We truly live in a global economy with electronic goods and services being traded back and forth all over the world. There seems to be no borders and no limits to what can and cannot be shipped anywhere until now. There is a quiet, yet predictive trend that is beginning to raise a red flag for companies that export and import globally. It seems foreign plaintiffs are filing lawsuits in U.S. courts under something referred to as the Alien Tort Statute. [1][2]

What do the lawsuits allege? They suggest that technology companies and their U.S. based management are violating international law by encouraging human rights abuses through the use of their various products and should be held accountable in the United States. [3][4]That is a significant allegation, and if found to be credible, will cause a major upheaval in the way business is done in the technology sector. It may also open the door to multimillion dollar settlements and awards, which is something that a fledgling technology company could not afford.

For now, there are not that many lawsuits. However, the dawning of this type of litigation is creating anxiety in the technology sector for financial and practical reasons. Many are wondering just what the Alien Tort Statute is and how it came to be in the first place. It was brought into law in 1789 and its intention was that it would be used as a weapon against piracy and insults to U.S. diplomats around the world.

While piracy still exists today but in a different manner, the statute may be adapted to cover software and technology piracy, including the theft of trade secrets, coveted technical inventions and gadgets that may garner the creator mega bucks. Even though this statute was passed into law in 1789, it is clear it has been enjoying a rebirth over the last three decades as it was not reactivated until the 1990s when it was used to target global corporations in the U.S. [5]

The specific wording the lawsuits rely on is “…district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” (28 U.S.C. § 1350). [6]

The focus of the lawsuits is that the executives of a foreign company based in the U.S. are facilitating illegal, horrendous human rights abuses by virtue of the products they manufacture and sell. Any company slapped with this type of a lawsuit wishes they had never heard of or seen the statute as it takes years to litigate these types of cases.

Additionally, the media clings to this kind of story for the daily news. What more damage could possibly be done to a U.S. based company than to be sued and reviled in the news for alleged human rights abuses? And therein lies the dilemma. While the media report on alleged abuses, the public and consumers assume alleged means they did what they are accused of, when there is a possibility they did not.

Things may be taking a turn for the better. Consider the U.S. Supreme Court’s recent acquiescence to hear an appeal on Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010). [7][8] The specific issue they plan to address is whether or not corporate defendants can indeed face liability under the Alien Tort Statute. Should the Court’s decision be for the corporation, it would end the use of the statute as leverage against corporations accused of human rights violations. While that may sound like a blessing, it may not be the end of the issue.

The next issue to surface is more than likely to be a shift in focus from suing a corporation to suing a specific person. Just as one issue may be resolved legally by the Supreme Court, others may well take its place as they eventually wind their way through lower courts.

It is not just the technology sector that has faced this kind of lawsuit. It seems filing an ATS lawsuit is industry neutral and may include defendants in various industries from industrial and chemical sectors to finance, manufacturing, and technology. None of the plaintiffs appear to be shy about alleging torture, medical experiments on humans, crimes against humanity, inhumane working conditions, human trafficking and environmental pollution. In other words, a veritable potpourri of offenses may find their way into an ATS complaint.

Lately, more technology companies have been the target of these lawsuits, with the first of many suits filed in 2002. Plaintiffs in one suit pointed a finger at Fujitsu and IBM for allegedly assisting the South African apartheid policy by providing them technology that monitored the people. That case is still in the courts, but it is worth reading to get a sense of where the courts may be going, with regard to the law. [9]

One case that many may recall, if not for the large headlines it generated, is the World Organization for Human Rights USA launching a lawsuit against Yahoo. That suit suggested that Yahoo violated international law by giving Chinese bureaucrats online user information, making it easier to find and arrest political naysayers. [10]

It was quite the battle, with Yahoo peppering the court with creative arguments that were phrased in circuitous language that began with words to the effect of “even if Yahoo did surrender information,” the “dissidents” willingly took the risk of being found by going online to promote their views. Yahoo was on the hot seat for a number of months, and even endured questioning by the U.S. House Committee on Foreign Affairs. Yahoo did eventually settle the case.

Of interest is a case waiting to hear what the Supreme Court says in Kiobel, Doe v. Cisco Systems, Inc., (ND CA, filed 5/19/2011). [11] This case alleges Cisco Systems and some of its executive cadre helped China violate human rights by developing a program called Golden Shield. Golden Shield was allegedly designed to act as a surveillance and censorship program for tracking members who practice Falun Gong.

As things stand right now, the Supreme Court has not made a determination if corporations may be held liable under the ATS. The statute does not specify who may be sued, and so far, the answer to that question is not getting any clearer either to lawyers or the courts. [12][13]

Sources
[1] http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202536487253&From_the_Experts_Recent_Developments_in_Alien_Tort_Statute_Litigation

[2] http://www.princeton.edu/~slaughtr/Articles/AlienTort.pdf

[3] Id.

[4] http://www.uchastings.edu/faculty-administration/faculty/dodge/class-website/docs/publications/ats-origins.pdf

[5] http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202536487253&From_the_Experts_Recent_Developments_in_Alien_Tort_Statute_Litigation

[6] http://codes.lp.findlaw.com/uscode/28/IV/85/1350

[7] http://online.wsj.com/public/resources/documents/091710atsruling.pdf

[8] http://www.csrandthelaw.com/2011/02/articles/litigation/alien-tort-statute/alien-tort-statute-update-second-circuit-denies-petition-for-rehearing-en-banc-in-kiobel-v-royal-dutch-petroleum/

[9] http://axisoflogic.com/artman/publish/Article_55422.shtml

[10] http://www.humanrightsusa.org/index.php?option=com_content&task=view&id=53&Itemid=38

[11] http://religionclause.blogspot.com/2011/05/falun-gong-class-action-claims-cisco.html

[12] http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202536487253&From_the_Experts_Recent_Developments_in_Alien_Tort_Statute_Litigation

[13] http://supreme.justia.com/us/542/692/case.html

Background Sources
Doe v. Cisco Systems, Inc., (ND CA, filed 5/19/2011)

http://en.wikipedia.org/wiki/Alien_Tort_Statute

http://harvardhumanrights.wordpress.com/criminal-justice-in-latin-america/alien-tort-statute/

The SEO | Law Firm™ Legal News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm, Seolawfirm.com, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

For more than two decades the power plant industry was able to evade parts of the Clean Air Act that Congress had passed. Because of this, families living near power plants were still harmed by toxic pollutants in the air. Environmental advocates also fought to implement stricter regulations for mercury, toxins, and other pollutants that many of America’s power plants still emitted. Environmental lawsuits and toxic tort cases have involved the Environmental Protections Agency (EPA) for its ineffective regulations and many power plants for compromising individuals’ health. But in mid December, the regulatory landscape changed after the EPA finalized the national Clean Air Act in regards to reducing mercury and toxic air pollution that coal and oil-fired power plants emit.

The Mercury and Air Toxics Standards (MATS) establishes a final rule that mandates that power plants reduce mercury from being released into the air by 90 percent, acid gas emissions reduced by 88 percent, and sulfur dioxide emissions cut by 41 percent. This is beyond the decreases already proposed in the Cross State Air Pollution Rule. [1] A Presidential Memorandum backs up MATS and directs the EPA to use the tools in the Clean Air Act to implement emission controls.

