Emoji and Deciphering Intent in the Digital Age

[Originally published as Emoji and Deciphering Intent in the Digitial Age, by Tanya Kiatkulpiboone and Andrea W. Paris, in Orange County Lawyer Magazine, June 2017, Vol. 59 No.6 on page 42.] An emoji known as “Face with Tears of Joy” was named the Oxford Dictionaries’ 2015 Word of the Year. See Figure 1. Caspar Grathwohl, President of Oxford Dictionaries, explained that “Emoji are becoming an increasingly rich form of communication, one that transcends linguistic borders[.]” Katie Steinmetz, Oxford’s 2015 Word of the Year Is This Emoji, Time (Nov. 16, 2015, 2:08 PM), http://time.com/4114886/oxford-word-of-the-year-2015-emoji/. Nevertheless, Oxford Dictionaries have yet to add any emoji to the dictionary, not even their Word of the Year, thereby acknowledging their expressive abilities without defining them. What Are Emoji? Emoji are small images or icons used to express emotion, ideas, or things in electronic communications. They were created in Japan in the 1990s by Shigetaka Kurita, who worked for one of Japan’s largest mobile phone operators. The name originates from the Japanese terms for picture (“e”) and written character (“moji”).  Frequently Asked Questions: Emoji and Pictographs, … Continue reading

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What to Do: Employee Leaves With Trade Secrets

Losing an employee, especially a key employee, is difficult for any business. You’ve invested time, know-how, and resources in your employees and they in turn are the lifeblood of your business. Unfortunately, people leave and when they leave, it is usually to work for a competitor or even to start a competing business. If that employee had access to your company’s confidential information such as customer lists, customer preferences, pricing formulas, and any other information that gives you a competitive edge, you want to make sure that the employee can’t take that valuable information to a competitor. How do you protect trade secrets from a competitor when an employee leaves? I have good news and bad news for you. The bad news: If the first time you think about protecting your company’s confidential information is after a key employee leaves, it may be too late. One of the fundamental requirements under California and Federal laws that protect trade secrets is the requirement that you made reasonable efforts to keep that information a secret. Thus, if you haven’t thought about how … Continue reading

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What Lawsuits and Disneyland Have In Common: The Emotional Costs of a Lawsuit

Whether you came to the decision to look for an attorney because you’ve been served with a lawsuit and have no choice but to defend yourself, or if you have reached an impasse in a dispute and have no choice but to say “see you in court,” what happens after this point is likely a mystery for you. If that’s the case, this is what a lawsuit looks like. But there’s also an emotional part of a lawsuit. Therefore, in addition to the obvious considerations of finding a capable attorney that you like and trust and the financial costs, you should also prepare for the emotional costs of a lawsuit. Since Disneyland’s just up the freeway, I’ll liken it to a day at Disneyland. It’s a Long Process If you’re traveling into town specifically to visit Disneyland with the kids, you expect to get there when the park opens, stay for the parade and fireworks, and even until the park closes. You may expect to do that for 3 days in a row. Why? The Lines are Long If Disneyland … Continue reading

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Arbitration Agreement: Do I Want It?

You probably signed an arbitration agreement at your last doctor’s visit, when you signed up for your gym or yoga studio membership, or when you signed a listing agreement with your realtor. The ubiquity of these agreements makes it especially important for us to understand them as consumers, business owners, employers, and employees. What is an arbitration agreement? Arbitration is one of the alternative means of resolving disputes (alternative to filing a lawsuit that is). Thus, an arbitration agreement is an agreement to take disputes out of the court system to be decided by a private arbitrator (or a panel of arbitrators) usually following a different set of procedural rules than the court. People and companies choose to arbitrate for various reasons. The process is generally more streamlined and allows for a quicker resolution of disputes. It is often times cheaper than litigating in court, and the proceedings are typically not part of the public record. Lastly, the conventional wisdom is that you reduce the risk of a run-away-jury. Do you want to arbitrate? Whether agreeing to arbitrate potential disputes … Continue reading

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What to Do When a Client Doesn’t Pay

This is the first post in a new series called “What to Do” where I will discuss “what to do” in various common situations that come up in small and medium sized businesses. Feel free to send me your “what to do” question. Today’s topic is what to do when a client doesn’t pay. This is a common problem that businesses big and small face and if you’re in business, you’re selling services or products in exchange with the expectation that you will be paid for those services or products. The cost to your business of unpaid invoices is not just the dollar amount on each invoice but the opportunity cost of the investment you could make in your business from that income. Additionally, it costs your business time and money to collect on unpaid balances. Thus, the cumulative effect of multiples unpaid invoices, even for small outstanding amounts, is detrimental to your business’s viability and growth. Before starting work: For the proactive business here are some tips to help you avoid or minimize the change of having a client … Continue reading

