Walmart tests iPhone app checkout feature

BENTONVILLE, Ark., Thu Sep 6, 2012 – Wal-Mart Stores Inc. is testing a system that would allow shoppers to scan items using their iPhones and then pay at a self-checkout counter, a move that could trim checkout times and slash costs for retailers.

If the “Scan & Go” test by the world’s largest retailer is successful, it has the potential to change the way people shop and pay, making the process more personal and potentially faster.

Earlier this week, Walmart invited employees with Apple Inc. iPhones to participate in a test at a Walmart supercenter in Rogers, Ark., near the company’s headquarters, according to a form on the Survey Monkey website.

“All of the effort is to speed your way through the checkout so that we can reduce costs and improve the shopping experience,” said Paul Weitzel, managing partner at retail consulting firm Willard Bishop, who said he had not seen Wal-Mart’s test. “With smartphones and improved technology we’re only going to see more of this.”

The test comes months after Wal-Mart said that it would add more self-checkout lanes at its Walmart and Sam’s Club stores as it continues to look for ways to lower costs and prices for its shoppers.

Pushing more shoppers to scan their own items and make payments without the help of a cashier could save Wal-Mart millions of dollars, CFO Charles Holley said on March 7. Wal-Mart says it can save $12 million a year for every second it can cut from the average checkout time at the Walmart chain in the United States.

Two jurors drop out of Gupta insider-trading trial

NEW YORK, Tue May 29, 2012 – Two jurors have dropped out of the insider-trading trial of former Goldman Sachs Group Inc. board member Rajat Gupta, who is charged with giving corporate secrets to imprisoned hedge fund manager Raj Rajaratnam.

Both were excused from the 12-person jury in Manhattan federal court because of family emergencies. The place of Juror No. 12, a professor of strategic design and behavior, was taken on Thursday by one of four alternates, a retired librarian. Juror No. 4, an executive assistant at a hospital, was excused on Tuesday and replaced by another alternate, a marketing manager for a publishing firm.

Gupta, 63, a former global head of management consulting firm McKinsey & Co, is the most prominent corporate figure indicted in the U.S. government’s broad crackdown on insider trading in recent years. He is charged with tipping Rajaratnam between March 2007 and January 2009 while he was a director of Goldman Sachs and Procter & Gamble Co.

Gupta has pleaded not guilty and argues that the prosecution’s evidence is circumstantial.

Galleon Group hedge fund founder Rajaratnam, 53, was convicted a year ago on evidence largely based on court-approved wiretaps of his phones. He is appealing the use of wiretaps as he serves an 11-year prison term, the longest handed down for insider trading in the United States.

Gupta’s trial began last week and is expected to run about three weeks. To convict him of insider trading, the jury must be convinced beyond a reasonable doubt that he breached his fiduciary duties and that he did it intentionally and in anticipation of at least some modest benefit in return.

Google did not infringe Oracle patents: jury in smartphone trial

SAN FRANCISCO, Wed May 23, 2012 – Google Inc.’s Android mobile platform has not infringed Oracle’s patents, a California jury decided in a high stakes trial fought by the two Silicon Valley giants over smartphone technology.

The verdict was delivered on Wednesday in a San Francisco federal court, and confirmed by a Google spokesman. An Oracle attorney declined to comment on the decision.

Because the same jury could not unanimously agree on the copyright allegations earlier in the case, the latest verdict on patents effectively puts an indefinite hold on Oracle’s quest for damages. Oracle at one point was seeking roughly $1 billion in damages.

The jury found earlier that Oracle had proven copyright infringement for parts of Java. But the jury could not unanimously agree on whether Google could fairly use that material.

Oracle sued Google in August 2010, saying Android infringes on its intellectual property rights to the Java programming language. Google says it does not violate Oracle’s patents and that Oracle cannot copyright certain parts of Java, an “open-source” or publicly available software language.

Without a finding against Google on that fair use question, Oracle cannot recover damages on the bulk of its copyright claims.

Gupta insider-trading trial jury told of ‘top secret’ Buffett deal

NEW YORK,Wed May 23, 2012 – The deal that gave Goldman Sachs Group Inc. a $5-billion boost from renowned investor Warren Buffet at the height of the 2008 financial crisis was “as top secret as you could get,” a leading banker testified on Wednesday at the insider-trading trial of onetime Goldman board member Rajat Gupta.

