Can a Third Party Texter Be Held as “Negligent” in an Automobile Accident?

In a May 25, 2012 New Jersey Law Journal article written by Mary Pat Gallagher entitled:No Liability Found for Sending Texts to Driver Just Before Crash, a New Jersey Judge held that one can NOT be sued for allegedly helping to cause an accident by texting a driver in a vehicle.

On Sept. 21, 2009, Kyle Best, then 19, was driving his pickup truck on his way home from teaching a swim class at the West Morris YMCA in Randolph when he lost control, crossed the yellow line in Mine Hill and hit David and Linda Kubert on their motorcycle.

The Kuberts claimed that because Best was answering a text from her when he lost control, Colonna was electronically present in Best’s pickup truck and thus, also at fault. They alleged that Colonna knew or should have known that Best was driving when she sent the text. She testified at her deposition that she “may have known.”

While the Kubert’s claim against the negligent driver (Best) is still intact, the person sending the text has no liability in the accident.


Ikanos Failure to Disclose Defects in Semiconductors Prior to $120 Million Secondary Offering

In a recent blog posting on The D&O Diary, Kevin LaCroix discusses the potential implications that the Second Circuit reversal of the lower court’s dismissal of the securities suit involving Ikanos Communications could have on the lawsuits that have been recently filed against Facebook.

Prior to completing a $120 million secondary offering in March of 2006, the plaintiffs in the lawsuit allege that Ikanos was having quality issues with their semiconductor chips in January of 2006.  As the offering date got closer, the defect problems became more pronounced and allegedly the issues were discussed by the Company’s Board.

The plaintiffs have alleged that the magnitude of the defect issue was not adequately disclosed in the Offering Documents.  Ultimately the Company decided to replace all of the units that had been sold of certain defective chips.

The Second Circuit determined that the circuit court should have: “addressed the question of whether, in failing to disclose the scope of the defect issue with which Ikanos was then grappling, defendants concealed a ‘known trend or uncertainty that {Ikanos] reasonably expected would have a material unfavorable impact on revenues or income” as was required by Item 303 under Regulation S-K.

Attorneys handling lawsuits filed against Facebook for similar failure to disclose issues relating to the Company’s recent Initial Public Offering (IPO) will no doubt be following this case very carefully.

For further information about the recent decision, please read Kevin LaCroix’s posting entitled:  Second Circuit: Failure to Disclose “Known Uncertainties” States Securities Claim

FBI – Frauds From A to Z

The FBI has just recently released a revised list of frauds on their web page entitled: Frauds From A to Z.  The topics covered range from Adoption Scams and Credit Card Fraud to Insurance and Internet Fraud.  For most categories, the FBI website provides both an overview of the fraud itself and tips for how to avoid being caught up in the fraud.

EXAMPLE:  Lottery Fraud

If it sounds too good to be true, it usually is a fraud.  Americans are defrauded out of $120 million annually in Lottery Scams.

Here are a few examples of how the schemes work:

  • You receive a call, an e-mail, or a letter telling you that you’ve won a large sum of money in a foreign lottery you don’t remember entering. To claim your “winnings,” you’ll have to provide your bank account number so your winnings may be deposited into your account.
  • You’re told you’ve won a sizable lottery and are asked to wire a few thousand dollars to a “customs agent” to cover duties and taxes. But after wiring the money, you’re contacted again and told you must send even more money to collect your prize.
  • You receive a congratulatory letter in the mail along with a check for $5,000. You’re instructed to cash the check, then wire a portion of the funds to a foreign address to cover taxes and fees, keeping the remaining money as your “lottery winnings.” A few days after doing so, your bank notifies you that the check was counterfeit and you now must repay it the $5,000.



There’s No “Free Lunch” (or Breakfast in This Case)

Have you ever joined a club in order to benefit from the perks they offer?  A man on Wall Street did just that, joining a club that treated its members with a full, hot breakfast every morning, according to a story in the New York Post written by Dareh Gregorian entitled: Yoke of a lawsuit tossed.

When the club closed and renovated its restaurant, it reopened and changed its morning offering by providing only a cold buffet.  The member was furious, and complained to a club executive, which ultimately got him a loss of his membership.  He sued the club for $715,000 for false representations, but the judge agreed with the club that they had the right to change their food offerings.

