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Massachussetts AG greenlights Uber, Lyft-backed gig worker ballot initiative

Massachusetts Attorney General Maura Healey gave a coalition of app-based service providers like Uber and Lyft the go-ahead to start collecting signatures needed to put a proposed ballot measure before voters that would define drivers as independent contractors rather than employees.

Backers of the initiative, which is essentially a MA version of Proposition 22, would need to gather tens of thousands of signatures for the measure to make it to the November 2022 ballot. Despite the fact that last year Healey filed a lawsuit that challenged Uber and Lyft’s classifications of drivers as contractors who are therefore not entitled to benefits like sick leave, overtime or minimum wage, on Wednesday, the AG certified the current measure met constitutional requirements.

The news comes nearly two weeks after a superior court judged ruled California’s Prop 22, which was passed in 2020, unconstitutional. The union-backed Coalition to Protect Workers’ Rights urged Healey to reject the measure under the same grounds, and told Reuters that it is considering suing to challenge the measure.

The Massachusetts Coalition for Independent Work, the coalition of members including Uber, Lyft, DoorDash and Instacart, filed the petition for this ballot initiative last month, a move that Uber CEO Dara Khosrowshahi said he thinks is “the right move.” The proposed initiative would also allow drivers to earn a minimum of $18 per hour in 2023 before tips and provide those who work for at least 15 hours per week with healthcare stipends. Drivers would also be guaranteed at least 26 cents per mile to cover vehicle upkeep and gas.

The coalition has until December 1 to collect and file 80,239 signatures from voters. If they miss that deadline, they can gather an additional 13,374 signatures by July 6, 2022 to get the initiative on the ballot.

Apple will now let App Store developers talk to their customers about buying direct

Apple announced today it has reached a proposed settlement (embedded below) in a lawsuit filed against it by developers in the United States. The agreement, which is still pending court approval, includes a few changes, the biggest one being that developers will be able to share information on how to pay for purchases outside of their iOS app or the App Store—which means they can tell customers about payment options that aren’t subject to Apple commissions. The settlement also includes more pricing tiers and a new transparency report about the app review process.

The class-action lawsuit was filed against Apple in 2019 by app developers Donald Cameron and Illinois Pure Sweat Basketball, who said the company engaged in anticompetitive practices by only allowing the downloading of iPhone apps through its App Store.

In today’s announcement, Apple said it is “clarifying that developers can use communications, such as emails, to share information about payment methods outside of their iOS app. As always, developers will not pay Apple a commission on any purchases taking place outside of their app or the App Stores.”

This would allow developers to communicate with customers by email and “other communication services,” which was difficult to do under the App Store’s rules, which forbid developers from using contact information obtained within an app to contact users outside of the app. The settlement would lift this rule for all app categories, enabling developers to tell consenting users about payment methods that avoid Apple’s commissions.

In terms of pricing tiers, Apple said it will expand the number of price points available to developers from fewer than 100 to more than 500. It also agreed to publish a new annual transparency report that will share information about the app review process, including how many apps are rejected, the number of customer and developer accounts deactivated, “objective data regarding search queries and results,” and the number of apps removed from the App Store.

The company also said it will create a new fund for qualifying developers in America who earned $1 million or less through the U.S. App Store, which includes 99% of developers in America. Hagens Berman, one of the law firms representing plaintiffs in the lawsuit, said the fund will be $100 million, with payments ranging from $250 to $30,000.

Cameron et al v. Apple Inc. proposed settlement by TechCrunch on Scribd

Scarlett Johansson files suit over Disney+ ‘Black Widow’ release

With Scarlett Johansson’s time as an Avenger seemingly in the rearview, the “Black Widow” star has filed a breach of contract suit against Marvel-owner Disney. The lawsuit, filed in Los Angeles Superior Court this week, alleges that the studio breached its agreement with the star when it released the film on Disney+ alongside its theatrical debut.

“As Ms. Johansson, Disney, Marvel, and most everyone else in Hollywood knows, a ‘theatrical release’ is a release that is exclusive to movie theatres,” the filing writes, matter of factly. “Disney was well aware of this promise, but nonetheless directed Marvel to violate its pledge and instead release the Picture on the Disney+ streaming service the very same day it was released in movie theatres.”

The pandemic has fundamentally transformed the way first-run movies are delivered and consumed — at least in the short term. In 2020, Disney and other studios opted to release films straight to streaming, rather than suffer perpetual delays and poor box office numbers as restrictions closed the non-essential business of movie theaters. More recently they’ve split the difference as movie theaters have reopened, offering same day streaming.

According to a copy of the suit obtained by TechCrunch, Johansson’s concerns about streaming services pre-date the pandemic. When Disney launched the streaming service Disney+, the suit claims, Johansson’s representatives sought assurances from Disney/Marvel that the Black Widow solo film would still get a theatrical release, in spite of the company’s bids to boost subscription numbers.

It cites an email with Marvel’s chief counsel from May of that year:

We totally understand that Scarlett’s willingness to do the film and her whole deal is based on the premise that the film would be widely theatrically released like our other pictures. We understand that should the plan change, we would need to discuss this with you and come to an understanding as the deal is based on a series of (very large) box office bonuses.

“It’s no secret that Disney is releasing films like “Black Widow” directly onto Disney+ to increase subscribers and thereby boost the company’s stock price — and that it’s hiding behind COVID-19 as a pretext to do so,” the actress’s attorney John Berlinski said in a statement provided to TechCrunch. “But ignoring the contracts of the artists responsible for the success of its films in furtherance of this short-sighted strategy violates their rights and we look forward to proving as much in court. This will surely not be the last case where Hollywood talent stands up to Disney and makes it clear that, whatever the company may pretend, it has a legal obligation to honor its contracts.”

The statement accuses Disney of “hiding behind COVID-19,” though certainly the studio wasn’t alone in rethinking its release strategy over the past year. The question remains whether the pandemic will serve as sufficient extenuating circumstances for its release decisions. The outcome of the trial, meanwhile, could well have a profound effect on how studios release blockbusters post-pandemic.

We’ve reached out to Disney for comment and will update accordingly.

Judge denies Wisk Aero’s request for preliminary injunction against Archer Aviation

Electric aviation startup Wisk Aero’s request for a preliminary injunction against rival Archer Aviation was denied by a federal judge Thursday, the latest in an ongoing legal battle over whether Archer stole trade secrets in developing its flagship Maker aircraft.

A full written opinion has not yet been published. In a tentative ruling filed earlier this week, Judge William Orrick said Wisk’s “evidence of misappropriation is too equivocal to warrant a preliminary injunction.” Wisk filed for the injunction in May; if it had been approved, it would have effectively put an immediate halt to Archer’s operations.

Wisk submitted to the court 52 trade secrets it alleges were stolen and used by Archer, and the injunction would have prevented Archer from using any of them until a final decision was issued in the suit. It’s an extraordinary request and it makes sense that Orrick would need to see more certain evidence of misappropriation.

“There are some arguable indications of misappropriation, but given how equivocal the evidence is, Wisk is not entitled to the extraordinary remedy of an injunction,” Orrick said in the tentative ruling. “Because the merits are so uncertain, Wisk has also not adequately shown irreparable injury based on misappropriation. And the balance of hardships favors Archer because, without solid evidence of misappropriation, an injunction would gravely threaten its business.”

Wisk says the judge’s decision on the injunction has no bearing on the outcome of the case “and does not exonerate Archer in the least.”

“We brought this lawsuit based on strong indications of theft and use of Wisk’s IP, and the initial limited evidence gathered through the court process to date only confirms our belief that Archer’s misappropriation of Wisk’s trade secrets is widespread and pervades Archer’s aircraft development,” Wisk continued. “Following today’s ruling, Wisk will be allowed to begin collecting evidence in earnest.”

Wisk was established in 2019 as a joint venture between Kitty Hawk and Boeing, but its history with electric aviation stretches back much further. The company was originally founded in 2010 as Levt, which eventually merged with sister company Kitty Hawk. Wisk says it (as Kitty Hawk) zeroed in on a fixed-wing, 12-rotor design in 2016. It’s this design that’s the centerpiece of its debut aircraft, Cora.

Archer, by contrast, is newer to the field. Much of Wisk’s original complaint, filed in April, is predicated on the speed with which Archer is bringing its air taxi service to market. Archer also recruited many former Wisk engineers — including former employee Jing Xue, whom Wisk says downloaded nearly 5,000 files before his departure from the company, which it alleges he handed over to Archer.

When he was cross-examined, Xue pled the Fifth Amendment, invoking his right to not self-incriminate, citing an ongoing federal investigation.

Archer says Wisk has not brought forward any substantive evidence of the central claim of the lawsuit: that Archer received and used Wisk trade secrets. Wisk’s allegations are based on “conspiracy theories and outright misrepresentations,” Archer’s Deputy General Counsel Eric Lentell said.

