Apple buyers." Apple "releases new iPhone models every 6 months, making you feel that your barely used phone is outdated, " he writes. "Apple doesn't need to tamper with your phone to get you to buy a new one."
By Farr's definition, I'm not one of those typical iPhone users who "constantly upgrade their devices -- broken power button or not." As it happens, both my iPhone 3 and iPhone 4 broke within weeks of the release of a newer version of the phone. In my case, it was the home button that called it quits -- and I did pony up for the new model both times.
Hilton's lawsuit may also be intriguing to those wondering whether venting frustrations about defective products via online message boards is just a waste of time. Hilton's complaint quotes extensively from a discussion forum on the Apple Support site dedicated to the iPhone 4 power button problem. Hilton supports her legal claims with online testimonials by iPhone customers including "CwissyBwear" (the forum's original poster), "LoveToCookSF," and "2TheMax," in whose April 4, 2012 post, the complaint says, "user sentiment was most concisely summarized."
2TheMax wrote: "Apple though I love your products I will not pay for poor quality products! No matter how innovative or revolutionary they are, your devices are worthless if they are made poorly and break in a short period of time. From all the replies it's evident that a new iPhone with proper care should not have this issue in such a short time. Address this issue Apple or lose one customer."
I don't know, 2TheMax. Let's just see how you feel when the shiny new iPhone 5s or iPhone 6 hits the market.
Posted by Laurel Newby on May 16, 2013 at 04:57 PM | Permalink
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