Entries Tagged as 'Legal'

A Pledge of No Privacy

Part of the intent of the Gramm-Leach-Bliley Act (aka the Financial Modernization Act of 1999) and the rules and regulations for federal banking and credit unions was to put into effect requirements on financial institutions1 to safe-guard the personal, confidential, and financial information of their customers2.

On of the main parts of the law was that it required institutions to provide customers with their privacy policy which explained their information sharing and information safeguarding.  However, because the law was heavily effected by lobbying, and even reviewed by large financial institutions before being considered by congress there are cases where institutions aren’t really subject to many limitations on what they can do with your information.

You might find it interesting that every large financial institution I have dealt with since the law was passed (ie Chase, Citi, Bank of America, Barclay, etc) have specifically allowed for an “opt-out” of the sharing for personal information for use both inside and outside the company (effectively limiting the information to be used only as require by law and as necessary for the maintenance of your account).

However, you have to be very careful about smaller institutions.

Credit Unions are in general very customer oriented, and most the time “do the right thing” — particularly when it comes to building a solid, long term customer relationship based on trust and respect.  However, take a look at the “Privacy Pledge” for Gulf Winds Federal Credit Union3 (formerly Monsanto Employees Credit Union) http://www.gogulfwinds.com/page/privacy — WOW — that’s a really nice pledge to no privacy.  In essence what it says is that they’ll use any information they collect on you (both public and non-public) and use it to the full extent allowed by law (I’d guess to profit from) and won’t allow a customer (or consumer) to “opt-out”.

How many ways can you say “non-customer focused”???

The moral of this, don’t assume you’re better off dealing with small “local” financial providers that might seem to have your interests in mind — you might actually end up getting better over all service and respect from a much larger financial provider.

I for one will be re-assessing my financial relationships; and likely terminating a few — and trying to convince congress to stand up to the financial services companies and actually pass a law that protects me.

REFERENCES:

In Brief: The Financial Privacy Requirements of the Gramm-Leach-Bliley Act

NOTES:

1 The Financial Modernization Act of 1999 apply to banks, credit unions, securities firms, and insurance companies as well as a number of other type of companies providing financial services to consumers and is part of a larger framework of federal, state, and local banking laws.

2 The Financial Modernization Act of 1999 privacy requirements apply to customers; which are defined to be consumers (not business) with which the institution has a “long term” relationship (ie holds an account), and does not necessarily cover all consumers who might interact or transact with an institution.

3 You can find the same type of non-privacy policy at a number of smaller financial institutions; Gulf Winds is particularly sad because they refer to it as a “Privacy Pledge” rather than just a “Privacy Policy”.

eBay & PayPal – Poster Children for Everything Wrong With Corporate America

Several years ago eBay was won litigation in California over whether or not they were an “auction house” — eBay asserted they were a venue, not an auction house.  Why did eBay care?  Well, in California an auction house must stand behind the authenticity of the items it auctions.

While I have no problem with eBay calling themselves a venue — I do have a problem with them continuing to use the word “auction” all over their site.  You’re either a venue or an auction site… one or the other; oh that’s right, you’re a big company and don’t seem to have any problem skirting the law — you’ve got money, you probably feel you don’t have to play by the same rules.

And then there’s PayPal — clearly a financial institution, and clearly should be subject to all the regulations of financial institutions…

Oh yeah, they’re owned by eBay — they have money…

And to make it worse, eBay / PayPal are monopolies.

I’m tired of big companies that feel they need not care about the letter or the intent of the law; that feel they are free to confuse and mislead consumers; that are greedy and have no heart or soul.

I talk with my money, and I don’t spend my money at places I don’t support… each of you need to make your own minds up and decide what the cost of supporting tyranny in the world really is — or is it just something you talk about?

Voting Advice With Your Paycheck

A Canton, Ohio McDonald’s franchisee (Paul Siegfried) took it on himself to include an insert in his employee’s paychecks suggesting that his employees vote for three Republican candidates, also on the note was:

If the right people are elected we will be able to continue with raises and benefits at or above our present levels. If others are elected we will not.

