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THE SOURCE
FOR CHARGEBACK WAGE NEWS: TOBY
HARRISÕS PLAINTIFF ATTORNEY NAMED ÒTOP WAGE AND HOUR CLASS ACTION ATTORNEYÓ
IN RECENT BUSINESSWEEK COVER STORY OCT. 1, 2007:
ARTICLE (PDF) (Business week Oct 1, 2007) NOTE:
ALL PUBLISHED CHARGEBACK NEWS IN EDITORIAL FORMAT. CHARGEBACK
NEWS 08/11/08: Candace Nyles Mayeron
has new employment at DBSI a real estate investment firm: https://www.dbsi.com/group~id~226.aspx (notice either her ex husband
or brother runs this firm) I
called to find out if she was there and this page was removed today from the
website that included the sales reps names: https://www.dbsi.com/securities~id~376.aspx This
link was pulled after I inquired if she worked there, probably because they
donÕt want her named tied to this massive lawsuit, so here is the cached
link. I will burn a pdf of the bio for trial: Her bio
doesnÕt mention her time at: Chippendales Male exotic dancers, Her failed
porn calendar business, LA TIMES and Life Alert although the Equipment
Leasing is very interesting, we will check the criminal backgrounds on those
companies and its personnel before trial. I have
her deposition in electronic format and will email it to you: tharris789@aol.com She has
a questionable background on the public record, in her own sworn testimony. The bad
news for Candace is one of her main competitors is one of my clients. CHARGEBACK
NEWS 04/20/08: IBDÕs
Writ declared Moot by Court of appeals.
They wrote 5 volumes of defense for this writ, so it was very
expensive: CHARGEBACK
NEWS 10/29/07: IBD
Loses writ of mandate, by Court Order: IBD
racks up another court loss as Court of Appeals Guarantees Plaintiffs a
reversal if the lower court steps out of jurisdiction with any adverse ruling
that is not in accordance with Harris v InvestorÕs Business Daily, the
current law of the case. PLAINTIFFS
ANTICIPATE SETTLEMENT TALKS. CHARGEBACK
NEWS 08/20/07: Notice of Pendency/Opt
out notices are in the mail, if you have not received yours please read this
pdf.: NOTICE OF PENDENCY OF CLASS ACTION CHARGEBACK
NEWS 06/07/07: We deposed Eugene Kumamoto, InvestorÕs Business DailyÕs Chief Financial Officer yesterday, I am posting the class action deposition. We did another on advertising issues with him as the PMK, but not relevant to the content posted here (more lawsuit type stuff). But now we have a picture of the payroll accounting: Eugene Kumamoto deposition on Chargeback issues FILE PURGED PER LETTTER FROM DEFENSE CHARGEBACK
NEWS 04/29/07: Okay the end is near guys, We have now filed the Opposition to their Òmotion to decertifyÓ If you look at the declarations in the end of the document you will notice we are taking this opportunity to show that IBD was taking back Òtaxed earnedÓ wages and not returning the money they gave and reported to the IRS. This will set-up the next deposition for the CFO in June 2007, Eugene Kumamoto. BTW the conformed copy is also being forwarded to the IRS CID unit for review. IBD insists they are doing nothing wrong, but it looks like a Òclose callÓ at this point. IBD is taking the position that since there are other new cases they can now try to use this decertification motion to add a bunch of stuff to the record. HereÕs the problem, this is now a remand case with direction to the lower court to rule in accordance with Harris v. InvestorÕs Business Daily. Yes this means the judge would probably risk a public admonishment in order to consider the items IBD wants noticed. This is a Òlimited jurisdictionÓ remanded case; the law controlling is HARRIS v. IBD. Burn some more cash Bill. HereÕs the ÒunconfirmedÓ copy (No signatures, or court stamps): CHARGEBACK
NEWS 12/16/06: New items filed against IBD to support Class Certification for Overtime: CHARGEBACK
NEWS 11/24/06: IRS FORM 3949 A (PDF), FILED AGAINST WILLIAM J.
OÕNEIL AND INVESTORÕS BUSINESS DAILY As of last week a form requesting criminal investigation of violations of tax laws was formally filed against William J. OÕNeil and his organization IBD, under scrutiny is the entire accounting process used to report chargebackÕs to the US GOVERNMENT using taxed payroll checks on the 940Õs or 941Õs. ÒNow it makes sense why the FBI wanted me to file the complaint through the IRS criminal investigation unit, they give a 15% bounty for turning in tax law violators. I guess they wanted me to be compensated for this if IÕm right. I think there is a 99% chance that I am right.Ó said Toby Harris. CHARGEBACK
NEWS 11/14/06: Seyfarth Shaw touts
Verio case as signal to enforce carefully crafted chargeback policies, good
idea or not? This may
be premature; there is an element to wage deduction chargeback policies that has
been overlooked for years that was just identified by me (Toby Harris, owner
of chargebackconsultant.com) that will forever change this area of law. It is being tested and proven up
currently. Chargeback law is unstable and continuing to evolve as new cases
reach appeals in the court system and become published opinions and case
law. I speak
from a position of authority having been a named plaintiff in direct part of
two written Court of Appeals opinions, Steinhebel v Los Angeles Times and
Harris et al. v InvestorÕs Business Daily et al., and testified before the
California Assembly on an Assembly Bill that was being lobbied to combat
chargebackÕs. I helped kill that
bill when it was amended to narrow itsÕ scope and provide protections for
only one industry. I complained
to the Supreme Court to have a Superior Court Judge removed from the bench
that was showing signs of mental illness in ruling on chargebackÕs. I have had a great impact on the
direction of chargeback law in the California court system. I have done an enormous volume of
work in this area. The
current matters at bar have myopically focused only on State Labor Codes due
to the fact that only labor lawyers and appellate attorneys have been
involved up until this point (I personally have had 4 law firms on retainer
fighting chargebacks for over half a decade on behalf of labor in California)
, and not taken into consideration other Federal Laws which create
protections against certain malfeasance, these issues are now being
addressed. The new cases coming
through the court system will have a focus in this area. I would
go, as far to issue, a stern warning to any corporation currently doing wage
deduction chargebackÕs to permanently discontinue the practice and work out a
settlement with employees immediately.
The anticipated result of currently pending cases will be shocking to
the business world or any involved in this controversial compensation method. There is
an extreme exposure in implementing any chargeback wage recovery commission
plans. The answer is not as
simple as only having a signed Òadvanced commissionÓ agreement, there are
many other things that need to be done in order to be entirely compliant with
all areas of State and Federal laws. The risk between being right and wrong
on this issue will become rather complicated in the coming months and will
require an expert in this area of law in order to implement safely. CHARGEBACK
NEWS 10/30/06: IBD loses even more ground
as major law firms begin issuing warnings to their clients about the
illegalities of chargeback wage deductions. Major law firm backs away from IBDÕs position on chargebackÕs. And distinguishes its case from IBDÕs. Corporate defense powerhouse Seyfarth Shaw** identifies chargebackÕs as one of the new trends in multi-million dollar class action litigation and begins seminar based briefing of major clients: Seyfarth Breakfast briefing (PDF) Seyfarth warning (PDF) re-print from 7/18/06 news item ** Seyfarth Shaw is a national 650 attorney law firm. www.seyfarthshaw.com CHARGEBACK
NEWS 10/08/06: I am getting a lot of class members asking me about the lawsuit and who won, payments ect: The Supreme court denying IBD case review was a victory for us and a loss for IBD. We are winning the lawsuit, IBD is losing the lawsuit. This is the easiest way to describe our situation. The case has been remanded in portion back to be re-heard by the trial court. Because the first judge was mentally ill, it was not properly heard or adjudicatedÉ Thus as we return back to trial court we go back with an appellate opinion that not only favors our position but also gives ÒdirectionsÓ to the lower court on how to rule on our case, which again is in our favor. IBD has taken the position that they will appeal our wins and try to reverse our wins until they win or exhaust their appeals, my response is Ògo ahead and fucking try.Ó It is about as smart as throwing a million dollars in attorneys fees through that big shredder in the IBD parking lot that makes those big bales of paper. My attorneys will continue to hand IBDÕs attorneys their asses in court and we will eventually get our money back anyway. As far as the recent Koehl v. Verio, Inc. (2006) [Cal.App.4th] lawsuit chargeback case goes, it doesnÕt affect our case as our court already noted that IBD tried to change the agreements and definitions of ÒearnedÓ and ÒunearnedÓ sale after we sued them. Further, IBD cannot argue that the commissions are not wages, as they donÕt offer any base pay, if they argued this then they would have a bunch of employees working for free, that ship has already sailed and they canÕt change their position now. And most importantly IBD never had a signed agreement from employees for the chargebacks, ever, not even nowÉ(We just did more discovery and they have nothing to support their argument, so the only reason they are continuing to fight a losing battle is to harass us and give us a hard time.) The court opinion favors us, we should finalize a victory in the next 6-8 months, and then after we win for the 4th or 5th time (Yes William OÕNeil is having a hard time accepting a loss to a lowly telemarketer, so it takes repeated court victories to finish him off) then we will force a collection on the Judgment, probably for around $30 million or so. CHARGEBACK
NEWS 08/16/06: Court of Appeals unanimously reverses judgment against telemarketers, IBD FAILS IN ITÕS CHALLENGE of the wage and hour issues: William J. OÕNeils Wall Street ÒbuddiesÓ at AG EDWARDS fail in their challenge of the same OT issues and chargeback issues. Wall Street starts to buckle under pressure as the power firms realize that deep pockets and defense attorneys are no protection from skilled plaintiff counsel with a winning argument: A.G. EDWARDS loses challenge pdf CHARGEBACK
NEWS 08/05/06: Association of Corporate Counsel Plans to Discuss ÒHarris v. InvestorÕs Business DailyÓ with itÕs members on August 17, 2006: PDF (coming soon) Corporate defense power house Pillsbury Winthrop Shaw Pittman will host, this is a 900 attorney national law firm We are on the Corporate Radars, Big Time. Every Defense firm is being alerted to this case. About ACC The Association of Corporate Counsel is the in-house
bar association SM, serving the professional needs of attorneys who practice
in the legal departments of corporations and other private sector
organizations worldwide. The association promotes the common interests of its
members, contributes to their continuing education, seeks to improve
understanding of the role of in-house attorneys, and encourages advancements
