Worldmark v. Wyndham Resort: an e-mail address is an "address"

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In Worldmark, the Club v. Wyndham Resort Development Corporation (August 23, 2010), the Court of Appeal (Third Appellate District) reviewed a case arising under the Corporations Code after a member sought access to membership records of nonprofit mutual benefit corporation Worldmark. Worldmark is a California nonprofit mutual benefit corporation owned by its more than 260,000 members. It owns vacation time share resorts throughout North America. Wyndham is an Oregon corporation that manages the operations of Worldmark's resorts pursuant to a management agreement.

Who cares, you say?  You do!  Consider the facts. A Worldmark member invoked section 8330 to demand that Worldmark "make available" to its members a petition proposing amendments to the corporation's by-laws. When Worldmark refused, the member demanded a right to inspect and copy Worldmark's membership records, including the email addresses of its members, for the purpose of distributing the petition. Email is one of the methods that Worldmark uses to communicate with its members. When Worldmark denied the demand, it proposed the use of a third party mail house to send the petition as a “reasonable alternative” that achieved the purpose in the demand.  The member petitioned and the Court denied the petition.

Who cares, you say again?  You do!  Why?  Because the trial court reversed, holding:

We shall conclude that the term "members'. . . addresses," in section 8330, subdivision (a) (1), which a corporation is required to disclose, is sufficiently broad to encompass email addresses in light of the section's purpose and in light of allied sections that allow a corporation to communicate with its members for the purpose of the corporation's business.

Slip op., at 3-4.  Now you care.  A court just said that an e-mail address is an "address."  I know.  This holding is limited to an interpretation of a provision in the Corporations Code.  But this is where it starts - the recognition that e-mail is now as much a means of communication as a phone number or a physical address.

If you still don't care, I can't help you.

Why Apple is full of it

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Today Apple held a news conference of sorts.   The ostensible purpose was to respond to concerns about the antenna design in the new iPhone 4.  The real purpose was to see if everyone is as stupid as Apple seems to think we are.

Consider just the following  two contentions about iPhone 4:

  1. It has the best reception of any iPhone to date.
  2. The iPhone 4 drops less than one additional call per 100 drops, when compared to the 3GS (according to AT&T data on call drops)

Apple attempted to use the second contention to describe the antenna problem as an illusory issue, suggesting that the drop rate is so close to the 3GS drop rate that it is just a part of life with a cell phone, and not a design error.  This is false.  Apple touted the antenna in the iPhone 4, and independent testing of the phone has confirmed that, when you aren't touching the call signal zone of death, the iPhone 4 has better reception than its predecessors.  This is not surprising, given the big external antennas on the iPhone 4.

But if the iPhone 4 has a substantially better antenna, it should show a noticeable improvement in the drop rate.  It does not.  Based on Apple's own claims, I have to conclude that the most probable explanation for these observed results is that the external antenna holds calls longer, but suffers precipitous signal failure.  In other words, the design flaw slightly overwhelms the overall improvement in the antenna over the long haul.  You will probably have fewer drops in high signal strength areas, but you will drop more calls in low signal strength areas if you hold the phone like any normal person would.

I have an iPhone 3GS.  It is a very nice phone.  I have looked appreciatively at the iPhone 4.  But I don't like being called an idiot, and my intended upgrade to the iPhone 4 is going on the back burner.  I will give Windows Phone 7 a very thorough examination before deciding whether to give Apple another chance.  This isn't a problem with all smartphones (I also have a Blackberry Bold 9700, which has no such problem - for that matter, neither does my iPhone 3GS).  This is apparently a problem with a phone that was designed first and foremost with materials and appearance in mind.

My advice to Apple:  if you are going to go to the trouble to hold a news conference to address a widely-reported potential flaw in the normal use-case design of one of your flagship products, don't view that time as your chance to offer contradictory assertions as you bitterly deny that anything unusual is going on with your new phone.  It is just insulting.  Just admit it, say you will work on a fabrication correction to the issue, and move on.  A bit of humility goes a long way with the average consumer; Apple evidently has none.  Here's your free rubber bumper (you crybabies).

Coming soon: Posts on Dukes v. Wal-Mart and Stolt-Nielsen S.A. v. AnimalFeeds International Corp

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The blockbusters are coming fast and furious.  Too fast, in fact, to have comprehensive, same-day posts up.  Longer posts on Dukes v. Wal-Mart and Stolt-Nielsen S.A. v. AnimalFeeds International Corp. (Supreme Court ruling on class arbitration issue) will be up in the next few days.

Blogs of Note: The Pop Tort

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It's been a while since I noted an update to the "Blawgs" of Note, but I've been meaning to get back to recommending some quality reading from around the "Blawgosphere" (ack - that's a painful pseudo-word).  Today's recommended reading is The Pop Tort, brought to you by the Center for Justice & Democracy.  If you are big business, you probably think that the Center for Justice & Democracy is another cover group for "greedy" trial lawyers.  If you are a consumer attorney (or a consumer), you probably think that the Center for Justice & Democracy is that thin line between unchecked corporate tyranny and hapless, helpless individuals that would have tire tracks up their back but for the voice of stalwarts like CJ&D.  Regardless of your perspective, The Pop Tort is good reading.

You can follow The Pop Tort (@ThePopTort) on Twitter or become their fan on Facebook.  Personally, I have grave misgivings about Facebook, but it's hard to resist the FaceBorg, with its hundreds of millions of assimilated drones.

"No taxation without representation"

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Government derives its just powers from the consent of the governed.  But when the majority of the governed demand other than what government forces upon them, what recourse?