Sounds a little intimidating / threatening… I guess this business owner didn’t feel that election laws applied to him.

It’s really a travesty that any American wouldn’t know that it’s illegal for an employer to in any way try and influence his employees to vote for or against a given candidate or measure in an election… and even if you didn’t know it’s illegal, it’s certainly immoral.

Personally I hope Mr Siegfried finds himself in jail as an example to others who simply do not feel the law applies to them… and if I were McDonald’s I think a little more than a statement saying that their franchisee doesn’t speak for them is in order, particularly since it was on a piece of stationary bearing the McDonald’s logo.

Bill of Rights – Amendment I

The past week has made me question if it’s not just the financial future for the United States that is in serious question, but the very founding principles which established this republic.

The framers of the Constitution of the United States were compelled to add the first ten amendments to that document before ratification. Known as the Bill of Rights the first of these amendments (Amendment I) contains precept son which much of the expansion of this country has been based (though this is not the first time it’s principle has been tarnished).

On 17 September 1787 the current United States Constitution was adopted by the Constitutional Convention in Philadelphia, Pennsylvania and ratified by each US state in the name of “The People”.

The United States Constitution is the oldest written (single document) constitution still in use by any nation on our planet, and had for over two hundred years defined law in the United States.

On 25 September 1789 the following was added to the United States Constitution, and enacted in full force on 15 December 1791.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The “eviction” of peaceful protestors in a number of cities across the nation was alarming in itself; but the use of pepper spray to clear out a group of peaceful protesters at the University of California Davis, in Davis, California is a travesty.  This incident, caught on video and seen within 24-hours of it happening by over half a million people is truly alarming.

I do agree with University of California Davis Chancellor Linda Katehi that an independent investigation be conducted; but I believe that several investigations need to be conducted, including one by the Justice Department under the direction of the US Attorney General.

While I do not feel Linda Katehi needs to step down; I do believe both her and the commander of the police force, as well as any officer acting outside the bounds of the orders issued, need to be put on administrative leave immediately; and their actions would need to be fully investigated before allowing them to return to their positions of authority.

Points of law, and the legality of actions are determined by the judiciary; but it is the responsibility of the executive branch to insure that potential violations of law (and civil rights) are arraigned.

The Arab Spring was seen as a great movement forward to allowing people to be free(r) and allow them to have a (larger) stake in deciding their future; but now, perhaps the United States needs to request international observers to insure that our government doesn’t continue down this road to infringe on the rights that “we the people” have given so much to secure.


Disclosing Personal Information

I find more and more companies attempt to get as much personal information on me as they can.

I also find more and more companies mishandle the personal information that they have collected.

I just got a letter today from a transfer agent one of my previous employers used; apparently they “lost” a data backup set that contained my personal information, of course they assure me that there’s little chance of any of my personal information being misused.  And offer to reimburse me for any expenses I might incur in obtaining a credit report, monitoring my credit, freezing access to my credit history — but I didn’t see in there any offer to compensate me for my time, or any loses that I might incur.

I think I’m just going to write them back, thank them for advising me of this information, and tell them that they may hire someone to manage and monitor misuse of information which they lost (most likely negligently); but that I will not incur any costs of money or time taking actions to protect myself from this incident, but I will hold them liable for any and all actual, consequential and potentially punitive damages should information they mishandled be used in any illegal activity.

My advice to companies that collect personal data is that they purge any at all personal data they have at the earliest possible time that they can legally do so.  Failing to take such action makes companies that maintain personal data liable for an unauthorized disclosure of information; and I would say potentially criminally negligent.

Bait and switch rates?

Yesterday (Monday 6-Jul-2010) at 4:15pm I stopped by Gulf Winds Federal Credit Union to open up an IRA Certificate of Deposit; I’d been in the process of transferring money from one institution to another (and it took much longer than it should have — but since two institutions were involved, it’s hard to know which was responsible for the delay).