in standards of corporate legal practice. Since its founding in 1982, the
association has grown to more than 19,000 members in more than 58 countries
who represent over 8,000 corporations, with 46 Chapters and 14 Committees
serving the membership. Its members represent 50 of the Fortune 50 companies
and 99 of the Fortune 100 companies. Internationally, its members represent
42 of the Global 50 and 74 of the Global 100 companies. CHARGEBACK
NEWS 07/18/06: National Chicago based Corporate legal defense firm giant, Seyfarth Shaw, issues warning to employers nationally that IBD case could have a massive effect on sales compensation plans, they also concede that IBD and Steinhebel cases are different due to lack of any written agreement. (They also refer to Harris as ÒsheÓ, even though they know me and fought against me in the Steinhebel case, so, in humble retaliation, Thomas Kaufman, looks like one of those guys that likes to wears womenÕs panties while in court. So I invite anybody asking the ÒGinger or Maryann?Ó line of questions to Tom Kaufman to also ask:ÓBoxerÕs, Briefs or Panties?Ó you may be surprised by his reply.) : Seyfarth Management Warning (pdf) We have re-written the book on inside sales compensation plans, with our lawsuit. Our argument is one of the most feared legal arguments in US history. It basically stops employers from screwing over employees, dead in their tracks. An amazing piece of legal work and now binding case law! We have come along way from Beatrice street we are now on Wall street with this fightÉ And recovering hundreds of millions of dollars, with billions and billions pending. CHARGEBACK
NEWS 07/12/06: TOBY HARRIS, memo to class members: The California Court of Appeals has issued a remitter sending the case back to the lower court for trial review; I actually requested this due to the mentally ill judge we got last timeÉ I had our legal team file Òdue processÓ notices saying that we didnÕt get a fair shot, plus I wanted to reverse IBDÕs win for an added ÒKicked in the nutsÓ effect. HereÕs what happens now, our attorneyÕs are working on the SUMMARY JUDGMENT MOTION, which we will file in the next 3-4 weeks, once filed IBD will have 75 days to respond, once they do the court will most likely side with our position due to the ÒdirectionÓ from the Court of Appeal legal opinion (Which gave us the victory, IBD claims it was an ambiguous ruling, whatever.) Once the Trial court gives us the JUDGEMENT against IBD, we will start collection process against them for around $10million in chargebacks, overtime and, yes, a whopping 50% interest ! (10% per year). I will be setting trial in the wrongful termination case in AUGUST, this sets off another potential $20 million dollar time bomb (not to mention that after 5 years, itÕs just time to try the case, we started this case before Enron and Ken Lay is convicted and dead already, so I wanted to try the case before OÕNeil dies of old ageÉSpecial thanks to Ken Lay for having the government make the proceeds of any wrongful termination suit tax free!!! This means George Bush himself wants wrongful terms prosecuted, so in effect it is my American duty to prosecute IBD to the fullest extent of the law.) they have to dismantle, eventually even William J. OÕNeil will realize that cutting his loses will be in the best interest of his businessesÉ. WHY DOES JOE SWANTEK STILL HAVE A JOB AT IBD? TRIAL COURT CASE SUMMARY (pdf) CHARGEBACK
NEWS 06/28/06: IBD LOSES ANOTHER ROUND
DENIED REVIEW BY SUPREME COURT: Docket (Register of Actions) HARRIS v. INVESTOR'S BUSINESS DAILY, INC. Case Number S143242 Date Description Notes 05/08/2006 Petition for review filed Respondents Investor's Business Daily, Inc., etal Attorneys Vicki Marolt Buchanan and Belle C. Mason, etal, Retained 05/10/2006 Received Court of Appeal record 1 doghouse 05/26/2006 Answer to petition for review filed appellant, Toby Harris Eric Epstein, retained 06/28/2006 Petition
for review denied
Sucks to be them. Now the PlaintiffÕs will stack damages each court win will add tens of millions to the overall bill, my goal is to run the damages over $50 million dollars by November, somewhere in the process, it should get OÕNeils attention and he should surrenderÉWe will file motion to certify the Overtime class (millions) and a summary judgment (triple damages, attorneys fees, interest, ect.) The next 75 days will cause the bill for damages to jump from around $10million to $30million. The amusing thing is their defense is ÒEvery company is doing this.Ó This is the argument they are burning millions on, itÕs laughable. CHARGEBACK
NEWS 06/24/2006: IBD concedes judgment of attorney fees, and issues letter to the Los Angeles Court of Appeals withdrawing from briefing the case. The half million dollars of debt against the telemarketers is reversed and wiped out. B185606 (scroll to bottom) IBD now faces tens of millions in damages for illicit chargeback of earned wages and overtime violations. The case still awaits a response from the Supreme Court, which should occur within the month of July. IBD will most likely start to kick around the idea of settling the suit between the Supreme Court Denial and a trial court Summary Judgment, as the case will cost around $10 million to settle (before a trial court judgment, as no state penalties would apply, state penalties serve to triple the damages.) A denial of review (a highly anticipated and the most likely result) will send the case back to trial court were the plaintiffs will immediately file a summary judgment and should get another victory against IBD within a 75 day period. This will boost IBDÕs damages triple as state penalties will apply, estimated damages with attorneyÕs fees, interest, penalties are around: $30 million dollars. As you can see, each additional court loss causes the damages to stack or compound, this is what you get when you take advice from imbeciles such as, Candace Mayeron and Joe Swantek. IBD will most likely settle to avoid a wrongful termination trial, which could cost them an additional possible $20 million, the case is expected to conclude by November. It is unlikely that OÕNeil will allow for Harris to have a direct shot at his companies and his legal team, along with the fact that the wrongful termination could cost as much as the entire class action, which would make Harris wealthy, it seems that IBD original intention was to make an example of him and make him homeless, destitute and swimming in debt (DidnÕt quite work out that way did it Joe?). Making an example of Harris to possibly serve as a deterrent for any employee that wished to question the companyÕs policies in the future. Harris has indicated that he wants trial set at the next status conference in August, prompting a resolution through either court action or negotiation. ÒFive years is more than enough time for them to Ôfix the problemÕ they are still ripping off the employees, refusing compliance and doing unethical things, at some point you have to drop a severe punishment on them and they have run out of time. I have been more than patient, now we go to trial.Ó Harris. OÕNeil should cut his loses and settle, this isnÕt like a stock that is going to rebound, itÕs legal code, itÕs law. They made an attempt to persuade the court through misleading the court (Saying things like ÒEarned doesnÕt mean earnedÓ), the trial court bought it (But of course that judge was identified as mentally ill, and removed by a state tribunal) and the Court of Appeals corrected the error giving the plaintiffs the reversal. They wonÕt be able to do that BS again. We have kicked IBDÕs ass. Thanks to those that have been playing the home version for all these years. CHARGEBACK
NEWS 06/09/2006: Can Wall Street secretly be rooting for HarrisÕs labor attorney to win the cases? A recent radio interview seems to indicate that may be the case. Radio Interview (transcripts, PDF) The media frenzy continues as national stories continue to publicize the multi million dollar settlements as Wall Street folds and tosses itÕs cards on the table not willing to risk challenging employees: Market Watch, May 30, 2006 (PDF) Congratulatory emails and phone calls continue to pour in from workers once affected by illicit chargeback deductions, including a letter from IBDÕs former V.P. of Human Resources, indicating Ògreat jobÓ on the victory. While IBDÕs Attorneys at Silver-Freedman still proudly display the one press release on their website in which they drove the Plaintiff party into over half a million dollars of debt at trial court level due to an award of attorneyÕs fees: They have failed to respond to the Court of Appeals case, which reverses the judgment, The California Court of Appeals has placed the case on the ready list for Òautomatic or default reversalÓ for IBDÕs failure to show or defend itself on the appeal. Harris holds the position and strong opinion that IBDÕs attorneyÕs mislead the court through a series of lies, mistruths, and unethical behavior to gain the lower court victory, when he filed a complaint with the California State Bar to request permanent disbarment of opposing counsel, the State Bar responded to Harris that he must wait for the case to return to trial court and request sanctions during trial while presenting evidence. The State additionally forced the removal and retirement of the trial court Judge which presided in the case and reassigned the case to a new Judge. Harris has requested trial to be set in the wrongful termination case and is seeking punitive damages against IBD and sanctions against opposing counsel. IBD fails to reply to Court of Appeals briefing in case B185606, even though the court has sent them notice to respond. We have no idea why they wonÕt stand behind their legal work and back it up. Harris remarked ÒWhen an employee asks a company to return monies that have been illegally deducted from pay, the company shouldnÕt demote and fire the employee then spend 5 years driving him into half a million dollars of debt. I donÕt see how any jury will see their position as proper, so I am willing to have a jury trial and see if what they did was right, I donÕt think it was.Ó CHARGEBACK
NEWS 05/28/2006: On May 24, 2006, Smith Barney (Citigroup) settles with HarrisÕs attorney Mark Theirman for $98 million for basically same argument against IBD. IBD refuses to settle and Appeals Harris et al v InvestorÕs Business Daily et al.(Mar 29,2006 Cal App. B178428) to the California Supreme Court asking the State of California to reverse a 19 year old existing case law so they can continue to for lack of better term, Òsteal fundsÓ from their employees paychecks and avoid overtime payments. HarrisÕs Attorneys answer the Supreme Court Appeal by telling the Supreme Court it is easier for IBD to change their compensation plan to comply with the law rather then the State having to change the law to comply with IBDÕs illicit compensation plan. Wall Street brokerages have now coughed up $250 million dollars to HarrisÕs legal team, IBD continues its corporate arrogance. Wall Street has even better legal counsel than IBDÕs William J. OÕNeil, and they donÕt want to even to attempt to challenge HarrisÕs attorney Mark Thierman, this speak volumes about who has the best attorney, the telemarketers. It is not even disputed who has the top legal team in this battleÉ. And itÕs not Bill OÕNeil. Harris has delivered the most feared labor plaintiff attorney in the United States to his chargeback class action battle, and IBD is now taking a series of major losses as the courts deny their Òabove the lawÓ position. IBDÕs position has long been ÒEverybody does it.Ó (Meaning everybody does illicit chargeback deductions.) Looks like everybody settles when they get caught is becoming the more accurate statement. ÒItÕs probably not the smartest thing to do in terms of a legal defense, they are basically alerting the California PlaintiffÕs bar that there are several companies out of compliance. All that does is put targets on certain companies for the purpose of class action prosecution. I canÕt see how that helps make you the most popular kid in school.Ó Said Harris. CHARGEBACK
