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Seller beware: In-app purchases by minors may constitute unique, voidable contracts
When an app is purchased, a contractual relationship is created between the company selling the app and the user, even when the app is “sold” for free. But does that mean that the company selling the app also creates contractual relationships with those who subsequently use the app? According to a recent opinion by the…
There’s an app for that
By Nathan Whatley These days, there seems to be a smartphone application for just about anything. Want to track the distance of a golf shot? There’s an app for that. Can’t remember the title of that song playing on the radio? There’s an app for that. Need to transform your phone into an instant flashlight?…
Oklahoma Purchase and Sale Issues for Buyers
By Rob Garbrecht This article will familiarize the reader with some of the unique issues, local laws, and customary practices that should be considered in connection with the acquisition of commercial real estate in Oklahoma. Real estate continues to be one of the substantive areas of the law where it remains critical to get the…
OAPA Appeals: Administering Success
By Jason A. McVicker The 20th century saw the radical changes in the way Americans live and work. Industrialization confounded lawmakers, judges and the executive branch alike. Administrative agencies developed to fill the gap. By fusing quasi-legislative and quasi-judicial power with executive authority, an administrative agency could solve modern problems more effectively than traditional state…
Interlocutory Orders Appealable by Right
By Michael F. Smith and Alison A. Verret No one likes to think about, much less plan for, a worst-case scenario. However, your clients’ appellate options should be a critical part of your pretrial and trial strategy. There are certain interlocutory, or non-final,[1] orders which are immediately appealable by right without the necessity of waiting…
I accept!
By Rachel Blue So, you’re ready to launch your new online business or mobile app. The website looks great, and the app tile has an elegant, simple design that’s sure to stand out on phone and tablet screens. Missing anything? Oh, yeah, that boring stuff that no one reads anyway…the terms of service. Pull up…
DOL, NLRB weigh in on classification status of gig economy workers
While temporary positions, such as freelancing and seasonal jobs, have been around forever, the “gig economy” – the sector of the service industry that provides flexible, non-traditional working opportunities – has grown exponentially within the last decade. While most gig workers consider themselves independent contractors given the flexibility and independence the jobs provide them, there’s…
One size doesn’t fit all for online terms of service
While many online users often pay little attention to a website or app’s terms of service, quickly clicking “I Accept” to access the content or buy a product, the owners of such sites should pay very close attention when crafting those terms because one size does not fit all. That’s the advice of McAfee & Taft…
Liquidated Damages in Purchase and Sale Agreements: Oklahoma
By H. Cole Marshall A buyer and seller of real estate will often include a liquidated damages provision in the purchase and sale agreement as a means for stipulating the amount of damages the seller will receive in the event of a breach of the agreement by the buyer. This article addresses issues specifically related…
Yes, even your IT systems are susceptible to COVID-19
Current events have often been used for malicious IT attacks, and COVID-19 is unfortunately no different. With the recent uptick in coronavirus cases has come an uptick in email spam, ransomware, malicious domains, and other attacks using the coronavirus pandemic in attempts to compromise business IT systems and personal information. IBM researchers are credited with…
#BeCyberSmart: I am not a robot … or a hacker. Principles of Identity Authentication
Here’s the traditional, not so secure way to log in to your bank account: enter your username and that familiar password you probably use for most of your online accounts. Then, you’re in. But, if you’re one of the 54% of consumers who, according to TeleSign, use five or fewer passwords for all of their…
Collateral damage or collateral opportunists?
By Mark Christiansen The oil spill that began in April 2010 at the Deepwater Horizon rig in the Gulf of Mexico gave rise to lawsuits of many types related to the direct impacts and consequences of the incident itself. However, the litigation fallout from the tragic event also extended into disputes over certain collateral issues….