Anyway, I ended up having to wait 45 minutes to be helped; that gave me plenty of time to look over the posted rate board — and I’d decided that the 2.09% for a 24-month IRA-CD looked reasonable (I’d have preferred 18 months or less, but I wanted a reasonable return rate, and I don’t really expect the economy to start to rebound for several years).

The customer service representative that helped me (the “Financial Services Representative”) ask me which CD I was interested in and I told him — the 24-month 2.09% APR; he immediately said, that the 24-month IRA-CD was 1.97%, not 2.09% — that it had changed on Friday 2-Jul-2010 and they simply hadn’t gotten around to posting it on their rate board.

WTF?

I’ve long been under the impression that financial institutions understand the importance of posting accurate rate information — and I thought most any ethical institution understands the legal (even if they don’t understand the moral) implications of posting fraudulent information.

When I got home I filed complaints with the State of Florida Attorney General’s office (in Tallahassee, FL) and the National Credit Union Administration, Region III office (in Atlanta, GA) requesting that they investigate the business practices of Gulf Winds Federal Credit Union.



Post Note: The VP of Operations contacted me this morning (7-Jul-2010) and Gulf Winds Federal Credit Union will honor the rate as posted yesterday (for me at least).

Fry’s Class Action Settlement – Credit Card Return Policy

Seems there’s a Class Action Legal Action against Fry’s Electronics revolving around their credit card return policy.  You can read all the details via the link below, and I’ve copied the text into this blog as well.

Thumbnail… if you did a credit card return to Fry’s between 5 March 2006 and 31 January 2008 you can file for a 20% off (up to a $20 maximum) coupon; you simply need to download the PDF (link below), fill it out, and have it postmarked by 25 July 2008.

Class Action Settlement

Claim Form

———-

California Only

Notice of Proposed Settlement of Class Action
TO: All persons who, from March 5, 2006 through January 31, 2008, entered into a credit card return transaction with Fry’s Electronics, Inc., in the state of California (“Class Members”).

IF YOU ARE A MEMBER OF THIS CLASS OF PERSONS, YOU SHOULD READ THIS NOTICE CAREFULLY BECAUSE IT WILL AFFECT YOUR RIGHTS.PURPOSE OF THIS NOTICE
This notice informs you about the above-referenced action and a proposed Settlement on behalf of a certain class of persons. This notice advises you of the benefits that may be available to you under the proposed Settlement and your rights and options as a Class Member, and notifies you that hearings will be held to approve the Settlement.

There is currently pending in the California Superior Court for the County of Sacramento an action entitled Krimsky vs. Fry’s Electronics Inc., Case No. 07AS00928 (the “Action”). On April 16, 2008, Judge Shelleyanne W.L. Chang of the Sacramento County Superior Court, tentatively approved a proposed settlement in this Action.

WHAT THE ACTION IS ABOUT
Plaintiff Roger Krimsky filed a class action lawsuit against Fry’s Electronics, Inc., (hereinafter referred to as “Fry’s” or “Defendant”) on behalf of himself and all Class Members. Plaintiff’s law firm (“Class Counsel”), which represents Plaintiff and the Class Members, is Westrup Klick, LLP.

The lawsuit alleges that Fry’s violated California law by utilizing a return invoice for credit card transactions which conta ined preprinted spaces designated for filling in the address, telephone and/or fax numbers of the cardholder. Fry’s denies that it has violated California law, and denies that any class member is entitled to any relief. However, to avoid the expense, inconvenience and interference with its business operations created by the Action, it has concluded that it is in its best interests to settle the Action on the terms summarized in this Notice.

The settlement was reached through lengthy arms-length negotiations between the parties and with the assistance of a neutral mediator, the Honorable Richard Silver (ret).

The Court has determined that the Action should proceed as a Class Action, for purposes of settlement only, with Plaintiff as the representative of the Class, and granted preliminary approval of the settlement, subject to a final fairness hearing discussed below.

