Weinberger Law Newsletter – October 2020

Better Times Are Ahead 

Never before in our nation’s history have we faced the level of uncertainty and feeling of insecurity that many of us face now. As we take steps to establish a solid footing, including in our businesses, the ground often seems to shift yet again.  Many describe their business experiences over the past few months as akin to being on a roller coaster.

There is a reason why attorneys are often referred to as “counselors.” Our mission at Weinberger Law is to help you ride those waves and get through them as smoothly as possible.  Our job is to not only advocate for your position in court, but also to counsel you through times like this.  I want to assure you – during this time in particular – that we take this part of our job very seriously, and will be here for you whenever you need us.  Better times are indeed ahead.  Let’s ride the waves together.

 

 


7 Signs You May Need a Mediation 

Oftentimes, cases come to us that present genuine legal issues, but are better candidates for mediation rather than litigation. Mediation is a voluntary process in which a neutral party – the mediator – tries to facilitate a compromise or settlement between the arguing parties. The mediator does not make a decision on who wins and who loses, but rather, only acts as a facilitator trying to bring the parties to an agreement.

Here are some questions to ask yourself:

 

  1. Do you not want to pay, or cannot pay, substantial legal fees?

If you are facing potential litigation, you may be asked to post an initial retainer of somewhere between $5,000 and $50,000, depending on the size and complexity of your case.  That is just the initial payment.  Once those funds have been exhausted, and each time thereafter when they are, you will need to make an additional deposit. Most mediations, in contrast, can be concluded within just one day, and at a cost of somewhere between $2,000 and $5,000 total, depending again on the complexity of your case and the personalities involved. That amount is typically split 50/50 between the parties, which, without a doubt, makes mediation a huge cost-saving option.

 

 


Want a Porsche? Got a printer? Problem solved.  

Have you always wanted a $140,000 Porsche 911 Turbo, but don’t have $140,000? Not to worry. After all, if you have a printer at home, Porsche money is not an issue. Push that luck and try to buy 3 Rolex watches the next day though, and you might not be able to drive your new Porsche for long.

Earlier this year, a Florida man decided it was Porsche-time, even though his bank account said it definitely was not. Unphased by this reality, Casey William Kelley, perhaps as a mid-life crisis response to being 42, put his own computer and printer on the case. He printed a cashier’s check for the full cost of $139,203.05 and headed to the car dealership. As you can see in the picture of him proudly posing next to the 911 Turbo, he “bought” the car. Did we forget to mention the picture is evidence obtained by the Walton County Sheriff’s Office? Keep reading because their investigation didn’t stem from the pretend-“dead presidents” Porsche purchase.

Knowing that a fancy, luxury sports car driver is not complete without a fancy, luxury watch…or 3…Kelley set off to a jewelry store the following day, $61,251 cashier’s check in hand. Understandably, and even without knowing about the shopping trip the day before, the jeweler decided not to release the Rolexes until they knew the check Kelley presented would clear. Thankfully, the bank had closed for the day already. But when it opened the next day, the bank staff had a story to share – apparently Kelley had passed several of his homemade checks around town. The jewelry store’s next call was to the police, who promptly arrested the Porsche and Rolex fan – a man who wanted to have nice things no matter the cost, as long as it didn’t cost him anything).

Casey William Kelley allegedly told authorities that he did indeed print the checks from his home computer, and according to the arrest report, “Casey stated he didn’t know what the big deal was, and that since it was his account number on the check he printed out, it should be fine.” Guess he forgot the part about the money he was spending actually being in the account with that number – Casey William Kelley didn’t let a little thing like that get in the way of his dreams!

His charges from this particular shopping spree were grand theft of a motor vehicle and fraud under Florida Statute 831.09 (uttering forged bills, checks, drafts, or notes); the latter in itself is a felony of the third degree. Last time we checked, Kelley was being held at the Walton County Jail on a $10,000 bond. This isn’t the first time he has seen the inside of a courtroom for grand theft, and in 2011 he pled no contest regarding his participation in a billing scam during the construction of a school for which he was the project manager.