NEWS 05/13/2006: In a developing story, which is set for the next national press release: In what seems like a scene straight out of a Hollywood movie; 2 Associates and 1 Senior Counsel from IBDÕs crack legal defense team, all which have worked on the case, Harris v. InvestorÕs Business Daily may have seemingly seen the PlaintiffÕs position as not only correct, but also the right side to be on in order to make money (not to mention, be the prevailing party). These former Silver-Freedman labor defense attorneys
have started a plaintiff law firm and changed sides altogether. The former IBD defense counsel now
head up a new law firm in Encino California called, Appell, Hilaire, Bernardo
LLP: www.ahblegal.com Rumor has it that they are looking for chargeback wage and hour caseload (A report that cannot be confirmed nor denied, even indicates that Mika Hilarie may have called Mark ThiermanÕs Law Firm asking if they can co-counsel unrelated chargeback cases with our legal team.). So ironically you can now bring your chargeback issues to IBDÕs former legal defense team, a team that formally took the position that chargbacks are not against the law, and they will help you recover your money. This only re-enforces the old clichŽ, ÒIf you canÕt beat them, join them.Ó Harris said, ÒThis is rather unprecedented, we have argued our case so well and educated opposing counsel in this area of the labor code, that it looks like the IBD defense attorneys have bailed off their sinking ship and joined us on the PlaintiffÕs side of the bar. IBD is going to have a tough time claiming Ôno wrong-doingÕ when they canÕt even keep their own defense team from defecting to the other side. And who can really blame them, this is the biggest and newest wage and hour violation of the new century, and there are millions and millions to be made in protecting employees from this rampant violation, they were smart enough to see that, and they know who is holding the winning hand in this game.ÓÓ CHARGEBACK
NEWS 05/05/2006: Wall Street Feels the brunt of Overtime and Chargeback lawsuits (stemming in part from findings in Harris v IBD), HarrisÕs Plaintiff attorney, Mark Thierman named, ÒThe Two Billion Dollar ManÓ, by industry trade magazine Registered Rep in MAY 2006 cover story, all brokers in America alerted to wage and hour violations involving their compensation:
CHARGEBACK
NEWS 04/27/2006: NEGATIVE
PRESS STORY READIED FOR RELEASE: I have readied a brutal negative press campaign that will be a multi part story released bi-weekly through the national news wires, entitled: ÒMulti-Billionaire, William J. OÕNeil holds InvestorÕs Business Daily employeesÕ earnings hostage for over half a decade.Ó This press campaign has been specifically designed to attract massive media attention and media pick-up. We are currently waiting to see if IBD attempts another stalling tactic, such as an Supreme Court Appeal. The idea is that his punishment for additional time of litigation will result in major damage to his businesses; I am welcoming any story input from employees who have been unjustly treated by this organization. This includes: Sexual Harassment, unjust treatment, termination, and racial discrimination, ect. A reporter from Bloomberg once told me, ÒWe want to know what goes on in there.Ó They shall. Email me: tharris789@aol.com CHARGEBACK
NEWS 04/24/2006: IBD
Denied: Court of Appeals denies any re-hearing of Harris v IBD, modifies opinion and says Joe Swantek provided testimony that IBD does not qualify for overtime exemption. Joe Swantek is the third IBD manager to help the PlaintiffÕs position, ÒA special thanks Joe thatÕs a few extra million dollars for the good guys;) Although I canÕt see how that helpÕs your career advancement.Ó Harris v InvestorÕs Business Daily (modified) IBD case has now been reduced to a huge box of worthless legal papers, they might as well go throw their defense funds money through the industrial shredder in the back lot and turn it into 8 ft by 8 ft big bales of Enron currency. Feeling lucky? Ante up Bill, throw another million on the table it will buy you another year to sit at the litigation poker table, but I am not bluffing I will take ÒyourÓ money and Òin the end, return it back to itÕs proper owners.Ó Oh, and hire a good Public Relations firm for the next year of litigation, youÕll need one. CHARGEBACK
NEWS 04/22/2006: Chopping
down the IBD Beanstalk: Enough
is Enough. While I was hoping for William J. OÕNeil to come to his senses and Òfix this problemÓ I realize that only the loud thud, of dropping a giant out of the sky will make things right for the common folks in this scenario. Everybody goes down, including his attorneys, his businesses, his image, his managers, everything, finished, done. After five years of fighting maybe the smoke billowing out of his beloved newspaper business will make this giant realize that it is possible to piss off the common working folks, and that stealing money from their paychecks can have awful consequences. I have contacted members of the national independent press to begin in depth investigative reports to expose what makes this strange billionaire blatantly violate the laws of this Country. While I do appreciate those that read this website for information, we are now turning up the volume and expanding the audience, so we can be heard by everybody in the Country. Letter to LA WEEKLY/NEW TIMES/VILLAGE VOICE LLC: April 21, 2006
Attention: Mohammed Mack, story idea, request for writer Jeffery Anderson FAX 323-465-3220 Toby Harris 1306 Manhattan Beach Blvd. Manhattan Beach, CA 90266 310 977 7094 I am looking for a writer to cover a local story (Marina Del Rey) about multi billionaire newspaper owner, William J. O'Neil (Investor's Business Daily, ÒIBDÓ) and his 5 year legal battle with his employees, from who he is illegally skimming millions of dollars out of their paychecks due to illegal deductions ÒchargebackÕsÓ. IBD fired the whistleblower who attempted to stop the company from illegally wiretapping its customer base, and who complained of the illegal chargeback deductions. To attempt to continue itÕs practice of stealing from its employees. Opposing counsel has threatened Plaintiff witnesses with criminal prosecution, mislead courtroom proceedings, driven the Plaintiffs into half a million dollars of debt in a wild attempt to make the case, Ògo awayÓ. They even tell PlaintiffÕs counsel at every court appearance ÒYour clients will never get a thin dime in any settlement. Go away.Ó The case even includes the State of California removing the LA SUPERIOR COURT trial judge, Rodney Nelson, due to mental incapacity (AlzheimerÕs allegedly). He was placed on Medical leave and even kept showing up, putting on his robe and going out onto his bench until Court marshalls forcibly removed him. He later resigned just a couple months ago due to a facing a State disciplinary panel. The Court of Appeals reversed and remanded his (NelsonÕs) ruling on all counts. Needless to say, Plaintiffs have had a very rough go at recovering their wages. Even with a Plaintiff win in the Court of Appeals, published opinion in favor of the PlaintiffÕs, 2 former managers siding with the PlaintiffÕs leaving IBD in a no-win situation, IBD continues to throw up delaying tactics in a refusal to settle. There are an estimated $10 million dollars of employee wages at stake, with millions already spent in litigation costs. The time has come for the independent media to ask the question why a multi-billionaire feels the need to abuse his employees to no end? And why does having a $30 billion dollar net worth excuse a person from following the law and create and Òabove the lawÓ mentality? Additional case information: Eric Epstein, esq. 310 552 5366 Mark Thierman, esq. 775 284 1500 or 877 99 LABOR Toby Harris 310 977 7094 http://caselaw.lp.findlaw.com/data2/californiastatecases/b178428.doc (Toby Harris v Investor's Business Daily) Enclosures (17) Thanks, Toby Harris CHARGEBACK
NEWS 04/20/2006: IBD refuses to admit the loss of the lawsuit and pushes forward with a request for a ÒrehearingÓ of the case, it is anticipated the Court of Appeal will deny IBDÕs futile request. Plaintiffs file answer to IBDÕs request for rehearing: Harris instructs PlaintiffÕs counsel to set trial and begin trial preparations for Wrongful termination trial. As a result of the recent story about Los Angeles City Attorney, Rocky Delgadillo, reporterÕs at LA WEEKLY have been contacted to begin story about IBD and itÕs Owner William J. OÕNeil, this writer has the ability to capture the unethical litigation techniques of Silver-Freedman and expose them for the Òcorrupt law firmÓ they are (additional story on Rocky Delgadillo). The court has ordered William J. OÕNeil to testify as a witness in defense of his unlawful business practices at the wrongful termination trial. CHARGEBACK
NEWS 04/18/2006: Top
news agency picks-up story, Harris v. InvestorÕs Business Daily Bureau of National Affairs (BNA - About BNA) located in Washington D.C., AmericaÕs largest, oldest independent expert analysis and unbiased news agency identifies Harris v IBD as top labor law case, and identifies Direct Market Specialist, Inc.Õs (an InvestorÕs Business Daily Subsidiary) Òfraudulent business practiceÓ: BNA, Inc., Daily Labor Report, April 3 Number 63 Monday, April 3, 2006 ISSN 1522-5968 HIGHLIGHTS California Court OKs Unfair Competition Class Based on FLSA Violation Telemarketers in California can use a Fair Labor Standards Act claim for the basis of a state unfair business practices opt-out class action, a California appeals court rules in resurrecting a class action against the telemarketing company (Harris v. Investor's Bus. Daily Inc., Cal. Ct. App., No. B178428, 3/29/06). Finding the FLSA opt-in collective action did not preempt
an opt-out class under California's unfair competition law (Cal. Bus. &
Prof. Code ¤ 1720), the California Court of Appeals rules that a trial
court erred in preventing telemarketers from moving forward with allegations
that Direct Marketing Specialists had engaged in unfair or fraudulent
business practices when it improperly paid employees. The appeals court relies on a series of federal cases interpreting the FLSA's preemption provisions and finds that the goals of an FLSA opt-in collective action were not undermined by allowing a state law opt-out class action that was based on the FLSA claim. ... WAGE
& HOUR: Decision of the California Court of Appeals in Harris v.
