Supreme Court: Fear of Disparate Impact Litigation Does Not Justify Disparate Treatment

Ricci v. DeStefano may be the most eagerly anticipated decision this Term. But that doesn't have anything to do with the case itself. It's because the opinion under review was written by Sonia Sotomayor, nominated for a seat on the High Court. he Sotomayor fans / foes did not get a decisive victory from the Supremes.


The Court decided that New Haven, Connecticut violated Title VII by throwing out a firefighter's promotion examination on the ground that White firefighters passed the test far more frequently than Black firefighters. The city feared a disparate impact lawsuit from unsuccessful minority applicants because the test results were skewed along racial lines. The Second Circuit had upheld the city's action.

The Supreme Court (5-4) held that refusing to certify the test on the basis of the successful examinees' race constituted disparate treatment discrimination under Title VII. The Court then considered whether avoiding disparate impact litigation was a valid defense. Mere fear of a lawsuit is not sufficient. Rather, to justify the action, the city would have to have a "strong basis in evidence" that "the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision."

The Court also addressed the probability that the Black firefighters would sue for disparate impact discrimination. The Court noted that the test appeared to be "job-related and consistent with business necessity," a defense to the claim. In addition, the Court suggested that its decision would insulate the city from liability because throwing the test results out would constitute disparate treatment.

Justice Scalia concurred to point out there is tension between disparate impact claims under Title VII and equal protection law, the resolution of which would have to wait for a later date. Justice Alito also concurred with the majority opinion. He pointed out that the city's decision not to certify the test results may have had more to do with "racial politics" - pressure from activists - than a fear of disparate impact litigation.

Justice Ginsburg's dissent focused on the long history of minority exclusion from the New Haven ranks of firefighters, particularly in senior positions. The dissent held that it is permissible to make a race-based decision to remedy a disparate impact where, as in the case before it, there was "good cause" to find the test flawed.

The case is Ricci v. DeStefano and the opinion is here.

Court of Appeal Upholds Attorney's Fees Award in Bad Faith Trade Secrets Litigation

If you sue a former employee for violating the Trade Secrets Act, you have to have a case. That means you have, at minimum, (1) a bona fide trade secret and (2) evidence of actual or threatened "misappropriation" of the trade secret. If you are missing evidence of one or more elements, and you're just suing a competitor, it can be an expensive mistake. That's what FLIR Systems, Inc. found out when it sued former employees who were trying to set up a competing business.

Here are the facts from the opinion:

Indigo manufactures and sells microbolometers. A microbolometer is a device used in connection with infrared cameras, night vision, and thermal imaging. A significant portion of Indigo's technology was created by respondent William Parrish. FLIR manufactures and sells infrared cameras, night vision, and thermal imaging systems that use microbolometers. In 2004, FLIR purchased Indigo for approximately $185 million, acquiring Indigo's patents, technology, and intellectual property. Parish and Fitzgibbons were shareholders and officers of Indigo before the company was sold.
After the sale, they continued working at Indigo.

In 2005, respondents decided to start a new company to mass produce bolometers
and gave notice that they would quit Indigo on or about January 6, 2006. The new company was based on a business plan (Thermicon) developed by Fitzgibbons in 1998 and 1999 when he was self-employed.

Before leaving Indigo, respondents discussed allowing appellants to participate in
Thermicon. Respondents proposed outsourcing bolometer production to a third party. The production startup time would be quick, assuming respondents could acquire technology licenses and intellectual property from a third party. Respondents offered FLIR a non-controlling interest in Thermicon. FLIR rejected the offer and wished respondents success in the new endeavor.

In early 2006, respondents entered into negotiations with Raytheon Company to acquire licensing, technology, and manufacturing facilities for Thermicon. Respondents assured appellants they would not misappropriate Indigo's trade secrets and that the new company would use an intellectual property filter similar to the one used at Indigo to prevent the misuse of trade secrets.

Fearful that the new business would undermine FLIR's market, appellants sued for
injunctive relief and damages on June 15, 2006. The action was premised on the theory that respondents could not mass produce low-cost microbolometers based on the Thermicon time line without misappropriating trade secrets.

Upon learning of the lawsuit, Raytheon Company terminated business discussions with respondents. On August 15, 2006, respondents advised appellants that they
were not going forward with the new business.