The finalization “…from President Obama and EPA Administrator Lisa Jackson marks a milestone for parents and families across the country. It means that, after decades of delay, we now have strong nationwide protections against toxic mercury, and most of all, it means peace of mind for the parents of more than 300,000 American babies born every year that have been exposed to dangerous levels of mercury,” the Sierra Club commented in a recent press release [2].

Across the United States, there are 600 power plants and approximately 1,400 oil and coal fired electric generating units (EGUs). The EPA states that power plants are the main mercury, acid gas, and toxic metal polluters in the United States. [3] Populations living close to power plants, and, in particular, children have been affected by power plant pollutants. Health issues such as cancer, respiratory illness, and neuro-developmental problems have harmed individuals living near the power plants. And even fish that have been contaminated with mercury runoff can affect individuals thousands of miles away who eat this food source.

“These standards for mercury and other air toxics will help to reduce mercury emissions from power plants and help children across the country avoid preventable birth defects and learning delays and have a brighter, healthier, more productive future. Finally, putting people over politics,” said Adrianna Quintero, Director of Voces Verdes, La Onda Verde de Natural Resources Defense Council. [4]

Before MATS was in place, 48 tons of mercury pollution was pumped into the air each year and also affected U.S. waterways and the fish that thrived there. Why fish become such an important part of the story is this – inorganic mercury seeps into the water and bacteria convert it to methylmercury, which can then accumulate in living tissue. As fish age, the more mercury will be present in its meat. When humans eat fish, they then accumulate mercury in their tissues and hair samples can show elevated concentrations. Testing has shown that 40 percent of human mercury exposure is due to eating Pacific tuna. [5] For sushi lovers or those that eat fish out of preference or to maintain a budget, it can be daunting to know what to eat. The Sierra Club has created a chart for easy reference to make smarter eating decisions. [6]

Put in perspective, 48 tons of mercury could contaminate a 20-acre lake. [7] For those that are experiencing illnesses that are not easily explainable and perplexing doctors, mercury toxicity is noted for causing concentration problems, tremors, balance and coordination concerns, slurred speech, motor skill loss and muscle weakness, decrease in memory, insomnia, loss of vision, hearing, and hair, and long-term damage that can only sometimes be reversed. But for expecting mothers and their newborns, the dangers are even more severe.

More than 300,000 babies have been born each year with dangerous levels of mercury inside the womb. Power plant pollutants can damage a newborn’s developing nervous system and cause cerebral palsy, brain damage, and delayed speech and motor skill development. [8] These pollutants were scientifically proven to cause premature death, hospital visits, and many days of lost work.

With the new MATS, EGUs that are larger than 25 megawatts and generate electricity for residential, industrial, or commercial use will have to comply with these modern pollution controls. [9] For power plants that do not already have adequate pollution control, they will have to utilize wet and dry scrubbers, fabric filters, activated carbon injection systems, or dry sorbent infection systems to comply with the new emission rules. EPA advocates making upgrades to existing pollution controls, installing new ones, or switching fuels to lesson emissions.

Power plants will have until 2016 to get their facilities compliant with MATS. For environmental advocates this is long overdue as many power plants are more than 30-years-old, with some even over the 50-year-old mark. The EPA estimates that for every dollar spent, $3 to $9 of health benefits will be created. [10] EPA’s analysis shows that power plants should be able to retrofit or build these pollution controls in a cost effective way that also ensures electric reliability. After plants have these measures in place, EPA will conduct annual performance tests and inspections. With MATS, airborne soot levels should also decrease.

As the MATS rule takes effect, the EPA estimates that 540,000 sick days from work will be avoided. Air quality improvement and human health costs will improve by a minimum of $37 billion, the agency predicts. [11] Premature deaths will decrease by a minimum of 18,000, emergency room visits will lessen by 13,000, and 540,000 asthma attacks due to power plant pollution will not occur.

“The overall cost of the regulations is expected to reach $10 billion a year, with homeowners paying perhaps three percent more on their electricity bills,” noted a Los Angeles Times editorial. [12] “But it’s not as though the country hasn’t been paying that and more over the years; the price of high pollution levels has simply been pushed into the health sector in the form of higher rates of illness.”

Sources
[1] http://www.epa.gov/mats/pdfs/20111221MATSimpactsfs.pdf

[2] http://action.sierraclub.org/site/MessageViewer?em_id=223181.0&dlv_id=0

[3] http://www.epa.gov/mats/pdfs/20111221MATSimpactsfs.pdf

[4] http://www.huffingtonpost.com/adrianna-quintero/a-long-awaited-victory-fo_b_1163581.html?ref=green

[5] http://www.sierraclub.org/sierra/201111/mercury.aspx

[6] http://www.sierraclub.org/sierra/201111/Whatfish_graphic.pdf

[7] http://www.huffingtonpost.com/adrianna-quintero/a-long-awaited-victory-fo_b_1163581.html?ref=green

[8] http://www.sierraclub.org/sierra/201111/mercury.aspx

[9] http://www.epa.gov/mats/pdfs/20111221MATSsummaryfs.pdf

[10] http://www.epa.gov/mats/pdfs/20111221MATSimpactsfs.pdf

[11] Id.

[12] http://articles.latimes.com/2011/dec/23/opinion/la-ed-adv-mercury-20111223

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With advances in science and technology, having a healthy baby is more of a possibility. Preimplantation genetic diagnosis, also known as PGD, is a welcome relief for a couple who wants to have a child but is concerned about passing on genetic disorders or chromosome abnormalities. With newer techniques of in vitro fertilization, PGD involves taking cells from the embryo to determine if there are any abnormalities so that the doctor will only implant healthy cells in the woman’s uterus.

PGD has also been utilized by some medical centers to determine the sex of the child, the possibility of the child being born deaf or small stature and tissue typing. [1] For family planning or health reasons, PGD is sought after by some couples for peace of mind. It comes at an expensive price tag in the $10,000 range on up for IVF and PGD, and insurance does not typically cover it. PGD testing has been in use since the early 1990s and analyzes polar bodies during the process of meiosis or single cells from embryos after fertilization. [2] The small amount of DNA is amplified and can detect hereditary cancer, genetic mutations, and Down syndrome, for example. It can also show clues that can help a patient decrease their risk of miscarriage. [3]

Sometimes testing is done for just one specific genetic abnormality. At other times, PGD testing is done to see if an embryo has too many or too few chromosomes, which is an aneuploidy screening. PGD testing for aneuploidy uses fluorescence in situ hybridization (FISH) where DNA is labeled with glowing molecules, known as fluorochromes, which attach to certain chromosomes. Technicians can then count chromosome copies to look for abnormalities. PGD testing can be done on embryos three to five days after fertilization and be implanted back in the woman within the next two days. [4]

Prenatal testing, in general, is such a big market that in 2010 it accounted for a $1.3 billion industry. [5] Currently, most of the PGD patients are women of older child-rearing ages. This will only increase as statistics show women are waiting longer to have a child. After women reach age 37, there is a tendency to have chromosomally abnormal eggs. [6] Other patients seek out PGD testing due to recurrent miscarriages, failed IVF attempts, or genetic disorders in their families. By going the extra lengths and costs for IVF and PGD, a couple can transfer chromosomally normal embryos and reduce their risk for birth defects and miscarriage.

