A University of Utah professor has pleaded not guilty to viewing child pornography on his laptop during a flight from Salt Lake City to Boston.

Grant Smith, of Cottonwood Heights, Utah, was ordered held on $75,000 bail Monday and told to have no unsupervised contact with children.

Massachusetts State Police say the 47-year-old Smith was sitting in first class Saturday afternoon when another passenger saw pornographic images, alerted a flight attendant and emailed a relative who contacted law enforcement.

Smith was arrested after landing on a charge of possession of child pornography. His lawyer says he has no criminal record.

Smith is a professor in the materials science and engineering department at Utah. He has been placed on administrative leave.

Labaton Sucharow LLP filed a class action lawsuit on October 26, 2011 in the U.S. District Court for the Northern District of California. The lawsuit was filed on behalf of purchasers of OmniVision Technologies, Inc. common stock between August 27, 2010 and October 13, 2011, inclusive (the "Class Period").

The action charges OmniVision and certain of its officers with violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. The Complaint alleges that, throughout the Class Period, the Company's financial results were artificially inflated by virtue of the fact that the Company had concealed the loss of its exclusive contract with Apple Inc. ("Apple") to supply imaging sensors for Apple's celebrated iPhone.

OmniVision is a designer and manufacturer of image sensors that are used in digital cameras to convert optical images into electronic signals. OmniVision is one of the leading suppliers of complementary metal-oxide-semiconductors ("CMOS") sensors used in mobile telephones. The Complaint alleges that OmniVision failed to disclose that: (a) it had lost its lucrative, high-profile, and exclusive contract with Apple; (b) competition was eroding its "leadership position" in the smartphone industry; (c) delays in the development of its 8-megapixel product line were threatening its prospects; and (d) it lacked a reasonable basis for its statements about its bright prospects in the smartphone market.

On August 25, 2011, OmniVision announced its results for the fiscal first quarter of 2012 and provided guidance for the fiscal second quarter of 2012 that was well below analyst expectations. The Company also disclosed delays in the production of its new 8-megapixel product line. Based on the Company's disappointing guidance, analysts recognized that OmniVision would not be the exclusive producer of camera components for Apple's new, fifth generation iPhone--the iPhone 4S--set for release in the fall of 2011. As a result of these revelations, OmniVision's stock declined $7.55 per share, or 30.4 percent, to close at $17.27 per share on August 26, 2011 on extraordinary trading volume.

On October 14, 2011, the iPhone 4S became available for sale and for disassembly. Based on a logo stamped on the inside of the camera sensor, experts determined that Sony--and not OmniVision--had supplied the CMOS sensor for the iPhone 4S. In reaction to this news, OmniVision's stock fell $1.65 per share, or 9.3 percent, to close at $15.95 per share on October 14, 2011 on high trading volume.

On October 14, 2011, the iPhone 4S became available for sale and for disassembly. Based on a logo stamped on the inside of the camera sensor, experts determined that Sony--and not OmniVision--had supplied the CMOS sensor for the iPhone 4S. In reaction to this news, OmniVision's stock fell $1.65 per share, or 9.3 percent, to close at $15.95 per share on October 14, 2011 on high trading volume.

If you are a member of this Class you can view a copy of the complaint and join this class action online at http://www.labaton.com/en/cases/Newly-Filed-Cases.cfm.

Labaton Sucharow LLP, with offices in New York, New York and Wilmington, Delaware, is one of the country's premier law firms representing institutional investors in class action and complex securities litigation, as well as consumers and businesses in class actions seeking to recover damages for anticompetitive practices. The Firm has been a champion of investor and consumer rights for more than 45 years, seeking recovery of current losses and necessary governance reforms to protect investors and consumers. Labaton Sucharow has been recognized for its excellence by the courts and its peers. More information about Labaton Sucharow is available at www.labaton.com.

A key member of the legal team defending John Edwards against campaign finance charges will not represent the former Democratic presidential candidate at his upcoming trial following questions about a potential conflict of interest.

A motion filed by federal prosecutors says Raleigh defense lawyer Wade Smith will withdraw. The move comes after prosecutors questioned whether Smith had a conflict of interest due to a 2009 conversation with a financial advisor for Bunny Mellon, a wealthy socialite who provided the bulk of nearly $1 million used to support Edwards' pregnant mistress, Rielle Hunter, as he ran for president in 2007.

