Carlson Lynch Wins Consumer Standing Appeal in Ninth Circuit

Carlson Lynch attorneys Jamisen Etzel and Kelly Iverson won a significant consumer rights ruling earlier this year from the United States Court of Appeals for the Ninth Circuit. The appeals court held in a published decision that the temporary loss of money is a sufficient “injury-in-fact” under Article III of the Constitution to confer standing on a consumer to file a federal lawsuit.

In the case, called Van v. LLR, Inc., Carlson Lynch and its client brought suit against the clothing company LuLaRoe, alleging it had improperly overcharged Ms. Van and a class of similarly situated Alaska residents by including a “tax” on its invoices, where the purchases should have been tax free. After being sued by Carlson Lynch and certain of its clients, but before Ms. Van’s suit was filed, LuLaRoe began refunding the improper charges directly to customer credit card accounts. Those refunds, however, did not credit its customers for all of their damages, nor did it pay compensation for the customers’ lost time value of their money.

The federal district court in Alaska, where Van’s suit was filed, dismissed the case based on lack of subject matter jurisdiction after finding that the consumers’ lost time value of money was “too little” to be a constitutionally recognizable harm conferring standing to sue. Carlson Lynch appealed that decision, arguing that there is no minimum monetary loss threshold required to obtain standing, and that federal courts traditionally recognize invasions of a person’s possessory interests and the lost time value of money as concrete injuries under the Constitution.

The Ninth Circuit held oral argument on June 3, 2020, and Jamisen Etzel argued on behalf of Ms. Van. The appellate panel agreed with Carlson Lynch’s position, and on June 24, 2020 reversed the lower court, finding that “[f]or standing purposes, a loss of even a small amount of money is ordinarily an ‘injury,’” and that “the temporary loss of use of one’s money constitutes an injury in fact for purposes of Article III.”

The decision is an important one for consumers because it confirms that they may go to court and obtain interest or other compensation when their money has been improperly held by others for significant periods of time.

You can read the full opinion at this link.  The judges of the Ninth Circuit panel were Morgan Christen, Paul J. Watford, and Bridget S. Bade. Jamisen Etzel led the appellate briefing and oral argument. Kelly Iverson assisted in the appeal and serves as lead counsel in Carlson Lynch’s cases against LuLaRoe.


Personal Safety Tips in the Era of Cyber Crime

Someone is trying to steal your data. It has likely happened already, through a hacked email or a social media breach. Hackers work around the clock and all over the world to steal your identity.  While they don’t actually care who you are personally, they want the “you” that is inherent in your personal data.

From a legal standpoint, cyber-criminals are difficult to prosecute, because they are experts at covering their tracks. Institutions, on the other hand, are being challenged to protect their clients and employees. When a major breach occurs –millions of accounts are raided. This type of breach is often the result of organizational negligence or the company not adequately protecting a customer’s data.

So how can you protect yourself in the ever-changing landscape of the web?

We’ve compiled a list of quick checks to help you maximize your chance of withstanding a data breach.  As technology progresses, it is important to use best practices for cyber-security, at home and at work.

USE STRONG PASSWORDS

This is your primary defense against cyber-criminals. Creating unique passwords for each account may feel like a hazzle but remember this is your main line of defense against spyware, ID theft, and unwanted charges on your account.

USE TWO-FACTOR AUTHENTICATION

You have likely used this before, especially if you bank online or use social media accounts. “2FA” usually requires you to enter a second code, transmitted by text or phone call. Unless a hacker can obtain both your password and phone, 2FA is a powerful shield.

USE A VIRTUAL PRIVATE NETWORK

A VPN is a private network that is usually encrypted, making it very difficult for hackers to break. VPNs are affordable and easy to install, and many workplaces require VPNs for all employees, especially if they work on company laptops at home. If you’ve never used one before, we suggest consulting an expert to ensure your VPN is legitimate and functions properly. (Check the validity of any application before downloading anything off of the internet).

VET YOUR EMAILS AND LINKS

You may still receive misspelled emails from foreign dignitaries, but scammers have become far more sophisticated in recent years. Cyber-criminals routinely hack into email accounts in order to send urgent (and authentic-sounding) requests. If you receive a link that looks at all unfamiliar, do not click it. You may not only contract malware on your device; you could spread it to an entire network.

If you have been a victim of cyber-identity theft and have additional questions about protecting your data, let us know.







    Gary Lynch Headshot

    Target Credit and Debit Card Breach Lawsuits

    A massive data breach occurred when credit and debit card information from about 40 million Target shoppers was stolen. The Target Corporation announced that the track data was stolen as payment cards were swiped in its stores between November 27 and December 15, 2013. The Target breach resulted in millions of stolen credit and debit card account data allegedly being sold on the black market. Target has said hackers stole the personal information, including names, email addresses, phone numbers and home addresses of as many as 70 million customers.