“It is clear to us from Wisk’s actions in this case that after recognizing Archer’s momentum and pace of innovation, Wisk began abusing the judicial and criminal justice system in an attempt to slow us down to compensate for its own lack of success,” Archer co-founders Brett Adcock and Adam Goldstein said.

The court will hold a scheduling conference on August 11, where the judge will outline next steps for the case. A date for the trial has not been set.

The case is filed in the California Northern District Court under case no. 3:2021cv02450.

Korean court sides against Netflix, opening door for streaming bandwidth fees from ISPs

A court case in South Korea has ended in a loss for Netflix and a victory for ISPs in the country, which may now be empowered to levy bandwidth usage fees on traffic-gobbling streaming platforms. The decision is likely to be challenged, as it essentially saddles the new wave of streaming services with ISP-negotiated rents just as the market is exploding.

As reported by the Korean Economic Daily, the court’s decision is less prescriptive than an official “figure it out amongst yourselves.” But it fails to protect streamers from a class of bandwidth fees they have fought for years.

Netflix filed suit in 2020 alleging that the ISP SK Broadband had no right to demand payment for the bandwidth the platform uses, similar to a legal conflict that flared up around 2014.

Back then, ISPs complained that streaming services consumed an inordinate amount of bandwidth and the companies should pay something to offset the cost of providing it. Streaming sites countered that they were simply fulfilling the requests of users who had already paid for the bandwidth in question, and that what ISPs were trying to “double dip” and charge for the same bits twice.

The technical reality is a bit more complicated than that, though, and Netflix ended up paying what are called interconnect fees to facilitate the infrastructure necessary for the quick, consistent delivery of huge amounts of data. Netflix has said that this is basically a “fast lane” tax but from the lack of chatter since the matter was settled back then, they seem to have chalked it up as the cost of doing business.

In a statement offered by its Korean subsidiary (reported in the same Korean Economic Daily story) Netflix said it “has not been paying network usage fees, or something equivalent to the fees claimed by SK Broadband, to any one of the ISPs (internet service providers) in the world.” It’s not clear whether it classes interconnect and caching as “equivalent” or whether these arrangements have changed; I’ve asked the company for clarification and will add it to the story if they respond.

In Korea, however, the issue is not so settled, and with huge growth there the streaming sites would probably prefer not to have to pay fees proportionate to their success — hence the lawsuit. But the court’s recent decision put the ball back in their court, saying that “it needs to be determined by negotiations between the parties involved whether or not some fees will be paid.”

It’s welcome news for the broadband providers, since any fee they negotiate will be higher than zero, which is what they were working with before. What sort of money they can possibly demand is a complete mystery, since the space is changing so quickly. And the court case, since it’s so unfavorable to some of the biggest companies in the world (which stand to make a mint in the voracious South Korean market), will almost certainly be taken up again. In the meantime consumers in the country may well see streaming prices go up — a tried and true method of whipping up a froth of consumer outrage.

The issue is far from settled in the U.S. and elsewhere, as with a new Democrat-led FCC there may also be a new push for strong net neutrality rules. Netflix had pushed for this sort of fee to be outlawed during the original net neutrality push, but ultimately the idea was abandoned (and would later be mooted anyway when the rules were rescinded). The argument over what ISPs can and can’t charge for, and who should pay, is an ongoing and global one.

Archer Aviation hits back against rival Wisk Aero’s request for injunction in trade secret suit

Archer Aviation is ramping up its defense against claims by rival Wisk Aero that it misappropriated trade secrets. Archer, which unveiled its Maker eVTOL earlier this month, alleged in a court filing late Wednesday that Wisk learned of Archer’s aircraft design weeks before it filed its patent design application – effectively reversing claims that it stole Wisk’s design.

Wisk claimed in its April lawsuit that its design is nearly identical to Archer’s, and that the similarities are the result of a former Wisk employee (who was later hired by Archer) stealing proprietary work files. In this new filing, Archer alleged that it shared its plans for a 12-rotor tilting design with Geoff Long, a senior engineer at Wisk, whom Archer was considering recruiting. Archer alleges that Long shared Archer’s plans with Wisk executives weeks before Wisk filed its patent application.

Still following? Archer also says that it hired a third party to conduct a forensic analysis, which found no evidence of any of the allegedly stolen documents on Archer’s systems or the devices belonging to the former Wisk-now-Archer employee.

The filing was made in response to an injunction Wisk filed in May, requesting that the court immediately prohibit its rival from using any of the 52 trade secrets it alleges were stolen. It’s a request that could have potentially catastrophic effects on Archer, as the company itself admits in the filing. Archer argues that approving the injunction would take it “offline indefinitely” and pose a “grave danger” to Archer and its network of partners and suppliers.

“Wisk’s legal and media blitz is threatening to derail Archer’s anticipated merger and its business partnerships and compelling Archer to redirect significant resources to defend this lawsuit,” Archer says in the filing. The company further requested that if an injunction should be granted, it should also require a $1.1 billion bond – which Wisk would have to pay should the court ultimately side with Archer.

Wisk, in response to the filing, sent the following statement to TechCrunch: “Archer’s latest filing is full of inaccuracies and attempts to distract from the serious and broad scope of misappropriation claims it faces. The filing changes nothing. We look forward to continuing our case in court to demonstrate Archer’s improper use of Wisk’s intellectual property.”

The suit was filed in the U.S. District Court for the Northern District of California under case no. 5:21-cv-2450.

Deliveroo defeats another workers’ rights challenge in UK courts

Deliveroo has had another win in the UK courts, beating back an appeal by the IWGB union which has sought for years to challenge the gig platform over couriers’ rights but has continued to fail to overturn the company’s classification of riders as self-employed.

The latest appeals court ruling is the fourth judgment in the UK that supports Deliveroo’s contention that its riders are self-employed, following earlier judgments by the Central Arbitration Committee and two at the High Court.

The on-demand food delivery platform operates a different gig model to ride-hailing giant Uber — which has, by contrast, failed to prevent UK courts from judging its drivers to be workers not self-employed contractors.

Deliveroo, for example, allows riders to use a substitute to fulfil a shift with only limited restrictions on the practice. And the interpretation of how exactly employment law applies typically hinges on exactly such nuanced details as the level of flexibility being offered to platform workers.

Despite a string of legal loses against Deliveroo over the years, the IWGB did not give up its fight. Most recently honing in on the issue of collective bargaining, and seeking to challenge the platform giant’s stance under the European Convention on Human Rights — by arguing riders have a legal right to form or join a union.

It hasn’t had much success with this line of argument against Deliveroo either, though.

And today the UK Court of Appeal dismissed its latest appeal — ruling that riders do not fall under the scope of the trade union freedom right set out in the European Convention of Human Rights.

Although the Court did suggest that riders do fall under “the more general right of freedom of association under article 11 [of the ECoHR]”.

In conclusion the judges also make a point of noting that other gig economy legal challenges may have a different outcome, writing that: “It may be thought that those in the gig economy have a particular need of the right to organise as a trade union. So I quite accept that there may be other cases where, on different facts and with a broader range of available arguments, a different result may eventuate.”

The IWGB’s president, Alex Marshall, seized on this element of the ruling — commenting in a statement:

“The judgment recognises that riders would benefit from organising collectively to represent their interests and admits the conclusion reached in the judgment might seem counter intuitive. We will now consider our legal position, but one thing is for sure: We will continue to grow in numbers and fight on the streets until Deliveroo give these key worker heroes the pay and conditions they more than deserve.”

In further remarks, Marshall attacked Deliveroo’s stance toward riders — claiming it has sought to “silence” their voices and deny them opportunities to negotiate better terms:

“Deliveroo couriers have been working on the frontline of the pandemic and whilst being applauded by the public and even declared heroes by their employer, they have been working under increasingly unfair and unsafe working conditions. The reward they have received for their Herculean effort? Deliveroo continuing to invest thousands of pounds in litigation to silence workers’ voices and deny them the opportunity to negotiate better terms and conditions. A recent investigation by the Bureau of Investigative Journalism revealed riders were making as little as £2 per hour. Is this the kind of pay workers would accept if they really were their own boss? It appears that when Deliveroo talk about flexibility and being your own boss, it is talking about the flexibility of choosing when to make poverty wages and work in unsafe conditions.”

In a statement welcoming the appeal court ruling, Deliveroo claimed the contrary — saying:

“Today is good news for Deliveroo riders and marks an important milestone. UK courts have now tested and upheld the self-employed status of Deliveroo riders four times.

“Our message to riders is clear. We will continue to back your right to work the way you want and we will continue to listen to you and respond to the things that matter to you most.