But reducing risk does not mean eliminating all risk. Sometimes a strong embryo can be harmed during the embryo biopsy procedure, lessening the effectiveness of the procedure. At other times, PGD can give false results and differences in techniques from varying medical centers and technicians doing this type of testing can alter the outcome. False results occur on an estimated five to 15 percent of embryos, including ones that show they are truly normal but testing shows abnormal, and vice versa. [7] Sometimes an affected embryo is implanted instead of an unaffected embryo.

In these circumstances, wrongful birth lawsuits emerge as do issues of medical malpractice and professional negligence. Errors in the process or with staff are alleged to have caused improper PGD testing and led the couple to proceed with the pregnancy. For some, had it not been for the health care professional’s negligence, they would have never conceived the child. For the expense and time commitment involved, the couple would have continued to test for normal cells to be implanted. The matter then becomes who is liable for the failure to detect a genetic disorder, sex of the baby, or other priority of the couple that also paid big money to get a healthy child.

Notable cases since the 1990s with PGD involve babies born with disorders after a fertility center claimed an embryo was normal. The courts favor these matters as a wrongful conception issue. [8] As with other types of injury cases, a couple can seek compensation for the cost of the failed procedure, pregnancy costs, pain and suffering, lost wages, and loss of consortium.

In the Family Court Review Journal, a recent article about “When Parents Can Choose to Have the ‘Perfect’ Child: Why Fertility Clinics Should be Required to Report Preimplantation Genetic Diagnosis Data” urges policymakers to have more oversight of fertility clinics and regulate PGD practices. [9] Since the United States does not currently regulate PGD testing, some are concerned about clinics’ desires for profitability in contrast to downplaying risks and failure rates for this experimental testing. At a minimum, consent forms outlining the risks of PGD and disclosures about it being an experimental test should be more prominent as the quest for the perfect baby is sought by a couple.

“Other countries regulate assisted reproduction to protect the well-being of all participants, including the children whom it helps create and the families and society into which they are born,” said Marcy Darnovsky, the associate executive director of the Center for Genetics and Society. [10] “Drawing lessons from their successes could help temper the commercial pressures in the U.S. assisted reproduction sector, without in any way diminishing reproductive rights.”

Others are apprehensive that as PGD becomes utilized more, it will lead to designer babies and a growing disparity between those that can afford to have perfect children and those who cannot. This, coupled with self regulation, can lead to unintended consequences that regulatory agencies and medical boards should be proactive about. Especially with varying levels of skill from clinic to clinic and technician proficiency, even in the same clinic, more oversight is needed to ensure that patient safety and medical standards are being upheld.

Darnovsky warns that prenatal genetic testing “…could radically alter the experience of pregnancy and parenting…and we’d better start thinking about it now – before hype, fear, and the polarized politics of abortion distort the discussion.” [11] The American Society for Reproductive Medicine and the American College of Obstetricians and Gynecologists provides fertility professionals with best practices for PGD. But guidelines are not enough; oversight by qualified regulatory groups would be better for patient safety.

Sources

[1] http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1319&context=wmjowl&sei-redir=1&referer=http%3A%2F%2Fscholar.google.com%2Fscholar%3Fhl%3Den%26q%3DPGD%2Btesting%26as_sdt%3D2%252C10%26as_ylo%3D2011%26as_vis%3D0#search=%22PGD%20testing%22

[2] http://pgdtesting.net/

[3] http://www.ivf1.com/pgd/

[4] http://www.advancedfertility.com/preimplantation_genetic_diagnosis.htm

[5] http://www.liebertonline.com/doi/abs/10.1089/gen.31.18.03

[6] http://www.advancedfertility.com/preimplantation_genetic_diagnosis.htm

[7] Id.

[8] http://www.dnapolicy.org/resources/Overviewofcourtdecisions_Crockin.pdf

[9] http://onlinelibrary.wiley.com/doi/10.1111/j.1744-1617.2011.01418.x/abstract

[10] http://scienceprogress.org/2009/05/baby-business-and-public-policy/

[11] http://www.geneticsandsociety.org/article.php?id=5957

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Apple and Nike having anything in common seems like a stretch of the imagination. However, it is not as Nike has decided to jump into the iPod market with their Nike + iPod, likely in the hopes that it could become a significant item for users. Questions of patent infringement might be on the top of legal minds, but in this case it does not pit the two companies against each other.

Currently Apple and Nike are named defendants in a lawsuit that indicates they licensed invalid patents for their exercise tracking equipment. How one licenses an invalid patent is interesting, since that would either need to be done deliberately or inadvertently as the result of a mistake. However, ignorance of the law is no excuse.

Erik Cherdak is at the center of the court case not only as an inventor, but as a registered patent lawyer. The patents in question in this case (Erik B. Cherdak v. Curtis A. Vock and PhatRat Technology LLC, and Nike Inc, and Apple Inc.) relate to his inventions. [1] This could make for a very volatile case, and it would not be the first of its kind launched by Cherdak either. [2] He has sued Nordstrom, Walmart, Kmart and Payless Shoes in the past.

In this patent infringement case, Cherdak seeks declaratory relief. He also alleges a violation of Section 2 of the Sherman Antitrust Act, as permitted by Section 4 of the Clayton Act and in accordance with Walker Process Equipment, Inc. v. Food Machinery and Chemical Corp., 382 U.S. 172 (1965). [3] In other words, he seeks to bring out the big historical cases to make a point that patent infringement is not to be tolerated. Who better to fight a case like this, than an inventor with patents in his name, who also happens to be a registered patent attorney?

Cherdak holds two patents relating to the invention of timing/tracking devices in athletic shoes, 269 Patent and 445 Patent. One patent was duly registered and issued in 1994, the other in 1995. There is evidently no question Cherdak is the acknowledged inventor and patent holder. [4]

Based on that position, Cherdak filed a patent infringement lawsuit against Nike and Apple, saying they licensed patents from PhatRat who alleging lied to the patent office to get its patents granted. Additionally, the patents that Nike and Apple licensed were in direct competition to his 269 and 445 patents. It was further stated that Nike and Apple engaged in the design, importation, distribution, and sale of athletic shoes and related technologies and products, including those that use the technologies outlined in the Cherdak patents.

He stated that Apple and Nike should have licensed the technology directly from him, [5] and that PhatRat and their lawyer, Mr. Vock, should have known that PhatRat’s patents were invalid, or at least they would have known that had they done due diligence in the research department.

One wonders at this juncture if there may also be a libel lawsuit arising out of this fiasco, since Mr. Vock, as a lawyer, would likely take a dim view of someone suggesting his research skills were lacking and that he may have missed the fact, inadvertently or on purpose, that the patents were invalid. But, that may become another spin off from this lawsuit.

It gets more complex in the statement of claim as Cherdak explains the invention technology he created. Cherdak’s system has embedded sensors like an accelerometer or GPS that keeps track of activity and exercise routes. Oddly enough, that is the same system PhatRat describes and the technology that the Nike + iPod uses.

The filing gets quite blunt in its remarks relating to PhatRat’s lawyer, suggesting that Cherdak’s valid patents were viewed merely as obstacles to be worked around; a move likened to unfair and anticompetitive trade practices. Cherdak alleges that instead of trying to buy the patent rights from him, Vock instead opted to materially misrepresent his two patents; a serious allegation that amounts to an accusation of predatory practices in the market. [6]

Misrepresentation cases, should one be brought against lawyer Vock, are often considered to be fraud cases and may be prosecuted criminally or civilly. In general, material misrepresentation is when someone deliberately makes a false statement to encourage a victim to part with property or money. Proving misrepresentation varies depending on whether the lawsuit is a civil or criminal one.