The British Parliament regulated colonial trade and taxed America's imports and exports since roughly 1660.  Then, the English Bill of Rights 1689 recognized a number of natural rights of English subjects.  Among these rights were the rights of representation in Parliament and the protection against taxation by prerogative.  These fundamental rights laid part of the foundation for American revolt against control by Parliament, but the boiling point was not reached until the middle part of the 18th century, nearly 70 years later.

Tolerance of British control without representation in Parliament neared its end with the passage of the Stamp Act of 1765.  The Stamp Act required British America to utilize paper printed in London and marked with an embossed revenue stamp.  Colonists viewed the Stamp Act as a violation of their right to be taxed only with their consent.  Protests intimidated paper distributors into abandoning their commissions.  The tax was effectively nullified in this manner.

Public opposition to taxation with representation culminated, symbolically, in the Boston Tea Party, when protesters elected to destroy tea that the Royal Governor would not return to England.  Better the destruction of that tea than the literal and figurative consumption of that tax.  Parliament retaliated with the Coercive Acts.  Colonists, in turn, escalated their protests and formed the First Continental Congress.  Often overlooked is the fact that the taxes that precipitated revolt were modest; the first protests were about the principle of unrepresented governance.

In 1775, the American Revolutionary War began near Boston.

235 years later, the Colonists are the victims of a new brand of tyranny.  Believing that their duly elected representatives would espouse their will, they now watch helplessly as the the cornerstone of American democracy, the Constitution, is disregarded with a contempt worth of monarchs, not elected officials accountable to the people.

What recourse?  Apparently, none.  The plaintiffs' bar should be the first to raise hue and cry at the infringement of our constitutionally protected rights, by likely unconstitutional processes.  I hear nothing.  Taxation without representation indeed.

My thoughts and prayers go out to our democratic republic.

Daily Journal article on unconstitutionality of underfunding California courts

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Today's Daily Journal includes a Perspective column, entitled "Legislature Using Purse Strings to Bind Judiciary," authored by colleague Linh Hua and me.  The column discusses in greater detail the unconstitutionality of underfunding the judicial branch.  The article is posted below with permission of Daily Journal Corp. (2010).

If you have difficulty viewing the flash object, the direct link is here.  I thank the editorial staff of the Daily Journal for quickly providing the posting permission.

Congratulations to The UCL Practitioner...

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on the occasion of announcing the formation of her own firm.  Kimberly Kralowec, author of The UCL Practitioner, has announced the The Kralowec Law Group.  I wish Kim the best of luck; she was an inspiration to my own blogging efforts.  I hope that four years from now I will be able to say, "I have every intention of continuing to write this blog as I have done for the past six years."

California's budget problems are threatening a constitutional crisis

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A colleague of mine (Linh Hua) and I have been talking out an issue that has troubled me for some time now.  It occurred to me that there must be a constitutional limit of some sort to the underfunding of California's judiciary.  I didn't have any specific case in mind when the concept crossed my mind, and my discussions with other practitioners elicited general agreement without specific supporting authority.  Coincidentally, just as I began to look into this issue, a confirming answer of sorts dropped into my lap.

This evening (for publication on 2/24/2010), Joel Stashenko reports in the New York Law Journal that New York's highest court has held unconstitutional the failure to grant pay raises to judges for the last 11 years.  Joel Stashenko, Denial of N.Y. Judicial Pay Raise Is Ruled Unconstitutional (February 24, 2010) www.law.com.  The high court (the New York Court of Appeals) declared the de facto pay freeze a "crisis" that threatened the separation of powers.  Declining requests for an order mandating an immediate pay raise, the Court said, "By ensuring that any judicial salary increases will be premised on their merits, this holding aims to strike the appropriate balance between preserving the independence of the Judiciary and avoiding encroachment on the budget-making authority of the Legislature."

While the Court proceeded with caution, it also warned, "It [the Legislature] should keep in mind, however, that whether the Legislature has met its constitutional obligations in that regard is within the province of this Court," citing Marbury v. Madison, 1 Cranch 137 (1803). "We therefore expect appropriate and expeditious legislative consideration."

Writing for the 5-1 majority, Judge Pigott said, "Because the Separation of Powers doctrine is aimed at preventing one branch of government from dominating or interfering with the functioning of another co-equal branch, we conclude that the independence of the judiciary is improperly jeopardized by the current judicial pay crisis, and this constitutes a violation of the Separation of Power doctrine."

In California we don't just have a pay crisis, we have a funding crisis.  Our Courts are closed one Wednesday each month, and I've heard mention that an additional closure day is under consideration by some.  We've lost a complex litigation court in Los Angeles County, a court designed to better manage the burdens imposed by complex, multi-party litigation.  If the pay issue in New York is a constitutional "crisis," what California is experiencing is a constitutional debacle.  The judiciary is not just impaired here, it is hamstrung and handcuffed.  As participants operating within one of the presumably co-equal branches of government, we must be vigilant and speak out when it is clear that a failure by one branch imperils the unfettered operation of another.

I intend to continue speaking about this issue until the futility of it all depresses me into silence.

Consumer Attorneys of California makes it to the bleeding edge: Twitter and Facebook

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Consumer Attorneys of California (CAOC) is breaking into new media territory with presence on Facebook and Twitter.  You can find CAOC on Twitter by following @ConsumerAttysCA.  You can become a fan of CAOC on Facebook here.  Personally, I've almost given up on Facebook, purely because of its deplorable disregard for user privacy.  Facebook needs to keep its act clean for a while just to get back to zero with me.  The problem is, half the planet is using Facebook, so my protestations are unlikely to start a grass roots movement.