Brian is an excellent attorney
He is very effective. He a quickly addressed and negotiated a solution to the situation we were in. He was firm and direct with the other side and got the opposition to agree to his terms. I was impressed! I would be happy to work with Brian again.

-Michael Thuleen 

Brian is honest and a get it done attorney
I was dealing with terrible tenants and his no-nonsense approach got them out, and my rent paid. I am so glad that I found him!

-Cindy Ellis 

Brian took on a problem that I had that was lingering for years
He mediated and negotiated with a high degree of skill and professionalism. He also negotiated a very satisfactory outcome for me. He showed no fear and stood tall until the opposition agreed to his terms. I was impressed!!
If you have a legal issue or question…Call Brian Weinberger!!

-Shelly Gerard


Protecting Your Company’s IP: From Google Engineer to 18 Months in a FedPen 

With fierce competition between technology companies, protecting intellectual property (IP) in that industry is paramount. Not doing so could mean significant investments of time, money, raw materials, and prototype production, as well as the contributions and work of employees, could be futile or the return on those investments much less. The effect of leaked IP isn’t always so dramatic, especially if it is caught early enough and dealt with using the legal system. This, however, is not one of the mundane examples. Pull the shoulder restraint down and lock it in place for the twisting, turning roller coaster ride of an infamous Google engineer.

Anthony Levandowski, former self-driving car engineer for Google, was a key figure in a lawsuit between Uber and Waymo that started about 4 years ago. On August 27, 2019, he was federally indicted on 33 counts of theft of trade secrets. On March 19, 2020, he agreed to plead guilty to the last count only, which specifically related to the Chauffeur Weekly Update. He also confessed to downloading thousands of files full of IP about Project Chauffeur.

In early August 2020, he was sentenced to 18 months in a federal penitentiary. He will also pay restitution of just over $756,000 to Waymo and a $95,000 fine. In addition to this criminal case, there have been civil proceedings, as well as a lawsuit filed by the man himself. There are many more intricate, back-and-forth details of the Uber-Waymo case, and questionable actions or beneficial relationships involving Levandowski, which you can read about here. Below is an overview of how this case unfolded and the timeline of events.

Levandowski is (or was, perhaps, at this point) a serial entrepreneur and an engineer, who in 2009, co-founded Project Chauffeur, the original moniker for Google’s self-driving venture, and court documents show he made approximately $127 million from the company for his work on the project. Chauffeur Weekly Update was a document including, in part, financial and teamwork goals and outcomes, and information on over a dozen technical issues the Google engineers had identified and overcome – clearly valuable information for any new venture working on the same type of autonomous driving project. Levandowski saved the intelligence to his personal laptop on January 17, 2016, resigned from Google 10 days later, then retrieved Chauffeur Weekly Update. When he left, he took 3 other employees with him and started Otto, an autonomous truck driving start-up. Tyto Lidar, a developer of sensing technologies, was bought by Otto on May 1, 2016. Otto was acquired by Uber for $680 million less than 8 short months later. This seems like a hefty amount to some, and these people wonder if Uber was aware of the stolen Project Chauffeur Weekly information, making Otto more valuable. This is just speculation, of course.

Two months after the company was purchased, Google made 2 arbitration demands against Levandowski, and although Uber wasn’t a party in either one, due to their indemnification agreement, Uber was required to defend Levandowski. He was forced to file bankruptcy after a $179 million amount was negotiated. In February 2017, during the arbitration period, Waymo filed a separate lawsuit, claiming Levandowski (while working at Uber) stole trade secrets and that Uber infringed on Waymo’s patent.

In addition, it came to light during the arbitration that Levandowski was secretly involved with 3 self-driving companies that competed with Google at the same time he was working there, including Odin Wave, Tyto Lidar, and Otto.