But FLIR sought an injunction against its former employees precluding them from setting up a new business in which they would engage in the same business as FLIR. The trial court found, and the Court of Appeal agreed, the injunction claim at least implicitly was based on the theory that former employees would "inevitably" use or disclose trade secrets in setting up a new venture. Unfortunately for FLIR, the inevitable disclosure doctrine is not recognized in California.

So, this case is about whether attorney's fees should be awarded in favor of the former employees. The fees were over $1 million, with over $200k more in costs.

In trade secret cases, the defendant can recover fees if the court in its discretion finds the plaintiff prosecuted a claim in bad faith. The standard for bad faith requires proof of two elements: "(1) objective speciousness of the claim, and (2) subjective bad faith in bringing or maintaining the action, i.e., for an improper purpose. "

Here, the "objective speciousness" was premising the action on the inevitable disclosure doctrine. the "subjective bad faith" was established by evidence that FLIR brought the claim to stop a potential competitor from opening up shop. The court of appeal discussed a number of additional factors that supported bad faith, including a settlement demand with irrelevant conditions, the failure to dismiss the claim once it was obvious it lacked merit, and a number of other facts that should be guidance for the bar.

The case is FLIR Systems, Inc. v. Parrish and the opinion is here.

U.S. Supreme Court: Plaintiffs Must Prove "But-For" Causation in Federal Age Discrimination Claims

So, the federal Age Discrimination in Employment Act does not permit "mixed motive" jury instructions. That is because the plaintiff's burden of proof is to always show that age was THE cause of a challenged adverse action. Unlike Title VII and California's FEHA, the ADEA does not permit the plaintiff to merely prove that a discriminatory motive was just one of many. Big case under the ADEA, but it will have no real effect on California age discrimination litigation under FEHA.

Here are the facts from the opinion:

Jack Gross began working for respondent FBL Financial Group, Inc. (FBL), in 1971. As of 2001, Gross held the position of claims administration director. But in 2003, when he was 54 years old, Gross was reassigned to the position of claims project coordinator. At that same time, FBL transferred many of Gross’ job responsibilities to a newly created position—claims administration manager. That position was given to Lisa Kneeskern, who had previously been supervised by Gross and who was then in her early forties. Although Gross (in his new position) and Kneeskern received the same compensation, Gross considered the reassignment a demotion because of FBL’s reallocation of his former job responsibilities to Kneeskern.

Gross filed suit . . . alleging that his reassignment to the position of claims project coordinator violated the ADEA, which makes it unlawful for an employer to take adverse action against an employee "because of such individual’s age." 29 U. S. C. §623(a). The case proceeded to trial, where Gross introduced evidence suggesting that his reassignment was based at least in part on his age. FBL defended its decision on the grounds that Gross’ reassignment was part of a corporate restructuring and that Gross’ new position was better suited to his skills. . . .

The courts below wrestled with the proper standard of proof, assuming that Title VII's frameworks and analyses equally applied to the ADEA. The Supreme Court, which accepted review of the case to determine the proper time to give a "mixed motive" instruction in an ADEA case, answered: Never.

The Court's 5-4 majority reasoned that the ADEA statute is worded differently from Title VII, and that Congress passed a law amending Title VII to allow "mixed motive" cases, but did not simultaneously amend the ADEA. So, to sum up:

We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.

The dissent argued strenuously that the Court should not have reached the question that it decided because it was not presented for review. Then the dissenters, in two opinions, would have held that the language in the ADEA did not require "but-for" causation, and that courts had used Title VII precedent to interpret the ADEA's causation standards.

Congress can overturn this decision by simply incorporating Title VII's causation standards into the ADEA, or by simply adding "age" to Title VII and ending the separate statutory schemes. The majority pointed out Congress has taken up Title VII and ADEA amendments before without harmonizing the causation standards. I guess we'll find out soon enough if Congress omitted that amendment intentionally.

The case is Gross v. FBL Fin. Servs. and the opinion is here.

HAPPY 3D BIRTHDAY TO US!

Yep, it's that time of year when we issue a self-congratulatory Happy Birthday! As the venerable and respected advocates for less fortunate wine coolers, Bartles & Jaymes (LLP) once said, "Thanks for your support. "

And this means that next week will be the third anniversary of this blog! (Unsubscribe now -before the obligatory "Happy Anniversary to WNIEL" post).