    A number of banks, credit unions and other entities that issued debit and credit cards, several of which are represented by Carlson Lynch, are now suing Target for the cost of canceling and reissuing cards, closing transactions or accounts, refunding or crediting cardholders for unauthorized transactions, and notifying customers of the data breach. The Target data breach has forced these institutions to pay millions of dollars to reissue compromised cards and repay customers whose accounts were struck with fraud. The banks and credit unions who have brought suit also seek damages for business lost as wary customers avoided making card purchases.

    The class action suits brought by Carlson Lynch allege that Target knew or should have known that its payment processes were vulnerable to this sort of attack, yet the company failed to take adequate measures to protect sensitive data and did not inform customers or financial institutions about the ongoing attack for several weeks after it was discovered.

    The cases assert that Target should be responsible because the company stored and maintained data from the magnetic stripe on customers’ cards for longer than 48 hours before the data was stolen. The 48-hour limit is imposed by Minnesota law. The lawsuits also claim that Target failed to adequately protect its’ customers’ data, and its misconduct regarding the confidential debit and credit cardholders’ information constitute deceptive acts and unfair trade practices.

    The recently filed lawsuits seek monetary damages, attorney’s fees, and a finding that Target violated Minnesota law by maintaining customer account information longer than 48 hours, among other damages and remedies.


    Jamisen Etzel

    Unpaid Internships: Career Opportunity or Free Labor?

    In the wake of the financial crisis of 2008 and subsequent economic downturn, a pernicious employment practice has emerged which victimizes people who try to advance their careers through an internship. As unemployment increased and hiring slowed, many companies converted paid internships into unpaid internships. Unpaid internships are not new, of course, but the practice is very widespread today, even in sectors where they were previously uncommon. An unpaid internship may be a great opportunity, but in some cases the employer may be using unpaid interns in ways which violate state and federal labor laws. In today’s difficult employment environment, potential interns must take steps to protect themselves from unfair labor practices by learning the difference between a legitimate internship and an exploitative one. In some cases, legal action is necessary to reclaim wages which should have been paid.

    People take unpaid internships for a number of reasons: they may feel compelled to avoid a gap on their resume, they may believe that the unpaid internship offers a possible path to full-time paid employment, or the internship may offer a uniquely valuable experience at a firm where entry-level positions are scarce. Some unpaid internships certainly benefit the interns by building their skill-sets, improving their professional networks, and serving as a launching pad for a successful career.

    But less scrupulous employers may use unpaid internships to avoid hiring a paid employee. The internship may provide little or no valuable training, and the intern’s work may consist of the types of tasks that a paid employee would normally complete. The benefits of the internship are received by the employer rather than the intern. In other words, the employer is essentially stealing the intern’s time and labor without providing the type of learning experience the intern anticipated. This type of unpaid internship is likely illegal.

    The United States Department of Labor released a fact sheet in April 2010 to help determine whether interns must be paid minimum wage and overtime under the Fair Labor Standards Act. The following are the markers of a legal unpaid internship:

    • The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
    • The internship experience is for the benefit of the intern;
    • The intern does not displace regular employees, but works under close supervision of existing staff;
    • The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
    • The intern is not necessarily entitled to a job at the conclusion of the internship; and
    • The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

    If the firm fails to maintain one or more of these standards, an employment relationship may exist, in which case the unpaid intern is actually entitled under the law to payment for his or her services. Other factors that may be relevant are whether the firm is a for-profit or a non-profit and whether the intern will receive college credit.

    Several lawsuits by unpaid interns are working their way through the court system:

    • In Xuedan Wang v. Hearst Corp., No. 12-cv-793 (S.D.N.Y.), a young woman is suing Harper’s Bazaar on behalf of all unpaid or underpaid interns who have worked at a Hearst publication since 2006. The plaintiff claims that she worked up to 55 hours per week without pay, primarily performing menial tasks for the benefit of her supervisors.
    • Glatt v. Fox Searchlight Pictures, No. 11-cv-6784 (S.D.N.Y.) was filed by two plaintiffs who were unpaid for work on the “Black Swan” production. They claim that they spent most of their time doing routine tasks which did not amount to training or valuable experience.
    • Bickerton v. Charles Rose, (New York State) the plaintiff worked 25 hours per week on the PBS program “Charlie Rose” without pay. She alleges that the show relied on the work of unpaid interns without providing them any training.

