lundi 31 octobre 2016

Meijer Ditches Plus-Size Department To Attract More Plus-Size Customers: Wait, What?

At a time when clothing retailers are fretting over their business, there’s one segment of the market where sales are actually increasing: plus-size women’s clothing. Discount store Meijer is taking advantage of this change, and is changing things so the plus-size department will go away, and sizes XS through XXXL will be on the same rack together.

The change has already rolled out in 15 of the chain’s stores, and will eventually reach the rest in early 2017. The company’s vice president of softlines (which includes clothes) explained to the Wall Street Journal that the company’s goal is to make sure that “all customers should have the exact same experience at Meijer,” and that larger clothes in the women’s department shouldn’t be stuffed in the back and only available in a few boring styles.

The average American woman wears a size 16 to 18 now, and retailers are spiffing up their plus-size departments or selections to catch their attention, since that’s the only part of the clothing market that is actually increasing sales right now.

Modcloth, an online retailer planning to open its first retail store soon, recently did the same thing as Meijer: instead of having a virtual plus-size section, the company simply put all of its items together. If an item isn’t available in a smaller or larger size range, then it simply doesn’t appear when a customer searches by size. JCPenney has pinned some of its hopes on a new brand and nicer offerings in its plus-size department.

To Lure Plus-Size Shoppers, One Retailer Will Scrap Plus-Size Department [Wall Street Journal]

Opioid Poisonings In Toddlers & Teens Tripled Over 15-Year Period

We’ve already seen how the opioid epidemic has spread like wildfire in the U.S. since the late ’90s, but a new study shows how children of every age group are increasingly being exposed (and exposing themselves) to dangerous levels of these painkillers.

The study, published today in JAMA Pediatrics by researchers from the Yale School of Medicine, looked at data from more than 13,000 pediatric opioid poisoning cases between 1997 and 2012 and found that these potentially lethal incidents doubled during that timeframe for all patients age 19 or younger, with older teens and toddlers/preschoolers seeing the biggest increase.

According to the data, opioid poisoning hospitalizations for patients between the ages 1-19 rose by 294% between 1997 and 2009 before flattening out in 2012.

The largest group, representing some 74% of all pediatric opioid poisonings in 2012, was teenagers (15-19). In the 15-year timeframe of the study, poisonings from this demographic group increased by 303%.

The study also has data from this age group on whether or not the poisoning was accidental or a result of a suicidal/self-inflicted intent. Hospitalizations for both categories increased over the course of the 15 years, but suicide/self-inflicted poisonings remained the more frequent of the two throughout.

The study also looked heroin and methadone poisonings among the 15-19 age group, and though neither came close to opioids, they both saw dramatic increases between 1997 and 2012. According to the researchers, heroin poisonings in these teens increased by 161% while methadone poisonings soared by 950%.

“Methadone is among the most misused of prescription drugs and is commonly diverted for illicit (nonmedical) purposes, such as getting high or to enhance the effects of alcohol or other drugs,” explains the study, which does acknowledge that methadone poisonings appear to have plateaued.

While toddlers and preschoolers (1-4 years old) only represented 14.4% of poisonings in 2012, this age group nonetheless saw the most dramatic increase in incidents, up 317% since 1997.

“The current public health crisis caused by prescription opioids is a systemic issue that affects individuals across the age spectrum,” concludes the study, which says that in spite of recent efforts to curb overprescription and abuse of opioids, these “poisonings by prescription and illicit opioids are likely to remain a persistent and growing problem in the young unless greater attention is directed toward the pediatric community, who make up nearly one-quarter of the US population.”

[via StatNews]

Sonic Bringing “Pancake On A Stick” Back Next Spring

Is it too much for you to handle utensils in the morning? Sonic Drive-In thinks it has the answer in the form of a blast from the past: the chain is bringing back its previously popular “Pancake on a Stick” to restaurant menus this fall.

Perhaps in an attempt to surf the breakfast wave McDonald’s has been riding lately, Sonic’s CEO Cliff Hudson tells Business Insider that the morning mashup is set for a comeback. The menu item was first sold in 2002, and features a pancake wrapped around a sausage, and then stuck onto a stick.

RELATED, STICKWISE: 9 Outrageous Menu Items You’ll Only Find At A State Fair

Pancake on a Stick had many fans, BI notes, but the menu item disappeared from menus a few years after it first debuted.

Last year Hudson said he wasn’t at all concerned about McDonald’s entrance into the all-day breakfast arena, mostly because Sonic’s entire menu is served all day.

“They are doing breakfast all-day, but we’ve been doing all menu all-day forever, so this was not a big deal to us,” he said at the time.

But the return of the POAS may mean Sonic is ready to get serious about grabbing some more of those breakfast dollars.

Rumors Of DraftKings & FanDuel Merger Heat Up Again

Nearly four months after DraftKings and FanDuel shot down rumors they were considering a merger, those “people familiar with the situation” are once again whispering about wedding bells between the two largest players in the daily fantasy sports industry.

This is once again according to Bloomberg, whose sources say that DraftKings co-founder Jason Robins has already been tapped to head up the combined companies if a merger were to materialize. FanDuel’s co-founder, Nigel Eccles, wouldn’t be left out in the cold though; Bloomberg reports that he’d get the chairman of the board gig.

In recent years, both companies have scored lucrative exclusive partnerships with broadcasters and professional sports leagues. Flush with cash, they both went on a media blitz during the 2015 football season that made them both a household name, but also brought them a lot of undue attention, with attorneys general in various states questioning the legality of daily fantasy sports and reports of employees making significant amounts of money playing at competing sites.

The two companies basically offer the same product to the same target audiences, so why not combine resources? They could cut ad spending — which is good because people got really annoyed by the constant commercials — without having to split the audience or poach the other company’s customers.

The reason the first merger talks didn’t bear fruit, reports Bloomberg, is that there was tension over who would get to run the combined company. That appears to have been sorted out with the notion of splitting the CEO and Chairman gigs between Robins and Eccles, respectively.

There will most certainly be some concern about a merged DraftKings/FanDuel (DraftDuel? FanKings? DranKuels? Tronc?), which would control some 90% of the current daily fantasy market. We’re not sure what could be done to allay those concerns — perhaps giving up one or more of their exclusive partnerships to a smaller company?

That’s all a different worry for a different day. What’s interesting is the difference in the non-comments from June and the ones we received today.

In both instances, FanDuel said it wasn’t commenting, but in June the company said it was “not commenting on this speculation,” while the word “speculation” is notably absent from the one-sentence email we received this afternoon.

Likewise, DraftKings has tweaked its non-statement from earlier in the year. “These rumors have existed for as long as both companies have been in operation. We don’t comment on speculation,” said the company in June.

Now, the company tells us that “a potential combination would be interesting to consider. However, as a matter of policy, we don’t comment on rumors or speculation, and there can be no assurances at this time that any discussion about a combination would result in an agreement or merger.”

U.S. Demand For Coffee At A Record High Thanks To Millennials

I don’t know what you picture when you heard the word “millennial,” but me, I just imagine a crowd of companies and brands trailing behind someone, begging them to buy whatever it is they’re selling. One product that doesn’t need to chase the younger set is coffee, demand for which is expected to reach a record high in this country.

Americans are getting a taste for coffee at an earlier age, and not only that, young adults are drinking enough of the stuff on daily basis to make up for older people who have may have cut back, Bloomberg reports.

Not only is the 19- to 34-year-old set swilling coffee about 44% of the coffee consumed in the U.S., according to researcher Datassential, they’re seeking out caffeine earlier in life: adults born after 1995 started drinking coffee at 14.7 years old, while those born closer to 1982 first sipped the stuff around 17.1 years old, the group said.

While demand is going up, supply is tightening amid drought in Brazil, sending prices for arabica to their highest point since February 2015 last week.

Demand “has been running well above expectations, thereby tightening coffee markets significantly,” Harish Sundaresh, a portfolio manager and commodities analyst, told Bloomberg.

Coffee-Loving Millennials Push Demand to a Record [Bloomberg]

Twitter Users Frustrated By Disappearance Of “@-Replies”

When Twitter was created, there was no built-in way to indicate that you were Tweeting to a particular account, so users came up with the “@username” method for tagging others in their Tweets. In the decade since, the @- reply has gone from obscure shorthand to commonplace usage by hundreds of millions of people. But as part of Twitter’s recently announced changes, the @-reply is vanishing — and some folks are not happy.

Mashable reports that many of the users who have gotten their hands on the update have expressed confusion and frustration over the way their Tweets now appear with respect to conversations.

