Do You Think Your Internet Life Can Stand the Test of Seven Years’ Scrutiny?

Kashmir Hill has the story on a company that is offering background check services designed to mine information about a person from the Internet. The purpose is to identify any potentially bad information and share that with potential employers so that the potential employer can make a hiring decision. Presumably, however, it won’t catch just embarrassing information (which is bad enough) – it will also snare any publicly available information or photos that you have on the Internet. So your family photos on Facebook or some post you left on Facebook or Twitter – that all potentially goes to the future employer. And, get this, the company plans to hold onto the information and share it with customers for seven years. This may have dramatic consequences with respect to the expectation of privacy on the internet.

I have to believe that the company’s angle with respect to hanging on to the information is to fashion themselves as a kind of credit rating organization – with all of the products for sale that credit rating organizations are selling. Aside from the question of whether this is a company just trying to find a way to scare people into sending it money, I also question the privacy issue of a company scouring the Internet for embarrassing information and photos and hanging on to it for seven years. If they get a picture of a nude woman that has been posted on the internet by her scornful ex-boyfriend, how will the company handle that? Will they send the photo to anyone that employs their background check service for the next seven years? What protection do they offer to people that have had information or photos posted without their permission? Or what if they simply did not know that their information or photos were being made publicly available by a website?

Yes, employers already have the ability to Google applicants, and they often do. But this is not as simple as Google. This is a highly professional, sophisticated data-mining operation. They may be able to dig much deeper than some HR manager checking Google. Question, for example, whether that “anonymous” post you left is really as anonymous as you think.

This is yet another example of why anyone should seriously think twice before posting anything to the Internet. Yes, that may seem impossibly impractical given how much of our lives are lived on the Internet. This is not meant to tell people that they should not participate on the Internet. It is merely to help people understand that they should be increasingly cautious about everything they post on the Internet. Whether you think it is just between you and your family/friends, or whether you think it is anonymous, the safest rule to follow is to not post anything anywhere on the Internet unless you could live with a potential employer seeing it. Do not expect users of the internet, providers of internet services or sites, or potential employers to respect your online privacy nearly as much as you do.

Filed under: Los Angeles Civil Litigation, Privacy

The Supreme Court Shoots Another Hole in the Class-Action Device (Wal-Mart v. Dukes)

If you’ve been paying attention to the news today, no doubt you’ve heard that the Supreme Court has issued in opinion in the Wal-Mart v. Dukes case. The case is an important one with respect to class actions. Although the Court was unanimous in one part, it was split along familiar 5-4 lines in another part. As has been a trend, the five judge conservative majority has voted to weaken the class action device.

Criticism is fairly widespread, particularly among progressives, liberals, and pro-worker activists; to get a sense of where the criticism is coming from, go here for progressive Adam Serwer’s take or here for law professor Sergio Campos’ take. To read some praise for the decision, go here to read conservative activist Walter Olson’s take.

As for my own take, I think there is no doubt that the case is a big win for large corporations. The decision may severely diminish the ability of employees to bring disparate discriminatory impacts cases on a class-wide basis. Alas, as mentioned above, this really comes as no surprise – this has been the trend, and absent a shift in the make-up of the Court or a wholesale shift in thought amongst conservatives about corporate interests, things are likely only going to get worse for plaintiffs.

Filed under: Class Actions, Los Angeles Civil Litigation

California Court of Appeals: Amusement Park Patrons Do Not Assume Any Risk of Injury on Rides (Not Even Bumper Cars)

In Nalwa v. Cedar Fair, the California Court of Appeals for the Sixth District explored the scope of the primary assumption of risk doctrine as it pertains to amusement park rides. The basic question of the case is this: does a person assume any risk of injury when they get on an amusement park ride intended to jostle the rider about?

Filed under: Case Reviews, Class Actions, Los Angeles Civil Litigation, Torts

California Court of Appeals for the First District: Same Sex Sexual Threats Are Not Actionable Sexual Harassment Unless the Person Making the Threat Is Actually Gay

On June 6th, the California Court of Appeals for the First District issued an opinion in Kelley v. Conco Cos.. The plaintiff was an apprentice ironworker that was suing his former employer for sexual harassment and unlawful retaliation.