“Deliveroo’s model offers the genuine flexibility that is only compatible with self-employment, providing riders with the work they tell us they value. Those campaigning to remove riders’ flexibility do not speak for the vast majority of riders and seek to impose a way of working that riders do not want. Deliveroo will continue to campaign for companies like ours to be able to offer the full flexibility of self employment along with greater benefits and more security.”

Freelancer marketplace Toptal sues Andela and ex-employees, alleging theft of trade secrets

The war for talent in the tech world can be brutal — and so, it turns out, can the war between platforms that help companies source it. In the latest developement, Toptal — a marketplace for filling engineering and other tech roles with freelance, remote workers — has filed a lawsuit against direct competitor Andela and several of its employees, alleging the theft of trade secrets in pursuit of “a perfect clone of its business”, according to the complaint. All of the Andela employees previously worked at Toptal.

Toptal’s lawsuit, filed in the Supreme Court of the State of New York and embedded below, alleges that the employees reneged on confidentiality, non-solicitation and non-compete agreements with Toptal. Toptal also alleges interference with contract, unfair competition and misappropriation of trade secrets.

While both Toptal and Andela have built businesses around the idea of remote freelancers filling tech jobs — a concept that has increased in profile and acceptance as people shifted to remote work during the pandemic — the pair only emerged as very direct competitors in the last year or so.

Toptal was co-founded by CEO Taso Du Val in 2010, and since then it has grown to become one of the world’s most popular on-demand talent networks. The company matches skilled tech personnel like engineers, software developers, designers, finance experts and product managers to clients across the globe. According to company data, it currently serves over 1,000 clients in more than 10 countries.

Andela, on the other hand, only recently turned to using a similar approach. Founded in 2014 in Lagos, Andela’s original business model was based on building physical hubs to source, vet, train and house talent across the continent. It did this in Kenya, Nigeria, Rwanda and Uganda.

However, Andela struggled with scaling and operating that business model, and in 2019 it laid off 400 developers. Early last year as the pandemic took hold, it laid off a further 135 employees. However this time around it did so with a strategy pivot in mind: after testing satellite models in Egypt and Ghana, the talent company decided to go forego physical hubs completely and go remote, first across Africa in 2020 and globally this year.

“We thought, ‘What if we accelerated [the African remote network] and just enabled applicants from anywhere?’ Because it was always the plan to become a global company. That was clear, but the timing was the question,” Andela CEO Jeremy Johnson told TechCrunch in April.

Yet Toptal believes Andela’s choice to scrap its hubs and source remote talent from everywhere was specifically to replicate Toptal’s business model — and success.

“Until recently, Andela operated an outsourcing operation focused on in-person, on-site hubs in Africa,” Toptal notes in the complaint.Over the course of the past year, Andela has moved away from its prior focus on in-person hubs situated in Africa and is engaging in a barely disguised attempt to become a clone of Toptal.”

Toptal claims that for Andela to pull off a “perfect clone of its business,” it poached key Toptal employees to exploit their knowledge, and that the ex-employees knowingly breached their confidentiality and non-solicitation obligations to Toptal.

Companies often try to uncover each other’s trade secrets by poaching, and many blatantly copy a competitor and do so without repercussions. On top of this, these two are hardly the only two places to for tech talent to connect with remote freelance job opportunities. Others include Fiverr, Malt, Freelancer.com, LinkedIn, Turing, Upwork and many more.

In a global economy with an estimated 1 billion so-called knowledge workers, and with freelancers accounting for some 35% of the world’s workforce, it’s a pretty gigantic market, which you could alternately look at as a major opportunity, but also a ripe field for many players with multiple permutations of the marketplace concept.

So why is Toptal crying foul play? The company says its ex-employees have not only revealed Toptal’s trade secrets and confidential information to compete unfairly but are also poaching additional Toptal personnel, clients and the talent that Toptal matches and sources to clients.

The ex-employees cited by Toptal include Sachin Bhagwata, vice president of enterprise; Martin Chikilian, head of talent operations; Courtney Machi, vice president of product; and Alvaro Oliveira, executive vice president of talent operations. Toptal says three additional former employees in non-executive roles breached express covenants not to compete in their agreements with Toptal.

While some of the allegations focus on the expertise of the employees, one of the trade secret allegations more directly references Toptal’s technology.

Toptal claims Machi tapped into her extensive knowledge of Toptal’s “proprietary software platform” and used that to help transform Andela “from a group of outsourcing hubs situated in various African locations into a fully remote, global company like Toptal.”

Asked to comment on the suit, Johnson at Andela said he believes Toptal is suing Andela for being competitive.

“With regards to the situation overall, I can say that frivolous lawsuits are the price of doing anything that matters,” he told TechCrunch in an email. “And this is the kind of baseless bullying and fear tactics that make employees want to leave in the first place. We will defend ourselves and our colleagues vigorously.”

Toptal has an unconventional story for a company that started only a decade ago. It is one of the few companies in the Valley that doesn’t issue stock options to its investors or employees. Even Du Val’s co-founder, Breanden Beneschott, was ousted from the company without any shares, according to an article from The Information.

How did it pull this off? In 2012, Toptal raised a $1.4 million seed via convertible notes and investors were entitled to 15% of the company, according to The Information article.

But there was one condition: Toptal had to raise more money.

However, the company hasn’t needed to secure additional capital because of its profitability and growing revenue ($200 million annually as of 2018, per The Information). So investors are stuck in limbo — as are employees who joined hoping that the company would raise money down the line so their stock options would convert.

The Information story strikes a distinct note of resentment, noting that some employees felt “tricked out of stock in a company that Du Val has said publicly is worth more than $1 billion.”

Given that situation, TechCrunch asked Du Val if he thought it played any role in employee departures, and ex-employee relations.

“The issuance of stock options does not excuse theft of trade secrets,” he replied. “Also, there are more than 800 full-time people at Toptal [but] the complaint names seven individual defendants.”

The full complaint is embedded below.

Tesla faces $163M payout to drivers in Norway following court decision

A Norwegian conciliation council has ordered Tesla to pay thousands of dollars each to Model S owners after it found that a software update led to longer charging times, the Norwegian newspaper Nettavisen reported Monday. Drivers eligible for compensation under the ruling will receive 136,000 kroner ($16,000) each.

Thirty Tesla drivers brought a complaint to the conciliation council in December 2020, citing that charging times got slower after a software update the previous year. The poorer performance affected Tesla Model S vehicles manufactured between 2013 and 2015.

Tesla sold about 10,000 Model S vehicles during that timeframe in Norway. That means Tesla faces an overall payout of up to 1.36 kroner ($163 million), Nettavisen said.

Tesla did not respond to the complaint prior to the judgement being issued and it has until May 30 to pay the fine. The company has the opportunity to appeal the ruling to the Oslo Conciliation Board by June 17.

This is not the first time Tesla has faced complaints on charging speeds in court. A Tesla owner in 2019 filed a lawsuit against the EV manufacturer in the Northern California federal court alleging fraud and decreased battery range following a software update.

Norway leads Europe in the number of EVs on the road, with battery electric vehicles accounting for 54% of all new vehicle sales in 2020, according to the Norweigan Road Federation. Audi e-trons were the most popular vehicle sold, followed by the Model 3.

Tim Cook plays innocent in Epic v Apple’s culminating testimony

Apple CEO Tim Cook took his first turn in the witness chair this morning in what is probably the most anticipated testimony of the Epic v. Apple antitrust case. But rather than a fiery condemnation of Epic’s shenanigans and allegations, Cook offered a mild, carefully tended ignorance that left many of the lawsuit’s key questions unanswered, or unanswerable.

This anticlimax may not make for exciting reporting, but it could serve to defang the dangerous, if somewhat dubious, argument that Apple’s App Store amounts to a monopoly.

After being called by Apple’s own attorneys, Cook took the stand, Law360’s Dorothy Atkins, one of two media members allowed in the court, reported in her comprehensive live tweeting of the testimony. The quotes from Cook are as reported and not to be considered verbatim; the court transcript will follow when the document is compiled and public. Incidentally, Atkins’ stage-setting descriptions are appealing and humanizing, though Epic CEO Tim Sweeney comes off as a bit weird:

Sweeney is sitting at Epic’s counsel table looking down at his pen. His lawyer Gary Bornstein sporadically whispers in his ear. Cook seems relaxed, legs crossed. Just turned to someone sitting next took him, said something and then laughed.

— these trying times. (@doratki) May 21, 2021

The questioning of Cook by his own company’s counsel was gentle and directed at reiterating the reasons why Apple’s App Store is superior and sufficient for iOS users, while also asserting the presence of stiff competition. He admitted to a handful of conflicts with developers, such as differing priorities or needing to improve discovery, but said the company works constantly to retain developers and users.