Oh, and if that weren't enough, we just won a 3 year old trade secrets case! If you haven't sent us an appropriately lavish gift by now...

Thanks again everybody. Oh and I'll be posting on cases and employment law and stuff this weekend.

Greg

California Supreme Court LOVES litigation

The California Supreme Court continued its streak of pro-litigation decisions today. What am I talking about? The recent "Tobacco Cases," - expanding the availability of unfair business practice class actions, the anti-arbitration decisions, the pro-class action certification opinions, the Court's common theme lately seems to be - lawsuits good! Too bad the courts are struggling for funds to hear all these cases, there are few disincentives to bring frivolous litigation, and businesses already on shaky financial ground can't afford to be in court. OK, down off the soapbox.

Anyway, in this most recent installment, the California high court considered certified questions from the Ninth Circuit Court of Appeals, including whether proof of intentional discrimination is a required element of claims brought under the Unruh Civil Rights Act. The Unruh Act is the civil rights law that protects the public from discrimination in places of public accommodation. It's the principal state law used in disability access cases. Money damages are available for violations, making the Unruh Act more interesting than laws permitting only injunctions.

This is not an employment law case per se. But many employers operate businesses that are subject to the Unruh Act (retail, restaurants hospitals, etc.) . So, I thought I would mention this case.

The Unruh Act says that a violation of Title III of the ADA (prohibiting discriminating in public accommodations by failure to make facilities accessible) is also a violation of the Unruh Act. The Court decided that because the ADA does not require intentional discrimination in access cases, neither did the Unruh Act. (The rest of the Unruh Act, prohibiting discrimination on a variety of bases, does require intentional discrimination, though, which is why the Supreme Court had to decide the case).

So, disability access litigation is alive and well! The case is Munson v. Del Taco, and the opinion is here.

Court of Appeal: No Post Termination Commissions for You

Here are the facts as stated by the court:

Defendant hired plaintiff as a sales representative on October 4, 1999. On that date, the parties entered a written employment agreement, which provided (among other things) that: (1) plaintiff was responsible for web-hosting sales; (2) plaintiff‟s starting salary was $24,000 per year, plus commissions of 4 percent "on all direct initial sales"; (3) defendant "will be eligible for commission pay as set forth in this [document], so long as [plaintiff] remains employed with the Company as a Sales Representative"; and (4) the employment agreement "may be amended only by a written agreement executed by each of the parties hereto."

In April 2001, defendant promoted plaintiff to "Channel Manager." The parties entered a new oral agreement that provided (among other things) that: (1) plaintiff‟s salary was increased to $75,000 per year, and (2) plaintiff would receive commissions of "„20% of the up front costs‟ revenues on all accounts brought in by [plaintiff] or through [plaintiff‟s] contacts or efforts."

So, the plaintiff was later fired and sought commissions for a transaction that occurred after he left, but which was (at least according to him) was "through plaintiff's contacts or efforts."

The court made short work of the plaintiff's argument that he was entitled to post-termination commissions. On plaintiff's breach of contract claim, the court held:


We agree with defendant that, on its face, the italicized language is reasonably susceptible to only one interpretation—that once plaintiff ceased to be employed by defendant, he would no longer be eligible for commission pay. While plaintiff could have relied on extrinsic evidence (if there were such evidence) to suggest an alternative meaning of this provision, he did not do so. (Compare Wolf v. Superior Court (2004) 114 Cal.App.4th 1343, 1358 ["[T]his extrinsic evidence of trade usage exposed a latent ambiguity in the contract language and presented an alter[n]-ative interpretation to which the term „gross receipts‟ was reasonably susceptible in the circumstances."].) Accordingly, we conclude as a matter of law that the written employment agreement precludes plaintiff from collecting additional commissions post-termination.