To some users, this change isn’t just confusing, it also seems to be an indication that the networking site doesn’t care about their input.

Sam Sharma, a producer for Playstation, Tweeted that users helped to invent the @(username) reply to show their acknowledgement of others and to keep some conversations less visible.

Others tell Mashable that new response makes it more difficult to pick and choose who they speak with, a method some say they’ve used to filter out harassing messages.

“The risk for me is greater than it is for some other users,”Tressie McMillan Cottom, a professor, tells Mashable. “And, my experience of the platform relies, to a significant degree, on my ability to navigate these fault lines. Without the security of knowing to whom I am replying, I cannot safely tweet.”

Because the changes are rolling out selectively at first, we’ll likely hear more complaints — and probably acceptance of the new system – in coming weeks.

Twitter first announced in May that it would allow users to express more on the site by simplifying what counts toward the character restriction in the “coming months.”

“So for instance, @names in replies and media attachments — like photos, GIFs, videos, and polls — will no longer ‘use up’ valuable characters,” Todd Sherman, senior product manager for Twitter, said in a blog post in May.

The 140-character limit was first used by Twitter because that was the limit for a single mobile text message. Tweeting by text was popular back in the pre-smartphone era of 2006, when the social media company first launched.

Twitter CEO Jack Dorsey previously said the 140-character limit will live on because it’s “too iconic” to get rid of.

A simple Twitter change has already led to confusion and frustration [Mashable]

Some Online Publishers Backing Away From Those Fake “Around The Web” Ads

The internet is covered in advertising.* It’s a fact of life. Some of that advertising, though, is a lot better — or at least, less completely sketchy — than other ads fighting for some time with your eyeballs. And since the sketchy stuff may make you think less well of the company running it, some media outlets are quietly disappearing the bars that always seem to end up full of “one weird trick” and bogus “celebrity death” stories.

That comes from the New York Times, which reports today that many sites are quietly doing away with some of the most misleading, silliest advertising we’ve all gotten used to seeing online.

You know the kind of ad the NYT is talking about. You’ve seen it all over the internet. This kind of ad usually says “promoted” or “around the web,” and hides itself by looking like any other “recommended” or “related” stories module. The latter direct you to content — usually on the same website or, in case of a network, perhaps on its sibling sites — that actually is either trending right now or particularly related to what you’re already reading. But the ads take you, well, anywhere.

The kind of ad-bar in question might look, for example, like this:

A screenshot from The Atlantic on 10/31/2016.

Slate and The New Yorker both recently stopped running those content ads on their site altogether after one too many incidents of, well, just being kind of unsavory.

Sometimes, the semi-targeted nature of the ads served up can create a total disconnect that has a distinctly adverse effect on readers. For example, the NYT calls up one instance where a Slate article about misogyny ended up with an ad for “0 Celebs Who Lost Their Hot Bodies” next to it. Another Slate article, about eating disorders, ended up with “6 Tips to Avoid Thanksgiving Weight Gain” advertised on it.

“It is not the right look if you’re trying to say you’re a high-quality, upper-tier website — if you have something like this on it — and I think it’s time for us to be honest about that,” Slate president Keith Hernandez told the NYT.

Companies Outbrain and Taboola are the biggest, says the NYT, but you may also have seen advertising sections from Revcontent (as in the screenshot above) or ZergNet float in around, too.

Executives for the content-serving companies, as you might expect, defended their business. Taboola CEO and founder Adam Singolda told the NYT, “The vision is to index the entire web and bring the best, most personalized stuff to people.” If it’s working right, it can “introduce you to thinks people may not even know about but like.”

Outbrain’s statement to the NTY was similar, saying its mission is to “help people discover content that they can trust to be interesting, relevant and timely for them.

Change Advertising, a non-profit dedicated to, as you might guess, changing advertising, analyzed content ads appearing on 41 sites and found that while just over 60% of the links did indeed go to some kind of legitimate advertiser or publisher, a solid 26% went to straight-up click bait content-aggregators that themselves went to more ads, including, as the NYT delicately puts it, “Sexually suggestive” or interruptive images.

(In short, yes: through bad advertising, the internet does quickly devolve to porn.)

The NYT looked at a handful of the links itself. While some led to legitimate content on partner sites, like the AARP, many went to sponsored “advertorial” content on otherwise-legitimate news sites, to fake news sites, or to information-harvesting clickbait sites with no real purpose other than to get your data to advertise to you even more.

So why is there, bluntly, so much crap being served up in these widgets?

It’s a matter of scale, mostly. Although Outbrain and Taboola both told the NYT they do vet content before it hits their networks, neither has much control over advertisers who redirect their URLs after their ads have been approved.

Likewise, neither can have every ad carefully examined by a human. Outbrain says it serves 200 billion recommendations per month, and Taboola claims 360 billion. Even though both have editorial teams and account managers to review the ads that get placed, that’s simply a scale that nobody can keep up with.

*Except Consumerist. We’re not!

Publishers Are Rethinking Those ‘Around the Web’ Ads [New York Times]

Nissan Has Great Sales, Pays Out Big Incentives And Rebates To Dealers To Get There

Nissan is one of the top auto brands in the country, which is nice and all, but the owner of the country’s largest chain of auto dealers gave us a peek under the hood to explain why he doesn’t like the practices that help get it there. Namely, the company gives huge rebates and incentives to dealerships that make their sales goals.

It’s these incentives that customers can use to their advantage by doing things like walking in at the end of the day or the end of the month, or trying to haggle aggressively. After all, if a five-figure bonus is on the line for the whole dealership, there should be room to negotiate on price, right?

The chain AutoNation deals with a variety of automakers, and CEO Mike Jackson told Bloomberg that he’s tired of the incentive bonus game.

“It’s a discriminatory, multi-tier pricing system that creates winners and losers among customers and retailers,” he told the news service. “The manufacturer is giving the perception that something’s available to everyone, but it’s not really.”

Other automakers either don’t use bonus programs, or have scaled them back in recent years. Nissan, however, pays dealers about $2,000 per car that they sell in retroactive bonuses.

Nissan May Win U.S. Sales But Biggest Dealer Doesn’t Like How [Bloomberg]

Shoppers Will Spend More Money On Carving Pumpkins Than On Buying Pumpkin Products

Every fall it seems like all anyone can ever talk about is “Oh I can’t believe someone is selling pumpkin spice potato chips” or “Really, do we need pumpkin spice shoelaces?” So it may be refreshing to know that when it comes to pumpkins, we’re spending more money to carve them up than we are on buying into the latest pumpkin-flavored craze.

First of all, let’s just note that “pumpkin spice” products don’t necessarily contain pumpkin flavors: instead, they’re often redolent of spices simply associated with the gourd, like cinnamon, ginger, allspice, cloves, and nutmeg.

That being said, Americans will spend about $650 million this year on pumpkins that they’re not planning on eating, MarketWatch reports, citing a prediction from personal finance site

The site arrived at that number by multiplying the average price of a pumpkin in September 2016 ($4.35) by the percentage of people who said they’ll carve a jack-o-lantern this year (46% of Americans), according to the National Retail Federation.

In comparison, pumpkin-flavored product sales — anything from pie filling to dog food — are expected to reach $424.5 million this year.

All told, Halloween will be more expensive for shoppers this year in general: we’re predicted to spend $8.4 billion on the holiday (not including pumpkin spice products), a sharp uptick from the $6.9 billion we shelled out on candy, costumes, decorations, greeting cards, and yes, actual pumpkins last year.

If you thought the pumpkin spice craze was a bit much, look at this number [MarketWatch]

McDonald’s Will Pay $3.75M To Settle Franchisee’s Alleged Labor Violations

Two years after the National Labor Relations Board General Counsel declared that McDonald’s could be held responsible for franchisees’ bad labor practices, the fast food giant has agreed, for the first time, to pay $3.75 million to settle a lawsuit that claimed the company was liable for labor law violations by a California franchisee. 

McDonald’s will pay about 800 employees at five California restaurants $1.75 million in back pay and damages, as well a $2 million in legal fees to settle the allegations.

The settlement [PDF], which must still be approved by a judge, puts an end to a two-year old lawsuit that alleged McDonald’s and the franchisee — Smith Family LP — were jointly liable for a slew of California labor law violations, including failing to pay overtime and providing meal time, failing to keep accurate pay records, and not reimbursing workers for time and money spent cleaning uniforms.

In a separate and earlier agreement, the Smith Family franchisee agreed to pay $500,000 to the workers.