The facade of innocent ignorance began when he was asked about Apple’s R&D numbers — $15-20 billion annually for the last three years. Specifically, he said that Apple couldn’t estimate how much of that money was directed towards the App Store, because “we don’t allocate like that,” i.e. research budgets for individual products aren’t broken out from the rest.

Now, that doesn’t sound right, does it? A company like Apple knows down the penny how much it spends on its products and research. Even if it can’t be perfectly broken down — an advance in MacOS code may play into a feature on the App Store — the company must know to some extent how its resources are being deployed and to what effect. The differences between a conservative and liberal estimation of the App Store’s R&D allocation might be large, in the hundreds of millions perhaps, but make no mistake, those estimations are almost certainly being made internally. To do otherwise would be folly.

But because the numbers are not publicly declared and broken down, and because they are likely to be somewhat fuzzy, Cook can say truthfully that there’s no single number like (to invent an amount) “App Store R&D was $500 million in 2019.”

Not having a hard number removes a potential foothold for Epic, which could use it either way: If it’s big, they’re protecting their golden goose (enforcing market power). If it’s small, they’re just collecting the eggs (collecting rent via market power). Apple’s only winning move is not to play, so Cook plays dumb and consequently Epic’s argument looks like speculation (and, as Apple would argue, fabulation).

He then deployed a similar strategy of starving the competition with a preemptive shrug about profits. He only addressed total net sales, which were about $275 billion at a 21 percent profit margin, saying Apple does not evaluate the App Store’s income as a standalone business.

Certainly it is arguable that the App Store is very much a tightly integrated component of a larger business structure. But the idea that it cannot be assessed as a standalone business is ludicrous. It is again nearly certain that it, like all of Apple’s divisions and product lines, is dissected and reported internally in excruciating detail. But again it is just plausible that for legal purposes it is not straightforward enough to say “the income and profits of the App Store are such and such,” thus denying Epic its datum.

However, the point is important enough that Epic thought it warranted independent investigation. And among the first things Epic’s attorney brought up, when the witness was turned over to him, was the testimony from earlier in the trial by an expert witness that Apple’s App Store operating margins were around 79 percent.

It was not in Apple’s interest to confirm or deny these numbers, and Cook again pleaded ignorance. The mask slipped a tiny bit, however, when Epic’s attorney asked Cook to break down the confidential income numbers that combined the Mac and iOS App Stores. While Apple objected to this, saying it was privileged information and could only be divulged in a closed court, Cook offered that the iOS numbers are “a lot larger” than the Mac numbers.

What we see here is another piece of financial sleight-of-hand. By mixing the iOS and Mac income Apple gets to muddy the waters of how much money is made and spent in and on them. Epic’s attempt to unmix them was not successful, but the judge is no fool — she sees the same things Epic does, but just as dimly. Apple is attempting to deny Epic a legal victory even at the cost of looking rather shadowy and manipulative.

This was further demonstrated when Cook was asked about Apple’s deal with Google that keeps the search engine as the default on iOS. Cook said he didn’t remember the specific numbers.

If the CEO of one of the biggest tech companies in the world told you they forgot the specifics of a multi-billion dollar, decade-long deal with one of the other biggest tech companies in the world, would you believe them?

Little of the remaining testimony shed light on anything. Cook discussed the complexities of operating in places like China where local laws have technical and policy repercussions, and minimized the assertion that Apple had expanded the scope of in-app purchases and what transactions the company gets a 30% cut from. A bit more testimony will take place in a closed court, but we likely won’t hear about it as it will concern confidential information.

The trial, which is winding down, has held few surprises; both sides laid out their arguments at the start, and much of this will come down to the judge’s interpretation of the facts. There were no dramatic surprise witnesses or smoking guns — it’s simply a novel argument about what constitutes monopolistic behavior. Apple is adamant that competition is present and fierce in Android, and that in the gaming world it competes with Windows and consoles as well.

It seems almost inevitable that whatever the judgment is, the case will be appealed and brought to a higher court, but that judgment will also be a strong indicator of how well Epic’s arguments (and Apple’s obfuscations) have been received. That said, Epic and other critics of Apple’s App Store fees, which are immensely profitable however the company chooses to obscure it, have arguably already accomplished their goals. Apple’s lowered 15% fee for the first million dollars is plainly a response to developer unrest and bad press, and now it is put in the position of defending how the sausage gets made.

Tarnishing Apple’s anodized aluminum tower was always at least partly the intent, and win or lose Epic may feel it has gotten its money’s worth. Besides, the rematch in Europe is yet to come.

European Parliament amps up pressure on EU-US data flows and GDPR enforcement

European Union lawmakers are facing further pressure to step in and do something about lackadaisical enforcement of the bloc’s flagship data protection regime after the European Parliament voted yesterday to back a call urging the Commission to start an infringement proceeding against Ireland’s Data Protection Commission (DPC) for not “properly enforcing” the regulation.

The Commission and the DPC have been contacted for comment on the parliament’s call.

Last summer the Commission’s own two-year review of the General Data Protection Regulation (GDPR) highlighted a lack of uniformly vigorous enforcement — but commissioners were keener to point out the positives, lauding the regulation as a “global reference point”.

But it’s now nearly three years since the regulation begun being applied and criticism over weak enforcement is getting harder for the EU’s executive to ignore.

The parliament’s resolution — which, while non-legally binding, fires a strong political message across the Commission’s bow — singles out the DPC for specific criticism given its outsized role in enforcement of the General Data Protection Regulation (GDPR). It’s the lead supervisory authority for complaints brought against the many big tech companies which choose to site their regional headquarters in the country (on account of its corporate-friendly tax system).

The text of the resolution expresses “deep concern” over the DPC’s failure to reach a decision on a number of complaints against breaches of the GDPR filed the day it came into application, on May 25, 2018 — including against Facebook and Google — and criticises the Irish data watchdog for interpreting ‘without delay’ in Article 60(3) of the GDPR “contrary to the legislators’ intention – as longer than a matter of months”, as they put it.

To date the DPC has only reached a final decision on one cross-border GDPR case — against Twitter.

The parliament also says it’s “concerned about the lack of tech specialists working for the DPC and their use of outdated systems” (which Brave also flagged last year) — as well as criticizing the watchdog’s handling of a complaint originally brought by privacy campaigner Max Schrems years before the GDPR came into application, which relates to the clash between EU privacy rights and US surveillance laws, and which still hasn’t resulted in a decision.

The DPC’s approach to handling Schrems’ 2013 complaint led to a 2018 referral to the CJEU — which in turn led to the landmark Schrems II judgement last summer invalidating the flagship EU-US data transfer arrangement, Privacy Shield.

That ruling did not outlaw alternative data transfer mechanisms but made it clear that EU DPAs have an obligation to step in and suspend data transfers if European’s information is being taken to a third country that does not have essentially equivalent protections to those they have under EU law — thereby putting the ball back in the DPC’s court on the Schrems complaint.

The Irish regulator then sent a preliminary order to Facebook to suspend its data transfers and the tech giant responded by filing for a judicial review of the DPC’s processes. However the Irish High Court rejected Facebook’s petition last week. And a stay on the DPC’s investigation was lifted yesterday — so the DPC’s process of reaching a decision on the Facebook data flows complaint has started moving again.

A final decision could still take several months more, though — as we’ve reported before — as the DPC’s draft decision will also need to be put to the other EU DPAs for review and the chance to object.

The parliament’s resolution states that it “is worried that supervisory authorities have not taken proactive steps under Article 61 and 66 of the GDPR to force the DPC to comply with its obligations under the GDPR”, and — in more general remarks on the enforcement of GDPR around international data transfers — it states that it:

Is concerned about the insufficient level of enforcement of the GDPR, particularly in the area of international transfers; expresses concerns at the lack of prioritisation and overall scrutiny by national supervisory authorities with regard to personal data transfers to third countries, despite the significant CJEU case law developments over the past five years; deplores the absence of meaningful decisions and corrective measures in this regard, and urges the EDPB [European Data Protection Board] and national supervisory authorities to include personal data transfers as part of their audit, compliance and enforcement strategies; points out that harmonised binding administrative procedures on the representation of data subjects and admissibility are needed to provide legal certainty and deal with crossborder complaints;

The knotty, multi-year saga of Schrems’ Facebook data-flows complaint, as played out via the procedural twists of the DPC and Facebook’s lawyers’ delaying tactics, illustrates the multi-layered legal, political and commercial complexities bound up with data flows out of the EU (post-Snowden’s 2013 revelations of US mass surveillance programs) — not to mention the staggering challenge for EU data subjects to actually exercise the rights they have on paper. But these intersecting issues around international data flows do seem to be finally coming to a head, in the wake of the Schrems II CJEU ruling.