The usual elements for misrepresentation include: [7]
• A deceit/lie consisting of a false statement made on purpose or with reckless abandon that causes another to lose something
• Knowledge that what is being said is not true
• A material false statement
• A reliance on the false statement by the victim
• Damages or loss sustained

To prove material misrepresentation in a civil case, the standard of proof is based on the balance of probability, and not the criminal requirement of proof beyond a reasonable doubt. Of interest is the fact that the kind of evidence needed may well vary depending on how serious the allegations are. In other words, the more serious the accusations are, the greater degree of proof is required.

To win this case, Cherdak needs to be able to convince a court that PhatRat’s patents are invalid. Should that happen, his request for declaratory relief will be what he uses to deal with the two companies, meaning that their patents (146 and 380) would be declared invalid because they were improperly obtained from the United States Patent and Technology Office.

Far from being lawsuit prone, Cherdak appears to be striving to make an eminently valid point, which is that patent infringement is not acceptable and never will be. If someone does not act to protect their inventions/patents, the door would stand wide open to every enterprising person or company to come in and claim it and use it in their name. Someone has to draw a line in the sand and stand for the law. Cherdak seems to have taken on the mantle of patent protector and it will be fascinating to see the lawsuit unfold with these technology heavyweights.

Sources
[1] http://www.scribd.com/doc/75063909/Erik-Cherdak-vs-Apple-Nike-Curtis-Vock

[2] http://www.scribd.com/doc/50764491/Erik-Cherdak-vs-Nordstrom-Patent-infringement

[3] http://www.scribd.com/doc/75063909/Erik-Cherdak-vs-Apple-Nike-Curtis-Vock

[4] Id.

[5] http://www.macobserver.com/tmo/article/apple_nike_face_patent_lawsuit_over_ipod_accessories/

[6] http://www.macobserver.com/tmo/article/apple_nike_face_patent_lawsuit_over_ipod_accessories/, http://www.feedspew.com/article/news-apple-nike-face-patent-lawsuit-over-ipod-accessories-480293, http://lawyerintellectualproperty.com/apple-nike-face-patent-lawsuit-over-ipod-accessories-the-mac-observer/, http://www.scribd.com/doc/75063909/Erik-Cherdak-vs-Apple-Nike-Curtis-Vock

[7] http://legal.practitioner.com/regulation/standards_9_3_1.htm

The SEO | Law Firm™ Legal News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm, Seolawfirm.com, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

Amazon and Discovery were about to duke it out over a patent infringement issue when they recently agreed to a settlement.

It is always nice when a lawsuit gets settled, as it saves court time and a fair amount of money for the plaintiff and defendants. Settlement is usually also about one side knowing the other has enough evidence to likely swing a verdict in their favor, so it only makes good sense to settle voluntarily rather than have a jury increase the award to an amount they are not prepared to handle. There are times when lawsuits are about the odds of winning, and not about the fundamental issues that launched the suit in the first place. This is just the way the system works.

This particular dispute started back in 2009 when Amazon.com brought a suit in federal court against Discovery Communications. The case began when Discovery, producers of the Discovery Channel and Animal Planet, filed a patent infringement lawsuit against Amazon relating to the Kindle e-Reader’s e-security technology. The particular patent in question is dated 2007, and refers to the “Electronic Book Security and Copyright Protection System”. [1] [2]

The interesting part about the suit that never came to fruition is that Discovery said they were not trying to halt Amazon from selling the Kindle, but wanted legal fees, future royalties and damages. When the suit was first filed, there was an ominous two month silence on the part of Amazon, in which no one was sure how they were going to react. Their reaction was to file a counter lawsuit, alleging Discovery infringed on four of Amazon’s patents for search query and recommendation technologies.

When a person visits the Amazon site and browses for books or e-Readers, the bottom of the page shows a section that also recommends other related items. Recommendation technology is designed to be intuitive for buyers, and in some instances, is quite helpful. For others, it is downright annoying. Search query technology relates to programs that search a site for answers to a demand for information. An example might be if someone was looking for a book by well known lawyer Rusty Hardin. The person would type in the name, and the search string would locate all books written by Hardin.

This is not the first lawsuit filed against Kindle either. It seems they have been making a minor habit of infringing on others patents and intellectual property. Just recently, Amazon was the target of a lawsuit filed by Smartphone Technologies LLC (owned by Acacia Research Corp.), alleging the Kindle Fire tablet infringed on four of its patents. [3] [4] [5] In fact, this might well be one of the quickest lawsuits ever filed after the debut of a new product. It was only two weeks after Amazon launched its new product that Smartphone Technologies filed suit. [6] [7]

The Smartphone Technologies group lawsuits will be interesting to watch, as the company is typically becoming quite notoriously known as a patent troll. Right now they currently have patent infringement lawsuits filed against Amazon, Research in Motion and Apple Inc. [8]

The lawsuits filed seem to focus on commonplace features that most iPads and smartphones have in common, like touching an icon to activate a feature. (U.S. Patent No. 6,956,562) [9] Just how that infringes on Smartphone Technologies patents remains to be seen, and it will likely happen in federal court because the defendants refuse to back off their statements that they did nothing wrong.

Over time, Kindle has raised more than a few serious questions that deal with compensation to authors and publishers for their works. Specifically, their Kindle 2 text-to-voice capability, which renders text orally, would have a significant impact on audio book industry royalties.

This particular issue has resulted in Amazon letting authors and publishers decide whether or not they want to add the talking feature to their e-book titles. The resolution is indicative of how delicate the whole situation can be when new technology crosses the invisible line between copyright and infringement issues. One secretly wonders if the editorial written about this, cheekily titled “The Kindle Swindle”, may have had something to do with their decision to let authors and publishers make their own decisions. [10]

Discovery continues to contend that they stand by their allegations and wish to pursue the matter in court. They also insist that on initially first reading Amazon’s complaint against them, that their lawsuit does not relate to Discovery’s e-book technology. [11] This raises an interesting question – if indeed the lawsuit does not relate to Discovery’s e-book technology, then what is the dispute really about? The best answer may well be that it has to do with who is making the most money. Often lawsuits like this are not so much about whether someone infringed on someone else’s idea or territory, but that the offended party is losing money and wants to put a stop to it.

Generally speaking, patent infringement is when a person or a company uses or sells a patented invention without the benefit of obtaining a license from the original inventor. The definition varies from jurisdiction to jurisdiction, but in many countries patent infringement primarily relates to commercial uses or purposes. What many do not realize is that patents are referred to as territorial, meaning that if a patent is filed in the U.S., then anyone in the U.S. is prohibited from using, selling, making or importing the patented item in question. [12]

There are a number of defenses available against patent infringement, and they include, but are not limited to:
• the patent expired
• the patent is invalid or unenforceable
• the accused has a license under the patent
• the accused was not infringing on the patent in the patent territory
• the plaintiff infringed on the defendant’s patent

Sources
[1] http://www.techflash.com/seattle/2011/11/amazoncom-discovery-settle-patent.html

[2] http://www.techflash.com/seattle/2009/05/Amazon-Discovery_patent_spat_intensifies_45364442.html

[3] http://www.techflash.com/seattle/2011/11/amazoncom-discovery-settle-patent.html

[4] http://www.techflash.com/seattle/2009/05/Amazon-Discovery_patent_spat_intensifies_45364442.html

[5] http://www.techflash.com/seattle/2011/10/kindle-fire-draws-patent-suit.html

[6] http://www.techflash.com/seattle/2011/10/kindle-fire-draws-patent-suit.html

[7] http://www.techflash.com/seattle/2009/02/Authors_Guild_turns_up_heat_on_Kindle_2s_Text_to_Speech_40302597.html

[8] Id.