McDonald’s — and other companies that prescribe to the corporate/franchisee model — argued that it merely licenses its brand and products to the Smith Family, and the franchisee was responsible for complying with rules related to hiring, wages, and hours.

But two years ago, the NLRB General Counsel determined that McDonald’s HQ exerts such an influence over its franchisees that it should be treated as a joint employer alongside the franchisees. That means the company could be held liable if its franchise owners run afoul of labor laws.

While the General Counsel decision didn’t necessarily set a standard for all franchised companies, it did mean that McDonald’s HQ would have to defend itself in dozens of McDonald’s-related cases that the General Counsel believes have merit, including the one filed in California.

McDonald’s, of course, said at the time that it would fight the ruling.

And it did. As for the California lawsuit, McDonald’s filed more than 30,000 documents that allegedly proved it was not liable for the franchisee’s violations. On the flip side, the Smith Family produced 100,000 documents that claimed the corporation was a joint employer.

Reuters points out that last year, a judge ruled that McDonald’s was not the plaintiffs’ joint employer under federal and state law. But the judge noted that the company could still be held liable if employees thought McDonald’s was their employer.

Despite the recent settlement, a rep for the Golden Arches tells Reuters that the company maintains it is not a joint employer, and that it simply “entered into this mutually acceptable resolution to avoid the costs and disruption associated with continued litigation.”

According to the settlement, in addition to paying $3.75 million to settle the suit, McDonald’s must train the franchisee to use corporate software designed to ensure compliance with California’s employment laws.


[via Reuters]

Supreme Court Asks Feds To Chime In On Decade-Old “Dancing Baby” YouTube Case

Creator Of Breaking Bad’s “Pollos Hermanos” Logo Suing Sony Over Merchandise

If you’re a fan of Breaking Bad, you’re undoubtedly very familiar with the show’s Los Pollos Hermanos — heck, you might even go so far as buy a T-shirt with the fictional restaurant/meth factory’s logo on it. And that’s exactly why the artist who created the restaurant’s logo is suing Sony Pictures: he says the company made money off merchandise featuring the Los Pollos Hermanos logo without his permission.

The man created the image in 2008 for the show’s fried chicken joint that served as a cover for Gustavo Fring’s drug operation, Courthouse News reports. But he claims in a federal lawsuit that his contract with Sony Pictures only gave the studio permission to use the image in the show, not to license it or peddle merchandise bearing the image.

He’s also suing Topanga Productions, a distributor and subsidiary of Sony, claiming that the company has been licensing T-shirts, hats, and other merchandise featuring the Los Pollos Hermanos logo.

So why is he suing now, two years after the final episode of the show? He lives in Mexico, and says he was unaware of the alleged trademark infringement until the fall of 2015.

He’s seeking an accounting, profits, damages, and an injunction that would bar the companies from selling anything with the logo on it.

‘Breaking Bad’ Artist Says Sony Went Too Far [Courthouse News]

Is Migraine Relief Worth $83 Per Pill To You?

While you might pay any amount of money for relief in the middle of a migraine headache, patients and insurance companies alike have their ceilings. That’s why it’s a problem when drug companies take old components and combine them into a “new” drug that isn’t so new at all… if you had just bought those pills separately.

The $83 migraine pill is a good example: marketed as Treximet, it combines two generic drugs, sumatriptan and naproxen. The Wall Street Journal interviewed a migraine sufferer about her drug-shopping experience, since she had been prescribed Treximet, and her health insurance company would no longer pay for it. Her choice: pay 750 for a prescription of nine pills or…there were two other choices that she didn’t know about.

The manufacturer, Pernix Therapeutics Holdings Inc., has a patient assistance program where users can get the drug at a lower price; participants in these programs typically can’t be receiving their insurance from a government source (for example, military families or patients on Medicare.) THe other option, and what she went with: have her doctor prescribe the two older drugs in the pill separately, with no copay for either.

The drugmaker argues that combining the two drugs in one pill is more convenient. That’s true, but how much is that convenience worth? Treximet isn’t the only drug that combines existing products. Other examples that the Wall Street Journal cites are Acanya, Duexis, and Qsymia.

Drugmakers Turn Cheap Generics Into Expensive Pills [Wall Street Journal]

Butterball Help Line Now Lets Customers Text Questions

Three years after Butterball revolutionized its Turkey Talk help line by adding male operators for the first time, the company is once again revamping how it helps those cooking a turkey for the big holiday: not talking to them at all. Rather, they’ll be texting. 

Business Insider reports that for the first time in its 35-year history Butterball will allow answer-seeking cooks to spell out their questions via text messages.

With more than 100,000 questions coming in to the Turkey Talk line each year, the company decided it was best to open other modes of communication.

“We’re just evolving based on consumers’ needs,” Sue Smith, Butterball’s talk line co-director, tells Business Insider. “It’s the natural progression for the talk line.”

Cooks with questions ranging from how big of a bird they need, to how to thaw their turkey can text the Talk line at 1-800-Butterball 24/7 starting Nov. 17 and ending Nov. 24.

It’s unclear how the 50 operators will split their time between calls and text messages, or how long of a turnaround cooks can expect when receiving answers.

Text messages are just the latest advancement for Butterball. In addition to adding male operators to the Talk line in 2013, the company also now answers questions on Facebook and Twitter. It also posts how-to videos on YouTube.

Butterball Turkey help line is getting a big update this year [Business Insider]

Self-Described “Simple Man” Pays $9M For License Plate

While here in the U.S. you can get a personalized license plate, having “ILUVCHEEZ” on your bumpers won’t break the bank. Outside of the U.S., however, there are folks willing to drop millions to get just the right message on their luxury vehicles.

Like the property developer in Dubai, United Arab Emirates, who wanted a license plate bearing only the number “5” so badly, he bid 33 million dirhams — $9 million or so — to get it at a government auction this month, CNNMoney reports (warning: link contains video that auto plays).

That still isn’t as much as the $14 million an Abu Dhabi businessman spent on a plate in 2008, however.

The new owner of the plate says some folks are accusing him of wasting money, because, well, $9 million is not a petty sum.

“It’s hard, people giving comments without knowing the type of person I am,” he told CNNMoney, describing himself as “a simple man.”

He says that because Dubai doesn’t have income tax, he sees the price he paid for the plate as a contribution to the public coffers and go toward things like charity and improving the city’s infrastructure.

“I believe in giving back,” he said. “This city has given me a lot.”

Meet the man who spent $9 million on a license plate [CNNMoney]

The Tiny Home Market Isn’t Booming Despite What TV Tells You

It’s a novel idea: spend less on a smaller, often portable, home and and have extra money to travel, pay off student loans, or simply move from one place to another. But despite popular TV shows hyping this “tiny home” movement, the folks who build these diminutive dwellings downplay talk of a miniature housing boom.

The Los Angeles Times reports that while shows like Tiny House Hunters or Tiny House, Big Living depict a thriving tiny home market, with customers forgoing large homes with several thousand square feet and opting for small, usually one-room abodes. Yet the companies that make these small homes say they aren’t exactly flying off the shelves.

“There are so many ­roadblocks out there to selling them,” Lee Saenz of Adventure Cabins explains to the Times. “If they want to buy it, they don’t have the land. If they have the land, it’s not zoned for a tiny home. Or they don’t have enough cash.”

Saenz started his company in 2011, and specializes in rustic, but state-of-the-art homes for less than $50,000. Yet in the last five years, he says he’s only sold five homes.

Oregon-based Tiny Smart Home has the ability to deliver one tiny home a month to customers, but that’s not happening. Instead, in five years, the company has sold just a dozen houses.

Pew Charitable Trusts, which analyzed the tiny home craze in 2015, found that while the homes offer a “cheap and energy-efficient” option for consumers, they are hard to live in legally.

Although the smaller homes could be a great fit for dense, urban areas, many city laws and zoning ordinances don’t allow for the smaller homes.

For example, some cities adhere to laws that require new single, family homes to be at least 1,000 square feet, significantly larger than the typical 100 to 400 square feet tiny home.

Additionally, because many of the small houses are made on trailers — affording owners the ability to move from one place to another — some cities consider the homes to be mobile, and restrict “camping” on land for extended periods of time.

While tiny houses make for great TV, Steven Marshall, owner of Little House on the Trailer, is realistic about his industry.

“There are quite a few urban legends out there about what you can build and where,” he tells the Times. “It’s a revolution that probably won’t happen.”