The clock is now ticking for the issuing of major data suspension orders by EU data protection agencies, with Facebook’s business first in the firing line.

Other US-based services that are — similarly — subject to the US’ FISA regime (and also move EU users data over the pond for processing; and whose businesses are such they cannot shield user data via ‘zero access’ encryption architecture) are equally at risk of receiving an order to shut down their EU-US data-pipes. Or else having to shift data processing for these users inside the EU.

US-based services aren’t the only ones facing increasing legal uncertainty, either.

The UK, post-Brexit, is also classed as a third country (in EU law terms). And in a separate resolution today the parliament adopted a text on the UK adequacy agreement, granted earlier this year by the Commission, which raises objections to the arrangement — including by flagging a lack of GDPR enforcement in the UK as problematic.

On that front the parliament highlights how adtech complaints filed with the ICO have failed to yield a decision. (It writes that it’s concerned “non-enforcement is a structural problem” in the UK — which it suggests has left “a large number of data protection law breaches… [un]remedied”.)

It also calls out the UK’s surveillance regime, questioning its compatibility with the CJEU’s requirements for essential equivalence — while also raising concerns about the risk that the UK could undermine protections on EU citizens data via onward transfers to jurisdictions the EU does not have an adequacy agreement with, among other objections.

The Commission put a four year lifespan on the UK’s adequacy deal — meaning there will be another major review ahead of any continuation of the arrangement in 2025.

It’s a far cry from the ‘hands-off’ fifteen years the EU-US ‘Safe Harbor’ agreement stood for, before a Schrems challenge finally led to the CJEU striking it down back in 2015. So the takeaway here is that data deals that allow for people’s information to leave Europe aren’t going to be allowed to stand unchecked for years; close scrutiny and legal accountability are now firmly up front — and will remain in the frame going forward.

The global nature of the Internet and the ease with which data can digitally flow across borders of course brings huge benefits for businesses — but the resulting interplay between different legal regimes is leading to increasing levels of legal uncertainty for companies seeking to take people’s data across borders.

In the EU’s case, the issue is that data protection is regulated within the bloc and these laws require that protection stays with people’s information, no matter where it goes. So if the data flows to countries that do not offer the same safeguards — be that the US or indeed China or India (or even the UK) — then that risk is that it can’t, legally, be taken there.

How to resolve this clash, between data protection laws based on individual privacy rights and data access mandates driven by national security priorities, has no easy answers.

For the US, and for the transatlantic data flows between the EU and the US, the Commission has warned there will be no quick fix this time — as happened when it slapped a sticking plaster atop the invalidated Safe Harbor, hailing a new ‘Privacy Shield’ regime; only for the CJEU to blast that out of the water for much the same reasons a few years later. (The parliament resolution is particularly withering in its assessment of the Commission’s historic missteps there.)

For a fix to stick, major reform of US surveillance law is going to be needed. And the Commission appears to have accepted that’s not going to come overnight, so it seems to be trying to brace businesses for turbulence…

On EU-US transfers, I am in close contact with 🇺🇸 authorities to find future-proof solutions. We are working hard to provide stakeholders with practical guidance. There will be no quick-fix, as this will need to fully comply with EU law, not. the fundament right to privacy (3/3) pic.twitter.com/OzxCDvlEVD

— Didier Reynders (@dreynders) May 20, 2021

The parliament’s resolution on Schrems II also makes it clear that it expects DPAs to step in and cut off risky data flows — with MEPs writing that “if no arrangement with the US is swiftly found which guarantees an essentially equivalent and therefore adequate level of protection to that provided by the GDPR and the Charter, that these transfers will be suspended until the situation is resolved”.

So if DPAs fail to do this — and if Ireland keeps dragging its feet on closing out the Schrems complaint — they should expect more resolutions to be blasted at them from the parliament.

MEPs emphasize the need for any future EU-US data transfer agreement “to address the problems identified by the Court ruling in a sustainable manner” — pointing out that “no contract between companies can provide protection from indiscriminate access by intelligence authorities to the content of electronic communications, nor can any contract between companies provide sufficient legal remedies against mass surveillance”.

“This requires a reform of US surveillance laws and practices with a view to ensuring that access of US security authorities to data transferred from the EU is limited to what is necessary and proportionate, and that European data subjects have access to effective judicial redress before US courts,” the parliament adds.

It’s still true that businesses may be able to legally move EU personal data out of the bloc. Even, potentially, to the US — depending on the type of business; the data itself; and additional safeguards that could be applied.

However for data-mining companies like Facebook — which are subject to FISA and whose businesses rely on accessing people’s data — then achieving essential equivalence with EU privacy protections looks, well, essentially impossible.

And while the parliament hasn’t made an explicit call in the resolution for Facebook’s EU data flows to be cut off that is the clear implication of it urging infringement proceedings against the DPC (and deploring “the absence of meaningful decisions and corrective measures” in the area of international transfers).

The parliament also states in the resolution that it wants to see “solid mechanisms compliant with the CJEU judgement” set out — for the benefit of businesses with the chance to legally move data out of the EU — saying, for example, that the Commission’s proposal for a template for Standard Contractual Clauses (SCCs) should “duly take into account all the relevant recommendations of the EDPB“.

It also says it supports the creation of a tool box of supplementary measures for such businesses to choose from — in areas like security and data protection certification; encryption safeguards; and pseudonymisation — so long as the measures included are accepted by regulators.

It also wants to see publicly available resources on the relevant legislation of the EU’s main trading partners to help businesses that have the possibility of being able to legally move data out of the bloc get guidance to help them do so with compliance.

The overarching message here is that businesses should buckle up for disruption of cross-border data flows — and tool up for compliance, where possible.

In another segment of the resolution, for example, the parliament calls on the Commission to “analyse the situation of cloud providers falling under section 702 of the FISA who transfers data using SCCs” — going on to suggest that support for European alternatives to US cloud providers may be needed to plug “gaps in the protection of data of European citizens transferred to the United States” and — in a more blatant push for digital sovereignty — “reduce the dependence of the Union in storage capacities vis-à-vis third countries and to strengthen the Union’s strategic autonomy in terms of data management and protection”.

Former COO sues Pinterest, accusing it of gender discrimination, retaliation and wrongful termination

Pinterest’s former chief operating officer has filed a lawsuit accusing the company of gender discrimination. Françoise Brougher, who says she was abruptly fired from the company in April, is suing the company to hold it “accountable for discrimination, retaliation, and wrongful termination in violation of the Fair Employment and Housing Act (FEHA), and the Labor Code,” according to a Tuesday filing in San Francisco Superior Court. (The full text of the filing is embedded below.)

Pinterest said in June this year that it had about 400 million monthly active users, most of whom are women. But its top executives are all men. “Ironically, even though Pinterest markets itself to women as a source of lifestyle inspiration, the company leadership team is male dominated, and gender-biased attitudes are prevalent,” the lawsuit says.

Before joining Pinterest in March 2018, Brougher held executive positions at Square, Google and Charles Schawb. Brougher alleged in her lawsuit that she was hired with a less favorable equity compensation package than her male peers. She claimed that she was also left out of key decision-making by other executives; was subjected to a hostile work environment; and ultimately fired by chief executive officer Ben Silbermann when she spoke up against her treatment.

In a Medium post published today, Brougher wrote, “I have always been a private person, but I am opening up about my experience because if someone of my privilege and seniority is fired for speaking out about these issues, the situation is likely far worse for people earlier in their careers.”

Brougher’s case against Pinterest comes two months after two Black former employees, Ifeoma Ozoma and Aerica Shimizu Banks, accused the company of unequal pay, racial discrimination and retaliation.

At the time Brougher was hired, the lawsuit says she was told Pinterest’s board directed executives to receive backloaded equity grants. Her equity grant stipulated that only 10% of shares vested in the first year; followed by 20% the second year; 30% the third year; and 40% the fourth year. Brougher assumed this vesting schedule was standard for Pinterest executives.

When the company filed to go public last year, however, Brougher realized while looking at its S-1 filing that her male peers’ equity grants were not backloaded. Brougher’s compensation was adjusted after she raised concerns with Silbermann, who directed her to Pinterest’s human resources department.

Brougher says she was not invited on Pinterest’s IPO roadshow, despite being its COO and knowing many of the company’s investors.

After Pinterest’s initial public offering in April 2019, Brougher says she was no longer invited to board meetings, even though members of her team occasionally were — sometimes without her knowledge. “As COO of Pinterest, Ms. Brougher no longer had meaningful engagement with the company’s board,” the lawsuit says.