Investor's Business Daily Inc. ... E-3
Table of Contents
LEADING
THE NEWS
WAGE
& HOUR
Telemarketers in California can use a Fair Labor Standards
Act claim for the basis of a state unfair business practices opt-out class
action, California appellate court rules in resurrecting a class action
against the telemarketing company... AA-1, Text E-3 http://ssboston.blogspot.com/2006/04/bna-inc-daily-labor-report-april-3.html CHARGEBACK
NEWS 04/14/2006: InvestorÕs Business Daily newspaper, owned by Multi-Billionaire William J. OÕNeil (estimated personal net worth of $30 billion dollars, according to sources) is now begging the California State Court of Appeals to re-hear the the lawsuit Toby Harris v InvestorÕs Business Daily. Their request may fall upon deaf ears as the Court commonly denies these requests. IBD faces a major multi-million dollar liability and exposure in this case for wage and hour violations. There is a standing order from the lower court to compel William J. OÕ Neil to testify as a witness in defense of his companies when the case is once again remitted back to the Superior Court in the next 60 days. There is no doubt that a Multi-BillionaireÕs company being prosecuted in the Courts will garner national media attention IBD refuses to settle the case and continues to drive the damages against them in an upward multi-million dollar spiral. There are no courts or juries that will sympathize with a company majority owned by a single billionaire individual when it comes to the illegal deduction of wages from already earned paychecks of Òregular worker joeÕsÓ, as one employee stated ÒitÕs corporate theft.Ó CHARGEBACK
NEWS 04/14/2006: California legal editors issue warnings for corporate California Employers on chargeback wage violations, due to recent Court of Appeals opinion (Harris v InvestorÕs Business Daily): Telemarketers Permitted to Proceed With Class Action for
Violation Of State And Federal Wage Laws Wage and hour violations serve as basis for unfair
business practice claim CHARGEBACK
NEWS 04/09/2006: InvestorÕs Business Daily loses wage and Hour class action appeal: The Los Angeles Court of Appeals has clarified the issue of chargebackÕs, they have removed any defense that IBD has attempted and remanded the case back to trial court for proper adjudication. The opinion issued by the Court of Appeals has directions to the lower court to rule in accordance with the issued opinion, which means itÕs over with. IBD has been stripped of any defenses they can use to protect their illicit wage deduction. The only defense IBD has now, is delaying tactics to delay payout, problem with this is it will cost tens of millions in state penalties and billable hours and not change the outcome of the loss. IBD may attempt to appeal to the Supreme Court this will create a 90-day delay as they will undoubtedly be denied. Well, whatever, more billable hours for Silver-Freedman. The Plaintiffs will now certify the Overtime class, and set trial in the class action, and wrongful termination cases. The financial exposure against IBD will expand like wildfire into the multi-millions in the coming weeks, we should be getting a phone call from them to begin a negotiation for settlement talks sometime during the process of us stacking the damages. The IBD Court of Appeals published opinion: Will William J. OÕNeil follow his own advice and Òcut his lossesÓ, and Òfix the problemÓ? Or, is he just a common hypocrite? CHARGEBACK
NEWS 03/18/2006: Message
from Toby Harris for the PlaintiffÕs: I attended oral arguments at the Los Angeles Court of Appeals on Thursday March 16,2006 for the case at bar, Harris et al v InvestorÕs Business Daily et al. In sum, Marjorie Fuller IBDÕs Appellate defense attorney choked in her oral arguments much like an athlete that makes it to the championship only to make catastrophic game-play mistakes leading to a loss. Could it be Marjorie Fuller was nervous in facing one of the most feared wage and hour Plaintiff attorneys in the entire country, Mark Thierman? (An attorney that is sure to get a nod for Super-Lawyer this year from the various legal publications) The arguments consist of a panel of three appellate judges who ask questions to both parties based on briefs, which are filed to the courts regarding the case. InvestorÕs Business Daily decided to have an special Appellate attorney present the court argument, this may have been a mistake (as they needed a labor attorney) the attorney did not seem very well versed on the labor issues regarding this case and did not respond or have answers for the court on very important issues pertaining to this case. PlaintiffÕs attorney opened oral arguments with a complex side argument about Òopt-inÓ v Òopt-outÓ class actions and when classes need to be certified, this issue pertains more to lower court procedural issue which revolves around the trial judges ruling who was sadly suffering from AlzheimerÕs. While this argument was not important for public policy purposes it pertained to the overall class action. In simple words the Overtime portion of the Class Action can be certified anytime, including during settlement negotiations. As long as the class members are properly notified of the settlement and given an opportunity to Òopt-outÓ (this is just a formality to allow for due process, in case an employee wants to use his own attorney, basically only morons would opt out of a class action settlement) then proper class procedure has been followed. The issue of piece rate v. commission rate was important because it allows for the OT exemption for inside sales, the court seems to be leaning toward the plaintiffs position that since the commissions did not adjust upward when the price of the paper increased that the commission plan is not based on a percentage and not a true commission but rather a piece rate. IBDÕs attorney did not understand this argument and thought it was irrelevant?!?!?! (Only a multi million dollar error) Making apologies to the court and saying this was not a focus issue?!?!?! WTF? When you go before the Court of Appeals, itÕs game on. And when the Judges ask questions, you had better have answers to back your position. IBD just did not. The Court wanted to know why IBD called the wages ÒearnedÓ in the handbooks, but when the Plaintiffs raised the issue about chargebackÕs, the wording was then changed to ÒunearnedÓ. IBDÕs attorney responded with something to the effect that it is not Òthe traditional meaning of earned.Ó The Judge did not seem to like this response and said, Òearned means earnedÓ. The Court wanted to know why IBD was pocketing a pro-rata portion on monies on cancelled subscriptions while charging back 100% of the employeesÕ wages resulting in free labor for that unit of work. Again the IBD attorney failed to respond with a logical answer for this ÒUnjust EnrichmentÓ argument. The case is now argued and submitted and now awaiting a ruling (which Òwill occurÓ in the next 2-8 weeks) with the exception of the wrongful termination portion of the case, it has reached final conclusion. The case most likely cannot be appealed any higher in the court system, as the Supreme Court only grants review to 200 cases a year. It looks like we are about to set new public policy for illegal wage deductions, ChargebackÕs are illegal absent a written wage assignment agreement, and where an unjust enrichment or contractual equity imbalance occurs. If I were the IBD management team this may be a good time to start thinking about digging into the corporate mattresses for several millions of dollars to bring to settlement negotiations. IBD CASE SUMMARY(PDF) FUTURE ACTIONS(PDF) CHARGEBACK
NEWS 03/10/2006: Judge Rodney Nelson resigns days before state prosecution for his forced removal: http://www.metnews.com/articles/2006/nels031306.htm http://cbs2.com/topstories/local_story_069213408.html http://www.mercurynews.com/mld/mercurynews/news/breaking_news/14070360.htm CHARGEBACK
NEWS 03/06/2006: With 3 major stock brokerages settling for over a hundred million dollars due to OT violations for inside sales reps, William J. OÕNeil and his InvestorÕs Business Daily management team know that he will lose the current lawsuit at bar: The reason is, that the over time (OT) argument being used against the major brokerage houses, was developed in the Toby Harris et al v IBD et al lawsuit, so William OÕNeil could be partly and indirectly responsible for the loss of hundred of millions of dollars from the major wire houses due to Òtipping offÓ the California Plaintiffs bar of the violations. Although the brokerages are responsible for their own violations, it can be said the William OÕNeil was the Òparty pooperÓ that set the wheels in motion to have the California PlaintiffÕs bar sue the living crap out of the financial industry. Due to the protracted litigation, it allowed Mark Thierman of the Plaintiffs legal team the required time to perfect the inside sales argument for OT, this same exact argument is being applied to the entire Stock Brokerage industry with multi million dollar perfection, it is only a matter of time before the major brokerages find out they are being sued as a result of IBD picking a fight with a single telemarketer and the resulting domino effect which has occurred. The story itself has the modern markings of David v Goliath, and a grass roots labor dispute that even Cesar Chavez would approve of. This case stands to change the way business is done entirely: http://laborlawyer.net/Marketwatch-MorganStanley..pdf http://laborlawyer.net/UBS.pdf http://laborlawyer.net/sfdaily-merrill.pdf CHARGEBACK
NEWS 02/27/2006: IF CHARGEBACKS ARE ILLEGAL DEDUCTIONS WHY DOES IBD (InvestorÕs Business Daily) DO THEM? Illegal chargeback deduction policies are big money makers for businesses. Most big corporations operate with total arrogance when it comes to the rights of their employees, and look for ways to exploit their labor force to the fullest potential. In a nutshell, if a company can skim millions upon millions from its employeeÕs paychecks they will do it, until they are caught. Sometimes if employees complain, they will promptly fire them and challenge them to a lawsuit, most companies know that wage earning ÒWorker JoeÕsÓ do not have any financial reserve to fight a deep pocketed multi billion dollar corporation and they know there is a good chance that the employee will be financially destroyed by the termination and will Ògo away.Ó For the employees that are Class members in Toby Harris et al v InvestorÕs Business Daily, they were fortunate enough to have a Lead Plaintiff who understood methods of success and determination and decided to fight. This employee helped to structure a top legal team that has won 4 of the top 7 wage and hour class action settlements in California history, with $100 million dollars in financial backing the case, to go the distance in court to recover the illegally deducted wages. DOES THIS MAKE WILLIAM J. OÕNEIL A DISHONEST PERSON? In an opinion, yes. While William J. OÕNeil appears to be a kindly wise old sage dispensing investment information, that is only in the pages of his own self-touting publications and books, reality is a totally different story altogether. He is basically stealing wages from the pockets of his wage-earning employees, and has little or no respect for the labor laws of the State of California; he is uncompromising and ruthless in his treatment of whistle blowers and would prefer to drive them into a half a million dollars of debt than to even attempt a settlement negotiation. It says mountains about his character as a person and those facts can be identified in this lawsuit. Mr. OÕNeil needs the book thrown at him, and he will get it thrown at him at trial when he gets to face the jury as a witness and majority shareholder for his companiesÕ violations later this year (2006). This lawsuit will become the blueprint of how California corporations will treat the wages of their employees. It will change how business is done entirely in California and close the door on corporations that illegally shove business loses onto their employees paychecks through illegal deduction of wages called Òchargebacks.Ó This class action battle will end on March 16, 2006. Final ruling by early April 2006. CHARGEBACK
NEWS 02/23/2006: With all the documents filed, the case is ready for oral arguments. The Plaintiff party has argued a cause of action for Unjust enrichment which is anticipated to win the case for illegal chargebackÕs (See the final brief pdf below pages 21-25). It is a contractual equity argument written by Toby Harris himself which illustrates the gross imbalance of the chargebacks. Harris is hoping that the District Attorney will take notice of this case and step in with theft of property charges (due to the extra money pocketed by the company from employee earned wages) and throw the handcuffs on the arrogant, stupid, shitfuck management team at IBD and make a nationwide example of how not to deal with an employee wage dispute. New York Attorney General Elliot Spitzer would not allow for this type of behavior from IBD if this were happening in his State. CHARGEBACK
NEWS 02/03/2006: Oral arguments scheduled in Harris v InvestorÕs Business Daily, for March 16th with a final ruling occurring approx 2-4 weeks after the oral arguments. Final resolution of this half-decade multi million-dollar battle nears its end. CHARGEBACK
NEWS 01/27/2006: Extended litigation begins to take toll on InvestorÕs Business Daily as they begin to search and recruit for Òin-house counselÓ to possibly curb litigation costs (currently at an estimated $800 an hour for defense to fund the retainers at Silver-Freedman and Marjorie FullerÕs Law offices, with an estimated $1million already spent on trying to defeat the certified class of telemarketers. The lawsuit has become nothing more than a cash incinerator for the defense.). On, 01/12/2006, Steve Souder, an IBD human resources executive, places advertisement on Monster.com, in search of in house IBD counsel. If you read the job description closely you will see that part of the job is to help the company Òavoid legal risks.Ó IBD Attorney job posting (PDF) (Candace Mayeron, need not apply) IBDÕs former strategy used to be litigate and run the opposition out of money (indicated by public record of other employee legal battles) problem with fighting Toby HarrisÕs legal team is that the lawsuit is structured with a war chest backing the certified class action of over $100 million dollars, and the plaintiffÕs will continue to fight until the IBD is ordered by the court to pay restitution, by the time IBDÕs managementÕs arrogant egoÕs get into ÒcheckÓ they will have unfortunately hemorrhaged millions of dollars out of the organization. ThatÕs their problem, as they refuse to settle. Harris has indicated that he doesnÕt care how long it takes to get to a victory in court, his only wish is that William J. OÕNeil does not die from old age before he has to get the corporate check book out and write a restitution check to his employees in this certified class action case. While William J.OÕNeil clearly has more money (Billions) than Harris, Harris simply has more time than him. While OÕNeilÕs strategy is to run the opponent out money, Harris may run his opponent out of time (thus OÕNeil very well may be correct in his public statement against Harris that this is Òa fight to the bitter end.Ó most likely that of the defenses.) CHARGEBACK