[9] http://en.wikipedia.org/wiki/Patent_infringement

[10] Id.

[11] http://www.techflash.com/seattle/2009/05/Amazon-Discovery_patent_spat_intensifies_45364442.html

[12] http://en.wikipedia.org/wiki/Patent_infringement

The SEO | Law Firm™ Legal News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm, Seolawfirm.com, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

The Department of Homeland Security has already successfully tested a pre-crime detection scanner on humans. Barring the legal hurdles and public response once this is officially unveiled, these scanners will gauge facial expressions and other biometric data to detect if someone is giving cues for mal-intent. [1] The DHS’ algorithm also includes scanning a person’s gender, ethnicity, breathing, and heart rate in a non-intrusive way via video and audio scanning. The DHS would like to utilize this technology not only at airports, but in bigger settings such as sporting events, border checkpoints, and more.

As society gets acclimated to full body scanners at many U.S. airports, it begs the question of having scanning in more facets of our life. Remote sensors could become a reality to track our eye movement, thermal cameras could target our respiration, and high-resolution videos could detect a whisper or subtle movements of the eyebrow. Pheromone detection is also on the table. [2]

Does society agree that it is worth our safety interests to be watched in every public space or will this cross certain privacy rights? Or does society feel that it is okay to be watched at an airport or voting center, for example, but not at a sporting event or in a neighborhood where police want to crack down?

The pre-crime system is called Future Attribute Screening Technology, or FAST. The initial trials of the system were done on volunteer employees from DHS. The volunteers were tested for signs of stress, which some associate with the intention to carry out a crime. For all those that have seen an episode of “Locked Up Abroad” or “Person of Interest”, this idea makes senses. Erratic eye movements, body heat and labored breathing, speech variations, and body movements give many criminals away before a crime is committed. But in the airport setting, for example, what happens to people that are stressed because the airline messed up their flight, are afraid of flying, or flying due to a family emergency? These stressors could land a person in an interrogation room and waste a huge amount of taxpayer money chasing the wrong person.

DHS has been developing this technology with the assistance of independent laboratories since 2008. [3] The system is designed to notify screeners, in whatever setting they would be stationed at, of individuals who fit the algorithm’s assessment of probability to carry out a crime. The privacy office at the DHS notes that FAST is not created to store information with a person’s data and private information all in one. Data is “…stored under an anonymous identifier and is only available to DHS as aggregated performance data.” [4] But what about situations where a person’s biometrics are read incorrectly, and then the person is interrogated and detained wrongfully? How can a defense attorney subpoena the records accurately for his or her client to know how to present the case and further investigate it?

The Electronic Privacy Information Center has been pressing the DHS for records of the FAST program through the Freedom of Information Act. EPIC, like many in society, are concerned about the prevalence of surveillance online and offline. The center wants to show the public what this program could entail, how it could affect our privacy rights, and whether off-body measurements and interrogation techniques using biometrics are valid.

“If it were deployed against the public, it would be very problematic,” said EPIC’s open government counsel Ginger McCall. “…Especially if they’re going to be rolling this out at the airport. I don’t know about you, but going to an airport gives me a minor panic attack, wondering if I’m going to get groped by a TSA officer.” [5]

The current uproar revolves around when FAST was tested by 140 volunteers earlier this year, some of whom were told to cause a disruption to analyze the system. This was done in an undisclosed Northeast U.S. airport. DHS has reported that it “…was 78 percent successful on detection of malintent and 80 percent on deception.” [6] This is undoubtedly a double-edged sword – a large portion of potential criminals could be caught, but the numbers also show around 20 percent of people without mal-intention would be held back by screeners. The investigation methods these innocent people would be subject to could cause them undue stress, waste government resources, and delay efficiency in getting through any airport, let alone some other event. So it is worth it to have a system with some flaws for the greater good or are there other avenues to protect individuals without becoming a scene in “Minority Report”?

The U.S. courts have a mixed view of evidence from scanners, whether it is from a MRI, lie detectors, or novel scanning technology when trying a person for a crime. When error rates are high and scientific communities have not tested the application of the technology, it becomes a slippery-slope for scans to be valid evidence. [7]

“It is essential to recognize that law’s concern is not solely whether the techniques are up to the justifiably robust standards of science,” said law professor Francis X. Shen and Owen D. Jones in a symposium paper on “Brain Scans as Evidence”. [8] “Law’s concern is whether the techniques are meaningfully better than the next best alternative technique currently deployed in the legal process — which is often having a group of untrained jurors sit passively as they watch and listen to witnesses.”

Facial expressions, body movements, and gestures can be used in tandem for more accuracy, some scientists say. The other side of the debate feels differently. Associating these actions with “…deception is a leap of gargantuan dimensions not supported by scientific evidence,” notes John Jay College of Criminal Justice psychology professor Maria Hartwig. [9] With the current U.S. Supreme Court’s decision on the US v. Jones GPS tracking device lawsuit, it will only be a matter of time to see a legal stance on DHS’ pre-crime detector and what civil liberties might be compromised with this type of technology.

Sources

[1] http://news.cnet.com/8301-31921_3-20117058-281/homeland-security-moves-forward-with-pre-crime-detection/?tag=cnetRiver

[2] http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_st_fast.pdf

[3] http://www.dhs.gov/xlibrary/assets/privacy/privacy_pia_st_fast.pdf

[4] http://news.cnet.com/8301-31921_3-20117058-281/homeland-security-moves-forward-with-pre-crime-detection/?tag=cnetRiver

[5] http://www.cbsnews.com/stories/2011/10/07/tech/cnettechnews/main20117207.shtml

[6] http://www.smartplanet.com/blog/savvy-scientist/dishonesty-detectors-a-criminally-flawed-technology/101

[7] Id.

[8] http://lawandneuroscience.files.wordpress.com/2011/01/francis-x-shen-and-owen-d-jones-brain-scans-as-evidence.pdf

[9] http://www.nature.com/news/2010/100526/full/465412a.html

The SEO | Law Firm™ News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm™, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

For those that rarely, if ever, log out of Facebook and go to other sites from their profile page, they may get to see what their friends are reading thanks to browser cookies. One wonders if this is creepy or convenient. And is this matter just interesting or is it illegal?

To begin with, there is not a whole lot of privacy left anywhere on the Internet. In fact, if you do not want your face, vital statistics, likes, dislikes, employment woes and family issues broadcast all over the web, then it is best to not join social media sites. While the older crowd may appreciate their privacy, and approach social media and websites with some degree of caution, it seems the younger crowd does not care if their privacy is breached or not, which is a frightening thing given the number of security breaches and predators online these days.

The overarching question at the end of the day is will there be a legal issue about cookies and the latest super cookies. Furthermore, does the use of browser tracking cookies contravene federal wiretap laws? While the answer to this question might logically be no, the courts sometimes rule differently.