“The abrasiveness trap”

Brougher’s suit also claims that she began receiving more critical feedback, and cites a study by tech executive Kiernan Snyder called “The Abrasiveness Trap,” which found women are assessed more negatively than men in 248 reviews collected from 28 companies of different sizes. Snyder found that 87.9% of reviews for women contained critical feedback, compared to 58.9% of reviews for men. Their personalities were the focus of criticism in 75.5% of critical reviews for women, compared to just 2.4% of the critical reviews received by men.

The lawsuit says Silbermann criticized Brougher for “not being collaborative and told her that she did not have consistently healthy cross-functional relationships.” When Brougher asked him for more details, she claims “he told her to keep quiet, saying she should ‘be mindful’ of how she acted in a group setting.”

Pinterest’s chief financial officer Todd Morgenfeld also allegedly became “increasingly disrespectful” to Brougher beginning in January 2020, undermining her authority by ignoring her and talking directly to her team members.

In one meeting, Brougher says Morgenfeld sarcastically asked “What is your job anyway?” Silbermann would also wait to make key strategy decisions after meetings Brougher attended, meeting with one or two male colleagues after she had left.

In February, the lawsuit says Brougher received a peer review written by Morgenfeld, even though she had not been asked to review him. Despite Brougher’s work on Pinterest’s IPO, advertiser base and monetization strategy in Europe, the lawsuit says the “Morgenfeld’s only comment on her 2019 achievements was: “Seems to be a champion for diversity issues.”

During a video call with Morgenfeld on February 21, 2020, Brougher says she tried to address his feedback, but that he became angry during the call, raised his voice, called her a liar, and questioned the value she brought to Pinterest before hanging up on her.

After the call, Brougher says she texted Silbermann and told him it had not gone well. On February 24, she met with Pinterest’s Chief Human Resources Officer Jo Dennis and said she wanted to find a way to work with Morgenfeld, but was uncomfortable meeting alone with him. Instead of mediating between Brougher and Morgenfeld, the lawsuit alleges Dennis treated the matter as a possible legal issue, escalating it to Pinterest’s in-house counsel.

On the same day, Brougher also met with Silbermann. The lawsuit says that Silbermann compared the situation between Morgenfeld and Brougher to “an old couple fighting over who would make coffee.”

Then on April 2, Silbermann told Brougher that she was being fired and told her to transfer her responsibilities to Morgenfeld over the next month. He also asked her to tell her team that she had made the decision to leave, which she refused to do. Brougher claims her termination cost her “tens of millions of dollars in lost earnings and equity compensation.”

Brougher is being represented by law firm Rudy, Exelrod, Zieff & Lowe, which also represented Ellen Pao in her gender discrimination lawsuit against Kleiner Perkins.

TechCrunch has reached out to Pinterest for comment. In a statement to The New York Times, a Pinterest representative said the company is conducting an independent review of its culture, policies, and practices.

BROUGHER_VS_PINTEREST.pdf by TechCrunch on Scribd

Federal court rules WhatsApp and Facebook’s malware exploit case against NSO Group can proceed

A U.S. federal court judge ruled on Thursday that WhatsApp and parent company Facebook’s lawsuit against Israeli mobile surveillance software company NSO Group can go forward. Phyllis Hamilton, Chief Judge of the United Stated District Court of the Northern District of California, denied most of the arguments NSO Group made when it filed a motion to dismiss the suit in April (a copy of her decision is embedded below).

Last October, WhatsApp and Facebook filed a complaint alleging that NSO Group exploited an audio-calling vulnerability in the messaging app to send malware to about 1,400 mobile devices, including ones that belonged to journalists, human rights activists, political dissidents, diplomats and senior government officials.

WhatsApp and Facebook also claim that NSO Group developed a data program called Pegasus that extracted data, including messages, browser history and contacts, from phones, and sold support services to customers including the Kingdom of Bahrain, United Arab Emirates and Mexico.

In its motion to dismiss the lawsuit, one of NSO Group’s arguments was that its business dealings with foreign governments, which it said use its technology to fight terrorism and other serious crimes, granted it immunity from lawsuits filed in U.S. courts under the Foreign Sovereign Immunity Act (FSIA). In her decision, Judge Hamilton wrote that NSO Group failed to qualify because it was not incorporated or formed in the U.S.

In an email to TechCrunch, a WhatsApp spokesperson said “We are pleased with the Court’s decision permitting us to move ahead with our claims that NSO engaged in unlawful conduct. The decision also confirms that WhatsApp will be able to obtain relevant documents and other information about NSO’s practices.”

TechCrunch has also contacted NSO Group for comment. When the lawsuit was filed in October, the company stated, “In the strong possible terms, we dispute today’s allegations and will vigorously fight them.”

WhatsApp vs NSO Group, cour… by TechCrunch on Scribd

Huawei sues FCC over “unconstitutional” ban on the use of federal subsidies to buy its equipment

Huawei said today it is suing the Federal Communications Commission, asking to overturn a ban on carriers from using money from the Universal Service Fund (USF) to buy equipment from Huawei and ZTE.

The $8.5 billion USF supports the purchase of equipment to build communications infrastructure, especially in rural communities. Huawei is asking the United States Court of Appeals for the Fifth Circuit to overrule the FCC’s order, passed on Nov. 22.

Small carriers buy equipment from Huawei and ZTE because it is dependable and cheap. According to a Reuters report, some carriers are considering Nokia and Ericsson for replacements, but their equipment is priced less competitively.

During a press conference in Shenzhen today, Glen Nager, Huawei’s lead counsel for the lawsuit, claimed the ban goes beyond the FCC’s authority and violates the constitution. “The order fails to give Huawei constitutionally required due process before stigmatizing it as a national security threat, such as an opportunity to confront supposed evidence and witnesses, and a fair and neutral hearing process,” he said.

Huawei chief legal officer Song Liuping claims that FCC chairman and Ajit Pai and other commissioners did not present evidence to back its claim that Huawei is a security threat.

“This is a common trend in Washington these days. ‘Huawei is a Chinese company.’ That’s his only excuse,” Song said. He also claimed that the FCC ignored 21 rounds of “detailed comments” submitted by Huawei to explain how the order would harm businesses in rural areas, adding “This decision, just like the Entity List decision in May, is based on politics, not security.”

In March, Huawei also cited the Constitution in another lawsuit filed against the U.S. government arguing that a ban on the use of its products by federal agencies and contractors violate due process.

Huawei and ZTE were first identified as potential national security threats in 2012 by a U.S Congressional panel, but federal actions against Huawei and ZTE have intensified over the past year as the trade war between the U.S. and China escalates.

Earlier this year, it was placed on the U.S. Entity List and the Department of Justice announced it was pursuing several criminal charges against Huawei, including conspiracy to steal trade secrets. Huawei’s chief financial officer, Meng Wanzhou also faces fraud charges in New York. In response, Huawei has dramatically increased the amount it spends on lobbying in the U.S.

In China, Huawei’s announcement today about its FCC lawsuit was overshadowed by controversy about a former employee, Li Hongyuan who was arrested and detained for eight months after demanding severance pay. Li was arrested on extortion charges and released because of insufficient evidence and his treatment has triggered controversy and anger over the treatment of workers by Huawei and other tech companies.

An explosive breach of contract lawsuit against former Sequoia Capital partner Michael Goguen has been dropped

Three-and-a-half years ago, a lawsuit hit the San Mateo, Ca. county courthouse that briefly attracted the attention of the worldwide venture capital community given its salacious nature. The defendant: longtime VC Michael Goguen, who’d spent 20 years with Sequoia Capital in Menlo Park, Ca. The plaintiff: a former intimate who described him through the filing as a “worse predator than the human traffickers.” She said in the filing that she would know, having become a “victim of human trafficking” at age 15 when she was “brought to America in 2001,” then “sold as a dancer to a strip club” in Texas, which is where she says first encountered Goguen.

What she wanted from the lawsuit was money that she said was owed to her by Goguen: $40 million over four installments that the lawsuit stated were for “compensation for the sexual abuse and [a sexual] infection she contracted from him.” According to her suit, Goguen agreed to these terms, paying Baptiste a first installment of $10 million before refusing to make further payments.

At the time, Goguen called the allegations “horrific” and suggested Baptiste was a spurned lover, saying they’d had a “10+ year romantic relationship that ended badly.” He also filed a cross complaint alleging extortion.

Today, that cross complaint lives on, but Baptiste’s case against Goguen was just dismissed by arbitrator Read Ambler, a retired judge who served 20 years with the Santa Clara County Superior Court and who wrote in a ruling filed yesterday in San Mateo that Baptiste’s failures to undergo medical examinations doomed her case, as did her failure to produce documents necessary in the discovery process.

“The record presented further establishes that Baptiste’s’ failures were willful,” Ambler writes. “Baptiste appears to believe that the information responsive to the discovery at issue is either not relevant, or with respect to the medical examinations, not permitted by law. While Baptiste is free to believe what she wants to believe, the orders are binding on Baptiste, and her failure to comply with the orders is unacceptable.”