On the plaintiff's claim under the Labor Code, the court said that although commissions are wages:

for purposes of enforcing the provisions of the Labor Code, "[t]he right of a salesperson or any other person to a commission depends on the terms of the contract for compensation." (Koehl v. Verio, Inc. (2006) 142 Cal.App.4th 1313, 1330; see also Steinhebel, at p. 705 ["contractual terms must be met before an employee is entitled to a commission"].) Accordingly, plaintiff‟s right to commissions "must be governed by the provisions of the [employment agreement]." (Steinhebel, at p. 705.) We have already concluded that, pursuant to the plain language of the written employment agreement, plaintiff was not entitled to any further commissions after he was terminated. Accordingly, defendant‟s failure to pay such commissions cannot constitute a violation of the Labor Code.

The court did not consider whether the commission contract was "unconscionable" because it was not pleaded. So, that door remains open in commission cases. However, the court also did not consider the question of whether commissions were "earned" before termination and therefore should have been paid. Presumably, that issue was not argued by the plaintiff. If your plaintiff makes this argument, this case could be distinguishable.

Finally, there is the argument that the employer fired the employee to avoid paying unpaid commissions. But the plaintiff waived that argument too. So, because this case was not as vigorously litigated as it might have been, be careful before you rely on it too heavily. On the other hand, the courts will enforce straightforward commission plans that contain contingencies on the right to payment, such as continued employment.

The case is Nein v. Hostpro, Inc. and the opinion is here.

DGV

Court of Appeal: Labor Code Provisions Don't Apply to Public Entities Unless They Expressly Are Made Applicable

The court of appeal held that Labor Code sections 510 (overtime) and 512 (meal periods) do not apply to government entities because the Legislature did not expressly say they were applicable. AB 60, the bill codified in the 500's of the Lab. Code, has a provision applying some of its provisions to a narrow class of government entities. But not these provisions, and not against this agency. Therefore, the Arvin-Edison Water Storage District's demurrer to a wage and hour class action was upheld on appeal.

The most interesting argument was that Wage Order 17, applicable to "Miscellaneous" employees, brought a water district within the scope of the wage orders, daily overtime, and meal periods. Nope. The intent of Wage Order 17, the court reasoned, was to include employees within some new industry or occupation not contemplated before. But water districts have been around for a long time.

The court also held that sections 201-203, addressing timing of final pay and waiting time penalties, did not apply to a water district. That's because section 220 exempts government entities, including "other municipal corporations." Water districts are "other municipal corporations" under prior case law.

This means that water districts, like other government entities, are subject only to the federal FLSA, unless a state wage and hour law expressly applies. Perhaps our state and local governments will save some money defending against these class actions now, and slightly shrink their incredible deficits. ::::Off soapbox::::

This case is Johnson v. Arvin-Edison Water Storage Dist. and the opinion is here.

DGV

Stanford Sloan, Entry 22: The Last Entry: Final Finals, Ethics in B-School, the World According to Pixar

Tis the eve of our final final (approximately 11pm when I stared writing this), and throughout the b-school campus, not a mouse is stirring. Well, that’s not entirely true – many MBA’s are out at the final FOAM of the season held at some club in Palo Alto.

As for Sloans, we have our final final exam tomorrow morning, our very last bit of academic nonsense (er, rather, I mean our last serious academic endeavor) during our Sloan year: the HR final exam. The HR class (as per my past post) is one of two Sloan required classes in our final quarter.

Today was officially our last day of class at the GSB, but like many Sloans, I didn’t have any classes today. While many of us were busy studying for our final tomorrow, I took a trip up to San Francisco to wander around a little bit.

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Our other Sloan required class, Non Market Strategy, had a professor who decided to give us our final exam last Thursday. In hindsight this seemed like a brilliant move, because it allowed us to enjoy the beautiful late May/early June weather without stressing about academics last weekend.

This also meant that two of my courses were officially finished last Thursday (the required class, Non Market Strategy, and my elective class, The Business World: Moral and Spiritual Inquiry through literature).

Yesterday (Monday, June 1st) I had my last session of the Leadership Entertainment Industry class (more on this, including our visit to Pixar and the visit of David E. Kelly later). Which means three out of four classes are done, and in less than 12 hours, my academic experience at the Stanford Sloan program will be complete!

As I sit here, I should be cramming for this final exam in HR, I can’t help but reflect what an odd class ithe HR class been. In this class, doing data regression about HR was often emphasized more than actual HR strategy, and cases that we wrote about our co-workers companies seemed much more interesting than the “official cases” from Harvard and Stanford Business School that we were supposed to be learning from. Oh well, learning from our peers has been one of the keys to making business school worthwhile, so I guess this shouldn’t’ surprise me!