The lawsuit has been filed by a regular Facebook user and claims a class of 150 million people. With 150 million people, the damages range from hundreds to thousands of dollars per member of that class. And the reason for this lawsuit? The reason is that Facebook allegedly violated wiretap laws by recording the plaintiff’s online browsing history when he was not logged into the site. [1]

The lawsuit, filed in Kentucky, says in part that Facebook puts tracking cookies on its users’ browsers that follow their Internet activity. This might not come as much of a surprise to veteran computer users who know full well that many sites have tracking cookies to follow what they do online to provide them with other sites they may be interested in.

Whether the individual is shopping for music or law books, the site the surfer is on will record what they look at. This should come as no surprises, as privacy while shopping often does not exist either. But is this illegal? Is it any more intrusive than your favorite brick and mortar bookstore keeping an e-record of the kind of books you like?

The Kentucky plaintiff, David Hoffman, is not only asking for class action status, but a preliminary and temporary injunction restraining Facebook from capturing e-information when users are not online and from revealing any of the information it already has. The plaintiff is also seeking $100 a day for every member of the class, or $10,000 per violation and punitive damages. To be clear, the lawsuits filed in this and other similar cases are filed under a provision of the federal Wiretap Act that bans intercepting wire, verbal or e-communications. [2]

The issue of privacy online is starting to become a hot button, as the Kentucky case is not the only one filed within the last month or so. There are others to be found in Louisiana, California and Kansas. [3] The only slightly different thing about the Kansas lawsuit is that the lead plaintiff happens to be an attorney. And here is where things get a bit questionable.

Legal pundits have been watching these cases take shape and are somewhat doubtful that they will get much traction, largely because the courts have already looked at the issue of whether or not browser cookies are wiretaps. The court’s findings have been that browser cookies are not wiretaps. Furthermore, in the few cases that did make their way to a trial, the plaintiffs could not prove any harm and therefore lost their case.

Up to this point, the issue has been about online browsing. The Kentucky suit makes a distinction and says the browser cookies tracked users’ histories while they were not logged into the site. In other words, they were offline. This may well be a differentiating factor, and it seems the plaintiff in the Kentucky case feels it is a relevant distinction and shows how the site is breaching wiretap laws. However, the plaintiff here may have the same struggle as others have had, should the courts rule that cookies are not wiretaps and they do no harm.

What does Facebook have to say about these lawsuits? Facebook did admit that three of their cookies on some people’s computers “inadvertently included unique identifiers” when the users logged out, but that they did not keep the identifiers for tracking or anything else. [4] One wonders why there are cookies with unique identifiers and how they get included on some computers but not all. Only time will tell in these cases if this issue creates new laws.

What people seem to be missing is that there are a huge number of retailers, governments, social media sites and the like that are watching people’s online activities. They can read what people write, vicariously look at purchases, reading and music habits, and see what bad habits or vices you engage in online. If that does not scare Internet users, it should. There is such a thing as too much information being given to complete strangers without the knowledge of what will be done with this data. Instances of potential identify theft or blackmail can only increase.

The final question then becomes whether these creepy cookies that track browser history while users are offline violate federal wiretap laws. And to be clear, there is a distinction between the cookies mentioned in this article and the latest super cookies that provide another way to track what people are doing while in the privacy of their home or office, except all privacy is now gone.

These super cookies cannot be detected by users, which should really make every Internet surfer uneasy as these cookies have the ability to recreate users’ profiles after they have cleared their caches and deleted the regular cookies. [5] Just imagine for a moment what this could mean.

Two sites that are already using super cookies are Hulu and MSN. When these sites are loaded, a super cookie file keeps your personal information even when erased. Just about everyone uses MSN or has the site as their home page.

And therein is the irony of the lack of privacy that so many seem to take for granted. Rather than standing up for our right to privacy, millions have ceded their right to electronic, faceless giants with hardly any clue about what those firms or entities are doing with their information. Many do not seem to care.

Nine privacy groups, including the American Civil Liberties Union, have sent a joint missive to the Federal Trade Commission strongly suggesting that it needs to investigate how Facebook gathers online user data, particularly because of the latest round of changes on the site. Our ever-increasing need to being online for socializing, shopping, and reading could end up compromising our privacy rights otherwise.

Sources
[1] http://abovethelaw.com/2011/10/did-facebook-illegally-wiretap-150-million-people-maybe-probably-not/

[2] http://online.wsj.com/article/SB10001424053111903480904576508382675931492.html#ixzz1amNaPEIj

[3] http://abcnews.go.com/US/wireStory/kan-man-sues-facebook-privacy-issues-14684683 and http://abovethelaw.com/2011/10/did-facebook-illegally-wiretap-150-million-people-maybe-probably-not/

[4] http://abovethelaw.com/2011/10/did-facebook-illegally-wiretap-150-million-people-maybe-probably-not/ and http://online.wsj.com/article/SB10001424053111903480904576508382675931492.html#ixzz1amNaPEIj

[5] http://abcnews.go.com/US/wireStory/kan-man-sues-facebook-privacy-issues-14684683

Background Research
http://www.monnat.com/Publications/Wiretap.pdf

http://www.cdt.org/privacy/20080708ISPtraffic.pdf

The SEO | Law Firm™ Legal News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm, Seolawfirm.com, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

Thousands of police departments nationwide are using wearable cameras and relying less on mounted vehicle cams. Police do much of their work outside the squad car, and with better technology readily available, it is only a matter of time before the various styles are used by these and other critical responders. Civil rights activists applaud the technology as vehicle cams were often prone to malfunctioning and did not catch alleged police violence inflicted on innocent people.

Wearable police cameras come in a few different styles – head mounted or clipped to clothing, buttons or lapels. The different manufacturers have tested them in all types of lighting and potential skirmishes that police deal with everyday. The technology has been around since 2007, but has received a big boost this fall as some top police departments have adopted or tested it. After incidents tarnished police departments in Austin, Oakland, Seattle, and Phoenix, for example, these wearable video cams were used to start to regain public trust. Incidents in these cities garnered police departments with the reputation of “shooting first and then asking questions”.

These new video cameras range from the size of a cigarette lighter to a pager and involve one to two steps to work. At best, vehicle cams took six steps to operate, and driving infraction and crime scene pullovers as well as emergency stops are hardly any time to be going through lengthy steps to make a camera work. The Law Enforcement and Emergency Services Video Association even created a manual in the past to help law enforcement with concerns about audio, lighting, recording integrity, and pre-planning. [1]

Body cams provide better recording and file management than their predecessors. The various manufacturers, such as VIEVU and TASER, have longer recording time, battery life, date and time stamps, authentication certificates, and video storage systems. TASER’s AXON head camera has 110 degrees of field of view from its lens. [2] The cams are waterproof and have security logins that prevent access if the camera should be stolen or lost. [3] Many of these devices can be interconnected with radio earpieces.

Some departments that have tested the devices are concerned about the overwhelming amount of data that could start to pile up and the ability to search for key parts of the video for reports, litigation, and further investigations. Manufacturers are starting to address these concerns by using similar technology to Flickr and Facebook where images of people can be tagged and video can be narrated or markers added during or after recording. TASER’s head cam has a charger that also doubles as a video uploader. Instead of physical files or hard drives getting filled indefinitely, TASER has a cloud database online called Evidence that stores all the data. A searchable database for each department allows easy review and recall of videos.