Baptiste doesn’t currently have legal representation, though four sets of lawyers have represented her over time.

Patricia Glaser, a high-powered attorney who took on Baptiste’s case originally (and later agreed to represent Hollywood producer Harvey Weinstein), asked to be relieved from the case five months later, citing “irreconcilable differences.” More recently, an L.A.-based couple that operates the Sherman Law Group in L.A. filed a motion to be relieved as Baptiste’s counsel, citing “irreconcilable differences and a breakdown in communication.”

Goguen’s attorneys say he will continue to pursue his counterclaims against Baptiste and looks forward to “complete vindication.”

Though Ambler never remarked on the merits or Baptiste’s claims, Goguen’s attorney Diane Doolittle further said today in a statement that: “Amber Laurel Baptiste’s sensationalized lawsuit against Silicon Valley venture capitalist Michael Goguen collapsed under the weight of its own falsehood yesterday, when a judge dismissed the case because of Baptiste’s repeated, egregious and willful misconduct. Over the course of this case, Baptiste perjured herself, concealed, destroyed and falsified key evidence, and demonstrated her contempt for the legal system by systematically violating numerous court orders.”

Baptiste could not be reached for comment.

Baptiste’s lawsuit against Goguen prompted Sequoia to part ways with him almost immediately. Later the very day that TechCrunch broke news of the suit in 2016, a Sequoia spokesman told us that while the firm understood “these allegations of serious improprieties” to be “unproven and unrelated to Sequoia” its management committee had nevertheless “decided that Mike’s departure was the appropriate course of action.”

Goguen, who sold an $11 million home in Atherton, Ca., in 2017, has spent much of his time in recent years at another home in Whitefish, Montana, where he has seemingly been wooing locals. An August story about Goguen in The Missoulian about a separate case describes him “known locally for philanthropic ventures.”

Continues the story: “Such donations have funded Montana’s Internet Crimes Against Children Task Force and a Flathead group teaching girls to code. Two Bear Air, his northwestern Montana search and rescue outfit free to anyone who has needed it, has performed well over 500 missions and 400 rescues, according to executive director and chief pilot Jim Pierce. Goguen has personally completed 30 rescues, the Daily Inter Lake reported in February. The Flathead Beacon reports he was honored with the Great Whitefish Award earlier this year.”

Semiconductor startup CNEX Labs alleged Huawei’s deputy chairman conspired to steal its intellectual property

A San Jose-based semiconductor startup being sued by Huawei for stealing trade secrets has hit back in court documents, accusing the Chinese firm’s deputy chairman of conspiring to steal its intellectual property, reports the Wall Street Journal. In court filings, CNEX Labs, which is backed by the investment arms of Dell and Microsoft, alleges that Eric Xu, who is also one of Huawei’s rotating CEOs, worked with other Huawei employees to steal its proprietary technology.

The lawsuit, set for trial on June 3 in federal court in the Eastern District of Texas, started in 2017 when Huawei sued CNEX and one of its founders, Yiren “Ronnie” Huang, a former employee at Huawei’s Santa Clara office, for stealing its technology and using unlawful means to poach 14 other Huawei employees. CNEX filed a countersuit the following year. Huawei has denied the startup’s allegations in court filings.

The lawsuit is happening at a fraught time for Huawei. Last week, the Chinese telecom equipment maker (and the world’s second-largest smartphone brand), was placed on a trade blacklist by the Trump administration, which also signed an executive order that would make it possible to block American companies from doing business with Huawei and other companies it deems a national security threat. As a result, several companies have suspended business with Huawei, including Google, Qualcomm, Intel and ARM.

Court filings said that after being directed by Xu to analyze CNEX’s technical information, a Huawei engineer met with the startup’s officials in June 2016, pretending to be a potential customer. But then the engineer produced a report about CNEX’s tech and put it into a database of information about competitors run by Huawei’s chip development unit.

CNEX’s lawyers also say that Xu knew about a partnership between Huawei and Xiamen University that was allegedly part of plan to steal the startup’s trade secrets. They claim Xiamen obtained a memory board from CNEX in 2017 under a licensing agreement, saying it would be used for academic research. But CNEX lawyer Eugene Mar said that “what was hidden from CNEX was that Xiamen was working with Huawei and had entered into an agreement separately with Huawei to provide them with all of their research test reports,” according to court transcripts viewed by the Wall Street Journal.

Information from the university’s study was then allegedly used for Huawei chip projects, including one that is expected to be released this year. Huawei’s lawyers refuted CNEX’s charges, claiming that the partnership between Huawei and the university did not involve reverse engineering or CNEX’s trade secrets and was meant to design database software instead of developing chips. A Huawei lawyer said that Xu was part of “the chain of command that had requested” information about CNEX and that a CNEX document had been placed into its chip development unit’s database, but denied allegations that anything was stolen.

CNEX co-founder Huang claimed in court filings that he offered to sell his intellectual property to Huawei when he started working at Futurewei, its research and development unit. Huawei refused his offer, but then later tried to get Huang to give them his IP under an employee agreement, which Huang refused to sign, he claims. Huang left Futurewei in 2013 and founded CNEX Labs soon after.

VSCO sues PicsArt over photo filters that were allegedly reverse engineered

Photo-editing app-maker VSCO has filed a lawsuit against competitor PicsArt.

The suit focuses on 19 PicsArt filters that were supposedly “reverse engineered from VSCO’s filters,” with VSCO alleging it has become a legal issue involving false advertising and violations of the app’s terms of service.

“VSCO has invested significant time and resources in developing its presets [a.k.a. filters], which represent valuable intellectual property of VSCO,” the company writes.

In a statement, PicsArt denied the suit’s claims:

VSCO is not a direct competitor, but they clearly feel threatened by PicsArt. VSCO’s claims are meritless. It’s disappointing that they have made these false claims against us. PicsArt will vigorously defend itself against these baseless claims and all options are under consideration.

Specifically, VSCO says that at least 17 PicsArt employees created VSCO accounts — probably not an uncommon competitive practice, but the suit claims they used those accounts to reverse engineer the filters, thus violating the terms in which users “agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any VSCO Content.”

In addition, the suit accuses PicsArt of engaging in false advertising by describing the filters in its PicsArt Gold subscription as “exclusive” and “only for [PicsArt] Gold users.”

Why is VSCO so sure that the PicsArt filters were based on its own? The suit says:

VSCO’s color scientists have determined that at least nineteen presets published by PicsArt are effectively identical to VSCO presets that are only available through a VSCO account. Specifically, VSCO determined that those PicsArt filters have a Mean Color Difference (“MCD”) of less than two CIEDE2000 units (in some cases, far less than two units) compared to their VSCO counterparts. An MCD of less than two CIEDE2000 units between filters is imperceptible to the human eye and cannot have been achieved by coincidence or visual or manual approximation. On information and belief, PicsArt could have only achieved this degree of similarity between its filters and those of VSCO by using its employees’ VSCO user accounts to access the VSCO app and reverse engineer VSCO’s presets.

The suit goes on to claim that VSCO’s lawyers sent PicsArt a letter in February demanding that the company identify and remove any filters that were reverse engineered or copied from VSCO. The letter also demanded “an accounting of all profits and revenues generated from such filters” and that PicsArt identify any employees who had created VSCO accounts.

In VSCO’s telling, PicsArt then responded that it was “in the process of replacing certain underperforming filters and modifying others,” including the 19 filters in question, but it only removed 17 — and supposedly two of the new filters “were similarly reverse engineered from VSCO’s proprietary presets.” The suit also says PicsArt has failed to provide the information that VSCO demanded.

VSCO does not appear to be suing for a specific monetary value, but the suit asks for “disgorgement of any proceeds obtained from PicsArt’s use of VSCO filters,” as well as injunctive relief, compensatory damages and “the costs of corrective advertising.”

You can read the full complaint below.

VSCO Complaint by on Scribd

Singapore activist found guilty of hosting ‘illegal assembly’ via Skype

An ongoing case in Singapore is testing the legal boundaries of virtual conferences. A court in the Southeast Asian city-state this week convicted human rights activist Jolovan Wham of organizing a public assembly via Skype without a permit and refusing to sign his statement when ordered by the police.

Wham will be sentenced on January 23 and faces a fine of up to S$5,000 or a jail term of up to three years. The judge in charge of the case, however, has not provided grounds of his decision, Wham wrote on Twitter.

I’ve been found guilty ‘beyond reasonable doubt’. But the grounds of decision are not available yet. The judge also did not explain his decision in court. https://t.co/1DjXMUV0tN

— Jolovan Wham (@jolovanwham) January 3, 2019

Wham, 39, is a social worker at Community Action Network Singapore consisting of a group of activists, social workers and journalists advocating civil and political rights. He previously served as executive director of migrant worker advocacy group Humanitarian Organisation for Migration Economics.