On just his third day on the job, a supervisor let loose on the plaintiff with an outrageous verbal assault, in which the supervisor came up behind the plaintiff and made a number of lewd sexual comments and several times threatened to rape the plaintiff. The comments made by the supervisor are patently outrageous and not printable in a family-friendly civil litigation blog such as this one. Needless to say, if you read the opinion: reader discretion advised. Apparently at least one other employee on the scene made additional threats about assisting the supervisor in raping the plaintiff, to which the supervisor allegedly reacted with appreciation.

The plaintiff complained, and the supervisor was told not to speak that way to the plaintiff. Nonetheless, not much changed and the plaintiff was routinely threatened by company employees because the plaintiff had complained. Eventually, the plaintiff was out of a job, and he sued. The trial court dismissed all of his claims at the summary judgment stage before trial.

The Court of Appeals affirmed on all but one of the retaliation claims.

Filed under: Case Reviews, Los Angeles Civil Litigation, Torts

SEC’s Whistleblower Rules

The Securities and Exchange Commission today announced the rules for a new SEC whistleblower program implemented under the Dodd-Frank Act. I am in the process of reading and digesting the rules myself, but you can take a look at the SEC’s press release here, and the actual rules here.

I can tell you that the six page tip submission form (not even counting the application for an award) is pretty thorough. I would say that it assumes a certain level of sophistication on the part of the whistleblower. Whether that is good or bad – well, it is too early to tell.

Filed under: Los Angeles Civil Litigation, Securities

California Court of Appeals: You Don’t Have to Stop Loving Your Wife to Be Awarded Damages for Loss of Consortium

[Key Takeaway: Complete loss of of consortium is not necessary for an award of damages, and a husband may still profess that he loves his wife more than ever without that testimony serving as a bar to recovery for loss of consortium.]

In a published opinion, the Second District of the California Court of Appeals reversed an odd finding with respect to a husband’s loss of consortium claim. In Mealy v. B-Mobile, Inc., a woman had been injured as the result of a fall blamed on the negligence of the defendant. She was awarded damages, but her co-plaintiff and husband was denied damages on his loss of consortium claim.

Filed under: Case Reviews, Los Angeles Civil Litigation, Torts

Ninth Circuit Finds FACTA Provision Does Not Apply to E-mailed Receipts

The Ninth Circuit had an opportunity to address the scope of the Fair and Accurate Credit Transactions Act (“FACTA”) and yesterday joined the Seventh Circuit in saying that e-mailed receipts are not covered by FACTA’s prohibition against printing whole credit card numbers on receipts.

Filed under: Case Reviews, Los Angeles Civil Litigation, Privacy

Concepcion Follow-up

To follow up on my post regarding the Concepcion decision from a few days ago, I thought I’d highlight a related debate regarding the same article I discussed. Here the Consumer Law & Policy Blog (“CLPB”) takes Daniel Fisher to task for his post regarding Concepcion. Daniel Fisher responded, and the CLPB did not think much of that response.

I am sure the debate will continue.

Filed under: Class Actions, Los Angeles Civil Litigation

The Ninth Circuit Addresses General Personal Jurisdiction on an Agency Theory

If you love thinking about personal jurisdiction issues (and, come on, who doesn’t?), then you may find the opinion issued today in Bauman v. DaimlerChrysler Corp. by the Ninth Circuit worth a read. If you operate or represent a foreign corporation operating in the U.S. via a wholly-owned subsidiary, then you will definitely want to take a look.

Filed under: Case Reviews, Los Angeles Civil Litigation, Torts

Objector Standing in Class Actions

[Key Takeaway: Class members wishing to challenge a settlement agreement lack standing to raise objections unless they are taking a position that class members should be receiving more from the settlement.]

Returning to class action settlements again, the Ninth Circuit released a short opinion in Glasser v. Volkswagen of America, Inc. today.

Filed under: Case Reviews, Class Actions, Los Angeles Civil Litigation