The ABA is reporting that the federal circuits are split on whether an employee who is authorized to access her employer’s computers but does so for improper purpose(s) is liable under the Computer Fraud and Abuse Act. The Ninth Circuit apparently only permits recovery where the access is completely without any authorization. Other circuits apparently permit recovery if the access is abused contrary to the employer’s interests or the parties’ contractual agreement. It will be interesting to see if the U.S. Supreme Court gets a say in the matter.
The Arizona Court of Appeals has rendered a decision holding that an employee on an out of town work assignment is acting within the course and scope of his/her employment while going to and from a restaurant for a regular meal for purposes of respondeat superior liability. McCloud v. Kimbro, 2 CA-CV 2009-0116 (March 23, 2010). The Court’s rationale – but for the out of town work assignment, the employee would not be required to eat away from home.
Apple Inc. has filed a civil lawsuit against a former manager indicted for allegedly accepting kickbacks from certain suppliers of the company. The manager has pled not guilty to the criminal charges. The civil action alleges that the former manager breached his contract and misappropriated Apple trade secrets.
City of Ontario v. Quon, No. 08-1332 (Slip Op. June 17, 2010)
The ABA reports that the U.S. Supreme Court upheld a search by the City of Ontario of one of its employee’s text messages because the search was motivated by a legitimate work-related purpose and the scope of the search was not excessive. For example, the search did not involve any texts sent or received while the employee was off-duty. Only those texts sent or received while the employee was working were searched. The Ninth Circuit had previously found the search to have violated the employee’s Fourth Amendment Rights. The U.S. Supreme Court disagreed.
Rent-A-Center, West, Inc. v. Jackson
No. 09-497, 561 U.S. _________, (U.S. June 21, 2010)
The ABA reports that in a 5-4 decision, the United States Supreme Court reversed a Ninth Circuit decision that had held when an arbitration provision is challenged by an employee on grounds of unconscionability, the issue is one for the court, not the arbitrator. The Supreme Court majority found that the employee Plaintiff’s challenge was to the contract as a whole as compared to a challenge to the specific provision that delegated the issue of enforceability to the arbitrator. The subject matter of the contract, however, was exclusively arbitration. This is where the majority and dissent crossed-paths. The majority found this to be a distinction without a difference and focused on whether the challenge was to the arbitration provision as a whole as compared to the specific provision that delegated the issue of enforceability to the arbitrator. The determination whether the provision was unconscionable was ordered to arbitration. If upheld by the arbitrator, the employee Plaintiff’s discrimination claim would be subject to arbitration as well. In fact, arguing over whether his claim is decided in court or by arbitration may be this Plaintiff’s only day in court.
The Arizona Court of Appeals recently reversed and remanded a trial court’s grant of summary judgment against a former Taser executive. Taser sued the former executive claiming, among other things, that he breached his fiduciary duty to Taser by competing with the company while still employed there. The Court of Appeals found a genuine issue of material fact existed as to whether the former executive had merely begun making preparations to compete or actually began competing with the company while still employed there. Only the latter is a breach of fiduciary duty in Arizona. The case is helpful in that it discusses the factors involved in deciding what constitutes preparing to compete while one is still employed - an issue often confronted by many employees and employers in these sorts of cases. It is also interesting to note that the Court of Appeals on its own accord entered summary judgment against Taser on its claims that the former executive usurped a corporate opportunity and had a duty to disclose his plans of forming a competing business. Click here to read the decision.
The Arizona Republic reported today that a Jeep tour company in Sedona will pay $35,000 to settle an age discrimination lawsuit brought by the EEOC in connection with the company’s alleged firing of a 75 year old woman and hiring a much younger replacement. As part of the deal, the company must also adopt an anti-discrimination policy and provide training for its employees involved in the hiring process.
November 17th, 2008
admin
In this case, the United States District Court found in favor of Berk & Moskowitz, P.C.’s client that his employer breached its retirement plan contract by refusing to pay him benefits. The 9th Circuit Court of Appeals affirmed the decision.
Read the 9thCircuitMemorandumDecision and the DistrictCourtDecision.