On November 26, 2016, Wham organized an indoor forum called “Civil Disobedience and Social Movements” at a small event space inside a shopping mall in Singapore. The event featured prominent Hong Kong student activist Joshua Wong who addressed the audience remotely via a Skype video call.

The event’s Facebook Page indicates that 355 people were interested and 121 went. The Skype discussion, which lasted around two hours, was also live streamed on Facebook by The Online Citizen SG, a social media platform focused on political activism, and garnered 5,700 views.

Despite being advised by the police prior to the event to obtain a permit, Wham proceeded without said consent, according to a statement by the Singapore Police Force. Wham faced similar charges of organizing public assemblies without police permits and refusing to sign statements under the Penal Code.

In Singapore, it is a criminal offence under the Public Order Act to organize or participate in a public assembly without a police permit. The Police described Wham’s act as “recalcitrant” in regard to organizing and participating in illegal public assemblies.

Commenting on the charge against Wham, a joint statement from Joshua Wong and members of CAN Singapore argued that the event was “closed-door”.

“Skype conversations that take place within the confines of a private space are private matters that should logically, not require permits before they can be carried out,” raged the statement. “Wham’s discussion with Wong ended peacefully and would not have drawn any further attention if authorities hadn’t decided to act.”

“It was a discussion about civil disobedience and social movements,” Wham pointed out in another Twitter post. “The law says that any event which is open to the public, and is ’cause related’, requires a permit when a foreigner speaks. What is considered ’cause related’ isn’t clear.”

Uber reaches tentative settlement with drivers arbitrating over employment status and expense reimbursement

Uber is reportedly on track to go public in the first quarter next year, and in the lead up to that, it’s sewing up some loose ends.

TechCrunch has learned that Uber has offered a tentative settlement to pay out 11 cents for every mile driven for Uber (including adjacent services like Uber Eats) to drivers who have been in individual arbitration with the company over their employment classification. Drivers were pursuing individual arbitration after an appeals court ruled in September that they could not combine their cases into a class action lawsuit.

Uber has declined to comment for this story, and one of the firms representing drivers, Lichten & Liss-Riordan, has not yet responded to our request for comment.

In a case that now goes back years and covers nine states, some 160,000 drivers had been seeking to be classified as employees rather than independent contractors, partly in order to get compensated for expenses related to driving for the company, such as gasoline used and vehicle maintenance.

Another big complaint in the case involved tips: drivers said Uber would not allow them to take or keep tips from passengers. (The claim preceded June 2017, when Uber formally introduced tips in its app, netting some $600 million extra for drivers in one year.)

Uber’s settlement of 11 cents per mile for all on-trip miles that were driven for Uber bypasses addressing those specific details. Notably, drivers who accept the settlement sign documents to release all claims against Uber related to employee misclassification.

The settlement is tentative depending on a sufficient number of drivers signing the agreement (we do not know what the minimum would be), among other factors, and it could take up to six months for payments to get to drivers.

On one hand, this an okay result in what was a challenging situation for litigating drivers. A class action lawsuit, combining several people into one case, would have gained economies of scale in terms of legal costs, and that could have meant a stronger recovery payout for the group.

But with the appeals judges striking down that possibility, it would have been left to individual drivers to pursue their own cases against the company. That is an expensive and time-consuming process and might not have seen as many plaintiffs willing to fight.

It may have been unpalatable for Uber, too. With the company gearing up for a public listing and all the scrutiny that comes with that, drawing a line under these cases with a settlement is a better result than multiple, years-long arbitration cases.

It’s also an important step in Uber repairing its image with current and potential drivers.

The company went through a huge crisis last year that highlighted questionable management and bad company culture when it came to female employees, treatment of drivers, interfacing with regulators and more.

(In fact the tipping was introduced as part of the company’s wider efforts to repair its business and image among drivers, passengers and employees. It also included appointing a new CEO. )

Having a loyal and growing base of drivers is essential to Uber scaling its business, and this settlement is one signal to drivers that Uber is trying to do right by them.

Still, it seems that the bargaining power here may have been more on Uber’s side.

Uber, valued at $72 billion as of its last funding and potentially as high as $120 billion in an IPO, is one of the world’s biggest privately-held tech companies. The 11 cents per mile it’s offering as a settlement is estimated to be only one-third of what a driver could have recovered for just one of the claims, expense reimbursement, had he or she pursued the arbitration rather than opted for the settlement.

Securing rights for the growing number of contract workers in the labor market has been one of the more controversial aspects of the boom in “gig-economy” businesses. It will be interesting to see how and if more of these kinds of cases come to light, and if regulators start to wade in, in cases where employers have not.

Apple says iPhones remain on sale in China following court injunction

Apple has filed an appeal to overturn a court decision that could ban iPhone sales in China, the company said on Monday, adding that all of its models remain available in its third-largest market.

The American giant is locked in a legal battle in the world’s biggest smartphone market. On Monday, Qualcomm announced that a court in Fujian Province has granted a preliminary injunction banning the import and sales of old iPhone models in China because they violated two patents owned by the American chipmaker.

The patents in question relate to features enabling consumers to edit photos and manage apps on smartphone touchscreens, according to Qualcomm.

“Apple continues to benefit from our intellectual property while refusing to compensate us. These Court orders are further confirmation of the strength of Qualcomm’s vast patent portfolio,” said Don Rosenberg, executive vice president and general counsel of Qualcomm, in a statement.

Apple fought back in a statement calling Qualcomm’s effort to ban its products “another desperate move by a company whose illegal practices are under investigation by regulators around the world.” It also claimed that Qualcomm is asserting three patents they had never raised before, including one which has already been invalidated.

It is unclear at this point what final effects the court injunction will have on Apple’s sales in China.

The case is part of an ongoing global patent dispute between Qualcomm and Apple, which saw the former seek to block the manufacturing and sale of iPhones in China over patent issues pertaining to payments last year.

Qualcomm shares were up 3 percent on Monday. Apple opened down more than 2 percent before closing up 0.7 percent. Citi lowered its Apple price target to $200 a share from $240 a share, saying in a note to investors that while it does not expect China to ban or impose additional tariffs on Apple, “should this occur Apple has material exposure to China.”

The Apple case comes as the tech giant faces intensifying competition in China, which represented 18 percent of its total sales from the third quarter. The American company’s market share in China shrunk from 7.2 percent to 6.7 percent year-over-year in the second quarter as local competitors Huawei and Oppo gained more ground, according to market research firm IDC.

The annual drop is due to Apple’s high prices, IDC suggests, but its name “is still very strong in China” and “the company will fare well should it release slightly cheaper options later in the year.”

Tinder owner Match is suing Bumble over patents

Drama is heating up between the dating apps.

Tinder, which is owned by Match Group, is suing rival Bumble, alleging patent infringement and misuse of intellectual property.

The suit alleges that Bumble “copied Tinder’s world-changing, card-swipe-based, mutual opt-in premise.” The lawsuit also accuses Tinder-turned-Bumble employees Chris Gulczynski and Sarah Mick of copying elements of the design. “Bumble has released at least two features that its co-founders learned of and developed confidentially while at Tinder in violation of confidentiality agreements.”

It’s complicated because Bumble was founded by CEO Whitney Wolfe, who was also a co-founder at Tinder. She wound up suing Tinder for sexual harassment. 

Yet Match hasn’t let the history stop it from trying to buy hotter-than-hot Bumble anyway. As Axios’s Dan Primack pointed out, this lawsuit may actually try to force the hand for a deal. Bumble is majority-owned by Badoo, a dating company based in London and Moscow.

(It wouldn’t be the first time a dating site sued another and then bought it. JDate did this with JSwipe.)

Match provided the following statement:

Match Group has invested significant resources and creative expertise in the development of our industry-leading suite of products. We are committed to protecting the intellectual property and proprietary data that defines our business. Accordingly, we are prepared when necessary to enforce our patents and other intellectual property rights against any operator in the dating space who infringes upon those rights.

I have, um, tested out both Tinder and Bumble and they are similar. Both let you swipe on nearby users with limited information like photos, age, school and employer. And users can only chat if both opt-in.

However, Tinder has developed more of the reputation as a “hookup” app and Bumble doesn’t seem to have quite the same image, largely because it requires women to initiate the conversation, thus setting the tone.

As TechCrunch’s Sarah Perez pointed out recently, “according to App Annie, Tinder is more than 10x bigger in terms of monthly users and 7x bigger in terms of downloads in the last 12 months, versus Bumble.”

We’ve reached out to Bumble for comment.

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