NEWS 01/24/2006: Final brief has been filed in Toby Harris v. InvestorÕs Business Daily, the case is now fully briefed. If the case is not remanded back to trial court in the next 2 weeks, it will then go to oral arguments in 30 days with a final ruling 2-4 weeks following that. So to sum up, the case is Òalmost over, or almost getting started.Ó Here are some of the recent filings that the Plaintiff party has filed in The California Court of Appeals: Note: this is the rough draft version of Final Brief, which was cut down to 21 pages upon filing. Augmentation of Argument (PDF) Also a public hearing has been set in the State prosecution of the Judge who errantly ruled against the PlaintiffÕs in the IBD case to the tune of $547,000, a public hearing has been scheduled to permanently remove the sitting Judge from his bench as a result of his mental condition. The State prosecution has requested that attorneyÕs for the PlaintiffÕs in Harris v. InvestorÕs Business Daily testify in this hearing as witnesses against the Judge along with many attorneys from other unrelated cases heard by the same Judge, in the hearing to decide the JudgesÕ Òforced retirementÓ: Nelson Hearing Press Release (PDF) In addition to the prosecution of the Judge, there is a complaint filed in State Bar Court against IBDÕs defense counsel, asking the State Bar for disciplinary action against InvestorÕs Business DailyÕs defense counsel. William J. OÕNeilÕs party have been claiming for close to 5 years that Toby HarrisÕs labor wage and hour lawsuit is baseless,frivolous and meritless yet it continues to pend in the courts and that courts have refused to dismiss the lawsuit. The defense counsel have hinted to the Plaintiff to Ògo awayÓ that they will never see a Òthin dimeÓ in any type of settlement. The damages meanwhile are accruining in the multi millions CHARGEBACK
NEWS 01/22/2006: Plaintiff party files Judicial notice and augmentation of appellate argument based on Òdue processÓ rights which are guaranteed by Federal and State Constitutions, based on fairness of trial and rights to a competent judge. These rights are constitutionally guaranteed and not optional. This is one of the few actions that can cause a case to be reversed and remanded back to trial court. Plaintiffs take the position that the trial court did not deliver justice by having a mentally ill judge presiding over the case, ruling and deciding it. While all other Californians do not have to have their cases heard by mentally ill judges, it would be unfair to expect that Plaintiffs got their due in court with an incompetent and mentally ill jurist hearing the case. The State of California shares the PlaintiffÕs position that something is wrong with the Judge, as the State of California itself is forcing his retirement as a result of his current mental condition. Further, the Judge has basically disqualified his own ruling by failing to respond to the plaintiffs disqualification challenge, so even the Judge is not backing his ruling as sound and just. Should this occur the case will be technically won by plaintiffs (i.e., the reversal of an errant decision), while this would probably be a good point to begin settlement negotiations, it is anticipated that defense will want to waste yet another $250K on re-trying the case and having a Judge order and force restitution in the case. Plaintiffs have no problem in going back in front of a new trial Judge, as the penalties should double the damages from around ten to twenty million dollars for the defense. The State delivers hefty penalties for arrogant corporate labor code violators, who maintain an Òabove the lawÓ attitude. The California Court of Appeals should return a ruling on this matter in the next 2 weeks. CHARGEBACK
NEWS 01/17/2006: In even yet, another Major blow, to the InvestorÕs Business Daily defense (Harris et al v InvestorÕs Business Daily et al #BC269313 LA SUP CT): New York Court of Appeals rules chargebackÕs are illegal on Nov. 21, 2005, in long running Yellow Book case: YELLOW
BOOK: Lipman & Plesur, LLP - employment lawyers Bryan Gennes v Yellow Book of New York, Inc. (2005 NY Slip
Op 08948) CHARGEBACK
NEWS 01/16/2006: In another Major blow to the InvestorÕs Business Daily defense (Harris et al v InvestorÕs Business Daily et al #BC269313 LA SUP CT): Judge Nelson fails to respond and answer the disqualification notice in the 10-day time frame, disqualification is now deemed submitted to the court. Defense has filed an objection motion to the disqualification stating that they feel it is out of jurisdiction of the trial court since some of the causes of action have gone to appeals. Yet the wrongful termination cause of action still resides at trial level, never being heard, nor dismissed, in fact the case is stayed at trial level by stipulation by both parties, and is still well within trial court jurisdiction. CHARGEBACK
NEWS 01/10/2006: For those class members keeping score at home: Damages for the class action portion of this lawsuit are estimated at $10 million, State penalties will double that amount to $20 million upon final judgment. Due to William J. OÕNeilÕs high net worth and the extremely high chance of possible punitive damages being awarded in this case due to the illicit approach by William J. OÕNeilÕs defense team among many other factors, the damages in the wrongful termination portion of the suit could be very similar to this recent case decided against United Parcel Service (UPS): http://hr.blr.com/display.cfm/id/16346 The cases are similar, as Harris tried to protect illicit recordings of InvestorÕs Business DailyÕs customers and then was retaliated against, much as the UPS case in which the Manager attempted to protect the customers from illicit price gouging and then was retaliated againstÉBoth cases involve high net worth organizations and punitive damages were granted. This case will be noticed at trial. Case current estimated value and legal exposure for defendants: $41 million total; should the plaintiffs prevail on all causes of action, this is the reason you never fire an employee that complains about wage payment issues, because while it may be funny at the time you do it, it is the final bill for damages that makes it less than amusingÉand your employees end up laughing all the way to the bank. CHARGEBACK
NEWS 01/06/2006: In a Major blow to the InvestorÕs Business Daily defense (Harris et al v InvestorÕs Business Daily et al #BC269313 LA SUP CT): Plaintiffs successfully remove judge from case, who previously handed errant ruling of $548,000 in attorneyÕs fees against plaintiffÕs. Case is ordered reassigned to new judge, Honorable Elizabeth Grimes in dept 30. Multi million-dollar lawsuit is now favoring the plaintiff party as tides turn on obstinate and miserly employer over wage and hour issue and failure to pay overtime. CHARGEBACK
NEWS 01/03/2006: Judge Nelson served with disqualification at his home by PlaintiffÕs in Toby Harris v InvestorÕs Business Daily. CHARGEBACK
NEWS 12/31/2005: Plaintiff attorneys file yet another extension (now due 1/18/06) in order to add additional information to final brief before filing, regarding the now public mental condition of Honorable Judge Rodney Nelson. Due to the degenerative brain disease (AlzheimerÕsÕ) the Plaintiffs are seeking a disqualification of the prior ruling against them since the judge was not able to remember specific facts necessary for proper court ruling. The Judge has not been available for process service of the motion. Another case is being built against InvestorÕs Business DailyÕs legal defense team in co-operation with the California State Bar for the unethical approach to victory at trial level. Case # 05-19364, this case is an applicant-based complaint, by the initial Plaintiff, requesting aggressive Disciplinary action against opposing counsel. CHARGEBACK
NEWS 12/22/2005: Judge Rodney Nelson answers allegations against him with a denial of charges that also requests if he is found to be disabled then he further requests disability compensation. More evidence surfaces against the Judge, as other
unrelated parties legal teams file motions to dissolve and disqualify the
judges prior rulings due to AlzheimerÕsÕ, 68 page PDF: The Judge has not been available for Process of Service or comment, and reports indicate that newspapers are piling up at his front door and the shutters are closed. His attorney of record has indicated that he may accept the service process of the several motions to disqualify from several unrelated legal parties. CURRENT CHARGES AGAINST RODNEY NELSON (Judge who ruled against Plaintiffs in Toby Harris v. InvestorÕs Business Daily) PDF: CHARGEBACK
NEWS 12/21/2005: (EMAIL RECEIVED FROM STATE BAR REGARDING PUBLIC COMMENTS ON PERMANENT DISBARMENT) Mr. Harris: Thank you for taking the time to share your comments on permanent disbarment, 10 pages of which arrived via facsimile last night. Those 10 pages consist of the first page of your letter and a 9-page complaint filed on December 11. (The complaint appears to consist of a complaint form; a 4-page, signed request for disciplinary action; 2 newspaper articles; and 2 pages from the California Rules of Professional Conduct, specifically, sections 5-100, 5-200 and 5-220.) However, at least one page of your fax, the second page of your letter, appears to be missing. Please resend that page -- and other missing pages, if any -- to my attention to (415) 538-2214. Sincerely, Itzel D. Berr’o Office of the Chief Trial Counsel State Bar of California Tel: (415) 538-2541 Tel: (213) 765-1277 CHARGEBACK
NEWS 12/18/2005: Toby Harris et al v. InvestorÕs Business Daily et al. Could become the first case in CALIFORNIA HISTORY in which a sitting judge is removed from his bench while simultaneously defense counsel is disbarred from practice, making these class action plaintiffs the most fearsome litigants in CaliforniaÕs legal history. A complete and utter destruction of the opposition! Truly a text book case here! The current Pro Tem Judge sitting on the bench replacing, the Honorable Rodney Nelson (On leave while being investigated by a California State Judicial Performance Tribunal), Honorable Jerry K. Fields recently indicated on the public record that he would compel Billionaire investor, best selling author, and media mogul William J. OÕNeil to testify at trial stating ÒI would like to hear what he has to sayÓ Trial has been stayed until complex litigation issues are sorted out pertaining to the certified class action wage and hour issues now before the Los Angeles Court of Appeals. The trial will be re-calendared after a status conference now set for June 16, 2006. The Plaintiffs motion to compel did request that William OÕNeil furnish several documents at trial including net worth statements from all of his companies. A copy of the motion to compel is available for the media upon request (Yes, even for Mayor Michael Bloomberg also), contact: Eric Epstein, Esq. (310) 552 5366 Toby Harris (310) 977 7094 CHARGEBACK
NEWS 12/16/2005: Attention Harris v. InvestorÕs Business Daily class members: A major turn of events has occurred in the class action case, the Los Angeles Superior Court Judge that heard our case and ruled against us, has been challenged by the State of California as mentally unfit to remain on his bench due to AlzheimerÕs. We have filed a motion to disqualify his rulings due to this condition, you can download this pdf here: Disqualification of Judge Rodney Nelson What does this mean? New Judge! New Hearing! Another shot in court! Round 2 coming up!! We should be the prevailing party on this next trip to court! Thanks for hanging in there and being patient. Special note to William J. OÕNeil: If something is broken, Toby and his legal team will fix it. CHARGEBACK
NEWS 12/12/2005: Complaint filed with State Bar Court requesting disciplinary disbarment action against opposing counsel. Suffice to say they have been turned in on a litany of ethical violations, if they manage to survive all of them it will be an absolute miracle. It is very safe to assume that William OÕNeil may need new counsel by trial time, as his current counsel may not be authorized to practice law in this State inside the next 90-120 days. Let me clarify this situation: This attorney spent their entire career (20 plus years) to make partner at a firm to get to the level of approx $300k a year in income, has a client that is a multi billionaire (William J, OÕNeil owner of InvestorÕs Business Daily) that is violating the California Labor law, rather than convince the client that they should settle at a small cost to the clients overall net worth (similar to a parking ticket to the average American), instead decides to overstep the legal provisional boundaries of a practicing attorney and risk everything to try to chalk up a win for the client. In others words the client is violating the law, and the defense team violates more laws trying to get the client cleared on the charges and gets caught. Is this is fucking moronic and stupid, just sheer arrogant ego wanting to step on the production worker, or greed wanting to squeeze every billable hour from the case possible? Or all the above? You decide. The fact is this attorney was reluctant to face my legal team in the appeals court (Most likely due to the unethical approach to victory in the trial court), and William J. OÕNeil was forced to hire O.J. SimpsonÕs former childrenÕs attorney, Marjorie Fuller, to complete the final phase of this case. Generally not a good idea to go in front of a tribunal of 3 judges at the appellate level when you have done something wrong at the trial level. If this attorney were confident of the trial court argument they would still be fighting me and my attorneys, or even one of the attorneys from their large-scale law firm who has appeals court experience. They are not willing to fight the appeals case, they backed out from fighting the higher court argument, IÕm sure they have their reasons. Apply the Famous Donald Trump phrase to this situation. CHARGEBACK
NEWS 12/08/2005: In a story that broke on this website on 11/19/2005: The Honorable Judge Rodney Nelson has been brought up on a formal proceeding by the California State Commission on Judicial Performance, seeking to remove him from his bench due to mental illness brought on by AlzheimerÕs. This is important to the Class Action, of Toby Harris v Investors Business Daily, as he was not mentally fit to rule against our class and we are filing actions to reverse the prior decisions he made against us as not being of sound mind to make these rulings: This story then broke national news on Dec 08, 2005: http://www.metnews.com/articles/2005/nels120805.htm http://www.altavista.com/news/cats?q=&nc=10&sc=109 http://cbs2.com/topstories/local_story_342001615.html www.cjp.ca.gov/press/Nelson%20NFP%2012-07-05.doc http://www.kget.com/news/state/story.aspx?content_id=046156D8-1BAA-4160-9B26-F0614F991694 http://www.kesq.com/Global/story.asp?S=4219015&nav=9qrx www.cjp.ca.gov/Notice%20of%20FP/Nelson%2012-5-05.rtf CHARGEBACK
NEWS 11/27/2005: The California Court of Appeals has ordered final
briefing in Toby Harris v. InvestorÕs Business Daily (IBD). The final brief should be filed by
Dec. 5, 2005. With oral
arguments to occur in Jan of 2006.