Consumer Protection in 2014: A Review of Recent FTC Consumer Protection Measures and Trends to Watch Out for in the New Year
By Brandon L. Buchanan and Zachary A.P. Oubre The Federal Trade Commission (FTC or Commission), turns 100 years old this year and has come a long way since trust-busting on behalf of President Woodrow Wilson. In 2012 and 2013, there was a dramatic increase in the amount of monetary relief sought by the FTC and…
Strategies for effectively settling the eminent domain action on behalf of the landowner
Before counsel can effectively design a strategy for the owner in a condemnation dispute, there are three concepts that overlay every fight. A lawyer must understand the legal bases and limitations that exist on the right to take. Next, you must understand all damages an owner is and is not entitled to collect. Finally, you…
Aviation Litigation
McAfee & Taft trial lawyers have successfully represented clients of all sizes – from individual owners and operators of aircraft to airlines and aircraft manufacturers – in a broad range of disputes and controversies involving the aviation industry. Our collective experience includes representing clients in business and commercial disputes, defending pilots and mechanics in enforcement…
What You Need to Know About Data Privacy and Cybersecurity: Mitigating and Responding to Data Breaches
2020 was among the worst years on record for cyberattacks and data breaches. Recent data from Risk Based Security revealed that the number of records exposed has increased to a staggering 36 billion in just the first three quarters of 2020. In this third installment of our Q&A video series focused on “What You Need…
Appeals court continues narrow interpretation of Oklahoma’s non‑solicitation statute
By Philip R. Bruce Dealing with departing employees can be tricky. That’s why many companies require certain employees — particularly those with access to confidential or proprietary company information or customers — to sign written agreements that prohibit them from engaging in various acts of unfair competition after they leave the company. While Oklahoma law…
Prohibited hiring trumps retaliation claim
By Charlie Plumb What happens when a fired employee sues her former employer for retaliatory discharge when, according to Oklahoma law, she never should have been hired in the first place? An Oklahoma Court of Civil Appeals’ decision recently sorted out that question. Workers’ comp retaliation The Oklahoma Workers’ Compensation Act prohibits an employer from…
Misconduct at off-site party may qualify as workplace harassment
Is an employer liable for the misconduct of its employees at “after hours” gatherings? When a trial court adopted a narrow view of what constituted “the workplace,” an appeals court weighed in using a “totality of the circumstances” test. Party, after-party, and after-party complaints Kelly Phelps worked as a server at a state park restaurant…
Preventing data breaches
By Anna Wolfe The risk data breaches and cyberattacks pose to small businesses cannot be overstated. Roughly half experienced a breach within the past year at an average cost of $665,000 and immeasurable lost revenue. Worse yet, approximately 60 percent of those businesses will close within six months of the breach. Despite these stark realities,…
Are off-site injuries covered by workers’ comp in Oklahoma? It depends.
Over the years there has been a steady stream of cases involving employees who have filed workers’ compensation claims after being injured away from the employer’s premises. Sometimes it was difficult to determine whether the off-site injury was compensable. Changes to Oklahoma’s laws sought to clarify this question, and two recent cases provide employers with…
Whistle-blowing and wrongful discharge claims
By Charlie Plumb The Oklahoma Legislature has passed, and our governor has signed, a new law effective November 1, 2011, that will put an end to wrongful discharge claims stemming from employment discrimination based on race, color, national origin, sex, religion, creed, age, disability, or genetic information. Still viable, however, will be Oklahoma wrongful discharge…
Employment arbitration in Oklahoma: Two new cases
It’s a continuing wonderment to us that more employers don’t use mandatory arbitration programs in the workplace. (I bet Novartis wishes it had one after being hit for $250 million in punitive damages in a gender discrimination case on May 19.) Arbitration programs are lawful (at least until Congress decides otherwise) and generally provide significant cost…
OSHA’s dos and don’ts for mandatory COVID-19 testing of unvaccinated employees
Beginning February 9, 2022, large employers will have to implement the COVID-19 testing requirements of the OSHA ETS. If employers implement a vax-or-test policy, they must comply with the weekly testing requirements and implement a weekly COVID-19 testing program for unvaccinated workers. If employers choose a mandatory vaccination policy, employers would still have to implement…
Stark: A stagnant law for an evolving industry
By Michael E. Joseph The Stark Law was originally enacted by Congress in 1989 as the Ethics in Patient Referrals Act. Initially, it prohibited a physician from referring Medicare beneficiaries to clinical labs in which the physician had an ownership interest or other financial relationship. The government had substantiated that physicians with interests in clinical…