THE PROPOSED SETTLEMENT
THE PARTIES HAVE AGREED TO THE SETTLEMENT GENERALLY DESCRIBED BELOW:

Fry’s has agreed to cease utilizing a return invoice form for credit card transactions which contain preprinted spaces designated for customers’ addresses, telephone and/or fax numbers, except in those instances where required for a special purpose. Such change is subject to modification in relation to modification of the law permitting such.

Class Members who submit a timely Claim Form as described below shall be eligible to receive a 20% off coupon (maximum value of $20 off).

The Parties agreed that, subject to the Court’s final approval, the named Plaintiff, Roger Krimsky, shall be entitled to an incentive award of up to $2,500 in recognition of the risk to Plaintiff as the Class representative in commencing the lawsuit in the Action, both financial and otherwise; the amount of time and effort spent by Plaintiff as the Class representative; and for serving the public interest. The Parties also agreed that subject to the Court’s final approval, Class Counsel shall be entitled to an award of attorneys’ fees and costs of up to $150,000. The Payment of attorneys’ fees will not affect the benefits provided to the Settlement Class.

RELEASE OF ALL CLAIMS
If the settlement is granted final approval, Fry’s and each of its past or present officers, directors, shareholders, employee’s, agents, principals, heirs, representatives, accountants, auditors, consultants, attorneys, insurers and reinsurers, and its and their respective successors and predecessors in interest, subsidiaries, affiliates, parents, subsidiaries, and each of their company- sponsored employee benefit plans and all of their respective officers, directors, employees, administrators, fiduciaries, trustees and agents will be released from all claims, liabilities, demands, debts, accounts, obligations, actions, and causes of action, known or unknown, suspected or unsuspected, at law or in equity, of any kind or nature whatsoever (collectively “Claims”) for Defendant’s alleged violation of Civil Code Section 1747.08(a)(3).

FINAL FAIRNESS HEARING
A final hearing will be held before Judge Shelleyanne W.L. Chang of the Sacramento County Superior Court, on July 18, 2008 at 9:00 a.m., to determine whether the proposed Settlement is fair, reasonable and adequate and should be finally approved. The hearing will take place at the Sacramento County Superior Court, in Dept. 54, located at 720 9th Street, Sacramento, California 95814. You are not required to attend the hearing in order to participate in the settlement.

WHAT YOU CAN DO
1. To Receive A 20% off Coupon. As a Class Member you are eligible to receive a 20% off coupon (maximum value of up to $20 off). In order to receive your 20% off coupon, you must timely complete and return a valid Claim Form. A Claim Form can be obtained by asking for a Claim Form at a Fry’s return register or by downloading a Claim Form at www.frys.com. In order for the Claim Form to be considered, it must be postmarked by July 25, 2008, and mailed to Krimsky v. Fry’s Electronics Claims Administrator, c/o Desmond, Marcello & Amster, P.O. Box 451999, Los Angeles, California 90045.

2. To Exclude Yourself From The Settlement. As a Class Member, you have the right to exclude yourself from the Action and the settlement. If you are a Class Member and wish to be excluded, you must submit a letter or postcard post-marked no later than June 25, 2008 with the case name, your name, address, and telephone number, stating “I wish to be excluded from the Fry’s Class Action.” To be considered valid, a request for exclusion must set forth all of this information and must be timely received. It must be signed by you personally, in order to be valid. Your request must be sent to: Fry’s Class Action: Krimsky v. Fry’s Electronics Claims Administrator, c/o Desmond, Marcello & Amster, P.O. Box 451999, Los Angeles, California 90045.

If you timely and validly request exclusion from the Class, you will be excluded from the Class; you will not receive any benefits from the settlement; you will not be bound by the judgment entered in the Action and you will not be precluded from otherwise prosecuting any individual claim, if timely, against Fry’s based on the transactions complained of in the Action. If you do not wish to exclude yourself, and have no objection to the settlement, you are eligible to receive the benefits of the settlement if the settlement is approved.

3. To Object To The Settlement. If for some reason you desire to object to the terms of the settlement, you ma y do so under the procedures set forth below. If your objection is rejected you will be bound by the final judgment just as if you had not objected.