Ethics and Morality in Business?

One component of the our Non-Market Strategy class that came up over the past few weeks was the “ethics” component. Despite being a little philosophically abstract (Kantian vs. Utilitarian, anyone? I think I’d rather debate Tastes Great vs. Less Filling!), there was some valuable self-reflection this class forced us to do, at least for a few minutes.

In the wide world, MBA’s aren’t generally perceived to have any ethics, really. Just a constant stream of number-crunchers coming out of business schools who calculate the path to maximum profits with the least weighted average cost of capital, and always recommend the path of most borrowing at the least interest rate, regardless of the long term consequences.

Case in point: our recent financial crisis.

Well, I can’t really argue that this isn’t what business school teaches us. It actually is, for the most part, what we learn in our finance classes. But, there are bright spots of moral reflection in our other classes too, which shouldn’t be overlooked.

In our Non-market class, we were presented with some ethical dilemmas and asked our opinion.

Our professor called it Trolley-ology. A trolley is coming down the track and it is very likely to kill 5 people who are on the track. You have the option to change the track the trolley is on, to another track where only one person will get killed.

What do you do?

OK next step. Forget about the second track. Suppose you are on a bridge overlooking the trolley that is rolling towards killing 5 people. There is one person on the bridge with you. You could push that person off the bridge, which would kill them, but would stop the trolley, and with certainty save the lives of the 5 people down the road.

What would you do now?

Hmmm. If you’re like me, I don’t know that these hypothetical ethical dilemmas about Trolleys really impact our day to day decision in the business world, however much they do help illuminate how we think about ethical issues.

I’m sure that most MBA’s who were involved with institutions that spear-headed the financial crisis (as well as earlier excesses like Enron and Worldcom) probably had ethics classes like this one, but it’s not clear that they did any good.

More interesting and impactful on my long term view though, was my Moral and Spiritual Inquiry Through Literature class. This class, which was taught in seminar format, put a much more textured and personalized spin on these kinds of moral dilemmas.

By reading a fictional story (a novel a week, mind you) of a character who, for example, is staunchly anti-corruption at the beginning of the novel, but succumbs to taking a bribe by the end of the novel, we move beyond platitudes and abstract philosophy and hopefully gain some insight into human nature.

When Ivan Ilyich, described as a career corporate ladder climber in mercilessly accurate prose by Tolstoy, is about to die prematurely and reflects on what was missing from his materially oriented life, it’s not much of a stretch to see the comparison between this late 19th century Ruppy (Russian upwardly mobile professional) and the corporate climbing business school student of the twenty first century!

By being forced to discuss the nature of ethics and the role of religion and spirituality in our lives (and our work), we get, I think, to a much more personalized view of how we as human beings with vying impulses including greed and self-sufficiency might act in a materially obsessed world.

Moreover, by writing a 4000 word essay on how these books had an impact on my own views on morality and spirituality in the business world, I was forced to think through these issues at a deeper level than even trolleys would allow.

For those of my readers who wonder why I’m taking a class on Literature in Business School, I can only say that I wish everyone who had gotten an MBA over the past 10-20 years had to take this class (Moral and Spiritual Inquiry Through Literature), since it’s taught me more about reflecting on what’s important in life and business than all of my other classes combined.

The Law Acccording to Pixar

As always, I like to write about my Entertainment Industry class. Why? Not only because it’s a fun class, but because everyone likes the movies.

Last week, we went on a class visit to Pixar, which is, as we’ve learned the only major studio which has not had a box office failure. The visit was very eye-opening, not just because there statues of one-eyed monsters in the lobby (from Monsters, Inc), but because it made me (and the rest of the class) think about creativity, business, and the importance of modifying stories (whether in business or entertainment) until we get them right.

Pixar is a very creativity driven place. This comes across from the conversations we had with the CFO of Pixar, and from Andrew Stanton, who was the writer on the Toy Story movies, and the writer/director of Finding Nemo and Wall-e.

The first thing that strikes you when you walk into Pixar these days is that it’s all about one film: Up, the new movie that was just released this last weekend. I loved this movie, and it looks like it’s going to be a commercial success, despite analysts ravings that a movie about “a grumpy old man and a fat kid” has limited market appeal and no toy merchandising possibilities.