Ultimately, the judge ruled that the member had to pay over $400 in legal costs to the club.  Now, he no longer get s his free, hot breakfast, but he doesn’t get the cold one either, and has lost another $400!

Technology Post – Skype Reaches 100 Billion Call Minutes in Q1 of 2012

In a New York Times article written by Nick Wingfield entitled: $8.5 Billion Deal for Calling Service Presents a Puzzle, Skype has reached some very impressive milestones since being acquired by Microsoft for $8.5 billion:

  • The number of people using Skype has increased 26% to more than 250 million
  • Call minutes have increased 40% to 100 billion in the first quarter of 2012

Microsoft has big plans for Skype. The Company plans to integrate Skype into Lync, a communications product aimed at businesses.  A second priority is to make Skype video conferencing work on Microsoft’s Xbox 360 console.

This is not the first time that Skye has been part of a much larger organization.  In 2005, Skype was acquired by eBay for $2.6 billion.  After the acquisition, the audience for Skype soared.  But when expected synergies with eBay did not materialize, eBay spun off Skype into a separate company with new investors. Let’s hope that the second time proves to be a charm for the Company!


“Prosecutors run our federal justice system today,” Judge Young of Boston

In a recently published New York Times article by Adam Liptak entitled: A Tough Judge’s Proposal for Fairer Sentencing, Judge William G. Young of Federal District Court in Boston stated: “Prosecutors run our federal justice system today.  Judges play a subordinate role — necessary yes, but subordinate nonetheless. Defense counsel take what they can get.”

An example of how the system works can be seen in the case of Jamel Dossie.  According to Judge John Gleeson who led a team of prosecutors in the John Gotti trial, Jamel Dossie was a “a young, small-time, street-level drug dealer’s assistant.”

Mr. Dossie was an intermediary in four hand-to-hand crack sales, for which he made a total of about $140. Two of the sales exceeded, barely, the 28-gram threshold that allows prosecutors to call for a mandatory five-year sentence.

The prosecutors’ decision to invoke the law calling for a mandatory sentence in Mr. Dossie’s case meant that Judge Gleeson had no choice but to send Mr. Dossie away for five years. Had his hands not been tied, Judge Gleeson wrote, “there is no way I would have sentenced” Mr. Dossie to so long a sentence.

The Dossie case illustrates what some judges say is a common problem: Prosecutors’ insistence on mandatory minimum sentences for minor players in the drug trade has warped the criminal justice system and robbed judges of sentencing authority.

“The only reason for the five-year sentence imposed on Dossie,” Judge Gleeson wrote, “is that the law invoked by the prosecutor required it. It was not a just sentence.”

The Price of Being Cool – Apple Gets Sued for Plaintiff’s Broken Nose

In a New York Post article written by Kieran Crowley and Todd Venezia entitled: ‘Pane’ & suffering at the Apple Store – Glassed Granny walks smack into $1M suit, Apple Computer seems to be paying the price for having a very cool and modern appearance at a Manhasset, Long Island Apple Store.

Evelyn Paswall, a former Manhattan fur-company vice president, is suing the Company for $1 million.  The lawsuit accuses Apple of being negligent for not “elderly proofing” the store’s see through facade.  While visiting the store on December 13, 2011 to return an iPhone, Mrs. Pace smashed her face into the wall of glass in front of the store and broker her nose.

Technology Post – Could Solar Airplanes Revolutionize Air Travel?

Solar Impulse en route to Madrid.(Credit: Solar Impulse/Screenshot by Michelle Meyers/CNET)

Will solar powered airplanes soon revolutionize air travel?  On Friday, May 25, 2012 the Swiss sun powered aircraft called Solar Impulse flew from Switzerland to its first stopover in Madrid as part of a 1,550 mile journey across the continent.  The flight was completed without using one single drop of traditional airplane fuel.

The wingspan of the plane is more than 200 feet.  The enormous wingspan provides for aerodynamic efficiency and houses the more than 12,000 solar panels that soak up the sunlight required to power the Solar Impulse during the day and charge its lithium polymer batteries to keep it aloft at night.

A round-the-world flight is being planned for 2014.  Currently the average ground speed achieved by the plane is only 55.3 mph as the first leg of the intercontinental flight took more than 17 hours to complete.

Additional information can be found in the CNET article written by Michelle Myers entitled: Solar plane midway through first intercontinental flight.

Alternatively, you can visit the Solar Impulse website.  The Company has an excellent video -