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Posts Tagged ‘google’

Employers Reconsidering Forced Arbitration in Response to Protest

Posted on: March 4th, 2019

By: Hassan Aburish

In late 2017, the “Me Too” movement ignited after actress Ashley Judd publicly accused media mogul Harvey Weinstein of sexual harassment. Since then, the movement has led to vast changes in the workplace. Numerous industry leaders have fallen from grace. States are quickly passing legislation to attempt to curb sexual harassment and abuse in the workplace, and allegations of sexual harassment continue to rise. However, as Google employees proved last month, compliance with the law cannot be an employer’s only consideration.

When Andy Rubin stepped down from his executive role at Google in October of 2014, it appeared to be an amicable parting of ways. But three years later, a New York Times article revealed that Andy Rubin was forced to resign following a “credible” allegation of sexual harassment. The NYT also disclosed that Google gave Rubin an exit package worth approximately $90 million dollars, which was not required under his contract. Within days of learning this information, hundreds of Google employees staged a walk-out to protest their employer’s handling of alleged sexual misconduct.

In response to employee demands, Google CEO Sundar Pichai agreed not to enforce mandatory arbitration agreements with regard to claims of sexual harassment and assault. However, following their victory, Google employees began pushing for the arbitration clauses to be nixed entirely. On February 21, Google announced the end of its policy of forced arbitration and class action waivers for its employees.

There are many lessons we can learn from Google’s experience. First, never assume that resolution of a dispute will remain confidential. One of the most embarrassing aspects of this situation for Google—and what appears to have been the source of much employee infuriation—was the fact that Google could have terminated Rubin without paying him $90 million for allegations an internal investigation concluded to be credible.

Second, employers must weigh all costs and benefits of their policies regarding employees. While employers typically can require employees who have signed arbitration agreements to pursue their claims within the arbitration context, employers should also assess other factors in deciding how they handle the use of arbitration agreements with their workforce.

Third, sexual harassment continues to be a front-page issue. From giant tech companies to family-owned restaurants, allegations of sexual harassment are likely to make it into the news. So it is now more important than ever to ensure that employers get ahead of these issues by holding consistent harassment training, updating employee policies and manuals, and quickly and appropriately handling employee complaints.

If you have any questions or would like more information, please contact Hassan Aburish at [email protected].

Google, The Supremes & Cy Pres

Posted on: June 14th, 2018

By: Samantha Skolnick

At the end of April, the U.S. Supreme Court accepted a certiorari petition in the case Frank v. Gaos, No. 17-961, 2018 WL 324121 (U.S. Apr. 30, 2018). The Supreme Court will determine if a class-action settlement involving Google met federal law requirements when $5.3 million of the $8.5 million settlement fund was given to outside groups. The question presented: “Whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and comports with the requirement that a settlement binding class member must be ‘fair, reasonable, and adequate.’”

Cy pres is a doctrine where the original objective of the settlor or testator becomes impracticable, impossible and in some instances illegal to perform. Cy pres allows the Court to alter terms of the charitable trust to get as close to the original intention of the testator or settlor as to allow the trust to remain and not flounder.

The core issue in this case is whether this settlement complied with Rule 23(e)(2) which sets the requirement that proposed class action settlements be “fair, reasonable and adequate.” In certain class action situations, funds can be unclaimed when the members claims are small or the process is difficult. To prevent the unclaimed amounts from entering the defendant’s pocket, the money can be directed to other causes, charities and foundations.

Here, the class action stems from allegations that web browsers disclosed Google searches to third-party websites. Three of the named plaintiffs received $15,000 incentive awards, and the rest of the class received nothing. The cy pres award was allegedly given to organizations who promised to use the money to protect internet privacy.  The cy pres recipients included:  World Privacy Forum; Carnegie Mellon University; the Center for Information, Society and Policy at Chicago-Kent College of Law; the Berkman Center for Internet and Society at Harvard University; the Stanford Center for Internet and Society; and AARP. According to the cert petition, class members that were absent received “no relief at all in exchange for their claims—no money, no alteration of the defendant’s allegedly injurious conduct, not even coupons.”