The thing about this focus is that for much of its history (going back to Toy Story) the folks at Pixar focused almost exclusively on one film. This is contrary to what we learn at business school and contrary to what almost every major studio in Hollywood says – that you need a diversified portfolio of films every year because you never know which of them are going to be successful.

But, as Andrew described to us their process – it can take 4-5 years to produce a Pixar film, one of their reasons for this success became apparent. Pixar is a mixture of Hollywood and Silicon Valley (Steve Jobs was the CEO and investor for many years, and Pixar grew out of Lucasfilm, and was a technology company for most of it’s life). They focus incessantly on the story for the first 2.5 years of this time – recording the whole film using hand drawn sketches and only when/if they get the story right, do they invest in the very costly 3d animation for which they are known.

They also allow for a certain amount of honest creative tension. While the director has the final say, the Pixar brain trust watches early screenings (of hand-drawn sketches with employee-recorded voices) and they “duke it out” with each other for ideas on how to make the story better. According to Stanton, after some painful disputes, they almost always emerged with a better story, which really has been the key to Pixar’s success I think. I could continue writing about Pixar forever, since it's such an interesting company, but will have to leave it at that!

We also had David E. Kelley visit our Entertainment Industry class. He was the creator of such hit television legal dramas as The Practice, Ally McBeal, and the more recent Boston Legal.

I won’t say much about his visit, except that it was also very insightful about the creative process in general and how television works in particular. Two things he said that surprised me?
1) that James Spader didn’t want to work with William Shatner at the beginning of Boston legal (though this changed quickly when they started working together), and
2) the head of the TV network programming (I think it was ABC) thought that the show ‘Lost’ was the “biggest piece of shit” he’d ever seen and he only let it go on the air because he had to contractually (the same executive later happily took credit for what became one of the biggest successes in the networks history).

Sign Off: The Last Entry

This is probably my last entry of the Sloan academic year in this blog. It’s been great fun writing this blog, even when it’s done in the middle of the night before an important exam.

I’d like to remind everyone for posterity that these have been my own personal impressions and rants of a thirty-something software entrepreneur who decided to go back to school and relive his high-school dream of attending Stanford University.

Several of next year’s Sloan’s have told me that they heard about the program or decided to join the Sloan program at Stanford because of my blog (or maybe it was despite my blog?? – just kidding!). For those of you who’ve been reading it regulary, I thank you and feel free to drop me a note any time.

From now on, I’ll be heading back to the world of work, dipping my toe in Venture Capital, and continuing to work on my organization, BayView Labs.

As for the blog, I’m going to go back to writing about entrepreneurship, zen, personal growth, and of course, the movies!

So what did I learn about succeeding in the business world in business school?

Well, speaking of the movies, perhaps the best way to sum up what I learned in business school is also in fact the best way to sum up my class about the Entertainment Industry.

This line, which was quoted to us by both David E. Kelley and our professor (Oscar winning documentary filmmaker Bill Guttentag), was from the book “Adventures in the Screen Trade”, by William Goldman.

Goldman summed up his own experiences in Hollywood with the very simple line: “Nobody knows anything!”

Court of Appeal Stiffs Baristas

Remember that time when the Starbucks Baristas won $86,000,000 because the shift supervisors took their tips? That was awesome.

[Sorry, I like Chris Farley. Sue me. I'll SLAPP you.]

Anyway, some time ago, we wrote about that huge Starbucks verdict over this tip pooling issue here. Then came the flood of tip pooling cases this winter and spring, discussed here and here. The Supreme Court is working on at least one of the cases here.

And now, the court of appeal just made real the Starbucks plaintiffs' worst nightmare: they reversed the monster $86,000,000.00-ish judgment quicker than as you can say tall no-whip-mocha with foam. As if I would ever say that.

The court held that the tips were placed in a community box for all service-related employees to share. Therefore, the court reasoned, the tip pooling statute did not even apply and the company was free to share tips with the service leads. The managers and assistant managers did not share in the tips.

So, easy come, easy go. We will see if the Supreme Court agrees to take up this case as well.

The case is Chau v. Starbucks and the opinion is here.

DGV