According to the government, Smith told Mellon's advisor that Edwards knew the money was intended to help him. That appears to conflict with statements by Edwards that he knew nothing of the payments.

Edwards is charged with six felony and misdemeanor counts related to campaign finance violations. He has pleaded not guilty. A trial is scheduled to begin in January.

Smith is among the most well-known defense lawyers in North Carolina, with a list of previous clients that includes members of the Duke University lacrosse team cleared of charges they gang-raped a stripper.

The U.S. Equal Employment Opportunity Commission has sued a national insurance company, contending the firm violated federal law by refusing to hire a North Carolina man after he disclosed he was participating in a methadone treatment program for a drug addiction.

The suit was filed Tuesday in U.S. District Court in Raleigh against United Insurance Co. of America, said EEOC attorney Lynette Barnes.

The complaint argues the firm violated federal disability discrimination law by refusing to hire Craig Burns, 30, who applied for a job in the firm's Raleigh office in December of 2009. The firm made a conditional offer of employment to Burns the following month, depending upon his passing a drug test, the complaint said.

The test showed the presence of methadone in his system, so Burns submitted a letter to the firm from his treatment provider saying he was participating in a supervised methadone treatment program and taking legally prescribed medication as part of the treatment, the complaint said.

Upon receiving this information, United Insurance notified Barnes he was not eligible to be hired and withdrew the employment offer, the complaint said.

Barnes said the action violates the Americans With Disabilities Act, which protects employees and applicants from discrimination based on their disabilities. A recovering drug addict is covered under the act, the attorney said in an interview.

On July 19, 2011, the Indiana Court of Appeals issued a decision which I found surprising in McCann v. City of Anderson, ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 48A02-1009-PL-1060. At issue was whether a trial court had properly granted summary judgment on the question of whether a warrant officer was an employee of the Anderson City Court. Despite the procedural posture of the case and factors that weighed in favor of finding an employer-employee relationship, the Court affirmed a decision granting summary judgment to the defendants.

In this case, McCann was a police officer, who eventually became warrant officer for the Anderson City Court in 1998. He held that post until 2005, when the judge asked that McCann be reassigned. As a result of this dismissal, McCann filed suit based on the Indiana Wage Statute, arguing that he had been an employee of the Court and was entitled to funds that had been allocated to the position of warrant officer by that court. The parties filed cross-motions for summary judgment and the trial court granted the defendants' motion.

On appeal, the Court quoted GKN Co. v. Magness, 744 N.E.2d 397, 402 (Ind. 2001), for the seven factors that a court should consider when determining whether an employer-employee relationship exists. The Court then analyzed each of these factors and determined that three weighed in favor of the existence an employer-employee relationship and four against, with the "most important" factor weighing against.

Thus, over all, four of the seven factors, including the most important, "Control over the Means Used," indicate McCann was not an employee of the City Court. Because the City Court was not McCann's employer, he cannot be due any "unpaid wages" from the City Court. Therefore, he cannot assert a claim against the City Court under the Indiana Wage Statute.

The aspect of this decision that is most surprising is that the Court reached this conclusion despite the procedural posture of the case. It could have easily held that, viewing the facts in the light most favorable to McCann, the seven factors weighed both for and against a finding of an employer-employee relationship between McCann and the City Court created a genuine issue of material fact. This indicates that the factor the Court identified as being "most important", whether the purported employer exercised control over the means used by the purported employee to perform work, is very important indeed.

Lesson:

1.It will be exceedingly difficult to prove the existence of an employer-employee relationship if the purported employer did not exercise control over the means that the purported employee used to perform his work.

Brad A. Catlin
Price Waicukauski & Riley, LLC

http://www.indianalawupdate.com/entry/When-is-a-Person-an-Employee-of-Another

On June 8, 2011, the Indiana Court of Appeals demonstrated it is serious about enforcing the Rules of Appellate Procedure in Garrard v. Teibel, Cause No. 45A04-1003-PL-229, a memorandum decision, uncitable as authority under App. R. 65(D). In this case, a pro se appellant failed to include any statement of the case after 2007 (although summary judgment proceedings occurred in 2009) and failed to include any of the designated evidence from the summary judgment proceedings in his appendix. The Court found that the pro se appellant had waived all arguments on appeal and affirmed the trial court's order.

Lessons:

1.Although the Court cuts people a lot of slack in the form and content of their brief, its generosity has bounds.

Brad A. Catlin
Price Waicukauski & Riley, LLC