Gupta is accused of tipping Galleon hedge fund founder Raj Rajaratnam about the deal in an illegal breach of his fiduciary duties.

Separately, a prosecutor told the judge on Wednesday, during a jury break, that a Goldman managing director, David Loeb, provided Rajaratnam with information about Intel Corp., Apple Inc. and Hewlett Packard.

Loeb’s name also came up Tuesday in evidence to the Manhattan federal court jury hearing the Gupta trial. A key defense argument is that Rajaratnam had sources other than Gupta to provide him confidential company information.

Loeb has not been charged. A Goldman spokesman declined to comment.

Former Goldman banker Byron Trott, a long-time Buffett confidant, told the jury that it was policy within a tightly-knit group of executives who negotiated such deals “never to talk about confidential information in public, or elevators. It was grounds for being fired.”

Oracle kicks off busy trial season against Google

SAN FRANCISCO, Fri Apr 13, 2012 – Oracle Corp is set to go to trial next week against Google Inc in a high-stakes dispute over smartphone technology, the biggest case in what is shaping up to be an intense year in court for the enterprise software giant.

Jury selection is set for Monday in San Francisco federal court. Oracle claims Google’s Android operating system tramples on its intellectual property rights to the Java programming language. Google says it doesn’t violate Oracle’s patents, and that Oracle cannot copyright certain parts of Java.

The case is the first of four big tech trials involving Oracle scheduled for the next few months – three in Northern California, and one in Nevada.

The others include one set for the end of May against Hewlett-Packard over the Itanium microprocessor, a retrial against SAP AG in June over alleged copyright infringement, and another copyright case against smaller competitor Rimini Street expected later in the year.

Fighting so many court battles back-to-back could be distracting for Oracle Chief Executive Larry Ellison and other top executives, not to mention costly, as legal fees pile up.

Yet, observers say it’s not surprising that Oracle would be so aggressive in court, pointing to Ellison’s reputation as unyielding. He once sued the city of San Jose — and won — when it tried to impose a curfew on his private jet.

And while risky, Oracle’s strategy could pay off if it succeeds in winning damages at trial, particularly in the Google case given the growing market for Android-powered devices.

“The real question is, does Oracle get a piece of Android, or not?” said Tyler Ochoa, a copyright professor at Santa Clara Law in Silicon Valley. “The money is so large we can see why they are willing to spend a lot of money fighting over it.”

An Oracle spokeswoman declined to comment about how the multiple trials impact top management.

Memory of accused swindler Stanford is impaired, witnesses say

HOUSTON ― Financier Allen Stanford is suffering from brain injury and memory loss, witnesses said on Wednesday at a hearing on whether the accused swindler can stand trial.

Stanford is accused of defrauding his investors with a $7 billion Ponzi scheme. His lawyers argue he is not competent to go to trial because a jailhouse fight has left him with severe memory loss.

“Mr. Stanford is not competent to stand trial today,” said forensic psychologist Victor Scarano, one of three doctors who testified for the defense on Wednesday.

On Tuesday, a prison psychologist testified that Stanford was competent.

The hearing goes into a third day on Thursday. Judge David Hittner, who must decide whether Stanford’s trial on fraud charges can go ahead as scheduled on Jan. 23, said he would make a quick decision. Stanford has pleaded not guilty to the charges.

Stanford, 61, sat quietly at the defense table during Wednesday’s proceedings. Hittner allowed his handcuffs to be removed so he could take notes to communicate with his lawyers.

While Scarano testified that Stanford would be unable to analyze documents in a fraud trial, Assistant U.S. Attorney Gregg Costa noted that Stanford had been able to file a lawsuit against the government during the time doctors said he was incompetent.

Stanford “fooled investors for 20 years. Why couldn’t he fool a few doctors,” Costa said.

Stanford once owned luxury homes in the Caribbean, Houston and Miami. He was arrested in June 2009 and has been indicted on charges of fraud, conspiracy and money laundering stemming from the alleged Ponzi scheme. A Ponzi scheme is a fraud in which existing investors are paid with the deposits of newer ones.

How to position your company for an appeal if a trial verdict goes against you

Chris Kratovil, Member, Dykema Gossett PLLC

If your business has been sued, no matter how strong your defense, there is always a chance that a jury will rule against you. And you have to be prepared for that possibility.