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Independent Contractor Misclassification

A few days ago, Uber agreed to pay up to $100 million to settle class-action lawsuits in California and Massachusetts claiming that its drivers are employees not independent contractors. Paying out $100 million is by no means the end of this story. The settlement does not affect other drivers’ ability to sue on the same grounds nor does it preclude the Labor Commissioner from determining that individual drivers are in fact employees (which it has done in at least one case). The U.S. Department of Labor also recently issued a formal interpretation of the federal Fair Labor Standards Act as it pertains to the classification of independent contractors. This advisory opinion signaled the intention of federal regulators to scrutinize independent contractor classifications and treat most workers as employees. Most companies do not have enough independent contractors to be subject to class action lawsuits worth $100 million, but how will a $1 million lawsuit or even a $100,000 lawsuit affect your business? If your company uses independent contractors, here are some steps you could take to minimize your exposure: Closely examine … Continue reading

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Breach of Contract in California

Breach of contract is likely the most common claim alleged in civil litigation cases. Contracts are the glue that holds our society together and we all enter into agreements (i.e. contracts) in one form or another on a daily basis. When the breach of that agreement results in injury, many look to the court system for a remedy. Here are a couple of the more memorable recent breach of contract cases include: Bill Cosby filed a breach of contract lawsuit against a woman who accused him of sexual misconduct, her mother, her lawyers, and the publisher of the National Enquirer. The lawsuit claims that they “disclosed information that they promised to keep secret” in return for a financial settlement. Donald Trump sued Jose Andres’s organization for breach of contract after the celebrity chef canceled his plans to open a restaurant in a Trump group building after Donald Trump’s comments on immigration. What is a contract? Simply said, “A contract is an agreement to do or not do a certain thing.” (Cal. Civ. Code § 1549.) The essential elements (parts) of a … Continue reading

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Trial Preparation – Anatomy of a Lawsuit Part VIII

This series applies to California lawsuits only. For rules regarding your state’s civil litigation procedure, visit the website for your specific state’s judicial branch. This is a very broad overview. Multiple considerations must take place and detailed analysis goes into each step. To recap, we’ve discussed some considerations before filing a lawsuit such as What is the Deadline to File a Lawsuit and Where to File a Lawsuit. We’ve also discussed How to File a Lawsuit, Responding to a Lawsuit, Discovery, and Mediation. Here’s a visual representation of what a lawsuit looks like. This article focuses on the phase within the blue circle. Although the above flow chart depicts trial preparation as a distinctive step before trial, in reality, your attorney is preparing for the trial from the minute s/he meets with you for a consultation. Trial considerations such as jury appeal, your credibility and the credibility of other witnesses, and the evidence available will influence whether an attorney accepts the case and what theories to pursue. Once a lawsuit is filed, each stage in the litigation is meant to prepare for trial: i.e., pleadings, motions, … Continue reading

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Have a Legal Issue? 3 Reasons Why You Shouldn’t Wait Until the Last Minute

This is an ostrich with its head up, looking out into the horizon, rather than burying its head in the sand (although that’s just an optical illusion and they don’t really do that but you get the point). If you are served with a lawsuit or receive a letter from a lawyer or government entity, you want to be this ostrich and deal with issue head-on. I can understand the appeal of waiting as long as possible, whether it’s economics, time, or the philosophy that “ignorance is bliss.” But a legal issue is like cancer, the longer you wait to see a doctor, the worse the problem gets. Here are 3 reasons why you should consult with an attorney sooner rather than later: Litigation deadlines are important. This is one of the areas in life where deadlines are taken seriously. Most judges aren’t like that professor you had in college who deducts half a grade or so if you turn in a late paper. Judges have no problem saying #SorryNotSorry when you miss a big deadline.  This means that missing a … Continue reading

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Computer Fraud Prevention: How to Protect Your Company’s Information

In today’s business environment, companies live and die by the information and data you possess.  Your company’s confidential information is probably housed on a network that is accessible by some, or all, of your employees.  Are you doing enough to protect your company’s data from computer fraud leaving with an employee and winding up with a competitor? The Computer Fraud and Abuse Act (CFAA) The CFAA is a federal law that makes it illegal to “intentionally access a computer without authorization or exceed[ing] authorized access, and thereby obtain[ing] . . . information from any protected computer.”  18 U.S.C. § 1030(a)(2).  Although commonly used to prosecute criminal hackers, the CFA is valuable to employers for the following reasons: 1) the CFAA captures a broader range of conduct than does a traditional trade secrets claim (it doesn’t require a showing that the accessed information rises to the level of a trade secret); 2) the CFAA is one of the few independent causes of action an employer can use to pursue a federal cause of action relating to such theft; and 3) the CFAA … Continue reading

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