Tiny-home market more bust than boom [The Los Angeles Times]

Reminder: Please Don’t Scatter Human Remains At The Opera

It’s understandable that someone would harbor a lifelong love of the opera, an affection that could lead one to wish they could stay at the theater forever. But New York police say one opera fan’s expression of devotion went a step too far when he scattered what seems to have been his mentor’s ashes during a performance at the Metropolitan Opera.

The impromptu farewell cut off a performance of “Guillaume Tell” on Saturday at Lincoln Center, the New York Daily News reports.

Investigators say it appears that an opera buff dumped his deceased friend’s ashes into the orchestra pit.

“Members of the orchestra … noticed an individual in a suit who approached the orchestra pit, reached into a bag, removed a powdery substance, sprinkled that into the orchestra pit, moved further down, reached into the bag again, sprinkled more of this substance into the orchestra pit,” NYPD Deputy Commissioner for Intelligence and Counterterrorism John Miller tsaid.

The city’s health department will test the substance to confirm exactly what it is, officials say.

Police said the man simply left after dumping the ashes, and that it didn’t appear that “he had any reason to believe what he did was wrong,” Miller said.

Audience members were none too pleased to find that the show had been canceled before the final act, witnesses say. A Met staffer later informed the audience that no one had been hurt, but that the show couldn’t go on.

“They booed him. He couldn’t even get all of his words out,” one audience member told the Daily News. “Somebody was yelling, ‘I want my money back! I want my money back!’”

The Met also canceled a performance of “L’Italiana in Algeri” that was scheduled later that night due to the investigation.

Metropolitan Opera House audience member may have tossed his dead mentor’s ashes into orchestral pit [New York Daily News]

More States Legalizing Pot Could Force Feds To Do Something About Bank Access

Operating a store selling a product that’s legal in your state but illegal on the federal level creates a unique business challenge: running a business without being allowed to use banks. Yet ballot initiatives on Election Day, just over a week from today, could make recreational or medical cannabis legal for recreational or medical use in 34 states, and for both in populous states like California and Massachusetts. Could this push the feds to do something about the banking situation?

The situation right now is an inconvenient one

Ryan Dearth
: cannabis businesses have a special tax deposit area with elaborate security procedures in Oregon, and some businesses in Colorado literally launder their money — giving it a soak in fabric softener to get rid of the telltale smell before depositing it in a bank.

Some retail businesses set up bank accounts in the names of holding companies, but the cash-only rule applies to customers, too: they can’t use credit cards. Everyone knows that dispensaries are stuffed with cash, so they need serious security. Even then, there have been 600 reported robberies just in Denver since the legalization of recreational marijuana in Colorado in 2013.

Got bank? Election could create flood of marijuana cash with no place to go [Reuters]

Southwest Airlines Giving “No Thought Whatsoever” To Checked Bag Fees

Southwest Airlines is the only one of the largest U.S. commercial airlines that does not charge for customers to check bags, meaning the company is missing out on this multibillion-dollar revenue stream. While Southwest CEO Gary Kelly acknowledges the need to bring in more money for his business, he says his company has no plans to lose its “bags fly free” identity.

“We have a unique and beloved position in the industry with this approach,” Kelly explained about the lack of a mandatory checked-bag fee during a recent quarterly earnings call, “and we would be foolish to squander it, so no thought whatsoever on charging bags.”

Some Southwest investors are pressuring the company to ditch its longstanding no-fee position, especially as its most recent quarterly net income came up nearly $200 million short of the same quarter last year.

Kelly blamed some of this most recent financial trouble on the massive network-wide outage that grounded much of the airline in July.

He also explained that because of the current competition on some ticket prices, Southwest hasn’t been able to increase its airfares to recover lost revenue.

“The fare environment is very competitive and we have seen an increase in competitor seats in our markets that is fairly significant year-over-year,” he explained.

The CEO, who has also been under pressure from the airline’s unions to resign, claims he does have a plan to bring in more revenue, but that he won’t tip his hand at this point, calling the plans “not ready for prime time.”

“I’d rather not share with our competitors where we see opportunities,” said Kelly.

Southwest Airlines to stay an outlier on baggage fees [Seeking Alpha]

Southwest Airlines seeks more revenue, but rules out bag fees [L.A. Times]

Luxury Retailers Offering Fewer Handbag Choices This Holiday Season Amid Lack Of Demand

Luxury labels are having a rough go of it lately, what with fewer tourists flocking to department stores and slowing traffic at standalone stores. So if you’re looking for a wide variety of handbag options this holiday season, you might be limited in your choices: the luxury retailers that usually peddle high-end handbags are trimming their lineups.

Millennial shoppers aren’t as into the whole luxury thing, Bloomberg reports, and department stores have continued to see traffic slow down. So in order to survive the holiday season, retailers are introducing fewer new lines, instead of throwing a whole bunch of choices at shoppers, one analyst for the fashion industry said.

“Reducing the number of products, making sure they are choosing their products really smartly, can help make sure they’re getting full-price sales rather than discount,” she told Bloomberg.

To that end, the number of new purses introduced by Nordstrom and Bloomingdales dipped 23% and 3% respectively, which is in contrast with an uptick of 5% and 11% the year before. Barneys had 41% fewer new lines in the third quarter of this year compared to a 46^ in 2015.

In the meantime, brands like Coach, Michael Kors, and Kate Spade are turning away from selling to department stores in an effort to reinvigorate the luxury aspect of their brands.

Handbag Sellers Slashing Their Lineups as Luxury Demand Wanes [Bloomberg]

Apple Discontinuing MacBook Startup Chime

One of the most instantly recognizable sounds in electronics may be about to go the way of “You’ve Got Mail,” as Apple is reportedly doing away with it signature startup sound on its Mac computers.

Business Insider, citing blog, reports that the single note chime did not migrate to Apple’s newest MacBook Pro announced last week.

The chime-less startup is likely the result of the way the new MacBooks turn on: with no power button, the computer simply starts anytime the cover is lifted.

Additionally, a FAQ page for the older Macs indicated that the “startup sound” was a way to reset a computer’s non-volatile random-access memory. A mention of the chime sound is not included in the new MacBook FAQ page. writer Dan, who owns one of the new laptops, points out that the writing was on the wall for the chime’s discontinuation, as Apple’s newest products, including the iPhone, don’t have startup sounds.

Still, Business Insider notes that the chime had been a part of Apple’s computers for almost as long as Apple has made computers: the tones began singing from devices in the 1980s, and were reconfigured to today’s chime in 1998 with the iMac G3.

Here’s the sounds all Mac users will be missing (if they buy the new MacBook):

And for a trip down memory lane, here are the different variations of Apple’s startup chime through the years:

Apple Says Goodbye To The Startup Chime with the New MacBook Pro []
Apple is killing off its iconic startup chime [Business Insider]

CenturyLink Snapping Up Level 3 For $34 Billion To Make Internet Service Voltron

Boo! If you think mergers and acquisitions are scary, than two huge companies have a special Halloween morning treat for you: CenturyLink and Level 3 announced this morning that the former is acquiring the latter for $34 billion.

The merger is huge in internet-land, but not for the service you can sign up for at home. That’s the territory of “last mile” providers. And while CenturyLink does provide home and business service, in the same way as Charter, Comcast, and Verizon FiOS do, the deal is largely not about that.

The real impact is farther up the chain. Both CenturyLink and Level 3 are big “tier 1” networks, basically a vital part of the internet backbone in the U.S., connecting networks to other networks quickly and reliably.

This merger, then, further consolidates CenturyLink’s status as one of the biggest, most important internet-supporting companies in the country, keeping it competitive with AT&T and Verizon, among others.

In short, it’s all about the fiber: CenturyLink gets about 200,000 miles’ worth of network from the deal.

“The digital economy relies on broadband connectivity, and together with Level 3 we will have one of the most robust fiber network and high-speed data services companies in the world,” CenturyLink CEO Glen Post said in his statement. “This transaction furthers our commitment to providing our customers with the network to improve their lives and strengthen their businesses. It is this focus on providing fiber connectivity that will continue to distinguish CenturyLink from our competitors.”

Post, naturally, also lauded the benefits for shareholders from “significant synergies,” “financial flexibility,” and “strong cash flow,” because that’s what business is for and what investors want to hear.

vendredi 28 octobre 2016

Should Police Need A Warrant To Obtain Your Cellphone Location Data?