Five tips on preventing workplace violence
By Phil Bruce Acts of workplace violence have, unfortunately, become all too common. Workplace violence can include anything from minor physical altercations and threats to tragic and brutal attacks or shootings. For employers, preventing workplace violence can often seem like walking a tightrope between protecting people and avoiding (or defending) a lawsuit. For example, Phillip…
Oklahoma employer not responsible for workplace prank
By Charles S. Plumb Car dealerships must be a Mecca for pranks. The combination of substantial periods of downtime with a lively sales staff leads to workplace fun. But what happens when things turn ugly, and someone gets hurt? Does the employer bear any responsibility? High jinks among the Chevys Doug Baldwin was the new…
Charging order protection for a single member LLC may still be illusory
By Steven P. Cole On Nov. 30, 2009, in Arrington v. Kruger,[1] the Oklahoma Court of Civil Appeals issued an opinion which, on its face, vigorously supports the use of single member limited liability companies (LLCs) for asset protection due to Oklahoma’s restrictive charging order statute.[2] The Arrington opinion is so clear and debtor friendly,…
Cursing employee denied unemployment benefits
By Charles S. Plumb Hard to believe, but this spring was the first time an Oklahoma case answered the question whether offensive language directed by an employee toward a supervisor disqualifies the fired employee from receiving unemployment benefits. Like many employment questions, the answer is not as clear cut as you might expect. Throw-down at…
Wind law and negotiations from a landowner’s perspective
By Jeff L. Todd . Introduction As a result of environmental concerns over the growing consumption of fossil fuels and the implementation of incentives for alternative energy sources, “wind farms” have been sweeping the plains. State and federal tax credits and other incentives for renewable energy helped drive financial resources to support and grow the…
Injured employee testing positive for marijuana awarded workers’ compensation benefits
With Oklahoma’s new medical marijuana laws, employers will be facing more workplace questions involving marijuana. A recent Oklahoma Court of Civil Appeals decision awarding workers’ compensation benefits to an injured employee who tested positive for marijuana highlights an issue which will confront Oklahoma employers in the future. Marijuana, the job and the injury At 11:00…
EEOC forced to put its money where its mouth is
By Natalie Ramsey It’s no secret that in recent years, the Equal Employment Opportunity Commission (EEOC) has taken a more aggressive approach with the charges that come through its doors. It’s now apparent that the agency often presses its lawsuits a bit too far, leading courts to conclude its claims are “frivolous, unreasonable, or without…
Tattoos, unemployment benefits and firings for misconduct
By Charlie Plumb Have you been frustrated in the past with employees who were fired but nonetheless received unemployment benefits? A recent Oklahoma Court of Appeals case offers insight on the uphill battle Oklahoma employers face when contesting a claim for unemployment benefits by an employee who was terminated for misconduct. The tattoo regulator Ted…
Facebook posts and firing of Oklahoma worker leads to wrongful discharge claim
Under Oklahoma law, employees who are terminated from their jobs in violation of Oklahoma public policy may, in some cases, file a wrongful discharge lawsuit against their former employer. Increasingly these lawsuits involve claims that an employee acted as a “whistleblower” by reporting wrongdoing on the part of their employer through social media. Tracy Peuplie worked…
What does an Oklahoma whistleblower have to prove?
Under some circumstances, Oklahoma law recognizes that a former employee may sue their employer for wrongful discharge if they were fired for performing an act consistent with Oklahoma public policy. One example is “whistleblower” lawsuits. In those cases, the whistleblower claims they were fired because they reported some sort of wrongdoing or illegal act on…
Fixing Oklahoma’s insurable interest laws
By Steven P. Cole and Gary F. Fuller The insurable interest provisions of the Oklahoma Insurance Code [1] are flawed. The flaw was exposed by the Chawla cases consisting of the decision of the United States District Court for the Eastern District of Virginia,[2] and, on appeal, the decision of the United States Court of…
Oklahoma Legislature looks to pass numerous new consumer privacy laws
In a January 22nd article titled “Oklahoma the latest state to consider consumer data privacy legislation,” we discussed House Bill 1602, a recently proposed bipartisan bill that, if passed, would require certain companies to obtain prior consent before using, processing or selling data collected from Oklahoma consumers online. Last week, that bill and many others…
Psychological injuries without physical injuries are not compensable
By Charlie Plumb In some cases, employees who have suffered an emotional or psychological injury in the course of their job may seek benefits under Oklahoma’s Workers’ Compensation Act. However, a recent Oklahoma Court of Civil Appeals decision reinforces the fact that psychological or emotional claims are only successful when linked to a compensable physical…