If you decide to appear and object, you must file and serve your written request to appear and object with the Court, and upon Counsel for all of the parties by June 25, 2008. You must serve all such notices and papers upon Class counsel and Defendant’s counsel at the following addresses:

Phillip R. Poliner, Esq.
Westrup Klick LLP
444 West Ocean Blvd.,
Suite 1614
Long Beach, CA 90802
(Plaintiff Class Counsel)

William H. Curtis, Esq.
Fry’s Electronics, Inc.
Legal Department
600 East Brokaw
San Jose, CA 95112
(Defendant Class Counsel) 

The mailing address for the Final Approval Hearing is:

Sacramento County Superior Court
Dept.54
720 9th Street
Sacramento, California 95814

Class Members who do not timely make their objections in this manner will be deemed to have waived all objections and shall not be entitled to be heard at the settlement approval hearing.
If you have further questions regarding this lawsuit you may contact Plaintiffs’ Class Counsel, Phillip R. Poliner Esq., of Westrup Klick LLP, at 1-888-268-6884. DO NOT ADDRESS ANY QUESTIONS ABOUT THE SETTLEMENT OR THE LITIGATION TO THE CLERK OF THE COURT, TO THE JUDGE, OR TO COUNSEL FOR DEFENDANT.

Privacy Violation

Mid 2006 AT&T, Bell South (soon to be part of AT&T), and Verizon all turned over their phone call database to the National Security Agency just because they ask.  Qwest refused, indicating to the NSA that they were required to obtain a subpoena before such information could be release.

Section 2702 of Title 18, part of the Electronic Communications Privacy Act, provides that “a provider of … electronic communication service [including telephone service] to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service … to any governmental entity” without the customer’s consent or a subpoena or court order. Under section 2707, carriers face civil liability, including minimum damages of $1,000 per violation, punitive damages, and attorneys fees. Government employees who participated in a violation also may face administrative discipline.

My questions is, since the NSA obtained such information illegally, why haven’t the telcos been fined, the information obtained by the NSA been destroyed, and the NSA employees who requested (and authorized the requests) been terminated?

I personally am tired of waiting for the restoration of my civil rights; the new administration has been in the White House for a year now, the honey moon is over — let’s stop hearing rhetoric, and start seeing action.

Do Not Mail Initiatives

In the United States we have a “Do Not Call” list that’s moderately effective at reducing marketing calls for those of us who don’t want them (though politicians notably made an exception for themselves)… but we don’t have a “Do Not Mail” list… and we should.

Organizations like the Direct Marketing Association lobby congress heavily to keep their mail rates cheap and prevent any legislation from standing in the way of their members from killing millions of trees, littering our mail boxes with “junk mail”, and wasting energy to produce – distribute – collect – and hopefully recycle all that garbage.

For several years now legislation has been pending that would greatly limit direct mail marketing (in much the same way as telephone marketing) — write your representatives in Washington DC and tell them YOU want legislation that will give you control over your mail box.

NOTE:  In all fairness, the Direct Marketing Association does offer a “Mail Preference Service” to consumers, and does require that it’s members use those preferences when mailing materials.  However, they make it difficult for consumers to enter their addresses and there are questions as to how effect self regulation has been.

Federal Express is a SPAMmer

Yesterday evening I received an Unsolicited Commercial Email (UCE, aka SPAM) from Federal Express in violation of the California Professions and Business Code Section 17538.45.

Apparently Federal Express has taken to harvesting email addresses used in requesting tracking services and subscribing them to their marketing mailings lists without obtaining the permission of the owner of the email address (California law prohibits OPT-OUT policies, and requires that advertisers use OPT-IN methods).

Not only have I send a demand to Federal Expresses marketing campaign company and Federal Express demanding immediate payment of the fifty dollar fine specified by California Law; but I will no longer do business with Federal Express PERIOD.  That means I do not ship via FedEx, and I do not accept packages via FedEx, which means I don’t deal with vendors that use FedEx.