The decision in this case could occur as early as Feb. 2006. IBDÕs position is that they had a
prior agreement for advancement of ÒunearnedÓ wages allowing them to
chargeback employee earned wages, the problem with this position, is there is
no written contract whatsoever to this effect and they are playing semantics
trying to provide evidence of a pre-existing agreement, by stating that the
contract was ÒimpliedÓ due to employee training classes, employee handbooks
even changing the wording of the handbooks in an attempt to avoid suit
shortly after being caught, when Labor code 300 (a-h) and the area case,
Steinhebel v Los Angeles Times do not allow for any wage assignments without prior
written consent, further any
assigned wages can only be with ÒearnedÓ wages not ÒunearnedÓ. Absent a written advancement and wage assignment contract, IBD seems to be out of compliance with current labor law and subjecting their employees to unlawful chargebacks due to the prohibition under labor code 221. Further, the existing contract results in contractual inequity imbalances and unjust enrichment favoring the employer, IBD. A ruling favoring the Plaintiffs will reverse a prior $547,000 dollar judgment against the named plaintiffs who brought the lawsuit, this judgment was obtained through IBDÕs direct lies in order to use a labor code provision allowing for attorneys fees in Overtime Cases that involve Òearned wagesÓ after IBD had previously pleaded in the trial court that this case involved Òunearned advanced wagesÓ that never belonged to the employee. The disingenuous evidence involved has been submitted to the California Court of Appeals for review in an additional and separate appellate case, which begins briefing in Dec of 2005. It is anticipated that a plaintiff win will trigger an immediate settlement of all outstanding causes of action in order for the company to avoid a massively damaging punitive damage phase of this case (due for trial in June of 2006), due to the seemingly abusive acts of IBD as a California employer (i.e. Driving the Lead Plaintiffs into massive debt through disingenuous argument, not the acts of a typically responsible corporate citizen). A settlement will result in several millions of dollars of reimbursed wages, for a certified class of over 500 telemarketing employees. CHARGEBACK
NEWS 11/19/2005: The InvestorÕs Business Daily employee battle for chargebackÕs and overtime rages onward as the Plaintiffs push their case in the high court. With defendants (IBD) having spent now close to $1million dollars in defense fees in what is now close to a half decade battle, in a weak attempt to scare off their employees from pursuing legal rights to restitution of previously earned wages, they (IBD) are now losing ground rapidlyÉ A recent trial court judgment is now under review by the California Appeals court for errors and ÒprematureÓ judgment rulings for all causes of action under the captioned lawsuit, Toby Harris v InvestorÕs Business Daily BC269313 (LA SUP COURT). Something rather bizarre has occurred in the process. The Trial judge overseeing the case was pulled from his bench by a State order due to possible mental inadequacies (AlzheimerÕs) it is rumored that he even kept reporting to his bench after his state ordered removal, robing up and going onto the bench, until court marshalÕs removed him ÒphysicallyÓ from service. Most of the cases heard by his department have been remanded back to trial court for further review by a new judge. IBDÕs recent victory, and press release onslaught claiming victory against the plaintiffs, may have been nothing more than a premature judgment from a judge who was no longer capable of accurately recalling the facts or even making proper rulings. Plaintiffs were victims of the punitive nature of their employer, and a defense legal team that doesnÕt seem to have a problem with fabrication of evidence, and flat out lying to win a rare victory in attorneyÕs fees against employees. They seem to have forgotten that their pleadings in trial court, defining Òearned wagesÓ were completely opposite than their motion for attorney fees definition.
Disingenuous in their legal approach? Absolutely. And that is not the first lie they have been caught in, this plaintiff will be requesting a disbarment sanction against the opposing party attorneys as trial is reached for all evidence that constitutes ethical violations, along with a full page national retraction to be ran in InvestorÕs Business Daily should their attempt at lying to a mentally incapacitated judge fail to hold up as viable judgment (DonÕt think it can happen? The complaint to the judicial review board in San Francisco worked, that judge is no longer sitting, the Complaints to the senate committee on AB1172 worked, the CNPA failed at amending the bill to their needs and it will be re-introduced in the 2006 session with this plaintiffs legal team watching the amendments) Facts donÕt lie, semantics do and opposing counsel likes to spin webs around legal definitions. This case will make a better book than a website editorial: ÓHow to Beat a Billionaire on a telemarketers income.Ó We look forward to the high court hitting the reset button for a Òdo overÓ. With close to one million dollars of defenseÕs money spent, close to half a decade in pending court litigation, hundreds of thousands of documents filed on the public record, we are just getting started! Bring it on William J. OÕNeil! At this point William J. OÕNeil is paying around $800 a billable hour to fund the destruction of his legal team, management team, and national newspapers reputations we are confident he will succeed in destroying himself and those surrounding him and hemorrhage millions of dollars in the interim as the legal process corrects itself. Billionaires tend to have big egos, and they hate public defeat by the common working class. If they only understood the concept of Òcutting their lossesÓ early. Producers: Movie script is currently available for option (Contact Toby at 310 977 7094) CHARGEBACK
NEWS 5/11/2005: May 11, 2005 Honorable Judy Chu California State Assembly State Capitol Room 2114 Sacramento, California 95814
RE: Support AB 1172/ Steinhebel denied review by Supreme Court
Dear Assemblywoman Chu: In yet another blow to labor, the Supreme Court has denied review of Steinhebel and lets the illicit wage assignment under labor code 300 (h) continue to execute. This State nows "lawfully" allows corporations to dig into their employees earnings and rebate paid wages at will. This can be a major victory for organized criminal activity who now can exploit labor forces at will, it screams loudly "come to California because you can steal from your employees pockets and the court will look in the other direction and ignore the existing labor code protections." Paycheck protections have been thrown out by the judicial branch. Surely the State Senate house will look closely at this issue. CASE SUMMARY: Court Case Search Results - Supreme Court STEINHEBEL v. LOS ANGELES TIMES COMMUNICATIONS Case Number S132425 Court data last updated: 05/11/2005 07:53 PM Docket Entries (Register of Actions) Date Description Notes 03/22/2005 Petition for review filed By counsel for appellants {Kurt Steinhebel et al.,} / CRC 40.1(b). 03/22/2005 Record requested 04/08/2005 Request for depublication (petition for review pending) By The California Employment Lawyers Association. (NON-PARTY) 04/08/2005 Request for depublication filed (another request pending) By Asian Law Caucus and The Legal Aid Society Employment Law Center (NON-PARTY). 04/08/2005 Answer to petition for review filed respondent LOS ANGELES TIMES COMMUNICATIONS LLC 04/11/2005 Request for depublication filed (another request pending) By counsel for {Kurt Steinhebel}. 05/11/2005 Petition for review & depublication request denied Kennard, J., and Chin, J., are of the opinion the petition should be granted. In support of AB1172, Toby Harris (310) 977-7094 1306 Manhattan Beach Blvd Manhattan Beach,CA 90266 CHARGEBACK
NEWS 5/03/2005: California Newspaper association responds by letter to the State Assembly once again taking the position that taking away employees already ÒpaidÓ commissions is some sort of ÒBenefitÓ that allows them to circumvent labor codes: 221,222,224,300,300(H) CNPA Opposition letter (May 3, 2005) There is no benefit as to paying employees on time in this State; it is a legal requirement and a criminal offense if you do not pay employees on time (cal lab 200-243). They are trying to convince the State that a ÒchargebackÓ scheme is the same benefit as a 401(k), Social Security, disability, ect. To allow them to reach into the employeesÕ pockets whenever they feel like it. Paying employees on time is a legal requirement not a benefit. Chargebacks are in fact a ÒrebateÓ of wages in violation of the labor code (cal lab 221 & 224) Additionally, contracts that violate existing labor code should be deemed null and void and not be allowed to execute to the detriment of employees already paid wages. The newspapers that have been caught digging into the pockets of their employees should in fact be made multi million dollar examples of. Companies cannot be allowed to Ògame the systemÓ and skim millions from their employees paychecks, fire whistleblowers to avoid prosecution, lay off employees with hush agreements to avoid prosecution. While rallying behind the flimsy defense that Òeverybody does itÓ and that they have a signed wage assignment agreement that allows for a time element condition precedent because they are ÒunearnedÓ wages (cal lab. 219 (a) & 300(h). It is unfortunate that so many California companies have chosen to violate their employeesÕ workforce rights in this area of wage and hour law. It is also alarming that the violation is so rampant. But the fix is not just to pretend the problem does not exist and look the other way. Yes, some companies may have to get out the corporate checkbooks and write some very large multimillion-dollar checks in the process, and that is what happens when you get caught, itÕs the cost of doing illegal business transactions. There is something wrong that needs to be fixed and the employees have properly retained plaintiff legal teams to address and fix the problem and have now lobbied the State legislature by support of AB1172. From Democratic Assembly website AB1172 defined: http://democrats.assembly.ca.gov/members/a49/legislation.htm WHAT EXACTLY IS ASSEMBLY BILL 1172? AB 1172: Commissioned Workers Rights. This legislation guarantees that sales commissions, like all other forms of wages, are paid on time and in full, and are not subjected to unpredictable and unauthorized deductions. It also removes the incentive for unscrupulous employers to characterize wages as an "advance" for the purpose of avoiding the requirements of the Labor Code. CHARGEBACK
NEWS 5/03/2005: Appropriations determines that the State fiscal effect, to offer chargeback wage protections to California employees, will run the State $100,000 per year for the State Labor Commission to protect millions of employees from California employers that are currently illegally skimming millions and millions per week, of already paid wages from employees paychecks through illicit wage assignment agreements. This bill has a major impact for such a small cost effect to the state and improves the lives of millions of Californians by offering paycheck protections. The State will benefit because the employees will spend the protected wages in California and stimulate the economy. Governor Arnold Schwarzenegger gets an opportunity to take credit for returning hundreds of millions back into the State economy by supporting already existing protections (canÕt get easier than that!) a true chance to lift the State of California, and be a champion of the peoples civil rights! If you are being subjected to chargebacks, take a minute to email the California Assembly Appropriations Committee right now and do your part to protect your paycheck. Click the Òtake actionÓ link on below linked page; simply explain how unfair chargebacks are to you personally. Demand that the Senate Committee and Governor Schwarzenegger pass this bill. Start your letter with the words ÒI support this bill becauseÉÓ EXAMPLE: May 8, 2005 Honorable Judy
Chu California
State Assembly State Capitol
Room 2114 Sacramento,
California 95814 RE: Support AB
1172 Dear
Assemblywoman Chu: I support
AB1172 because I have been in sales for over a decade in the State of
California and have lost tens of thousands of dollars personally to
"chargeback of commissions."