Civil rights advocates and police are equally excited about the potential of these user point of view cameras. Questions of police upholding a citizen’s rights, following the law, and carrying out justice will be easier to determine. Citizens will be able to prove if they were illegally searched, hurt, or the police got trigger-happy and did not truly act in self defense. Increased law enforcement accountability through wearable cameras brings a new level of truth to the forefront.

“The public likes it because it provides another level of accountability, and police like it because it’s protection for their actions,” said policeman Chris Myers from the Seattle Police Department. [4]

Video is a powerful tool that can greatly change a person’s behavior, no matter if they are a citizen or a cop. If society knew they were being watched up close and personal – and not feet away from a dashboard cam – it could proactively stop bad behavior. Steve Ward, the founder of VIEVU says that, “People act differently on camera. If a police officer comes up to you and says, ‘This is being recorded,’ you’re likely to be much more congenial.” [5]

When complaints are filed against a cop or an entire department, this video evidence is crucial for lawyers to determine if there is a case or not. Reviews of video can also provide invaluable training lessons for departments to take corrective measures against wrongdoing. As police cannot tamper with the videos or erase them, the truth will be far more evident than the shortcomings inherent in vehicle cameras.

“We’re trying to get more transparency,” said BART Police Chief Kenton Rainey, based out Oakland, Calif. and head of law enforcement for the San Francisco Bay Area Rapid Transit (BART) system. [6] “Plus it’s actually better protection for our personnel, because the camera is going to be the best evidence of what transpired at an incident.”

Not only can the devices provide better accountability for what happens in one-on-one situations, but they can give insight on what occurs during uncontrollable crowd situations, riots, and other instances of chaos. The main concerns regarding wearable cameras involve the cost of the units, storage constraints and the access to the information. Many police departments are applying for federal grants through the Department of Justice or the Department of Homeland Security to test or adopt the devices that range from $900 to more than $2,900 each. Add in the cost of data storage too, and for a department of 50 cops, this can add up quickly.

But when taken in the scheme of things, the cost of wearable cams does not cost quite that much. In comparison to a fleet of new vehicles, or even more important, lessened litigation costs and reduced investigation hours, the body cams can be a justified cost. Yet if federal grants start to dry up due to the budget cuts, departments will have to make some hard decisions.

Others are more concerned about how police departments record and then give access to the videos. What happens if they forget to turn the device on even if it is one or two clicks to activate? What if they forget to snap it on or lose it? And doesn’t every device eventually malfunction? Also, some police departments are not so open to giving access to video recordings. The Seattle Police Department is currently being sued for not giving the local news station KOMO access to dash-cam videos, so who is to say certain departments would not do the same with wearable cam video recordings? [7] Whether it is a news institution or a citizen, authorities must be reminded that the Freedom of Information Act and other state regulations concerning records are a law, and barring any other restrictions, records should be made publicly available when it is for the greater good.

As the technology progresses, recording consent laws will need to be updated in some states. Other security personnel, first responders, bouncers and even insurance adjusters might adopt the wearable devices in their line of work too. The evolution of these devices comes at a critical time for police to be more transparent, the public to feel more trust, and the accountability bar to be raised.

Sources

[1] http://leva.org/pdf/CRIMESCENEGUIDE2007.pdf

[2] http://www.taser.com/products/on-officer-video/taser-axon

[3] http://www.vievu.com/products/

[4] http://www.seattlepi.com/local/article/Small-wearable-cameras-could-help-keep-an-eye-on-1264286.php

[5] Id.

[6] http://sanfrancisco.cbslocal.com/2011/09/28/phil-matier-bart-police-officers-to-wear-cameras/

[7] http://blogs.seattleweekly.com/dailyweekly/2011/09/seattle_police_department_sued.php

The SEO | Law Firm™ News Center extends editorial freedom to their staff writers; thus the views expressed in this column may not reflect the views of SEO | Law Firm™, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

Out of court settlements are supposedly not admissions of guilt. But what is a company hiding when they pay to make a lawsuit vanish?

An interesting whistleblower lawsuit between the Justice Department in Arkansas and New York based Accenture LLP examined whether the company ripped off the government by overpricing goods and services. [1] The suit alleged that the tech services company rigged bids, inflated prices for computers and services and took kickbacks for at least 10 years.

By the look of things, Accenture is not the only company inflating prices to government customers. The problem of fleecing the government seems to run extremely deep in the IT industry and includes a Who’s Who list of some of the biggest names that include EMC, Computer Sciences Corp., Cisco Systems, Westcon Group North America, IBM, and Price Waterhouse Coopers. Previous settlements without admission of liability involve Hewlett Packard for $55 million, $87.5 million from EMC, $1.4 million from Computer Sciences, $3 million from IBM, $2.3 million from Price Waterhouse Coopers, and $48 million from Cisco Systems and their distributor Westcon.

There is a lot of money being spent to keep a company not guilty versus going to court and perhaps being found guilty with an even bigger price tag. In other words, many settlements are preemptive bids to pay off the government, which has enough ammunition to make a serious court case against them.

There is also the embarrassment factor that could greatly affect Accenture given its history. Accenture is considered the world’s second-biggest IT consulting firm, which spun off from Arthur Anderson, the accounting firm that imploded after a U.S. court ruled it had obstructed an investigation into Enron. Anderson audited their books. [2]

In this latest case, Accenture vehemently insisted the accusations were false and that the settlement they agreed to was not in any way an admission of guilt. Just what else the settlement means for this particular company is another question. The initial lawsuit was filed under the federal False Claim Act in the eastern district of Arkansas by Neal Roberts and Norman Rille. However, the federal government did not join the suit until 2007. [3]

Once the feds came on board, Accenture was bluntly accused of taking kickbacks just after it recommended certain types of software and hardware for a particular government contract. They also suggested the company had gone ahead and blatantly inflated the prices of the equipment and rigged bids to land federal IT contracts. The fact is that the federal government went into the process seeking treble damages and civil penalties on top of that. If these serious accusations were found to be true, the federal court ruling would have handed down a mega-monetary judgment. Had they made it to court, the math would have seriously put a crimp in Accenture’s (and the other companies) bottom line. This is likely the real reason that these IT companies have been offering settlements instead.

The plain truth is that the federal government does not join in a whistleblower lawsuit unless they feel it has merit and that it will recover substantial funds for the government. They join about 22 percent of false claims cases, and recover roughly 98 percent of the claims.

There is an interesting twist with the government now taking a more active part in whistleblower cases – they need the money. Seriously, they are chasing the money to help find more avenues of funding for the government. The official government line is that bid rigging and kickbacks adversely affect the integrity of the procurement process and hampers funds that are needed by the government to conduct essential services.

The two citizens that blew the whistle on the IT industry are Neal Roberts and Norman Rille, who are uniquely positioned to know what they are talking about because Rille was a former manager at Accenture and Roberts was a partner with Deloitte & Touche where he investigated various alliances between IT companies in the industry. [4] Although both are positioned to get a percentage of the monies recovered in this suit, the federal government has not yet indicated what their share may be. Typically, it could run anywhere from 15 to 30 percent, which is not exactly chump change when the settlement totals $64 million.

Employee whistleblowing has increased in the last six years and employment and business attorneys are seeing an influx of claims and cases. From fraud and corruption to unsafe workplaces, employees are taking legal action to report wrongdoing that can harm themselves, their colleagues, and even the government or consumer.