On TV and in the movies, when the police want location information on a suspect’s cellphone, the world-weary detectives just mosey into the office of a wireless company and bully/sweet-talk the receptionist into handing over this information by saying things like “You don’t want us to have to wait here while we get a warrant, do you?” In the real world, it’s not that simple, and the question of whether or not an actual warrant is needed has yet to be resolved.

The U.S. Supreme Court has recently been asked to hear a pair of similar but currently separate cases that involve suspects accused of robbery (why can’t these appeals ever involve more pleasant people?), but which also get to questions about the extent our constitutional privacy protections in the smartphone era.

Graham v. U.S.

The first of the two cases, Graham v. U.S., began with the police investigation into a string of armed robberies in and around Baltimore in early 2011. Aaron Graham and another man were arrested after being spotted in outfits and driving a vehicle that matched the description of the robbers in one incident.

After Graham was arrested, police suspected he was connected to other robberies in the area and obtained court orders to get the cell site location information (CSLI) for his phone from Sprint. This court order covered more than 200 days and some 29,000 points of information related to Graham’s movements.

He was ultimately charged with multiple counts of felony firearms possession, robbery, and other charges. In April 2012, he was found guilty by a jury.

On appeal to the Fourth Circuit, Graham argued that the CSLI data should not have been admitted into evidence.

The court order used to obtain these location records was granted under a Stored Communications Act (SCA) request.

To obtain a court order under SCA, law enforce is not required to demonstrate probable cause, but only that there are “specific and articulable facts” and “reasonable grounds to believe” the information sought will be “relevant and material” to an investigation. This is a lower standard of proof than is needed to obtain a search warrant.

The SCA also explicitly lists the sort of data that a wireless provider can be forced to turn over under such a court order: the user’s name, address, call records, length of service with that provider, phone number, and means and source of payment. The law does not include or exclude location data, nor does it spell out when an SCA-based search would require a warrant.

In Aug. 2015, the majority of a three-judge Fourth Circuit appeals panel agreed with Graham [PDF], ruling that the search of his CSLI records without a warrant violated his Fourth Amendment protections against illegal search and seizure.

“We hold that the government conducts a search under the Fourth Amendment when it obtains and inspects a cell phone user’s historical CSLI for an extended period of time,” explained the court. “Examination of a person’s historical CSLI can enable the government to trace the movements of the cell phone and its user across public and private spaces and thereby discover the private activities and personal habits of the user. Cell phone users have an objectively reasonable expectation of privacy in this information. Its inspection by the government, therefore, requires a warrant, unless an established exception to the warrant requirement applies.”

At the same time, the panel concluded that the lower court was right to allow the location records into evidence because law enforcement had acted in good faith by using the SCA court orders to obtain the data.

Even though the appeals court upheld Graham’s conviction, its ruling set a precedent — at least in the area covered by the Fourth Circuit — that law enforcement should obtain an actual search warrant for CSLI data going forward. Federal prosecutors disagreed, and appealed the panel’s decision to the entire Fourth Circuit.

Last May, the court issued an opinion [PDF] overturning the appeals panel ruling. The full Fourth Circuit concluded that “an individual enjoys no Fourth Amendment protection in information he voluntarily turns over to a third party.” So, because Graham’s location was already being shared with Sprint, he could have no reason to expect that Sprint would consider that data private.

“The Government did not surreptitiously view, listen to, record, or in any other way engage in direct surveillance of Defendants to obtain this information,” reads the ruling, which explains that the government might indeed be violating someone’s privacy by using technological devices to track their location, but that this was not the issue with Graham, where the CSLI data was used after the fact to check his locations against robberies he was suspected of being involved in.

“No government tracking is at issue here,” continues the opinion. “Rather, the question before us is whether the government invades an individual’s reasonable expectation of privacy when it obtains, from a third party, the third party’s records, which permit the government to deduce location information.”

Carpenter v. U.S.

The second case that the Supreme Court could take up involves Timothy Carpenter, a man convicted for his alleged role in a string of robberies in Ohio and Michigan in 2010 and 2011. Once again, police used SCA court orders to obtain phone records — this time from MetroPCS and T-Mobile — that were used at trial to demonstrate Carpenter and his alleged accomplice’s locations at the times these robberies occurred.

Unlike the Graham case, where a federal appeals panel initially ruled that such a warrantless search was unconstitutional, a Sixth Circuit Court of Appeals panel held in April 2016 [PDF] that while the law does protect individuals from warrantless searches of the content of a message, there is no expectation of privacy for “the information necessary to send” that message.

“The Fourth Amendment protects the content of the modern-day letter, the email,” explained the panel. “But courts have not (yet, at least) extended those protections to the internet analogue to envelope markings, namely the metadata used to route internet communications, like sender and recipient addresses on an email, or IP addresses.”

Similarly, ruled the Sixth Circuit, location data is a “business record” that falls outside the scope of Fourth Amendment protection.

“Those records say nothing about the content of any calls,” ruled the court. “Carriers necessarily track their customers’ phones across different cell-site sectors to connect and maintain their customers’ calls. And carriers keep records of these data to find weak spots in their network and to determine whether roaming charges apply, among other purposes. Thus, the cell-site data—like mailing addresses, phone numbers, and IP addresses—are information that facilitate personal communications, rather than part of the content of those communications themselves. The government’s collection of business records containing these data therefore is not a search.”

The Appeals

Lawyers for both Graham and Carpenter have petitioned the Supreme Court to finally decide this matter and hope that the nation’s highest court will reach the conclusion that SCA court orders are not adequate for obtaining cellphone location data.

The Graham petition [PDF] notes that the location data collected by the police in this case was so extensive as to paint a picture of virtually every move Graham made over a seven-month period:

“These records included information on 20,036 calls, 14,805 of which included location information,” reads the petition. “These 14,805 calls showed the government 29,659 location points. This data revealed an average of 134 location points per day, or approximately one location point every 11 minutes for seven months. Taken together, these records allowed the government to create a 221-day surveillance map of Mr. Graham’s movements at all times of the day and night, both inside and outside his home.”

This is because, unlike landline phones — or the few mobile phones that were in existence when the SCA was written 30 years ago — most of us now carry our cellphones with us all (or nearly all) the time.

Thus, contends the petition, “CSLI implicates privacy issues far beyond any location tracking case this Court has yet considered. Cell phones are only useful when carried in close proximity to their users, meaning that the location of a cell phone is a near-perfect proxy for the location of a person.”

The petition also contends that while the SCA was written during the very early days of the mobile phone era, the legislators who wrote the law were not imagining devices that are anything like your typical smartphone.

“In 1986… what is now routine was the stuff of science fiction,” argues Graham’s lawyers. “Mobile phones had only been commercially available for two years, at a cost approaching $4,000 per handset. The technological capacity to monitor and store location information for wireless calls would not even exist for about ten years, when the government and telecommunications providers entered into a joint protocol to develop and deploy hardware and software that enabled law enforcement to track people’s location using their cell phones.”

Because there is no overriding precedent that clearly states that all law enforcement is (or isn’t) required to get a search warrant, you end up with a patchwork of legal standards around the country, argues the petition.

“In Florida or New Jersey, whether the government must use a warrant or a subpoena depends on whether the request comes from federal or state agencies,” explains the Graham petition. “In Pennsylvania and Delaware, this issue is left to a magistrate judge’s discretion. In other jurisdictions, federal judges have asked for guidance from this Court, even though they have found that the Fourth Amendment’s warrant requirement does not apply.”

This argument is echoed in the Carpenter petition [PDF], which notes that the “five courts of appeals to consider the Fourth Amendment status of historical CSLI have generated 18 separate majority, concurring, and dissenting opinions, highlighting the need for this Court to act.”

“Without guidance from this Court, a cell phone user cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority,” continues that petition. “As law enforcement seeks ever greater quantities of location data and other sensitive digital records, the need for this Court to speak grows daily more urgent.”

Today, the Electronic Frontier Foundation, the Brennan Center for Justice at NYU School of Law, the Center for Democracy & Technology, the Constitution Project, and the National Coalition to Protect Civil Freedoms filed a joint amicus brief [PDF] that applies to both the Graham and Carpenter petitions.

The brief notes that, because wireless providers must be able to locate users in order to transmit data to their devices, phones are nearly constantly connecting to cell towers — anywhere from every few seconds to every few minutes. Thus, contend these organizations, CSLI data is not merely a byproduct of making a phone call, but a way to effectively track a user’s movements.

“Cell phones generate CSLI even in the absence of any user interaction with the phone” because of apps running in the background, explains the brief, which also points out that CSLI data has now gotten so specific as to be able to locate someone within 50 meters of their actual position.