The implications of this decision and how settlement funds are distributed particularly in class actions can be huge. Class actions span from internet privacy to self-driving cars to the on-going tobacco litigation. For now, we wait and see.

If you have any questions or would like more information, please contact Samantha Skolnick at [email protected].

Cybersecurity in Georgia Hits a Roadblock

Posted on: May 14th, 2018

By: Ze’eva Kushner

On May 8, 2018, Georgia’s Governor Nathan Deal made a controversial decision to veto a cybersecurity bill.  Issued in the wake of the massive data breach of Atlanta-based Equifax, among other data breaches across the country, the cybersecurity bill would have made logging into a computer without permission illegal, even if no information was stolen.  The recent ransomware attack on the City of Atlanta serves as a reminder of the potential significant costs of not having computer systems protected adequately.

However, the bill included multiple exemptions, one of which would have permitted individuals to engage in active defense measures aimed at preventing or detecting unauthorized computer access.  In the industry, this is often referred to as “hacking back.”  The defensive actions could have included techniques such as using beaconing technology to determine the location of a hacker or leaving one’s network to track down stolen data.  The legality of these cyber defense measures is murky.

Google and Microsoft both urged Governor Deal to veto the bill, explaining that the active defense exemption would have authorized the hacking of other networks and systems under the pretext of cybersecurity and potentially lead to anticompetitive behavior.  According to Governor Deal, the end result of the bill would have hurt organizations’ ability to secure their computer systems.

If you have any questions or would like more information, please contact Ze’eva Kushner at [email protected].

What Does Your Video Watching Behavior Say About You?

Posted on: December 18th, 2017

By: Jonathan Romvary

A federal court recently determined that the sharing of an individual’s device identification number and the videos watched does not violate federal privacy laws. In Eichenberger v. ESPN, Inc. , 2017 BL 427074, 9th Cir., No. 15-35449 (Nov. 29, 2017), the Ninth Circuit held that an individual’s Roku Inc. device serial number and a list of the ESPN videos watched does not qualify as personally identifiable information (PII) under the Video Privacy Protection Act (VPPA) such that ESPN’s sharing of the information with a third party did not violate VPPA protections.

What did the Court hold?

The three-judge panel held that while the plaintiff had standing under the Court’s Spokeo ruling, he could not continue with his suit because the shared information was not personally identifiable under the VPPA. The panel adopted and expanded the Third Circuit’s 2016 Viacom ruling that information can only be considered personally identifiable if an ordinary person could use it to pinpoint a specific individual’s video-watching behavior. Here, an individual would require the data to be combined with other personal information that ESPN never shared or possessed.

Why is this important?

The impact of the Ninth Circuit’s ruling may be far reaching. Nowadays, technology service providers and app developers are moving away from identifying their users by their names. They now utilize a variety of alphanumeric identifiers to identify their users, whether it is the unique identification number of the user’s device (see ESPN) or a unique user account identification number. Without more, the average user is unable to identify the person who watched. As one observer noted, this ruling may pave the way for companies such as Hulu, Netflix, Google and Facebook to optimize their user experience to provide more targeted marketing without violating federal statute.

In recent years, plaintiffs have filed a serious of class actions alleging violations of the VPPA against companies such as Fandango, Blockbuster, Overstock.com, Gamefly, Redbox, Best Buy, Netflix, and Hulu. The attractiveness of these suits is likely because plaintiffs can argue that violations are punishable by $2,500 in statutory damages per violation. However, as this court’s ruling indicates, every technological advancement away from the brick and mortar video rental stores away will make it harder for a plaintiff to sustain a successful claim.

However, the impact should also not be overstated. Despite this win for technology providers in the Ninth Circuit, there remains the matter of Yershov v. Gannett Satellite Information Network, Inc., No. 15-1719 (1st Cir. Apr. 29, 2016) which held that the disclosure of an individual’s viewing data along with the device’s unique identifier and device’s GPS information constituted PII such that the disclosure may violate the VPPA. The fact remains that there is still much uncertainty about the scope and viability of the VPPA.

If you have any questions or would like more information on this developing issue please contact Jonathan Romvary at [email protected].