Chargebacks have
provided no benefit to me but rather just the opposite and have been
detrimental creating unstable income variations with unpredictable earnings. Chargebacks
have also created rotating debt to my employer, where I have been made to
work off debts spread over multiple paychecks, this has affected my upward
mobility as I come to a job to pay my livelihood not to become in debt to my
employer. Employees at
the Los Angeles Times have personally told me that they are afraid to take
normal vacations, because they will return to massive chargeback debts which
in turn they have to work off. Employees at
Investor's Business Daily have a worse work condition and work on 100%
commission, they receive nothing if a customer cancels and the employer still
pockets a pro-rata portion of the canceled sale. This is an unjust enrichment condition and borderline
"free labor" work condition. Chargebacks
have been justified by my former employers by the use of an illicit wage
assignment agreement that seems to directly violate labor code 300 (h) I urge all
members of the State legislation branch: Assembly, Senate and Governor
Schwarzenegger to vote "yes" and to pass and approve AB1172. Thank you, Toby Harris 1306 Manhattan
Beach Blvd. Manhattan
Beach, CA 90266 (310) 376-1648 tharris789@aol.com If you would like your
email to the State legislators to appear on this site, simply cut and paste
the document before pressing the send button and email a copy of it to: All submissions will be
published and posted in a special section for supporters of this Labor
Assembly Bill. By emailing your
letter you agree to have the letter published to the internet. Please include any special
instructions if you wish to have your name and address omitted in the posted
section. Thanks for your
support. CHARGEBACK
NEWS 4/20/2005: New Chargeback Assembly Bill (AB 1172) is passed by Assembly Committee (6 Ayes, 2 Noes) and is re-referred to Appropriations (to gauge fiscal impact of the bill before moving out to senate vote.). Vote: AUTHOR: Chu
TOPIC: Employment: wages. DATE: 04/20/2005 LOCATION: ASM.
L. & E. MOTION: Do
pass and be re-referred to the Committee on Appropriations. (AYES 6.
NOES 2.) (PASS) AYES **** Koretz,
Chan, Chu, Klehs, Laird,
Leno, NOES, **** Nakanishi,
Houston, ABSENT,
, ABSTAINING, , OR, NOT, California
Newspaper Publishers Association testifies they may be willing to Compromise
with the supporters of the bill. For more
bill information, or to sign up to track this bill: CHARGEBACK
NEWS 4/15/2005: The long running wage and hour ÒchargebackÓ fight arrives at the State Capitol. Chargeback legislation has been introduced through Assembly Bill 1172 which was amended April 7,2005 to provide guidelines within the labor code and strictly define areas that have been errantly overlooked by the California Court of appeals. In March 2005 the California Court of Appeals errantly upheld an employer wage assignment agreement that violates labor code 300(h), circumvents paycheck timeliness laws along with, labor codes 219(a) and Labor code 221 which prohibit setting aside employees rights through any type of contract, and the taking back of wages already paid to an employee. This Bill can prove to be an important paycheck protection for millions of California employees, should it pass and become law. California Assembly Bill 1172 (HTML) California Assembly Bill 1172 (pdf.) Chargebackconsultant.com founder, Toby Harris, has been requested by the Legislature to testify before the State Assembly committee (4/20/05) on this very important wage and hour issue. California
labor code poses problem for many employee compensation plans that use
chargeback of wages. The California Labor code strictly favors and protects the wages and earnings of your employees in the form of reliance laws. The reliance laws were designed in the early 1900Õs to protect the employeeÕs earnings knowing that the employee relied on his/her paycheck for the necessities of life (clothes, food, shelter, ect.) California
businesses are perched on the edge of possibly the most sweeping labor law
decisions of the new century. These cases have the ability to shift the
economic model and the way business is conducted in California
overnight. These cases will help determine how the workers of 21st
Century California will receive fair compensation for labor preformed (and
keep it). They are important cases and may soon be taught in California
law schools as a new branch of wage and hour law. The cases are backed
by a 60 year old labor code provision that has not been challenged or
enforced to any great extent by employee groups. Until now. In
recent court cases Chargebacks of employee wages have been challenged. The California Labor Commission takes
the position that any deduction not compliant with labor code is a do at your
own risk deduction. Plaintiff attorneys tend to favor wage and hour issues as
they are easy to certify for class action in the courts. In turn
these reliance laws stemmed out to protect against labor abuses.
California became one of the first states to implement daily overtime.
This was to protect against employers overworking their employees rather than
adding an additional shift of freshly rested employees. These types of
cost cutting measures have always favored the employee from a legal
perspective. SOME
CHARGEBACK DEFENSES: Everybody
does it. Many
companies argue that since Òeverybody does itÓ then it must be legal.
Nothing could be further from the truth. In fact itÕs quite the
opposite, this labor violation is so rampant that companies have come to
believe that this Òcorporate loopholeÓ is their right. In some
circumstances companies have built their business model around the need to
shift the Òbusiness risksÓ to the employees through the form of
chargebacks. Some companies argue they have such a thin operating
margin that they could lose their competitive edge, go out of business, or be
forced to relocate to another state. Again the violation you Òdo at
your own riskÓ The State laws just simply do not support the shifting of a
business risk and the taking of employeesÕ property in order for companies to
gain a benefit over the competition in the name of profits and bottom line.
Realistically corporate executives need to ask this question of their
practice: If the California court system allowed for the practice of
illegal deductions, would that then encourage companies to relocate to
California because California would be a known state that allows businesses
to shift the burden of loss to their employees in the form of unlawful
chargeback deductions? The only real thing in this scenario is the fact that a court
process server will eventually show up in your lobby to serve a complaint
from your employees. Again, Everybody does it, is only an excuse and
not a legal defense or remedy. The
Employees signed a contract and agreed to the chargebacks. You may
have a contract that the employees signed but it may not be worth the ink
that was used to sign it. California law strictly prohibits employees
signing away their statutory rights. We
deduct points from the commission report not money. Many
chargeback plans try to circumvent the law by using a complicated formula and
convert labor and production into a points system. Then do the point
deduction calculations in an Òoff bookÓ transaction that doesnÕt involve the
payroll or accounting departments. This way it appears that cash never
flows back into the company accounts from the employees directly. Of course
in contract law the ÒconsiderationÓ is what gives the contract value.
By telling the employee those points are worth money (whether that occurs in
the employment contract, employee handbook or sales training) and then taking
them away in a future earnings period after they have already been paid you
may violate California labor code 221. We
advance commissions and deduct unearned commission, when the customer cancels
or returns the product/service up to certain period of time. Many employers
argue at great length that they have contracts that employees have endorsed
that define any sales related payments made to employees on payday to be
merely ÒadvancesÓ of Òunearned commissionsÓ. Even though the employee may have preformed all of his
required job duties within the scope of his or her employment contract he or
she must wait a specific time period until the Òunearned moniesÓ fully vest
to become his or her property and not be subjected to chargebacks, because
that is his or her signed contractual obligation. The employee has a Òdetrimental relianceÓ on his paycheck. Under the statutes of frauds if a person has completed most of his duties under contract then the contract becomes fully enforceable. The employee cannot be held to further time limitations or vesting periods after he has preformed his part of the contractual obligation, it goes against the laws of partially preformed contracts (statute of frauds). WhatÕs
the risk? Depending on the monthly amount of deductions and the
number of employees the risks can be significant. The statute of
limitations for the violation is four years from the filing date. In a
class action keep in mind that former employees that have worked for your
business become part of the claim. In most sales positions there is a
high amount of turnover. The higher your turnover rate, the more class
members that you will pay to a prevailing class that challenges your pay
deduction practices. In a court victory your company could be subject to
triple damages in the form of restitution and penalties along with
interest. Find out more about the new: "Sue
Your Boss" Law. |
This
legal trend has already started Cases
won by Employees: RALPHÕS
GROCERY (Employees win chargeback case) THE RALPHÕS COURT OPINION B168257 NEW IKON Office Solutions, Inc. ** (Employees
win chargeback case) PDF of Tentative IKON Ruling #1 PDF of Tentative IKON Ruling #2 Nationwide Mutual Insurance Company- Settled $6,170,000 (Employees
settle for millions in reimbursements) Sprint-
Settled (Employees settle in the millions) Yellow Book (Employee chargebacks are ruled illegal by New York Supreme Court March 2004)- NEW NOTE: THE REASONING USED IN THIS CASE IS VIRTUALLY THE SAME AS THAT IN CURRENT CALIFORNIA CASES AT BAR. THERE IS NO BIG JUMP IN LOGIC HERE. DEFENDANTS WERE NOT ALLOWED TO CIRCUMVENT EXISTING LABOR CODE BY THE USE OF A PRIOR WRITTEN AGREEMENT SIGNED BY THE EMPLOYEES. Known
Cases still pending: Airtouch Cellular of California NEW AT&T/CINGULAR NEW Investor's Business Daily, Inc.** Investor's Business Daily, Inc. * IBD ENTERS APPEALS COURT PROCESS NOTE: FINANCIAL MEDIA: In a case that has
been pending before Enron was top headlinesÉ Did Toby Harris inadvertently
become a Whistleblower bigger than EnronÕs Sherron Watkins, by identifying
the most rampant labor violation in the last 100 years? Could Toby Harris be
the biggest Whistleblower in U.S. History as a result of the underlying cases
and the vast financial impact they could have? Do you want to cover
the story of the whistleblower that risked his own livelihood and sales
career to identify a rampant paycheck deduction violation that could lead to
over $20 Billion dollars of legal exposures and violations for most
California Corporations in a pending Supreme Court decision? Why did this Whistleblower spend close to half a decade to assist the California PlaintiffÕs bar in developing a legal argument that could help protect millions of California workers paychecks from their employers? Why did this
whistleblower spend close to half a decade fighting two multi billion dollar
news media companies from his 2-bedroom apartment becoming nearly destitute
in the process? OPEN
INVITATION FOR ALL FINANCIAL MEDIA TO ATTEND THE WRONGFUL TERMINATION TRIAL,
FOR A TELL-ALL OF WHAT ILLEGAL AND CORRUPT LABOR PRACTICES OCCUR INSIDE
INVESTORÕS BUSINESS DAILY: JUNE 20,2005 LA SUPERIOR COURT DEPT 46. Toby
Harris et al. v. InvestorÕs Business Daily et al. LA SUPERIOR COURT #BC269313
is set for trial June 20, 2005. For all Media Questions and Comments Contact: Eric Epstein, Esq. (310) 552-5366 Or Mark Thierman, Esq. (775) 284-1500 NEXTEL PACBELL RADIO SHACK/WIRELESS RETAIL/SC KIOSKS COMPLAINT- NEW NOV
2004 NEW NOTE: EMPLOYERS NEED TO NOTICE THAT A SINGLE
EMPLOYEE FILED THIS CLASS ACTION LAWSUIT. ALSO THIS COMPANY HAS NATIONAL OPERATIONS. WITH SIMILAR WAGE AND HOUR CHARGEBACK
LAWS IN TEXAS, NEVADA, ECT. THIS CASE COULD POTENTIALLY TEST NATIONAL
DIVERSITY IF REMOVED TO, OR FILED IN FEDERAL COURT IN ADDITION TO THE
CALIFORNIA CLAIM. SC KIOSKS ARE LOCATED INSIDE SAMÕS CLUB NATIONWIDE.