The brief also paints a picture on the huge — and growing — number of CSLI requests made on wireless providers in the U.S. For example, Verizon is currently receiving around 50,000 CSLI requests a year, around two-thirds of which the company says are warrantless. The brief reminds the court that each CSLI request could seek information about multiple account.

“The amount of CSLI generated as a result of society’s reliance on cell phones means that law enforcement has access to an incredibly detailed picture of people’s private lives and associations,” explains the brief, pointing to a 2013 ACLU analysis that was able to use the CSLI data to figure out when Graham’s wife was probably visiting her OB/GYN.

“CLSI can give law enforcement far more information about a person’s movement than GPS tracking—cell phones go everywhere their owners go,” explains EFF Staff Attorney Andrew Crocker in an emailed statement. “If GPS tracking implicates Americans’ Fourth Amendment rights, prolonged cell-site data collection — which provides sensitive details about where we went, who we met with, and what we did —should also be protected against warrantless searches.”

There’s no guarantee that the Supremes will take up either or both of these cases. Lawyers for the federal government have yet to file their responses to either petition.

One Woman Dead In Hawaii Scallops Hepatitis A Outbreak

The likely 50-day incubation period is over, and there have been no new cases of hepatitis A linked to contaminated scallops served at sushi restaurants in Hawaii since Oct. 9. The state reports that two people who were infected with the linked strain of hepatitis have died, though only one patient’s death was due to the infection.

One of the women who died while infected was already terminally ill and had entered hospice care, so her death wasn’t officially attributed to the infection.

The other was a woman in her sixties who died last week due to complications of liver failure. She had the same strain of hepatitis that was linked to the scallops, and had eaten at the restaurant blamed for the outbreak, Genki Sushi, back in July. Hawaii News Now reports that she was waiting for a liver transplant at the time she died. (warning: auto-play video at that link)

“Unfortunately we’re now dealing a woman who died from eating food,” said Bill Marler, the lawyer and food safety website publisher who was representing the woman who died and other victims in this case. “And in the United States in 2016, that shouldn’t be how it is.”

Hepatitis A is now part of the childhood vaccination schedule, which is why foodborne outbreaks don’t tend to affect children. Out of the 291 total known victims of this outbreak, 289 were adults. Out of those, 73 of the victims were hospitalized.

Two Hepatitis A victims in Hawaii confirmed dead [Food Safety News]

American Airlines Flight Catches Fire After Aborting Takeoff In Chicago

An American Airlines flight preparing to takeoff from Chicago’s O’Hare International Airport blew a tire and caught fire Friday afternoon following a reported engine malfunction. 

The Chicago Sun Times reports that all 170 passengers and crew members on their way to Miami were able to exit the plane via emergency slide.

A spokesperson for the airline said that no injuries had been reported and that passengers were bussed to the terminal.

The incident occurred at around 2:35 p.m. ET as the plane was preparing to depart. The airline said in a statement that takeoff was aborted because of an engine-related mechanical problem. However, a tire also blew and a fire ignited.

Chicago Fire Department officials responded to the scene, distinguishing the fire by 3 p.m., the Sun Times reports.

Federal Aviation Administration officials issued a ground stop for all planes arriving at O’Hare. Departing planes are experiencing a gate hold, with delays of up to 30 minutes and rising.

The agency says it is investigating the incident.

Passengers waiting at O’Hare began Tweeting photos of the plane and smoke shortly after the incident occurred.

Plane catches fire at O’Hare, but passengers and crew make it off [Chicago Sun-Times]

Toyota Latest Carmaker To Invest In Car-Sharing Company

Following in the footsteps of rival carmakers BMW and General Motors, Toyota dipped its tires into the sharing game on Friday, announcing an investment in car-sharing company Getaround. 

Reuters reports that Toyota made an unspecified investment in the San Francisco-based startup through its Mirai Creation Investment Limited Partnership, which focuses on increasing the carmakers’ presence in artificial intelligence and robotics.

The investment, rumored to be around $10 million, marks the carmaker’s second when it comes to ride or vehicle sharing. The company already has a partnership with Uber that involves leasing vehicles to drivers.

Getaround launched in 2013 and has been offering on-demand car-sharing services in San Francisco, Chicago, Washington, D.C., and other cities ever since.

Friday’s investment comes after BMW launched its own service called ReachNow in Seattle in June. Before that, in January, General Motors introduced its own so-called personal mobility brand, Maven, in the U.S. and Germany.

Toyota invests in U.S. car-sharing service [Reuters]

Veteran Accuses American Airlines Of Illegally Barring Her Service Dog From Plane

Last year, American Airlines issued an apology to a retired U.S. Marine after the veteran said he and his service dog were denied boarding a flight. While the airline put that incident behind it, it’s now facing a similar complaint from an Army vet who has accused the airline of mocking her and refusing to let her travel with her licensed service dog.

The Mississippi woman says in a recently filed lawsuit against American Airlines that she was “emotionally crushed and humiliated” when airline employees mocked her and refused to allow her to fly from Kansas to Mississippi with her service dog, Jake.

According to the lawsuit [PDF], the woman — who developed post-traumatic stress disorder from her time in the Army — followed all of the carriers’ directions when it came to traveling with her service dog.

The carrier’s website stated that “service animals are welcome on all flights. There are no additional charges for service animals traveling in the cabin.”

The plaintiff says that her previous experiences with American had been uneventful and the airline had abided by its own stated policy. That is, until Oct. 25, 2015, when she claims she was forced to miss her flight because verbally abusive American employees refused to let her board.

Shortly after arriving at the Manhattan, KS, airport an American Airlines agent approached the woman and allegedly asked the plaintiff, “Ummm, are you trying to fly with that?” in reference to the service dog, who was wearing a service vest with license attached.

According to the complaint, the plaintiff tried to explain that Jake was a service animal and that, yes, he would be on the flight. The agent then asked for “documentation” and took the passenger’s ID and disappeared. When the agent returned, she announced that the veteran could not fly with Jake.

At that point, the woman asked to speak with a supervisor, who agreed “brusquely and rudely” that “you’re not flying with that, we are canceling your flight.”

The woman was then told she needed to speak to an unidentified “SAC” department on the phone. That rep, according to the lawsuit, was “extremely rude and abusive” toward the passenger. At this point, the woman was told her only options were to pay $125 to fly Jake as cargo or to submit service animal documentation and rebook in 48 hours.

However, the woman contacted the American Airlines’ service hotline, and was told that Jake was already registered as a medical alert service animal, and no further documentation was necessary.

By this time, the woman was forced to miss her flight. But, the lawsuit claims, the issues hadn’t been resolved, as the gate agents returned and “verbally assaulted” her, asking “what is your disability anyway?” and “what service does he provide you?”

The passenger, now agitated and stressed, cursed at the agent, who then called the police. While the police did not get involved in the incident, they remained present until the woman left the airport.

When the woman returned the next day after rebooking her trip and having a customer service rep note that she was traveling with her service animal, the lawsuit states she faced another round of harassment from agents. And again, she was denied boarding and missed her flight.

She made arrangements to fly to Mississippi through a different airport, but was contacted by American Airlines and promised to get home from the Manhattan airport. She finally arrived home 48 hour after the initial flight.

The lawsuit alleges negligence and claims that the conduct by American Airlines violated the Americans with Disabilities Act.

A rep for the airline tells the New York Daily News that they could not comment on the lawsuit as it was pending litigation. However, the carrier did note that American’s senior manager of Military and Veterans Programs reached out to the woman shortly after the incident.

Former Chipotle Manager Says He Was Fired For Refusing Wage Theft

A former Chipotle manager worked hard and rose through the company’s ranks, and then he says that he had a decision to make after opening of a new restaurant: he could commit wage theft against his employees, or he could risk losing his job and the relocation bonus he had just received. He chose the latter, and is now speaking out about his experience with wage theft at the burrito eatery.
He spoke to CNN about his experiences (warning: auto-play video at that link), detailing his six years with the company, starting as a teenage burrito-maker and ending his career with the company clashing with his own bosses as a store manager.

He first served as a manager at a very profitable restaurant in St. Louis, and says that bosses didn’t especially care about his anti-wage theft stance there.

He says that he was expected to erase the overtime hours of any employees who worked more than 40 hours per week, and no one particularly cared about his argument that doing so was unethical as well as illegal. The company allegedly fired him for
“unacceptable performance” a month after he moved to a different state to open a new restaurant.