If you plan to appeal a judgment against you, the time to begin to position yourself for appeal is before the trial even begins, says Chris Kratovil, member, Dykema Gossett PLLC.

“The reality is, once you’ve lost a jury verdict, if it’s not too late to start the process, then it is certainly very late in the game and not the optimal position to be in,” says Kratovil. “Securing a bond to postpone execution of the judgment is something to be addressed at the outset, rather than at the back end of the trial.”

Smart Business spoke with Kratovil, an experienced appellate attorney, about how to prepare up front to put yourself in the best position for an appeal.

Shouldn’t a company that’s been sued be thinking about winning, not losing?

When a company goes into high-stakes litigation, when trial is at hand, there is a reasonable possibility that it is going to lose. Everyone hopes for victory in the trial court, but if you get through the motion to dismiss stage, the summary judgment stage and all the way to trial, by definition, it is a close case. If you had an ironclad defense, the case would not make it all the way to trial. And if you get the wrong jury on the wrong day, you may lose.

What happens when a judgment is entered against a company?

When you lose and a judgment is entered against you, you are suddenly facing a very substantial liability, often up to seven or eight figures. And that judgment generally becomes executable and enforceable just 30 days after it is signed.

So after just 30 days, there is the possibility that constables will show up at your business with a writ of execution to seize property, or the plaintiff may obtain a writ of garnishment and come after your back account.  And there is nothing more disruptive to a business than enduring these sort of judgment enforcement procedures. For example, if a company gets hit with a writ of garnishment on its primary operating bank account, it can’t conduct normal business transactions.

The key point is that once a judgment is entered by a trial court against your company, it becomes enforceable very quickly. A prudent company should start thinking about how to prevent that enforcement before the judgment even exists, and the best was to do so is with a supersedeas bond.

How does a supersedeas bond work?

Many people think that the mere fact that you filed an appeal suspends enforcement of the judgment, but that is not the case in either federal or state court. Merely filing an appeal doesn’t mean you get to delay paying the judgment until after the appeal is over. You need to post a bond to prevent the judgment from being enforced while the appeal is pending. The bond supersedes, or suspends, the judgment against your company during the appeal.

Instead of a bond, a cash deposit can also suspend the judgment during the appeal. But, in my experience, most companies lack the liquid assets to simply write a check for the full amount of the judgment against them.

A company facing a substantial judgment can always resort to bankruptcy, but that is the nuclear option and carries with it a broad array of negative consequences. If you want to avoid bankruptcy while pressing forward with your appeal, the best option is a supersedeas bond.

When should that bond be posted?

It has to be done at the outset of the appeal. But in the current economy, it is a difficult and slow process to get a bond. You have to reveal an awful lot of financial information, because you are coming from a position of weakness, and you are at the mercy of the surety company. If the surety is going to write a bond for you, you have to provide whatever information they want and you have to provide it promptly.

The surety is looking for the ability to repay that bond because, should you lose the appeal, the plaintiff will go after the bond, and the surety wants to make sure you can repay that.

How can a company make that process a little easier?

If you are on the cusp of a trial in a significant case, do not assume you are going to win. Game out the worst-case scenario and be prepared for it. It is truly an existential crisis for many businesses when they get hit with a big judgment because, more often than not, they haven’t done a good job planning for it. They haven’t put the wheels in motion to get a bond, so it’s a mad scramble to get it posted within that short 30-day ‘grace period’ before the constables show up and execute.

What is the role of the attorney in securing a bond?

The attorney can flag the issue for you and make you aware of it well before trial. He or she can put you in touch with sureties and can help explain the case to the bond writers. But, ultimately, the due diligence is between your company and the surety; trial counsel and appellate counsel play, at best, a supporting role.

Don’t whistle past the graveyard and pretend that there is no chance you are going to lose at trial. If you lose at trial and you want to appeal, you are going to need a bond. Always be thinking two, three, four moves in advance. The trial process is a grueling ordeal, but you need to keep your eye on what comes after it. Getting a handle on this supersedeas bond process prior to trial is a classic example of hoping for the best and preparing for the worst.

Chris Kratovil is a member at Dykema Gossett PLLC. Reach him at (214) 462-6458 or [email protected]