“Any uptick [of whistleblowing] is a good sign,” said University of Toledo professor Geoffrey Rapp. [5] “The goal here is to get information about fraud before it becomes so serious, as in the collapse of [Bernard] Madoff and Enron, where the whole company falls apart, or the economy falls apart.”

Despite the fact that Accenture got its wrist slapped and lost some of its credibility, the Justice Department has still named the company as one of 20 who will be a part of a $1.1 billion contract for IT services. [6] Accenture, which employs roughly 223,000 employees, made $628 million in the three months ending May 2011.

One wonders what monies this contract gives them and if the bid had to be resubmitted in light of the accusations and sheepish, but defiant settlement. The federal government did add in their news release that they acknowledged the value of IT industry alliances that presumably were to benefit customers and vendors, not rip them off.

It is a safe bet that we have not heard the last of these lawsuits. When one stands back and takes a good, hard look at the whole package, the realization that it is not just the government that experiences wrongdoing in nefarious dealings like this – it is also the taxpayers who are ultimately footing the bill for very expensive IT equipment and services. It is time for a change in how the government does business. Lawsuits like this also show it is time for a change in how contractors submit bids for government work. But most importantly, it is time for honesty in doing business as well.

Sources

The SEO | Law Firm™ News Center extends editorial freedom to their staff writers, and thus the views expressed in this column may not reflect the views of SEO | Law Firm™, Adviatech Corp., or any of its holdings, affiliates, or advertisers.

Epidermal electronics are the latest devices with the potential to transform health care and the way we interact with technology. These ultrathin devices are applied to the skin like a temporary tattoo. No longer will individuals and medical professionals have to deal with cumbersome electrodes and gel, and possibly even needles. Materials scientist John Rogers from the University of Illinois at Urbana-Champaign has proven that these devices can successfully monitor the heart and brain, and can function by voice commands or movement.

“You can’t change the biology so you really have to redefine the nature of electronics,” said University of Illinois engineering professor John Rogers. [1]

The epidermal electronic devices are composed of carbon nanotubes and rubber elastomer, and are super flexible. All the circuitry parts, including transistors, semiconductors, and diodes, have been minimized. The circuitry is silicon-based and formed in a wavy structure called “filamentary serpentine” to create an electronic web. Because of this design, Rogers and his colleagues can create devices that monitor temperature, heart rate, electric signals from the brain and muscles, and many other features in a unique, non-invasive way.

“The most interesting part to me is that he [Rogers] manages to make the metal electrode, the semiconductor devices, extremely small and structured,” said Qibing Pei, a materials science and engineering professor at UCLA. [2] “The filamentary serpentine devices can also stretch up to 30 percent. It’s quite compatible with the skin.”

The device is as thick and elastic as the skin itself. Much like a Band-Aid, the device can stay on for days and weeks at a time. It stays on even with the natural tendencies of the skin to be pulled, squished, twisted, and poked. And it conforms to the body part it is applied to. The Rogers Research Group has achieved previous successes in engineering devices and systems that are inspired by biology and integrate with the human body and its surroundings. They are known for fabricating devices on the nano and molecular scale for electronics and photonics. [3] Rogers’ epidermal electronic system provides strong computing capabilities along with flexibility, whereas most predecessors only focused on one of these features.

“The skin represents one of the most natural places to integrate electronics,” said Rogers. “As the largest organ in our body, and our primary sensory mode of interaction with the world, it plays a special role.” [4]

This category of electronics holds great promise not only in critical care situations, but for individuals with special needs, neonatal care and premature babies, and in long-term care facilities. Many reports still show that there are pitfalls in the health care field even with the current amount of technology in place. Patient misdiagnoses, dosage errors, and miscommunication remain an ongoing concern, and medical malpractice in all its forms still affects individuals and their loved ones. Technologies that provide convenient ways for health care professionals to access a patient’s medical history, prescriptions, and contraindications can help prevent serious injuries and wrongful deaths that occur. This is especially helpful as many hand-offs occur in hospital settings and numerous people are involved in a patient’s care.

“The device will help fill the need for equipment that is more convenient and less stressful for patients, permitting easier and more reliable monitoring,” said engineering professor Zhenqiang Ma, from the University of Wisconsin. [5]

Professor Ma has researched various types of electronic skin that have the capacity to revolutionize the medical field. Patients such as those with serious heart disease often need to monitor their heart for an extended period of time to be aware of any abnormal cardiac rhythms. Bulky electrodes and wiring, extended cables, and rashes from the device make monitoring inconvenient. The electrodes must be moved frequently and monitoring thus gets interrupted. Epidermal electronic systems are better, high-performing devices that allow medical professionals a “…simpler, more reliable, and uninterrupted” way to provide their patients with improved medical care. [6] These devices are “…proved to be viable and low-cost in this demonstration which will greatly facilitate the practical clinical use of the electronic skin.” [7]

The future for epidermal electronics is even vaster. These devices could be used to emit heat to heal wounds, for remote physical therapy and prosthetic limbs, create human and machine interfaces for music players and cell phones, and assist in covert communications. [8] Currently, these devices are not available to the mass market. But extensive testing has been accomplished. Brain waves, muscle movement, and speech have been successfully measured. [9] When the device was placed on the chest, the measurements mimicked what an electrocardiogram would produce. Brain activity was reproduced similar to what an electroencephalogram (EEG) would show. Muscle tissue data much like an electromyogram (EMG) was created successfully. When an epidermal electronic device with a microphone was placed on the throat, words were recognized. For people with special needs, these devices could aid their disability and help them overcome daily tasks without the burden of clunky devices and expensive in-home care.

“There are a lot of advancements that can happen immediately if you take more sophisticated existing conventional devices and put them in this spider web layout,” said Rogers. [10]

Rogers has tested his epidermal electronic device and it can last up to two weeks on the skin. Longer than that and the skin’s natural regenerating qualities take over. He is currently researching external power sources for the device, which currently runs on electronic coils in the device. Solar cells could be added for power and antennas could transmit signals for data. Solar cells made of amorphous silicon or CIGS (copper, indium, gallium, and selenide) can be constructed in small sizes and create enough power in low light environments too. [11] Long term, Rogers feels epidermal electronic systems “…could provide an electronic link to the body’s most subtle processes, including the movement of enzymes and antibodies, to track the path of disease. Ultimately, we think that [our] efforts can blur the distinction between electronics and biology.” [12]

The promise of epidermal electronics will continue as these devices show high-quality results. As an intelligent e-skin, it has the potential to monitor our health, safeguard our well-being, and transform modern medicine.

Sources
[1] http://news.discovery.com/tech/ultrathin-device-detects-brain-signals-110811.html

[2] Id.

[3] http://rogers.matse.illinois.edu/

[4] http://news.sciencemag.org/sciencenow/2011/08/electronic-skin-grafts-gadgets-t.html

[5] http://www.npr.org/templates/story/story.php?storyId=139551523

[6] http://www.sciencemag.org/content/333/6044/830

[7] http://rogers.matse.illinois.edu/files/2011/eesbbc.pdf

[8] http://www.npr.org/templates/story/story.php?storyId=139551523

[9] http://rogers.matse.illinois.edu/files/2011/eessciencenews.pdf

[10] http://www.sciencedaily.com/releases/2010/12/101214085847.htm

[11] http://news.discovery.com/tech/ultrathin-device-detects-brain-signals-110811.html

[12] http://news.sciencemag.org/sciencenow/2011/08/electronic-skin-grafts-gadgets-t.html?ref=hp

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