He isn’t alone in this: there are currently more than 10,000 plaintiffs who have signed on to a class action against Chipotle. The employees are suing the company for similar patterns of wage theft and being encouraged to clock out and keep working if they wanted to move up in the company.

A Chipotle spokesman wouldn’t talk about the allegatons except to say that the wage theft accusations were not the reason for his firing, and that “All of [Chipotle’s] policies clearly require that employees are paid for all of the time they work.”

My Chipotle nightmare [CNN] (Warning: auto-play video at that link)

Judge: George Washington Did Not Care About Biometric Data Storage

We live in a world that’s constantly throwing new technology, new business, and new quandaries at us. Facebook, Google, Amazon, Uber, Twitter, and the smartphone that we use to access them all on either didn’t exist, or existed very differently, as recently as a decade ago. The framework for our legal system, however, was built in the 18th and early 19th centuries. And that means sometimes trying to apply to the latter to the former can result in entertaining, if accurate, dissonance.

And in fact, a case against Facebook is exactly how we get to a federal judge in San Francisco this week explaining that George Washington basically did not give two whits about the details of biometric data storage, Courthouse News reports.

The discussion came up during a hearing about a privacy-related class-action suit Facebook is trying to have dismissed. The core issue behind the case has to do with facial recognition. You know how when you upload a photo, Facebook automatically suggests people you should tag in it? The case is about that thing.

(If you don’t like that thing, you can opt out of or into having Facebook suggest your face in tags under the “Timeline and Tagging” section of the Facebook settings page.)

The plaintiffs’ claim is that in order to make that feature work, Facebook has to measure, collect, and store information about your face: its dimensions, its features, how far apart your nostrils are, and so on: data. Lots of data.

Those are biometric markers, the plaintiffs argue, and collecting them without making specific disclosures and obtaining adequate releases in in violation of BIPA, the Illinois Biometric Information Privacy Act of 2008.

Facebook wants the case dismissed, and filed a motion (PDF) to that effect in June. Facebook’s argument for dismissing the case relies on large part on another case recently heard by the Supreme Court, Spokeo v. Robins.

We explained the Spokeo case back in April. The TL;DR of it is, a man (Robins) who found that information information-aggregator Spokeo had, sold, and shared about him was incorrect sued over it. Spokeo countered that because he couldn’t prove specifically if or how he was harmed, he didn’t have the right to sue them. And so it went, through ruling and appeal all the way up to SCOTUS.

In May, the Justices in Washington ruled 6-2 that basically the lower court had not proven its case to the satisfaction of the law, and would have to try again.

The majority opinion held that the harm caused by incorrect data may be concrete (real) whether or not it is tangible — that you can indeed suffer real harm even if you can’t point to a ledger sheet and say, “that’s the $3308.27 this error cost me, right there.” But the lower court didn’t analyze the law enough to determine whether or not Robins’ particular claims met the concreteness standard, so SCOTUS kicked it back down without determining whether or not he actually suffered harm.

That is the background against which we find George Washington unexpectedly popping up in the hearing about the dismissal motion, Courthouse News explains. U.S. District Judge James Donato, who rejected an earlier motion for dismissal in May, heard arguments for and against this new motion this week.

And of course, as so often happens, part of it came back around to Constitutional law. Facebook argued that the privacy claims — that having your data aggregated, used, and stored in this way is harmful — have basically always been rubbish under the law, coming back around to Article III of the U.S. Constitution, and how it undergirds the case (or not).

And with the Constitution, we circle back to the group of men who wrote, signed, and initially enacted it.

“A couple of justices are focused on what happened 200 years ago,” Donato said. “What opinion does George Washington have on this? There are historical realties that simply don’t overlap.”

He also said that the Spokeo argument “impresses me for its utter lack of novelty,” saying that the question is entirely one of standing under Article III, and not related to the actual question of harm.

If he does rule in favor of Facebook on the motion to dismiss, Donato added, he will likely remand two of the class actions, which originated in state court in Illinois and California, back to those state jurisdictions — meaning the cases wouldn’t go away, they’d just be heard elsewhere and argued under different law.

Court Scoffs at Facebook Insight of Founders [Courthouse News Service]

Wrigley Gum Selling For 1908 Price, Ignoring History Of Chicago Cubs & Wrigley Field

The Chicago Cubs are looking for their first World Series win since 1908, so the folks at Wrigley Gum are celebrating the Series return to Wrigley Field by selling chewing gum at 1908 prices. What this cash-in promotion glosses over is the fact that the Wrigley name had nothing to do with the Cubs 108 years ago.

Starting today, Mars says that a small pack of Wrigley gum will cost $0.05 for the duration of the World Series.

“The last time the Chicago Cubs won the World Series it was 1908, when Teddy Roosevelt was in office, radio and TV hadn’t yet been invented and the price of a pack of Wrigley gum was 5-cents,” the company said.

To get the discounted price, customers must download a coupon for $0.30 off a $0.35-cent five-stick pack of any Wrigley’s gum, including Doublemint, Juicy Fruit, Spearmint, Winterfresh, or Big Red.


While Mars and Wrigley gum are no doubt enjoying the Cubs’ return to the World Series, it should be noted that any connection between the gum and the 1908 team is tenuous.

For starters, in 1908 the owner of the Cubs wasn’t anyone named Wrigley, but instead Charles Weeghman. The Cubs also didn’t play anywhere near the current Wrigley location. Instead, they played at West Side Park, located by what is now the University of Illinois at Chicago campus.

As for what we know now as Wrigley Field, it wasn’t even around when the Cubs last won the Series in 1908. The park that would eventually become the Friendly Confines opened in 1914, and was home to Weeghman’s other team, the Chicago Whales of the short-lived Federal League. The Cubs moved to the stadium in 1916, and it was renamed Wrigley Field in 1927.

Additionally, the Wrigley company itself did not actually own the team or stadium. Heir William Wrigley Jr. became a minority owner of the Cubs in 1916 and took a majority ownership in 1921. The family sold the team and stadium in the 1970s to the Tribune Company. Both the team and stadium are now owned by the Ricketts family. The gum, of course, is now owned by candy conglomerate Mars.

How Well Do You Remember What Happened This Week?

Between the World Series, the election, the start of the NBA season, finishing up your Halloween costume, that one friend’s improv show that you somehow got wrangled into attending, the impending Daylight Savings shift, and that spot on your knee that you’re sure wasn’t there a week ago — you’ve got a lot going on. But have all those distractions kept you from retaining the things you read in the last few days?

Last week we went easy on y’all and it showed in the results, where the median score was a record-high 75%. Was that a fluke, or do you have it in you to repeat your C-grade performance for a second week?

Take the Consumerist Quiz and find out!

Feds Shut Down Telemarketing Scam That Pitched Money-Making Schemes & Bogus Grants

As wonderful as it might sound, odds are that no one is trying to call you to give you free money, and anyone who dangles a get-rich-quick scheme in front of you should be quickly ignored. Yet federal regulators say  telemarketers tricked seniors and veterans out of their money with these sorts of scams.

The Federal Trade Commission Friday announced that it had charged three individuals and five companies with operating a telemarketing scheme that sold worthless money-making opportunities and phony grants to seniors, veterans, and consumers already strapped with debt.

According to the FTC complaint [PDF], the companies — identified as Blue Saguaro Marketing,, Max Results Marketing LLC, Oro Canyon Marketing II, and Paramount Business Services LLC — misled potential victims by promising that they could make easy money.

The scheme generally took on two different variations: the telemarketers would claim to be with Amazon or the federal government.

In the first variation, which began in the fall of 2014, the complaint alleges that the companies would falsely claim they represented Amazon, and promised customers an easy money-making opportunity.

In exchange for fees ranging from several hundred to several thousands of dollars, the companies would offer to create a website linking to where victims could earn thousands of dollars every month in commissions from sales.

The telemarketers promised to advertise the websites and use search engine optimization to drive customers to it.

In reality, the FTC complaint alleges that the companies had no affiliation to Amazon and did nothing to create tailored or even functional websites for consumers.

The second variation began in mid-2015. According to the FTC, the telemarketers called potential victims, claiming to represent the government, and informed them they were eligible for government and corporate grants to help pay for home repairs, medical costs, and paying down debt.

To determine how much a consumer was eligible for, the companies would ask for a victims’ personal information, such as age, employment, and driver’s license and credit card numbers.

The companies asked for thousands of dollars up-front and falsely promised that consumers would receive grants worth tens of thousands of dollars in 90 days.