    On the surface it may seem that there is nothing wrong with people choosing to take unpaid internships if they believe they will benefit in the long run. When internships are closer to “job shadowing” or a “sandbox experience” and expose the intern to varying aspects of the firm’s work, they are more likely to be beneficial to the intern and therefore presumptively legal. But when firms surreptitiously replace paid labor with unpaid labor, and the intern’s work is directly benefiting the firm rather than the intern, the firm is circumventing minimum wage and overtime laws. If enough employers engaged in this illegal practice, the cumulative effect would be a massive transfer of wealth from workers to business owners as well as a significant reduction in entry-level opportunities.

    It is important to remember that the victims of illegal unpaid internships are not necessarily college students or recent graduates. Interns come from a wide range of backgrounds and qualifications, including people who have already established a career and are looking to try a new field. Notably, the named plaintiff in Glatt was a 40-year old man with an M.B.A. degree who had experience working at A.I.G. before trying to break into the film industry.

    If you are or recently were an unpaid intern and your employer benefitted from your work and did not provide you with training or useful experience, please contact our office.

    Sources:

    Christine Kearney, Intern Sues TV Host Charlie Rose for Unpaid Wages (Opens new a new Window), Thomson Reuters, Mar. 14, 2012

    Samuel Estreicher & Allan S. Bloom, Unpaid Internships Under Legal Scrutiny (Opens new a new Window), New York Law Journal, Jan. 4, 2013

    Josh Sanburn, The Beginning of the End of the Unpaid Internship (Opens new a new Window), Time, May 2, 2012

    Steven Greenhouse, Interns, Unpaid by a Studio (Opens new a new Window), File Suit, N.Y. Times, Sept. 28, 2011


    Bruce Carlson

    ATM Accessibility For The Blind And Visually Impaired

    As technology has evolved and the manner in which retail banking services are delivered to the public has changed as a result, Automated Teller Machines (“ATMs”) have proliferated. However, it has been a challenge to ensure that the increasing convenience offered by an ever-expanding number of ATMs is also made available to disabled American consumers.

    For example, to understand how difficult it would be for a blind person to use an ATM, a sighted individual need only close his or her eyes, approach the ATM and attempt to perform a banking transaction—any transaction. It is impossible to perform the transaction without vision because the input modalities for the transaction rely upon visual cues, which are of course meaningless to somebody who is blind.

    In fact, since the enactment of the Americans with Disabilities Act (“ADA”) in 1991, banks and financial institutions which provide banking services through ATMs have been required to ensure that all services available at the ATM are fully accessible to, and independently usable by, individuals who are blind. The 1991 Department of Justice Standards required that “instructions and all information for use shall be made accessible to and independently usable by persons with vision impairments.”

    Initially, the ADA and its implementing regulations did not provide technical scoping details defining the steps required to make an ATM fully accessible to and independently usable by blind individuals. The National Federation of the Blind (“NFB”) and other blind advocacy groups have been working to achieve ATM accessibility since at least as early as 1999, at which time the NFB began to work with the manufacturers of ATMs, the banking industry and other stakeholders—including the Department of Justice–to advocate for the adoption of specific scoping requirements – including most significantly voice guidance – calculated to achieve true accessibility. After a lengthy rulemaking process (i.e. more than ten years) wherein the DOJ entertained extensive input from all stakeholders, the DOJ published the Final Rule delineating the 2010 Standards for Accessible Design on September 15, 2010 (the “2010 Standards”). The 2010 Standards include very specific scoping requirements which require ATMs to have voice-guidance and other related features. The 2010 Standards became effective on March 15, 2012.

    Notwithstanding that the ATM accessibility requirements for the blind included in the 2010 Standards were enacted only after more than ten years of debate among all of the relevant stakeholders–a March 7, 2012 Wall Street Journal article noted the widely publicized fact that at least 50% of the nation’s ATMs remained inaccessible to blind individuals in violation of the requirements set forth in the 2010 Standards (which were to become effective one week later). In that same article, a spokesperson for the National Federation of the Blind (“NFB”) was quoted as saying: “It is absolutely unacceptable that at this late date there are hundreds of thousands of ATMs that are still not accessible to blind people.”

    Some members of the blind advocacy community share the view that was reflected in that Wall Street Journal article and further believe that while certain stakeholders have been proactive with respect to facilitating accessibility at their ATMs – as federal law has required since 1991—other stakeholders have been dragging their feet with respect to compliance.

    Beginning in the first quarter of 2012, a team of lawyers, paralegals and investigators at Carlson Lynch began working with a dedicated group of blind advocates to pursue civil litigation calculated to enforce the accessibility requirements of the 2010 Standards. We believe that this project will exemplify how effective well-conceived—and well-financed–private litigation can be to enforce compliance with the federal civil rights laws. To that end, we will provide periodic updates regarding what is happening “on the ground” in the litigation nationally.