  • Odin Wave, which was registered to a Levandowski-owned Berkeley, CA address.
  • Tyto Lidar, which Odin Wave merged with in early 2014, and whose manager at the time was friends with Levandowski. Google mentioned an interest in working with Tyto, yet he didn’t disclose his relationship with that company or Odin Wave.
  • and Otto, for which Levandowski tried to pilfer other Google employees during meetings at his home in the time prior to him leaving, a fact not mentioned during exit interviews. Since he was making plans to leave Google as far back as 2015, it seems he was holding off on doing so until the final payment for his work at the tech giant.

 

Although the arbitration case went to trial, it was settled in 2018, on the conditions that Uber would not use Waymo’s confidential information in their software or hardware, and Uber would pay just over $244 million, a figure calculated using a percentage of its Series G-1 valuation. This background information is vital to the lawsuit Levandowski filed.

Part of his lawsuit – which was filed shortly after the end of the Waymo-Uber case – hopes to force Uber to cover the $179 million from arbitration. Although full terms of the settlement between Uber and Waymo have not been made public, it is known that an agreement stating Uber would not work with Levandowski again was part of the terms. This provision means that Uber would renege on an agreement made during the Otto acquisition to support a new business venture by Levandowski in the trucking industry. The deal stated that he would control the trucking company and be a chairman, and that Uber could give him exclusive license to use both Otto’s and their autonomous driving technology if the company decided not to engage in said trucking business.

Levandowski alleges that neither happened, and instead Uber made threats about not making a decision on the new business which would compel him to start litigation to enforce their previous agreement; then Uber supposedly “coerced Mr. Levandowski to resign from Otto Trucking and to sell his interest in the company at a significant discount”. Otto Trucking, which used to be called Uber Freight, has been shopping around a $4 billion valuation to investors, while Levandowski claims he should receive earnouts of at least $4.128 billion. In essence, he wants it all. He is also hoping Uber will be forced to pay the $179 million he owes from the Google arbitration. Without prevailing on the indemnification claim he made against Uber, there is no way Levandowski can settle his bankruptcy (which includes that hefty amount).

He also claims he wasn’t alone in taking autonomous driving IP from Google, and his lawsuit shares the findings of an independent expert – Uber’s self-driving software code suffered from issues that could mandate an agreement for licensing Waymo’s IP. In fact, Levandowski goes as far as claiming that he didn’t even work on software at either Uber or Google, and he is aware of Uber and Waymo previously settling trade secret thefts from others. As his lawsuit explains it, “Those trade secrets did not come from Mr. Levandowski, but rather a different former Google employee”. No names were given. Levandowski, and only Levandowski, was charged in August 2019 with 33 counts of theft and attempted theft of Google trade secrets. This upset his business deals, and drove him to remove himself as CEO from Pronto, the trucking company he co-founded, that was working on a driver assistance system for trucks.

Clearly, the claims and history here are both terribly convoluted, several companies – and therefore employees working there – have been affected, and so much time and money has been invested by all parties involved.

“It was wrong for him to take all of these files, and it erases the contributions of many, many other people that have also put their blood, sweat and tears into this project that makes a safer self-driving car. When someone as brilliant as Mr. Levandowski and as focused on his mission to create self-driving cars to make the world safer and better, and that somehow excuses his actions, that’s wrong.” – from closing statement of Katherine Wawrzyniak, Prosecutor for the US Justice Department

Part of the issue appears to be the number of ventures Levandowski was working on at the same time, and overlapping technologies. It seems work that had already been done was just too tempting not to build off of, and that there was no clear delineation – especially in his mind, or he just didn’t care – between what was Levandowski’s IP and what wasn’t. Truthfully, Levandowski’s transgressions are a rather common issue, as some engineers in software, technology, and similar innovative fields often feel they should receive more compensation than what they agreed to do the work for; if that compensation comes from taking their work or company-owned information and starting their own business, so be it. All companies should be concerned about the security of their intellectual property, and Weinberger Law can help you put in place the proper protections for your company in general, and certain projects when necessary.


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