Once a customer was on the hook for a grant, the telemarketers would use a tactic called “reloading” to sell additional grants. This was typically done by promising victims that they could quality for a larger grants by forming a limited liability company.

Consumers received no money from these schemes, according to the FTC. Victims who called the defendants to complain were ignored, and the defendants provided no refunds.

At the FTC’s request, a federal court temporarily halted the operation. With the complaint, the agency seeks to end the alleged illegal practices and obtain money for victims.

UK Employment Tribunal Rules That Uber Drivers Are Employees

The question of whether drivers for Uber and other app-based ride-hailing services is an international one, since the service relies on the same independent contractors model around the world. In the United Kingdom, an employment tribunal ruled that drivers for Uber, specifically, should have “employee” status, which includes minimum wage and paid time off.

The case concerned two individual Uber drivers, but the general union GMB actually brought the case to the tribunal. “This is a monumental victory that will have a hugely positive impact on drivers… and for thousands more in other industries where bogus self-employment is rife,” the union’s legal director said in a statement.

Uber plans to appeal the decision, which could affect its competitors, as well as food delivery services that use an independent contractor model for labor. That would be an expensive proposition for the companies, especially since lawyers are currently caclulating how much back pay the drivers might be due.

The tribunal’s verdict was that a driver’s shift begins when he or she logs in to the app and is ready to accept assignments, not just when the driver has a paying fare, and minimum wage would be based on time logged in.

Uber’s UK general manager told Reuters that the decision only affects the two drivers named in the case, but the company plans to appeal it anyway.

UK tribunal rules Uber drivers deserve workers’ rights [Reuters]

Facebook Allows Advertisers To Exclude Users Based On “Ethnic Affinity”

Advertisers have always targeted their marketing to the demographic most likely to be interested in their product, but is there a difference between running an ad that you know will probably mostly be seen by people who fall into just one ethnic group and an ad that actively excludes people outside of that group?

That’s the question underlying a new story from ProPublica, which looks at the ability for Facebook advertisers to target users based on their “Ethnic Affinity.”

The social network’s settings for ad buyers can be quite granular, allowing you to specify things like education, income and net worth, and the aforementioned ethnic affinity. It also lets you set exclusion rules for your ad based on many of these same categories.

So, for example, you can target users with college degrees and net worths of between $200,000 to $500,000 while excluding users with net worths higher than $750,000 whose ethnic affinity is Asian-American.

Where this gets particularly problematic is when it involves advertising for things like job openings or housing, where excluding a particular ethnic demographic could be viewed as discriminatory, in violation of federal laws.

To test Facebook’s ad system, ProPublica actually went through the process of purchasing an ad targeting people who were likely to move or otherwise seem interested in buying a house, while excluding users with ethnic affinities of African-American, Asian-American, or predominantly Spanish-speaking Hispanic.

The Fair Housing Act prohibits the printing or publishing of any ad involving the sale or rental of a dwelling that “indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.”

In spite of this, notes ProPublica, its ad was approved by Facebook within 15 minutes with no changes.

Facebook defends the Ethnic Affinity category, saying it’s not the same as ethnicity or race, and in fact Facebook does not know a user’s race. Instead, a user’s Ethnic Affinity is based on their interactions on the site: the content they share and interact with.

“We take a strong stand against advertisers misusing our platform: Our policies prohibit using our targeting options to discriminate, and they require compliance with the law,” the privacy and public policy manager at Facebook tells ProPublica. “We take prompt enforcement action when we determine that ads violate our policies.”

He contends that advertisers use the Ethnic Affinity categories to test different marketing to different audiences. Spanish-speaking or bilingual Hispanic users could be targeted with a Spanish-language ad, while others would get the same ad in English.

But language is different from ethnicity and only the Hispanic Ethnic Affinity has subgroups regarding the language they prefer; the Asian-American category, for instance, does not reflect that these users could primarily speak or be bilingual in any of the many languages spoken in Asia. Additionally, there is a separate line item in the advertising settings for “Language.”

Civil rights lawyer John Relman looked at Facebook’s exclusion settings and told ProPublica that, i his opinion, using these tools to restrict who sees a housing-related ad “is about as blatant a violation of the federal Fair Housing Act as one can find.”

Facebook says it is planning to move the Ethnic Affinity category out from under the “Demographics” header, but if advertisers are still able to use the category to exclude users, this change will probably not quell critics’ concerns.

Patent Troll Sues Basically Anyone Who Notifies You When Your Package Ships

It’s a process most of us are familiar with, by now: you buy something online, and you get two emails from the site you bought it from. The first is an order confirmation, with an invoice, order number, or order summary in it. The second, a few hours or days later, is a shipping notification: a heads’ up that the package is coming your way, with info about what carrier is bringing it and when you can expect your goods to land at your doorstep.

Sending you a shipping notice may seem like a basic, common-sense thing that basically any business with an interest in customer service could independently come to the idea of making a part of its process. But one company claims to have patented it, and is suing anyone who resists demands to pay up for infringement.

As the Wall Street Journal reports, Shipping & Transit LLC has sued more than 100 small companies this year for infringing on patents it claims to own: namely, the idea that you can notify customers when their stuff has shipped.

If it seems a little suspicious to you that a company you’ve never heard of is holding small businesses over a barrel and demanding remuneration for doing something sensible, well, you’re right. Trust that instinct, and hold onto it, because Shipping & Transit is, in fact, a notorious patent troll.

Back in August, EFF did a deep dive on some of the many (many) suits involving the Shipping & Transit currently in progress. The long and the short of it is, Shipping & Transit’s entire business model is that of the classic patent troll: claim you own a thing, and threaten to sue people who probably can’t fight back.

This year alone, the WSJ reports Shipping & Transit has been the largest filer of patent lawsuits in the country, with 101 on the books. (The runner-up has 85.) That number doesn’t include businesses that paid up when they first received a threat, instead of waiting to be sued.

The majority are small companies like the Spice Jungle, featured in the WSJ’s story. The Michigan-based company, which has 15 whole employees, was shocked when one day it received a demand to pay up $25,000 for the continued right to send shipping notices to customers. When it didn’t pay, it shortly found itself on the receiving end of a lawsuit from Shipping & Transit.

“We have studied every line of every patent they claim we infringe on and we clearly do not,” one of Spice Jungle’s co-owners told the WSJ.

That’s not to say that Shipping & Transit isn’t also going after the big guys; it is. The WSJ reports that it has indeed sued major retailers as well as UPS and FedEx directly, claiming the same violations of patents for “providing status messages for cargo, shipments and people.”

The CEO of another small business told the WSJ they were “iterally losing sleep over this,” adding that the $25,000 demanded by Shipping & Transit is equivalent to an employee’s entire salary. That Connecticut-based business gave up and settled with Shipping & Transit, because “to fight it would have cost more than settling.”

That’s exactly what Shipping & Transit is banking on, the WSJ explains: fees between $25,000 and $45,000 are big enough to hurt small businesses, but not so large that most will find it economical to fight it out in court. Lawyers, after all, are expensive, and filing fees add up.

The American Intellectual Property Law Association told the WSJ that in these instances, just getting trough discovery — the phase of evidence- and testimony-gathering that comes before any court date happens — costs an average of $358,000. Even taking the lower-cost option of going directly to the new Patent Trial and Appeal Board costs $23,000 just to file a claim.

Shipping & Transit claims to have received all its patents between 1993 and 2006. A co-owner told the WSJ that 29 of his original 34 patents have expired, but that anyone using the last five, or that used the others when they were still active, owes him money.

He also strongly rejected the “patent troll” moniker, when the WSJ asked him about it. “Most of the time a troll is somebody who has bought somebody’s patents,” he told the paper. “Because I am the inventor of these patents and have been involved in it, it is a stretch to say that I am a troll.”

So is he actually legit? Well, legally speaking, it’s not quite clear.

The Supreme Court ruled unanimously in 2014 that you cannot just patent the idea of doing a thing. In order to be awarded a patent, you actually need to be patenting the mechanism for doing that thing. So you can’t patent the idea of using an algorithm or piece of code to handle your process (the issue in the original case), but you can patent the specific code you have written in order to do that.

Several of the cases the EFF is tracking involve counterclaims, called Alice motions, based on that ruling (the case was Alice Corp. v. CLS Bank International). In the meantime, though, no court has actually yet ruled on the merits of any of Shipping & Transit’s many cases. So far they have all been settled or dismissed before any judge had to decide if the patent claims are legitimate.

America’s Biggest Filer of Patent Suits Wants You to Know It Invented Shipping Notification [Wall Street Journal]