Trendwest NEW Verizon Wireless Services, LLC ** Verizon
Directory Sales Wal-Mart STEINHEBEL
ET AL V. LOS ANGELES TIMES Steinhebel v. Los Angeles Times (Supreme Court Case
Summary) What happens now in the LA TIMES CASE? NEW NOTE: PlaintiffÕs lose Appeal. Case being submitted for Supreme Court
Review. Case being submitted to
Rev. Jesse JacksonÕs HQ office in Chicago (www.rainbowpush.org) for civil
rights review. Be sure to check
back for soon to be published editorial on how this appeallete court ruling
sets back labor contracts by 100 years, to the age of Company towns, debt
bondage, and peonage. JAN 16,2005 CHARGEBACKCONSULTANT.COM CALLS FOR TOP LA TIMES MANGEMENT TO RESIGN. NOTE:
WITH OVER $7MILLION DOLLARS IN WAGES AT STAKE AND THE FUTURE OF NATIONAL WAGE
AND HOUR LAW HANGING IN THE BALANCE, THE LOS ANGELES TIMES EMPLOYEE
WAGE AND HOUR CHARGEBACK LAWSUIT HAS SCHEDULED FOR ORAL ARGUMENTS JAN. 27, 2005 IN LOS ANGELES
COURT OF APPEALS THIS
CASE MAY BE A GREAT EXAMPLE OF A CORPORATION GETTING CAUGHT VIOLATING LABOR
CODE, AND PROTRACTING THE BATTLE UP TO THE HIGHER LEVELS OF THE COURT SYSTEM,
UNTIL THEY GIVE BILLIONS OF DOLLARS IN LEGAL EXPOSURE TO EVERY CORPORATION
USING AN EMPLOYEE CHARGEBACK TRANSATION, IN THE ENTIRE COUNTRY, BY ARGUING A
CASE THAT COULD SET A NATIONAL WAGE AND HOUR PRECEDENT. SHOULD THE
PLAINTIFS PREVAIL AT THE APPEALS LEVEL THIS MAY BE A GREAT EXAMPLE FOR LAW
SCHOOLS TO TEACH ON HOW ÒSCORCHED EARTHÓ LITIGATION CAN COOK ALL OF COPORATE
AMERICA BASED ON A SINGLE ACTION. SHORTLY
AFTER FILING OF THIS COMPLAINT BY PLAINTIFFS, THE LOS ANGELES TIMES SHUTTERED
ITÕS TELEMARKETING OPERATION, CLAIMING THAT COST CONSIDERATIONS, NEW
COMPLIANCE ISSUES, ECT. FORCED THE CLOSING (COSTING APPROX 300 MINORITIES
THEIR JOBS). THEY OFFERED SEVERANCE PAYMENTS IN EXCHANGE FOR EMPLOYEES
SIGNING AWAY THEIR RIGHTS TO SUE AND HUSH AGREEMENTS. THEY RE-OPENED
THE TELEMARKETING OPERATION A YEAR LATER HIRING NEW STAFF IN A NEW LOCATION,
THE CHARGEBACK ISSUE REMAINS A ÒCONTINUING VIOLATIONÓ FROM PLAINTIFFSÕ
PERSPECTIVE AND POSITION. ALTHOUGH THE CLASS IS YET TO BE CERTIFIED,
THE ESTIMATED CLASS SIZE WILL BE APPROX 2000 EMPLOYEES UPON
CERTIFICATION. ORAL ARGUMENTS WILL BE HEARD ON JAN 27, 2005 AND
DECISION WILL OCCUR APPROX 90 DAYS AFTER BEING HEARD. THIS CASE IS IN FINAL
STAGES OF APPEAL. FINAL COURT DECISION OCCURING VERY SOON. IN
OUR OPINION LA TIMES UPPER MANAGEMENT SHOULD BEGIN UPDATING THEIR RESUMES OR
CVÕS SHAREHOLDER REACTION COULD AND SHOULD RESULT IN A MANAGEMENT REGIME
CHANGE, IF THE COURT FINDS ANY CORPORATE
WRONGDOING IN THIS MULTI-MILLION DOLLAR EMPLOYEE V. EMPLOYER WAGE BATTLE
AGAINST THE MULTI BILLION DOLLAR MEDIA GIANT WHICH TRADES UNDER THE SYMBOL:
TRIBUNE (NYSE:TRB) Jan. 27, 2005. EDITORIAL ON PEONAGE PUBLISHED 2/19/2005 TV SHOW 60 MINUTES EDITORIAL DEPT. REQUESTS INFORMATION ON PEONAGE FROM CHARGEBACKCONSULTANT.COM 3/4/05 MARCH 21, 2005 PLAINTIFFS FILE FOR SUPREME COURT REVIEW. MARCH 22, 2005 JOHN PURNER RESIGNS HIS POST! YOU ARE WELCOME LOS ANGELES;) EDITORIAL: PUBLISHED 2/19/2005 BY CHARGEBACKCONSULTANT.COM THE PROBLEM THE STEINHEBEL RULING CREATES First a basic historical thumbnail sketch for background: Aside from the forced labor of the African slave trade, there were also poor lower class white slaves from England that signed contracts that in trade gave them passage to America but they were made to repay the costs of passage by paying off their debts in the new country. This was done through a form of slavery called "indentured servitude" (a contractual form of slavery) after they worked off the debts they would receive "7 acres and a mule" and be free men. Be sure to apply adage ÒIf it sounds too good to be trueÉÓ This contractual labor indebtedness would take on many new forms after the abolishment of slavery in the United States. One way, was through "company towns" were the mining communities would offer great hope of "The American Dream" they would provide housing which the employee would pay off through his work contract, and give advances (in scrip) at the general store for life necessities, the employee would just agree to pay the debt off through his work contract. The employee would later find himself swimming in debt, and if he complained he was fired and kicked out of his house. This employee/employer labor contract that resulted in a creditor/debtor relationship was known, as "peonage" was a new form of indentured servitude. In 1910 many courts prohibited peonage as an unfair labor practice. An employee gets a job to provide for life needs not to become in debt to his employer. This prompted many of the "reliance laws" that came to protect an employee wages from his employer. The labor laws were crafted to make sure that an employee would be paid cash on his required payday, not advances, not payment in scrip, ect. Working an employee into a debt relationship with the company was against the law (And, yes Madeline Flier the $13 billion dollar company should absorb those losses not pile debt on to the impoverished employee, who has a reliance on his paycheck) Labor code 221 was put in place as a reliance law to prevent against "peonage." Employees cannot be contracted into debt servicing arrangements as a condition of labor. Have the courts erred? Yes (very badly in fact). And to the detriment of millions of working class Americans. Will this become a national media issue? Yes, it is an undermining of the 13th Amendment a fabric of our American society. Due to this court opinion, it is now okay for corporations to enslave their employees in chargeback debts according to the State of California as long as you have a signed contract that circumvents the labor laws that were set-up to prevent this from happening. Peonage has been given the green light by the California court system. So if you want to start a corporation be sure to do it in a State that allows for debt bondage, ArnoldÕs Òpro-corporateÓ California, Òwhere the labor laws mean nothing as long as you come to court with a corporate charter in hand.Ó This is the type of ruling organized crime has been waiting for, legalized peonage. ChargebackÕs do in fact create this illegal creditor/debtor relationship that was abolished in this country. Our opinion: sell your TRB stock; this ship will not be able to float after this argument is heard. This may be prove to be a bigger corporate melt down than Arthur Anderson was should this issue reach the civil rights leaders in the country. A company practicing peonage in this day and age? Appears like they are, and the courts are letting them in the name of not Òrocking the boatÓ to upset the large Òcorporate citizensÓ or the tax base in which they contribute. This is what happens when courts try to tow political agendas in opinionated rulings when they need to be enforcing law. Not a very good reason for allowing an abolished form of slavery in this day and age. Definition courtesy of INFOPLEASE.COM Peonage , system of involuntary servitude based on the indebtedness of the laborer (the peon) to his creditor. It was prevalent in Spanish America, especially in Mexico, Guatemala, Ecuador, and Peru. The system arose because labor was needed to support the agricultural, industrial, mining, and public-works activities of the conquerors and settlers in the Americas. With the Spanish conquest of the West Indies, the encomienda, establishing proprietary rights over the natives, was instituted. In 1542 the New Laws of BartolemŽ de Las Casas were promulgated, defining natives as free subjects of the king and prohibiting forced labor. Black slave labor and wage labor were substituted. Since the natives had no wage tradition and the amount paid was very small, the New Laws were largely ignored. To force natives to work, a system of the repartimiento [assessment] and the mita was adopted; it gave the state the right to force its citizens, upon payment of a wage, to perform work necessary for the state. In practice, this meant that the native spent about one fourth of a year in public employment, but the remaining three fourths he was free to cultivate his own fields and provide for his own needs. Abuses under the system were frequent and severe, but the repartimiento was far less harsh and coercive than the slavery of debt peonage that followed independence from Spain in 1821. Forced labor had not yet included the working of plantation cropsÑsugar, cacao, cochineal, and indigo; their increasing value brought greater demand for labor control, and in the 19th cent. the cultivation of other crops on a large scale required a continuous and cheap labor supply. To force natives to work, the plantations got them into debt by giving advances on wages and by requiring the purchase of necessities from company-owned stores. As the natives fell into debt and lost their own land, they were reduced to peonage and forced to work for the same employer until his debts and the debts of his ancestors were paid, a virtual impossibility. He became virtually a serf, but without the serf's customary rights. In Mexico a decree against peonage was issued in 1915, but the practice persisted. Partly to alleviate it, L‡zaro C‡rdenas instituted the ejido in 1936. In that year, too, debt peonage was abolished in Guatemala. In the United States after the Civil War, peonage existed in most Southern states as it had in the Southwest after its acquisition from Mexico. Not only blacks and Mexicans but whites as well found themselves enmeshed. By 1910 court decisions had outlawed peonage, but as late as 1960 some sharecroppers in Southern states were pressured to continue working for the same master to pay off old debts or to pay taxes, which some states had levied to preserve the sharecropping system. These companies have already had complaints filed against them for illegal chargeback deductions and are pending at various stages in the court system. Many are on their way to class certification, summary judgment or even appellate court. And some have even been decided. Over the next several months some of these companies may have to pay millions in restitution to their employees, and those are guaranteed to generate some negative press. And the chargeback lawsuits are just beginning to snowball. Ounce
of Prevention Take the time to contact
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chargeback lawsuit exposure. It could be the best business decision you
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